Araneta v. Dinglasan

En Banc], citing Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994), citing Luz Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA 51 (1990); Dumlao v. Commission on Elections, 95 SCRA 392 (1980); and, People v. Vera, 65 Phil. 56 (1937). 3 Id. 4 Id.

5 Id. 6 Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 632-633 (2000) [Per J. Kapunan, En Banc], citing Joya v. Presidential Commission on Good Government, 225 SCRA 568, 576 (1993). 7 Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000) [Per J. Kapunan, En Banc], citing Baker v. Carr, 369 U.S. 186, 82 S. Ct.

691, 7 L. Ed. 2d 663, 678 (1962). 8 Lozano v. Nograles, 607 Phil. 334, 343-344 (2009) [Per C.J. Puno, En Banc]. 9 Funa v. Villar, 686 Phil. 571, 586(2012) [Per J. Velasco, Jr., En Banc], citing David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 161.

10 Id. 11 Id. 12 Id.

13 Araneta v. Dinglasan, 84 Phil. 368, 373 (1949) [Per J. Tuason, En Banc]. 14 CORP. CODE, sec.

36(1) provides: SECTION 36. Corporate Powers and Capacity. - Every corporation incorporated under this Code has the power and capacity: 1.

To sue and be sued in its corporate name. 15 CORP. CODE, sec.

23 provides: SECTION 23. The Board of Directors or Trustees. - Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for one (1) year until their successors are elected and qualified.

Every director must own at least one (1) share of the capital stock of the cqrporation of which he is a director, which share shall stand in his name on the books of the corporation. Any director who ceases to be the owner of at least one (1) share of the capital stock of the corporation of which he is a director shall thereby cease to be a director. Trustees of non-stock corporations must be members thereof.

A majority of the directors or trustees of all corporations organized under this Code must be residents of the Philippines. 16 See The Executive Secretary v. Court of Appeals, 473 Phil. 27, 51 (2004) [Per J. Calleja, Sr., Second Division]. 17 Rollo, p.

36, Secretary's Certificate. 18 Id. at 35, Secretary's Certificate.

19 Id. at 2575-2576, Memorandum for Petitioner. 20 392 Phil. 618 (2000) [Per J. Kapunan, En Banc].

21 Id. at 633. 22 Id.

at 633-634. 23 See Justice Ynares-Santiago's Dissenting Opinion in People v. Lacson, 459 Phil. 330, 372 (2003) [Per J. Callejo, Sr., En Banc]. 24 See Ynot v. Intermediate Appellate Court, 232 Phil. 615, 621 (1987) [Per J. Cruz, En Banc].

25 For instance, on page 17-19 of its Petition for Injunction, petitioner Knights of Rizal raises the issue of whether the Torre de Manila is a nuisance per se. See Ramcar, Inc. v. Millar, 116 Phil. 825, 828-829 (1962) [Per J. J.B.L. Reyes, En Banc] where this Court held that "[w]hether a particular thing is or is not a nuisance is a question of fact[.]" 26 Ponencia, p.

15. 27 Kalipunan ng Mahihirap, Inc. v. Robredo, G.R. No. 200903, July 22, 2014 [Per J. Brion, En Banc]. 28 See People v. Cuaresma, 254 Phil. 418, 426-428 (1989) [Per J. Narvasa, First Division].

29 G.R. No. 205728, January 21, 2015 [Per J. Leonen, En Banc]. 30 Id. at 14.

31 Reyes v. Diaz, 73 Phil. 484,486 (1941) [Per J. Moran, En Banc]. 32 See Bokingo v. Court of Appeals, 523 Ph1l. 186, 196-197 (2006) [Per J. Callejo, Sr., First Division].

33 Batas Blg. 129, sec. 19(1) provides: SECTION 19. Jurisdiction in Civil Cases.

- Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation. 34 J. Jardeleza's Dissenting Opinion. 35 668 Phil. 1 (2011) [Per J. Carpio, En Banc].

36 343 Phil. 539 (1997) [Per J. Torres, Jr., En Banc]. 37 209 Phil. 1(1983) [Per J. Gutierrez, Jr., En Banc]. 38 Petitions for declaratory relief involve subject matters incapable of pecuniary estimation and, therefore, are under the exclusive original jurisdiction of the Regional Trial Courts.

See City of Lapu-Lapu v. Philippine Economic Zone Authority, G.R. No. 184203, November 26, 2014, [Per J. Leonen, Second Division]. 39 Gamboa v. Teves, 668 Phil. 1, 36 (2011) [Per J. Carpio, En Banc]; Salvacion v. Central Bank of the Philippines, 343 Phil. 539, 556 (1997) [Per J. Torres, Jr., En Banc]; Alliance of Government Workers v. Minister of Labor and Employment, 209 Phil. 1, 12 (1983) [Per J. Gutierrez, Jr., En Banc]. 40 Republic v. Estipular, 391 Phil. 211, 218 (2000) [Per J. Panganiban, Third Division].

41 Id. 42 Id. 43 De Castro v. Judicial and Bar Council, 629 Phil. 629,705 (2010) [Per J. Bersamin, En Banc].

44 Id. 45 Id. 46 Id.

47 Id. 48 J. Jardeleza's Dissenting Opinion. 49 J. Jardeleza's Dissenting Opinion.

50 J. Jardeleza's Dissenting Opinion. 51 CONST. art.

II, sec. 11 provides: SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.

Basco v. Philippine Amusement and Gaming Corporation, 274 Phil. 323, 343 (1991) [Per J. Paras, En Banc]. 52 CONST. art.

II, sec. 12 provides: SECTION 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.

It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Basco v. Philippine Amusement and Gaming Corporation, 274 Phil. 323, 343 (1991) [Per J. Paras, En Banc].

53 CONST. art. II, sec.

13 provides: SECTION 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

Basco v. Philippine Amusement and Gaming Corporation, 274 Phil. 323, 343 (1991) [Per J. Paras, En Banc]. 54 CONST. art.

XIII, sec. 1 provides: SECTION 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

Tolentino v. Secretary of Finance, G.R. No. 115455, August 25, 1994, 235 SCRA 630, 685 [Per J. Mendoza, En Banc]. 55 CONST. art.

XIII, sec. 13 provides: SECTION 13. The State shall establish a special agency for disabled persons for rehabilitation, self­development and self-reliance, and their integration into the mainstream of society.

Basco v. Philippine Amusement and Gaming Corporation, 274 Phil. 323, 343 (1991) [Per J. Paras, En Banc]. 56 CONST. art.

XIV, sec. 1 provides: SECTION 1. The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all.

Tolentino v. Secretary of Finance, G.R. No. 115455, August 25, 1994, 235 SCRA 630, 685 [Per J. Mendoza, En Banc]. 57 CONST. art.

XIV, sec. 2 provides: SECTION 2. The State shall: (1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society; (2) Establish and maintain a system of free public education in the elementary and high school levels.

Without limiting the natural right of parents to rear their children, elementary education is compulsory for all children of school age; (3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged; (4) Encourage non-formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-of-school study programs particularly those that respond to community needs; and (5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills. 58 316 Phil. 652 (1995) [Per J. Mendoza, En Banc], cited by Justice Jardeleza in his Dissenting Opinion. 59 Justice Feliciano's Separate Concurring Opinion in Oposa v. Factoran, G.R. No. 101083, July 30, 1993, 224 SCRA 792, 818 [Per J. Davide, Jr., En Banc].

60 Manila Prince Hotel v. Government Service Insurance System, 335 Phil. 82, 102 (1997) [Per J. Bellosillo, En Banc). 61 Id. 62 Id.

63 Id. 64 Rollo, p. 2491, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing Jose Rizal, letter to his family, "A mi familia,"

undated, believed to have been written in Fort Santiago in December 1896, National Library of the Philippines; translation by Jose Rizal National Centennial Commission, 1964. 65 Id. at 2492, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing Asuncion Lopez Bantug, Lolo Jose (Manila: Asuncion Lopez Bantug, Vibal Foundation, Inc., and Intramuros Administration, 2008), p.

165. 66 Id. at 2492, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing Bantug, pp. 168-169 and "Jose Rizal (Remains Interred),"

in National Historical Institute, Historical Markers, Metro Manila (Manila: National Historical Institute, 1993), p. 274. 67 An Act granting the right to use public land upon the Luneta in the city of Manila upon which to erect a statue of Jose Rizal, from a fund to be raised by public subscriptions, and prescribing as a condition the method by which such subscription shall be collected and disbursed.

68 An Act Appropriating Fifteen Thousand Dollars, United States Currency, For The Purpose Of Contributing To The Erection Of The Rizal Monument, And Authorizing The Insular Treasurer To Deposit The Funds Already Collected In A Bank To Draw Interest. 69 Rollo, p. 2492, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing Act No. 243 (1901) and Act No. 893 (1903).

70 Id. at 2492, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C. 71 Id. at 2492, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing "Prize Winners,"

Manila Times, 8 January 1908; "The Rizal Monument: Story of its Own Erection," Philippines International 8, 2 (June-July 1964): 4-8 and Ambeth R. Ocampo, "Much Ado about Torre: Rizal Asked Only for Cross on Tombstone," Philippine Daily Inquirer, 23 August 2015, A 1.

72 Id. at 2492-2493, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing Prize Winners," Manila Times, 8 January 1908; Ambeth R. Ocampo, "Much Ado about Torre: Rizal Asked Only for Cross on Tombstone,"

Philippine Daily Inquirer, 23 August 2015, A 1; and Juan F. Nakpil and Sons, Proposed Improvement of the Rizal Monument, Sheet A-1, Set 1/3,20 April 1961, NHCP Library. 73 Id. at 2493, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing Ambeth R. Ocampo, "Much Ado about Torre: Rizal Asked Only for Cross on Tombstone,"

Philippine Daily Inquirer, 23 August 2015, A 1; Bantug, p. 169; footnote to "De Rizal a su familia (sin firma ni fecha)," in Oficina de Bibliotecas Publicas, Documentos Rizalinos Regalados Por El Pueblo Español Al Pueblo Filipino (Manila: Imprenta Publica, 1953), p.

91; Austin Craig, Rizal's Life and Minor Writings (Manila: Philippine Education Co., Inc., 1927), p. 215; and Sunday Times, 28 December 1947, p. 12.

74 Id. at 2493, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing The Manila Times, 16 April 1963; The Chronicle magazine, 27 April 1963; and Juan F. Nakpil and Sons, Proposed Improvement of the Rizal Monument, Sheet A-1, Set 1/3,20 April 1961, NHCP Library. 75 Id.

at 2494, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing A. Ocampo, "Torre de Manila, Flap Repeats Itself," Philippine Daily Inquirer, 30 August 2015. 76 Id.

77 Id. at 2494, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing NHCP Board Resolution No. 5 s. 2013, "Declaring the Rizal Monument in Rizal Park a National Monument,"

15 April 2013, NHCP Records Section. 78 Id. at 2494, National Historical Commission of the Philippines Historical Notes on the Rizal Monument and Park, NHCP Memorandum, Annex C, citing National Museum, Declaration No. 9 2013, "Declaration of the Monument to Dr. Jose Rizal in Rizal Park, City of Manila as a National Cultural Treasure,"

14 November 2013. 79 Rep. Act. No. 4846, sec.

2. 80 Tañada v. Tuvera, 230 Phil. 528, 535 (1986) [Per J. Cruz, En Banc]. 81 ADM.

CODE, Book VII, Chapter 2, sec. 3(1) provides: SECTION 3. Filing.

- (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from that date shall not thereafter be the basis of any sanction against any party or persons. 82 CONST.

art. VII, sec. 21 provides: SECTION 21.

No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. 83 J. Jardeleza's Dissenting Opinion. 84 J. Jardeleza's Dissenting Opinion.

85 J. Jardeleza's Dissenting Opinion. 86 De Castro v. Judicial and Bar Council, 629 Phil. 629, 707 (2010) [Per J. Bersamin, En Banc], citing Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA 273. 87 Id.

88 Manila Ordinance 8119, sec. 60 provides: SEC. 60.

Deviations. - Variances and exceptions from the provisions of this Ordinance may be allowed by the Sangguniang Panlungsod as per recommendation from the Manila Zoning Board of Adjustment and Appeals (MZBAA) through the Committee on Housing, Urban Development and Resettlements only when all the following terms and conditions are obtained/existing: 1. Variance - all proposed projects which do not conformed with the prescribed allowable Land Use Intensity Control (LUIC) in the zone.

a. The property is unique and different from other properties in the adjacent locality and because of its uniqueness, the owner/s cannot obtain a reasonable return on the property. This condition shall include at least three (3) of the following provisions: - Conforming to the provisions of the Ordinance will cause undue hardship on the part of the owner or occupant of the property due to physical conditions of the property (topography, shape, etc.), which is not self created.

- The proposed variance is the minimum deviation necessary to permit reasonable use of the property. - The variance will not alter the physical character of the district/zone where the property for which the variance sought is located, and will not substantially or permanently injure the use of the other properties in the same district or zone.

- That the variance will not weaken the general purpose of the Ordinance and will not adversely affect the public health, safety, and welfare. - The variance will be in harmony with the spirit of this Ordinance. 89 J. Jardeleza's Dissenting Opinion.

90 TSN dated August 11, 2015, pp. 48-54. 91 RULES OF COURT, Rule 58, sec. 5 partly provides: SECTION 5.

Preliminary Injunction Not Granted Without Notice; Exception. - No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided.

Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. The Lawphil Project - Arellano Law Foundation [](javascript:history.back\(1\)) [](https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#top) CONCURRING OPINION TIJAM,J.: On 12 September 2014, the Knights of Rizal filed a petition for injunction directly with the Supreme Court to halt the construction of the Torre de Manila and have it demolished. Petitioner averred that once finished, said structure would completely dominate the vista of the Rizal Park and substantially diminish in scale and importance our national hero's monument.

It asserted that the project is a nuisance per se, constructed in bad faith and in violation of the City of Manila's zoning ordinance. Private respondent, however, argued that there is absolutely no law, ordinance or rule prohibiting the construction of a building, regardless of height, at the background of the Rizal Park and Rizal Monument, and that Republic Act No. 10066 (National Cultural Heritage Act of 2009) protects merely the physical integrity of national cultural treasures. It denied acting in bad faith and that the Torre de Manila is a nuisance per se.

On 25 November 2014, the Supreme Court resolved to treat the petition as one for mandamus, and to implead the City of Manila, the National Historical Commission of the Philippines, the National Museum and the National Commission on Culture and the Arts as public respondents. For the reasons hereinafter set forth, I concur in the result reached by my distinguished colleague, J. Carpio, in his ponencia. No clear legal right for mandamus to issue.

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt1t) Mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully neglects the performance of said duty. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt2t) It is, thus, essential to the issuance of a writ of mandamus that the applicant should have a clear, certain and well-defined legal right to the thing demanded, and it must be the clear and imperative duty of the respondent to perform the act required.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt3t) Accordingly, for mandamus to issue in this case, it must be shown that petitioner has a well-defined legal right to judicially demand, and public respondents or any of them haPe concomitant legal duty to carry out, the preservation of the vista, sightline and setting of the Rizal Park and the Rizal Monument. Petitioner anchored its petition on Sections 15 and 16, Article XIV(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt4t) of the 1987 Constitution which read: Section 15. Arts and letters shall enjoy the patronage of the State.

The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as well as its artistic creations. Section 16. All the country's artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition.

The foregoing constitutional provisions mandate the conservation, promotion and protection of historical and cultural heritage and resources, but do not specify a clear legal right to the protection of the vista, sightline and setting thereof. Broadly written, the provisions use the words "conserve," "promote,"

"popularize" and "protect" which are open to different interpretations, as demonstrated no less by the parties' conflicting positions on their breadth and scope when applied to the construction of the Torre de Manila.

The provisions further refer to but do not define what constitutes the nation's "historical and cultural heritage and resources," "artistic creations," and "artistic and historic wealth."

The authority given to the State to regulate the disposition of the country's artistic and historic wealth also indicates that further government action is intended to enforce the constitutional policy of conserving and protecting our heritage resources. Legislation is, thus, necessary to supply the norms and standards and define the parameters for the implementation of the constitutional protection of historical and cultural heritage and resources. In this regard, J. Florentino P. Feliciano's separate concurring opinion(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt5t) in the landmark case of Oposa v. Factoran, Jr.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt6t) is illuminating: It seems to me important that the legal right which is an essential component of a cause of action be a specific , operablelegalright , rather than a constitutional or statutory policy, for at least two (2) reasons.

One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration - where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1 .... 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(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt7t) in Agabon v. National Labor Relations Commission , (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt8t) J. Dante 0.

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 the dangerous 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 preservation of the vista, sightline and setting of the Rizal Park and Rizal Monument.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt9t) The ensuing question, therefore, is whether legislation enacted pursuant to said mandate provide for specific and operable norms and standards that extend the constitutional protection to the vista, sightline and setting of historical and cultural heritage and resources.

An examination of Philippine statutes relating to heritage preservation reveals no such norms or standards. Republic Act No. (RA) 10066, known as the National Cultural Heritage Act of 2009, involves the protection of the physical integrity of the heritage property or site. This is evident from Sections 25 and 48 of the Act.

Section 25 of RA 10066 authorizes the appropriate cultural agency to issue a Cease and Desist Order ex parte "when the physical integrity of the national cultural treasures or important cultural properties are found to be in danger of destruction or significant alteration from its original state." (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt10t) Furthermore, Section 48 of RA 100066, which enumerates the prohibited acts under the law, provides: Section 48. Prohibited Acts.

- To the extent that the offense is not punishable by a higher punishment under another provision of law, violations of this Act may be made by whoever intentionally: (a) Destroys, demolishes, mutilates or damages any world heritage site, national cultural treasures, important cultural property and archaeological and anthropological sites; (b) Modifies, alters, or destroys the original features of or undertakes construction or real estate development in any national shrine, monument, landmark and other historic edifices and structures, declared, classified, and marked by the National Historical Institute as such, without the prior written permission from the Commission. This includes the designated security or buffer zone, extending five (5) meters from the visible perimeter of the monument or site; xxx xxx Demolition, destruction and mutilation are acts applied upon something physical rather than non-physical such as the view, dominance, vista or sightline of a heritage site or property.

Furthermore, the prohibited acts referred to in paragraph (b) applies to the original features of the monument or shrine itself or any real estate development therein. It will likewise be noted that the security or buffer zone protected under the provision extends only to five (5) meters from the visible perimeter of the monument or site. Records show that the Torre de Manila is located about 870 meters outside and to the rear of Rizal Park.

RA 10086 (Strengthening Peoples' Nationalism Through Philippine History Act) empowers the National Historical Commission of the Philippines (NHCP) to "(d)etermine the manner of identification, maintenance, restoration, conservation and preservation of historical sites, shrines, structures and monuments," and to (r)egulate activities pertaining to the preservation, restoration and conservation of historical property or resources." (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt11t) The law, however, does not indicate specific and operable norms and standards for the protection of the vista, sightline or setting of historic monuments and sites.

Invoked by petitioner, the NHCP's Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and other Personages (Guidelines) provide that monuments should be given due prominence since they symbolize national significance. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt12t) As a measure to achieve the monument's dominance, the Guidelines state that vista points and visual corridors to monuments should be kept clear for unobstructed viewing appreciation and photographic opportunities. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt13t) Citing the International Charter for the Conservation and Restoration of Monuments and Sites (Venice Charter), the Guidelines further declare that the conservation of a monument implies preserving a setting which is not out of scale, defining "setting"

as not only limited to the exact area directly occupied by the monument, but also to surrounding areas whether open space or occupied by other structures as may be defined by the traditional or juridical expanse of the property. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt14t) However, as noted by my esteemed colleagues, J. Leonen and J. Jardeleza, it has not been shown that these Guidelines had been published and a copy thereof deposited with the Office of the National Administrative Register in the University of the Philippines' Law Center. Thus, they cannot be considered effective and binding.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt15t) Both the requirements of publication and filing of administrative issuances intended to enforce existing laws are mandatory for the effectivity of said issuances. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt16t) These requirements of publication and filing were put in place as safeguards against abuses on the part of lawmakers and as guarantees to the constitutional right to due process and to information on matters of public concern and, therefore, require strict compliance.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt17t) In any event, the language of the NHCP Guidelines do not appear to rule out the presence or construction of buildings within the sightline or setting of the historic monument. Thus, the Guidelines provide that: "(t)he monument should preferably be the focal point of a city or town center," and the (f)acade of buildings around a monument, particularly on a rotunda or circle can be retrofitted with a uniform design to enhance the urban renewal of the site and the prominence and dominance of the monument."(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt18t) Furthermore, the Guidelines allow for urban renewal projects and adaptation of historic sites to contemporary life.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt19t) It also looks to regulation by the local government of the design, volume and height of buildings surrounding or in the immediate vicinity of the monument/site to enhance the prominence, dominance and dignity of the monument.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt20t) Such local regulation was notably made to apply to development in the vicinity, both "existing and future."(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt21t) In relation to the monument's setting, the Guidelines also state that new construction would not be allowed but only if it would alter the relations of mass and color.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt22t) What it specifically rejects is the encroachment or "direct abutment of structures" into the monument site.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt23t) Thus, assuming the Guidelines are effective, they may not be deemed to impose an absolute prohibition against structures erected within the monument's vicinity, sightline or setting, subject only to the structures' compliance with the local government's regulatory restrictions on height, design and volume, and to urban renewal standards. RA 8492 (National Museum Act of 1998), which tasked the National Museum to supervise the restoration, preservation, reconstruction, demolition, alteration, relocation and remodeling of immovable properties and archaeological landmarks and sites, (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt24t) contains no indication that such duty extended to the preservation of the vista, sightline and setting of cultural properties.

RA 8492 was also amended by RA 10066 which distributed the responsibilities over cultural properties among several cultural agencies based on the categorization of the property, and assigned to the National Museum the responsibility for significant movable and immovable cultural and natural property pertaining to collections of fine arts, archaeology, anthropology, botany, geology, zoology and astronomy, including its conservation aspect. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt25t) RA 7356 or the Law Creating the National Commission for the, Culture and the Arts (NCCA) mandated the NCCA to "support and promote the establishment and preservation of cultural and historical onuments, markers, names and sites,"(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt26t) and empowered it to "regulate activities inimical to preservation/conservation of national cultural heritage/properties."

It designated the NCCA as the over-all policy-making and coordinating body that will harmonize the policies of national cultural agencies.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt27t) RA 7356 was amended by RA 10066 which, among others, expanded the authority and responsibility of the NCCA.

As previously noted, RA 10066 refers to the protection of the physical integrity of the heritage property or site, and does not specify operable norms and standards indicating that the protection extends to its vista, sightline or setting. The Venice Charter, also invoked by petitioner, provides: Article 1. The concept of a historic monument embraces not only the single architectural work but also the urban or rural setting in which is found the evidence of a particular civilization, a significant development or a historic event.

This applies not only to great works of art but also to more modest works of the past which have acquired cultural significance with the passing of time. xxx xxx Article 6. The conservation of a monument implies preserving a setting which is not out of scale.

Wherever the traditional setting exists, it must be kept. No new construction, demolition or modification which would alter the relations of mass and colour must be allowed. The Venice Charter indeed declares that preservation of the setting is integrated in conservation efforts involving historic monuments.

However, as pointed out by J. Jardeleza, the Charter does not rise to the level of enforceable law absent any showing of the country's commitment thereto. In any event, it cannot be said that the Venice Charter provides specific, operable norms and standards, or sufficient parameters, to hold that the setting of the Rizal Monument, in particular, was not preserved by reason of the subject building. By its language, the Charter merely laid down basic and guiding "principles,"

"with each country being responsible for applying the plan within the framework of its own culture and traditions." Thus, even assuming that the Philippines committed to adhere to said principles, the Charter cannot, by itself, be the basis for the mandamus sought. In fine, a clear legal right to the protection of the vista, sightline and setting of the Rizal Monument and the Rizal Park has not been established in legislation as an aspect of the constitutional policy to conserve, promote and protect historical and cultural heritage and resources.

It is settled that legislative failure to pursue state policies cannot give rise to a cause of action in the courts. 28]] During the deliberations on this case, it was posited that while existing statutes show no clear and specific duty on the part of public respondents to regulate, much less, prohibit the construction of structures that obstruct the view, sightline or setting of the Rizal Monument, Manila's zoning ordinance (Ordinance No. 8119) imposes such duty on the City Government of Manila under the guidelines and standards prescribed in Sections 47 and 48 thereof. Sections 47 and 48 of Ordinance No. 8119, in pertinent part, state: Sec. 47.

Historical Preservation and Conservation Standards. - Historical sites and facilities shall be conserved and preserved. x x The following shall guide the development of historic sites and facilities: 1.

Sites with historic buildings or places shall be developed to conserve and enhance their heritage values. 2. xx 3.

Any person who proposes to add, to alter, or partially demolish a designated heritage property will require the approval of the City Planning and Development Office (CDPO) and shall be required to prepare a heritage impact statement that will demonstrate to the satisfaction of the CPDO that the proposal will not adversely impact the heritage significance of the property and shall submit plans for review by the CPDO in coordination with the National Historical Institute (NHI). 4. Any proposed alteration and/or re-use of designated heritage properties shall be evaluated based on criteria established by the heritage significance of the particular property or site.

5. xx 6. xx 7.

Residential and commercial infill in heritage areas will be sensitive to the existing scale and pattern of those areas, which maintains the existing landscape and streetscape qualities of those areas , and which does not result in the loss of any heritage resources. 8. Development plans shall ensure that parking facilities (surface lots, residential garages, stand-alone parking garages and parking components as part of larger developments) are compatibly integrated into heritage areas , and/or are compatible with adjacent heritage resources.

9. Local utility companies (hydro-gas, telephone, cable) shall be required to place metering equipment, transformer boxes, power lines, conduit, equipment boxes, piping, wireless telecommunication towers and other utility equipment and devices in locations which d o not detract from the visual character of heritage resources, and which do not have negative impact on its architectural integrity. 10.

Design review approval shall be secured from the CPDO for any alteration of heritage property to ensure that design guidelines and standards are met and shall promote preservation and conservation of the heritage property. (Underscoring supplied.) Sec. 48. Site Performance Standards.

The City considers it in the public interest that all projects are designed and developed in a safe, efficient and aesthetically pleasing manner. Site development shall consider the environmental character and limitations of the site and its adjacent properties. All project elements shall be in complete harmony according to good design principles and the subsequent development must be pleasing as well as efficiently functioning especially in relation to the adjacent properties and bordering streets.

The design, construction, operation and maintenance of every facility shall be in harmony with the existing and intended character of its neighborhood. It shall not change the essential character of the said area but will be a substantial improvement to the value of the properties in the neighborhood in particular and the community in general. Furthermore, designs should consider the following: 1.

Sites, buildings and facilities shall be designed and developed with regard to safety, efficiency and high standards of design. The natural environmental character of the site and its adjacent properties shall be considered in the site development of each building and facility. 2.

The height and bulk of buildings and structures shall be so designed that it does not impair the entry of light and ventilation, cause the loss of privacy and/or create nuisances , hazards or inconveniences to adjacent developments. 3. xx 4.

xx 5. xx 6. xx 7.

xx 8. No large commercial signage or pylon , which will be detrimental to the skyline , shall be allowed. 9.

Design guidelines , deeds of restriction, property management plans and other regulatory tools that will ensure high quality developments shall be required from developers of commercial subdivisions and condominiums. These shall be submitted to the City Planning and Development Office (CPDO) for review and approval. (Underscoring supplied.) An examination of Section 47 of Ordinance No. 8119, however, will reveal that the guidelines set therein refer to the historical site or the heritage area itself, or to the physical integrity of the designated heritage property.

Thus, Section 47 speaks of the conservation and enhancement of the heritage value of the historical site; it also refers to the alteration, demolition and re-use of designated heritage properties, and development plans within the heritage area. In fact, it is expressly prefaced by a statement alluding to the enumeration as guidelines in the "development of historic sites and facilities." Records show that Torre de Manila is located in the University Cluster Zone, 870 meters outside and to the rear of Rizal Park.

The zone is not a historical site, a heritage area, or a designated heritage property. Thus, Section 47 of Ordinance No. 8119 will not apply. Section 48 of Ordinance No. 8119, which enumerates the "Site Performance Standards,"

appears to apply to all development projects in the City of Manila. It requires that the development project should be "aesthetically pleasing" and "in harmony with the existing and intended character of its neighborhood,"

and that it should consider the "natural environmental character of the site and its adjacent properties." The neighborhood within which the Torre de Manila is situated is the University Cluster Zone. Furthermore, the building is not adjacent to or adjoining the Rizal Park or the Rizal Monument.

By the language of Section 48, the "adjacent properties" mentioned therein would refer to properties adjoining the Torre de Manila site within the University Cluster Zone, such that "harmony with the existing and intended character of the neighborhood" would be achieved.

It is, thus, doubtful that Section 48 provides norms and standards intended to preserve the sightline or setting of the Rizal Monument. It has been held that mandamus will not issue to enforce a right which is in substantial dispute or as to which a substantial doubt exists. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt29t) Even assuming that Ordinance No. 8119 extends protection to the vista, sightline or setting of a historical site or property, it does not specify the paramaters by which the City Development and Planning Office (CDPO) shall determine compliance, thereby giving the CDPO wide discretion in ascertaining whether or not a project preserves the heritage site or area.

Under the guidelines and standards of Sections 47 and 48 of, Ordinance No. 8119, development projects: should conserve and enhance the heritage value of the historic site; should not adversely impact the heritage significance of the heritage property; should not result in the loss of any heritage resources; should not detract from the visual character of heritage resources; and should be aesthetically pleasing. There are no parameters, definitions or criteria to ascertain how heritage value is deemed to have been conserved and enhanced, what adversely impacts the heritage significance of a property, what sufficiently detracts from the visual character of a heritage property, and what is aesthetically pleasing. The absence of such parameters creates considerable room for subjective interpretation and use of discretion that could amount to an undue delegation of legislative power.

Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. Under the first test or the so-called completeness test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to enforce it. The second test or the sufficient standard test, mandates that there should be adequate guidelines or limitations in the law to determine the boundaries of the delegate's authority and prevent the delegation from running riot.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt30t) By their language and provisions, Sections 47 and 48 of Ordinance No. 8119 fail to comply with the completeness test.

A writ of mandamus can be issued only when petitioner's legal right to the performance of a particular act which is sought to be compelled is clear and complete. A clear legal right is a right which is indubitably granted by law or is inferable as a matter of law.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt31t) No clear and complete legal right to the protection of the vista, sightline and setting of the Rizal Park and Rizal Monument has been shown to exist.

The Court cannot, in the guise of interpretation, enlarge the scope of a statute or insert into a statute what the legislature omitted, whether intentionally or unintentionally.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt32t) To read into an ordinance objects which were neither specifically mentioned nor enumerated would be to run afoul of the dictum that where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt33t) Thus, in Canet v. Mayor Decena,(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt34t) the Court explained: Even on the assumption that there is in fact a legislative gap caused by such an omission, neither could the Court presume otherwise and supply the details thereof, because a legislative lacuna cannot be filled by judicial fiat.

Indeed, courts may not, in the guise of interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by the lawmakers. An omission at the time of the enactment, whether careless or calculated, cannot be judicially supplied however after later wisdom may recommend the inclusion. Courts are not authorized to insert into the law what they think should be in it or to supply what they think the legislature would have supplied if its attention has been called to the omission.

Courts should not, by construction, revise even the most arbitrary and unfair action of the legislature, nor rewrite the law to conform with what they think should be the law. Nor may they interpret into the law a requirement which the law does not prescribe. Where a statute contains no limitations in its operation or scope, courts should not engraft any.

And where a provision of law expressly limits its application to certain transactions, it cannot be extended to other transactions by interpretation. To do any of such things would be to do violence to the language of the law and to invade the legislative sphere. (Emphasis supplied) In the absence of a clear legal right to the protection of the vista, sightline and setting of the Rizal Monument, and the concomitant legal duty to enforce such right, mandamus will not lie.

The writ of mandamus will not issue to compel an official to do anything which is not his duty to do or which it is his duty not to do, or to give to the applicant anything to which he is not entitled by law. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt35t) Direct recourse to the Supreme Court was improper. An important principle followed in the issuance of the writ of mandamus is that there should be no plain, speedy and adequate remedy in the ordinary course of law other than the remedy of mandamus being invoked.

In other words, mandamus can be issued only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt36t) Petitioner brought this case to the Supreme Court, arguing that that the Torre de Manila was being constructed in violation of the zoning ordinance. Petitioner claims that the City of Manila violated the height restrictions under Ordinance No. 8119 when it granted private respondent a variance almost six (6) times the seven (7)-floor height limit in a University Cluster Zone. Petitioner notes that at 22.83% completion, or at the height of nineteen (19) floors, as of 20 August 2014, the structure already obstructs the vista of the Rizal Park and the Rizal Monument.

Section 77 of Ordinance No. 8119, however, expressly provides for a remedy in case of violation of its provisions; it allows for the filing of a verified complaint before the Manila Zoning Board of Assessment and Appeals for any violation of the Ordinance or of any clearance or permits issued pursuant thereto, including oppositions to applications for clearances, variance or exception. The general rule is that before a party is allowed to seek the intervention of the court, he or she should have availed himself or herself of all the means of administrative processes afforded him or her. Hence, if resort to a remedy within the administrative machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his or her jurisdiction, then such remedy should be exhausted first before the courts' judicial power can be sought.

The premature invocation of the intervention of the court is fatal to one's cause of action. The doctrine of exhaustion of administrative remedies is based on practical and legal reasons. The availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies.

Furthermore, the courts of justice, for reasons of comity and convenience, will shy away from a dispute until the system of administrative redress has been completed and complied with, so as to give the administrative agency concerned every opportunity to correct its error and dispose of the case. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt37t) An exception to said rule is when the issue raised is a purely legal question, well within the competence and the jurisdiction of the court and not the administrative agency.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt38t) It is clear, however, that factual issues are involved in this case. The calculation of the maximum allowable building height, the alleged violation of existing regulations under Ordinance No. 8119, and the existence or nonexistence of the conditions(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt39t) for approval of a variance by reason of nonconformity with the height restrictions, are questions of fact which the City of Manila could pass upon under Section 77 of Ordinance No. 8119.

Likewise, whether or not the Torre de Manila is a nuisance, and whether or not private respondent acted in good faith, are factual issues that should not have been raised at the first instance before this Court. The Supreme Court is not a trier of facts and it is not duty-bound to analyze and weigh again the evidence considered in the proceedings below. More so, this Court is not duty-bound to analyze and weigh evidence pertaining to factual issues which have not been subject of any proper proceedings below.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt40t) Any judicial intervention should have been sought at the first instance from the Regional Trial Court which has the authority to resolve constitutional issues,(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt41t) more so where questions of fact are involved. A direct recourse to this Court is highly improper for it violates the established policy of strict observance of the judicial hierarchy of courts. While we have concurrent jurisdiction with the Regional Trial Courts and the Court of Appeals to issue the extraordinary writs, this concurrence is not to be taken as an unrestrained freedom of choice as to which court the application for the writ will be directed.

There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs.

This Court is a court of last resort and must so remain if it is to satisfactorily perform the functions assigned to· it by the Constitution and immemorial tradition.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt42t) Mandamus cannot compel the performance of a discretionary act. A key principle to be observed in dealing with petitions for mandamus is that such extraordinary remedy lies to compel the performance of duties that are purely ministerial in nature, not those that are discretionary. A purely ministerial act or duty is one that an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of its own judgment upon the propriety or impropriety of the act done.

The duty is ministerial only when its discharge requires neither the exercise of official discretion or judgment.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt43t) In issuing permits to developers and in granting variances from height restrictions, the City of Manila exercises discretion and judgment upon a given set of facts. Such acts are not purely ministerial functions that can be compelled by mandamus. Petitioner failed to comply withbr / >requisites for judicial review.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations. The following requisites must be complied with before this Court can take cognizance of the case: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt44t) Petitioner failed to show its legal standing to file the case. This Court, in determining locus standi, has applied the "direct injury"

test which requires that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action. It is not sufficient that he has a general interest common to all members of the public.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt45t) Accordingly, locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt46t) Jurisprudence defines interest as "material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.

By real interest is meant a present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest."(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt47t) By the foregoing standards, petitioner cannot be considered to have satisfied the "direct injury" test. Petitioner alleged that it is a public, non-profit organization created under RA 646, and pursuant to its mandate, it conducts activities at the Rizal Park to commemorate Jose Rizal's birth and martyrdom at least twice a year.

Petitioner asserted that its legal mandate to celebrate Rizal's life was violated on account of private respondent's Torre de Manila project which continue to mar the previously unobstructed view of the Rizal Park.

Such interest, however, cannot be said to be personal and substantial enough to infuse petitioner with the requisite locus standi. It certainly is not a present or immediate interest, as petitioner's commemorative activities are not constantly conducted in the Rizal Park. The experience of looking at the vista of the Rizal Park and the Rizal Monument and finding it marred by the subject structure does not give rise to a substantial and personal injury that will give locus standi to petitioner to file this case.

It is what can be considered as an incidental, if not a generalized, interest. Generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt48t) Evidence of a direct and personal interest is key.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt49t) The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only "actual controversies involving rights which are legally demandable and enforceable."(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt50t) This Court, in Lozano v. Nograles,(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt51t) explained: x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of government."

It thus goes to the very essence of representative democracies. x x x x x x x x x A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited.

For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today. Petitioner has likewise failed to justify an exemption from the locus standi rule on grounds of transcendental importance."

In Galicto v. Aquino,(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt52t) this Court held that "even if (it) could have exempted the case from the stringent locus standi requirement, such heroic effort would be futile because the transcendental issue could not be resolved any way, due to procedural infirmities and shortcomings." The Court explained that giving due course to a petition saddled with such formal and procedural infirmities would be "an exercise in futility that does not merit the Court's liberality."(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt53t) As hereinbefore discussed, it was error for petitioner to have filed this case directly before the Supreme Court, as other plain, speedy and adequate remedies were still available and the case indubitably involves questions of fact. Thus, the resolution of any transcendental issue in this case will be rendered futile by reason of these procedural infirmities.

Furthermore, it could not escape this Court's attention that what petitioner filed before this Court was, in fact, a petition for injunction over which the Court does not exercise original jurisdiction.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt54t) While the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of personal injury to the broader transcendental importance doctrine, such liberality is not to be abused. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt55t) Indeed, the "transcendental importance" doctrine cannot be loosely invoked or broadly applied, for as this Court previously explained: In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury.

When warranted by the presence of indispensable minimums for judicial review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it. (Emphasis supplied.) Thus, this Court, in the recent case of Roy v. Herbosa,(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt56t) held that an indiscriminate disregard of the requisites for this Court's judicial review, every time "transcendental or paramount importance or significance" is invoked would result in unacceptable corruption of the settled doctrine of locus standi as every worthy cause is an interest shared by the general public.

Petitioner has also failed to present a justiciable controversy. An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.

The Court can decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for judicial determination. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt57t) The existence of an actual case or controversy, thus, presupposes the presence of legally enforceable rights. In this case, petitioner asserts that it has the right to stop the construction of the Torre de Manila on the strength of Sections 15 and 16, Article XIV of the Constitution, which requires the State to conserve and protect the nation's historical and cultural heritage and resources.

Petitioner argues that heritage preservation includes the sightline and setting of the Rizal Park and Rizal Monument. However, as hereinbefore shown, neither the Constitution nor existing legislation, including Manila's Ordinance No. 8119, provides for specific and operable norms and standards that give rise to a judicially enforceable right to the protection of the vista, sightline and setting of the Rizal Park and Rizal Monument. Furthermore, related to the requirement of an actual case or controversy is the requirement of ripeness.

A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action. It must show that it has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#fnt58t) As previously discussed, petitioner has failed to show that it has sustained or is immediately in danger of sustaining a direct injury as a result of the construction of the Torre de Manila.

In sum, absent a clear legal right to the protection of the vista, sightline and setting of the Rizal Park and Rizal Monument, and for petitioner's failure to establish its legal standing and the existence of an actual controversy ripe for judicial adjudication, mandamus will not lie. Accordingly, I vote to DISMISS the petition. SO ORDERED.

NOEL G.TIJAM, Associate Justice Footnotes (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt1t) Star Special Watchman and Detective Agency, Inc., et al. v. Puerto Pincesa City, et al., G.R. No. 181792, April 21, 20 I 4, citing Uy Kiao Eng vs. Nixon lee, G .R. No. 176831, January 15, 20 10. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt2t) Ibid. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt3t) Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015.

Ongsuco v. Malones, G.R. No 182065, October27, 2009 (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt4t) On Education, Science and Technology, Arts, Culture and Sports. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt5t) Subsequently applied in Pamatong v COMELEC, G.R. No. 161872, April 13, 2004. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt6t) G.R. No. 101083, July 30,1993.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt7t) Subsequently applied in Tonda Medical Center Employees Association, et al. v. Court of Appeals, et al., G.R. No. 167324, July 17, 2007. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt8t) G.R. No. 158693, November 17, 2004. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt9t) See Separate Opinion of J. Dante 0.

Tinga in Agabon v. NLRC; Id. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt10t) Section 25. Power to Issue a Cease and Desist Order.

- When the physical integrity of the national cultural treasures or important cultural properties are found to be in danger of destruction or significant alteration from its original state, the appropriate cultural agency shall immediately issue a Cease and Desist Order ex parte suspending all activities that will affect the cultural property. The local government unit which has the jurisdiction over the site where the immovable cultural property is located shall report the same to the appropriate cultural agency immediately upon discovery and shall promptly adopt measures to secure the integrity of such immovable cultural property. Thereafter, the appropriate cultural agency shall give notice to the owner or occupant of the cultural property and conduct a hearing on the propriety of the issuance of the Cease and Desist Order.

The suspension of the activities shall be lifted only upon the written authority of the appropriate cultural agency after due notice and hearing involving the interested parties and stakeholders. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt11t) Section 7, RA 10086. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt12t) Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and other Personages, Supra Note.

1. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt13t) Supra Note. 2.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt14t) Ibid. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt15t) Sections 3, 4 and 5, Chapter 2 of Book VII of the Administrative Code; Quezon City PTCA Federation, Inc. v. Department of Education, G.R. No. 188720, February 23, 2016; Republic v. Pilipinas Shell Petroleum Corporation, G.R. No. 173918, April 8, 2008. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt16t) Republic v.

Pilipinas Shell Petroleum Corporation, Id., citing National Association of Electricity Consumers for Reforms v. Energy Regulatory Board, G.R. No. 163935, February 2, 2006. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt17t) Republic v. Pilipinas Shell Petroleum Corporation, Id. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt18t) Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and other Personages, item no.

1. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt19t) Supra Note. 11.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt20t) Supra Note. 1 and 11. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt21t) Item no.

11 of the Guidelines is captioned "Development of the Vicinity (Existing and Future)". (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt22t) Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and other Personages, item no. 2.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt23t) Supra Note. 8. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt24t) Section 7, RA 8492.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt25t) Section 31 of RA 10066 provides that: (a)The Cultural Center of the Philippines shall be responsible for significant cultural property pertaining to the performing arts; (b)The National Archives of the Philippines shall be responsible for significant archival materials; (c)The National Library shall be responsible for rare and significant contemporary Philippine books, manuscripts such as, but not limited to, presidential papers, periodicals, newspapers, singly or in collection, and libraries and electronic records; (d)The National Historical Institute shall be responsible for significant movable and immovable cultural property that pertains to Philippine history, heroes and the conservation of historical artifacts; (e)The National Museum shall be responsible for significant movable and immovable cultural and natural property pertaining to collections of fine arts, archaeology, anthropology, botany, geology, zoology and astronomy, including its conservation aspect; and (t)The Komisyon sa Wikang Filipino shall be responsible for the dissemination development, and the promotion of the Filipino national language and the conservation of ethnic languages.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt26t) Section 12(b)(3), RA 7356. 27 Section 23(b), RA 7356. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt28t) Espina, et al. v. Zamora, et al., G.R. No. 143855, 21 September 2010.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt29t) Uy Kiao Eng v. Lee, G.R. 176831, January 15, 2010. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt30t) ABAKADA Gura Party List Officers/Members Samson. S. Alcantara, et al. v. Purisima, et al., G.R. No. 166715, August 14.

2008; Equi-Asia Placement, Inc, v. Department of Foreign Affairs, et al., G.R. No. 152214, September 19, 2006. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt31t) Carolina v. Senga, et al., G.R. No. 189649, April 20, 2015. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt32t) Bases Conversion and Development Authority v. Commission on Audit, G.R. No. 178160, February 26.

2009. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt33t) Canet v. Mayor Decena, G.R. No. 155344, January 20, 2004. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt34t) Supra , note 32.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt35t) Star Special Watchman and Detective Agency, Inc., et al. v. Puerto Pincesa City, et al., supra, citing Uy Kiao Eng v.

Nixon Lee, supra, note 28. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt36t) Uy Kiao Eng v. Lee, supra, note 28. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt37t) Ongsuco v. Ma/ones, supra note 3.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt38t) Ibid. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt39t) Under Section 60 of Ordinance No. 8119, variances by reason of non-conformity with the Percentage of Land Occupancy and Floor Area Ratio provisions (which determine the height restriction) may be allowed by the City Council upon recommendation of the Manila Zoning Board of Adjustment and Appeals, subject to the following qualifications: (1) conformity will cause undue hardship due to the physical conditions of the property (topography, shape, etc.) which are not self-created; (2) the proposed variance is the minimum deviation necessary to permit reasonable use of the property; (3) the variance will not alter the physical character of the district/zone where the property is located, and will not substantially or permanently injure the use of other properties therein; (4) the variance will not weaken the general purpose of the Ordinance and will not adversely affect public health, safety and welfare; and (5)the variance will be in harmony with the spirit of the Ordinance.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt40t) Hipolitov. Cinco, G.R. No. 174143, November28, 2011. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt41t) Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008.

Ongsuco v. Ma/ones, supra note 3. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt42t) Anillo v. Commission on the Settlement of Land Problems, et al. G.R. No. 157856, September 27,2007; Section 4, Rule 65, Rules of Court. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt43t) Special People, Inc. v. Canda, et al., G.R. No. 160932, January 14, 2013.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt44t) In Re Supreme Court Judicial Independence v. Judiciary Development Fund, UDK-15143, January 21, 2015; Biraogo v. The Philippine Truth Commission o/2010, G.R. No. 192935, December 7, 2010. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt45t) In Re Supreme Court Judicial Independence v. Judiciary Development Fund, UDK-15143 (Resolution), supra, note 43, citing David, et al. v. Macapagal-Arroyo, et al., G.R. No. 171396, May 3, 2006. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt46t) Galicto v. Aquino, et al., G.R. No. 193978, February 28, 2012.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt47t) Ibid. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt48t) Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism Council, et al., G.R. No. 178552, October 5, 2010. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt49t) Ibid.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt50t) Lozano v. Nograles, G.R. No. 187883, June 16, 2009. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt51t) G.R. No. 187883, June 16, 2009, citing the Dissent of then Associate Justice Reynato S. Puno in Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, 5 May 1994. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt52t) G.R. No. 193978, February 28, 2012, citing Velarde v. Social Justice Society, G.R. No. 159357, April 28, 2004.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt53t) Ibid. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt54t) Article VIII of the Constitution provides: Sec. 5. The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) xxx (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt55t) Lozano v. Nograles, supra, note 49. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt56t) G.R. No. 207246, November 22, 2016. (https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt57t) The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, et al., G.R. No. 183591, October 14, 2008.

(https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#rnt58t) Ibid. The Lawphil Project - Arellano Law Foundation [](javascript:history.back\(1\)) [](https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#top) SEPARATE CONCURRING OPINION PERLAS-BERNABE,J.: Before this Court is a petition for injunction1 - subsequently and uncontestedly converted by this Court into one for mandamus - filed by herein petitioner Knights of Rizal (petitioner), seeking to compel respondents2 to stop the construction of the Torre de Manila, a high-rise condominium project situated about 870 meters outside and to the rear of the Rizal Park, as it allegedly obstructs the sightline, setting, or backdrop of the Rizal Monument, which is claimed to be a historical or cultural heritage or resource protected by the Constitution and various laws.

Owing to the nature of the action, the resolution of this case therefore depends on whether or not petitioner has satisfied the requirements necessary for a writ of mandamus to issue. "Mandamus is defined as a writ commanding a tribunal, corporation, board or person to do the act required to be done when it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excludes another from the use and enjoyment of a right or office or which such other is entitled, there being no other plain, speedy, and adequate remedy in the ordinary course of law."3 Section 3, Rule 65 of the Rules of Court lays down under what circumstances a petition for mandamus may be filed: SEC. 3.

Petition for mandamus. - When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. x x x x Based on jurisprudence, the peremptory writ of mandamus is characterized as "an extraordinary remedy that is issued only in extreme necessity, and [because] the ordinary course of procedure is powerless to afford an adequate and speedy relief to one who has a clear legal right to the performance of the act to be compelled."4 Thus, it is a basic principle that "[a] writ of mandamus can be issued only when petitioner's legal right to the performance of a particular act which is sought to be compelled is clear and complete.

A clear legal right is a right which is indubitably granted by law or is inferable as a matter of law."5 Stated otherwise, "mandamus will issue only when the petitioner has a clear legal right to the performance o(the act sought to be compelled and the respondent has an imperative duty to perform the same."6 As a corollary, it is fundamental that "[t]he remedy of mandamus lies [only] to compel the performance of a ministerial duty. A purely ministerial act or duty is one that an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of its own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer, and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial."7 In this case, the clarity and completeness of petitioner's legal right to the compulsion prayed for - i.e., to stop the construction of the Torre de Manila - remains suspect in view of the present lack of established and binding legal standards on the protection of sightlines and vistas of historical monuments, as well as heritage sites and/or areas.

Primarily, petitioner cites Sections 158 and 16,9 Article XIV of the 1987 Constitution as basis for the relief prayed for.10 However, it is quite apparent that these are not self-executing provisions; thus, Congress must first enact a law that would provide guidelines for the regulation of heritage conservation, as well as the penalties for violations thereof. Otherwise stated, there is a need for supplementary statutory implementation to give effect to these provisions. In this light, I join the ponencia in finding that there is currently no such law which specifically prohibits the construction of any structure that may obstruct the sightline, setting, or backdrop of a historical or cultural heritage or resource.11 This prohibition is neither explicit nor deducible from any of the statutory laws discussed in the present petition.12 There are several laws which consistently reiterate the State's policy to protect and conserve the nation's historical and cultural heritage and resources.

However, none of them adequately map out the boundaries of protection and/or conservation, at least to the extent of providing this Court with a reasonable impression that sightlines, vistas, and the like of historical monuments are indeed covered by compulsive limitations. The closest to a statutory regulation of this kind would appear to be Section 25 of Republic Act No. (RA) 10066, which provides that: SEC. 25.

Power to Issue a Cease and Desist Order. - When the physical integrity of the national cultural treasures or important cultural properties are found to be in danger of destruction or significant alteration from its original state, the appropriate cultural agency shall immediately issue a Cease and Desist Order ex parte suspending all activities that will affect the cultural property. The local government unit which has the jurisdiction over the site where the immovable cultural property is located shall report the same to the appropriate cultural agency immediately upon discovery and shall promptly adopt measures to secure the integrity of such immovable cultural property.

Thereafter, the appropriate cultural agency shall give notice to the owner or occupant of the cultural property and conduct a hearing on the propriety of the issuance of the Cease and Desist Order. The suspension of the activities shall be lifted only upon the written authority of the appropriate cultural agency after due notice and hearing involving the interested parties and stakeholders. (Emphasis and underscoring supplied) However, it is unclear whether "physical integrity,"

as used in this provision, covers sightlines, vistas, settings, and backdrops.

The concept of "physical integrity" is glaringly undefined in the law, and in fact, as the ponencia aptly points out, the reasonable inference is that "physical integrity [equates] to the structure itself - how strong and sound it is."13 For another, petitioner claims that the Torre de Manila project violates the National Historical Commission of the Philippines (NHCP) Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and Other Personages, as well as the International Charter for the Conservation and Restoration of Monuments and Sites, otherwise known as the Venice Charter.14 However, the NHCP Guidelines is neither a law nor an enforceable rule or regulation, considering the lack of showing that the requirements of publication and filing with the Law Center of the University of the Philippines were complied with. Meanwhile, as the ponencia aptly points out, the Venice Charter is not a treaty but "merely a codification of guiding principles for preservation and restoration of ancient monuments, sites[,] and buildings[,]"

which, however, defers to each country the "responsib[ility] for applying the plan within the framework of its own culture and traditions."15 Hence, the guidelines stated therein have no binding effect in this jurisdiction. Neither can Manila Ordinance No. 8119 be considered as an existing local legislation that provides a clear and specific duty on the part of respondent City of Manila (the City of Manila) to regulate development projects insofar as these may adversely affect the view, vista, sightline or setting of a cultural property within the city. While I find this ordinance to be a binding regulation which not merely sets forth a tentative direction or instruction for property development within the city,16 it is my view that none of its provisions justify the issuance of a writ of mandamus in favor of petitioner.

The minority proposes that a writ of mandamus be issued to re­evaluate with dispatch the permits and variance issued in favor of DMCI Project Developers, Inc. (DMCI-PDI)'s Torre de Manila project, and thereby determine the applicability and/or compliance with the standards under Sections 45, 53, 47, 48, and 60 (in relation to the grant of a variance) of Ordinance No. 8119, and eventually, grant the appropriate reliefs and sanctions under the law.17 However, Sections 45 and 53 of Ordinance No. 8119 respectively pertain to environmental conservation and protection standards, and the requirement of Environmental Compliance Certificates, and thus, are only relevant when there is an alleged violation of an environmental law affecting the natural resources within the City's premises: SEC. 45. Environmental Conservation and Protection Standards.

­ It is the intent of the City to protect its natural resources. In order to achieve this objective, all development shall comply with the following regulations: 1. Views shall be preserved for public enjoyment especially in sites with high scenic quality by closely considering building orientation, height, bulk, fencing and landscaping.

x x x x SEC. 53. Environmental Compliance Certificate (ECC).

- Notwithstanding the issuance of zoning permit (locational clearance) Section 63 of this Ordinance, no environmentally critical projects nor projects located in environmentally critical areas shall be commenced, developed or operated unless the requirements of ECC have been complied with. In this case, the Rizal Monument is not claimed to be a natural resource whose view should be preserved in accordance with Section 45 (1) above. Neither was it claimed that the Torre de Manila project is covered by and/or has breached the ECC requirement under Section 53.

Therefore, none of these provisions should apply to this case. In the same vein, Section 48 of Ordinance No.

8119 provides for site performance standards, which, among others, only require that developments within the City be designed in a safe, efficient, and aesthetically pleasing manner: SEC. 48. Site Performance Standards.

- The City considers it in the public interest that all projects are designed and developed in a safe, efficient and aesthetically pleasing manner. Site development shall consider the environmental character and limitations of the site and its adjacent properties. All project elements shall be in complete harmony according to good design principles and the subsequent development must be visually pleasing as well as efficiently functioning especially in relation to the adjacent properties and bordering streets.

The design, construction, operation and maintenance of every facility shall be in harmony with the existing and intended character of its neighborhood. It shall not change the essential character of the said area but will be a substantial improvement to the value of the properties in the neighborhood in particular and the community in general. Furthermore, designs should consider the following: 1.

Sites, buildings and facilities shall be designed and developed with regard to safety, efficiency and high standards of design. The natural environmental character of the site and its adjacent properties shall be considered in the site development of each building and facility. 2.

The height and bulk of buildings and structures shall be so designed that it does not impair the entry of light and ventilation, cause the loss of privacy and/or create nuisances, hazards or inconveniences to adjacent developments. x x x x 8. No large commercial signage and/or pylon, which will be detrimental to the skyline, shall be allowed.

9. Design guidelines, deeds of restriction, property management plans and other regulatory tools that will ensure high quality developments shall be required from developers of commercial subdivisions and condominiums. These shall be submitted to the City Planning and Development Office (CPDO) for review and approval.

(Emphases and underscoring supplied) It is not inferable whether the "aesthetics" requirement under this provision precludes any form of obstruction on the sightline and vista of any historical monument within the City. It also does not account for a situation where the assailed development and historical monument are located in different cluster zones.

It has not also been claimed that the natural environmental character of the adjacent properties within the Torre de Manila's cluster zone, per Section 48, paragraph 3 (1) above, has been negatively impacted by the latter's construction. As worded, this provision regulates only environmental and not historical considerations; thus, it is premised with the requirement that "[s]ites, buildings and facilities [be] designed and developed with regard to safety, efficiency and high standards of design." Likewise, Section 48, paragraph 3 (8) is inapplicable, considering that the Torre de Manila project is not a large commercial signage and/or pylon (or claimed to be an equivalent thereof) that would prove to be detrimental to the City's skyline.

Meanwhile, Section 60 of Ordinance No. 8119 governs the grant of variances from the prescribed Land Use Intensity Control (LUIC) standards (among others, the Floor Area Ratio [FAR]) on buildings within a specific zone: SEC. 60. Deviations.

- Variances and exceptions from the provisions of this Ordinance may be allowed by the Sangguniang Panlungsod as per recommendation from the Manila Zoning Board of Adjustment and Appeals (MZBAA) through the Committee on Housing, Urban Development and Resettlements only when all the following terms and conditions are obtained/ existing: 1. Variance - all proposed projects which do not conformed [sic] with the prescribed allowable Land Use Intensity Control (LUIC) in the zone. a.

The property is unique and different from other properties in the adjacent locality and, because of its uniqueness, the owner/s cannot obtain a reasonable return on the property. This condition shall include at least three (3) of the following provisions: - Conforming to the provisions of the Ordinance will cause undue hardship on the part of the owner or occupant of the property due to physical conditions of the property (topography, shape, etc.), which is not self­-created. - The proposed variance is the mm1mum deviation necessary to permit reasonable use of the property.

- The variance will not alter the physical character of the district/zone where the property for which the variance sought is located, and will not substantially or permanently injure the use of the other properties in the same district or zone. - That the variance will not weaken the general purpose of the Ordinance and will not adversely affect the public health, safety, and welfare. - The variance will be in harmony with the spirit of this Ordinance.

x x x x In this case, the City of Manila had already exercised its discretion to grant a variance in favor of DMCI-PDI's Torre de Manila project. The factors taken into account by the City of Manila in the exercise of such discretion are beyond the ambit of a mandamus petition. As above­mentioned, "[t]he remedy of mandamus lies [only] to compel the performance of a ministerial duty"

which is "one that an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of its own judgment upon the propriety or impropriety of the act done."18 It is settled that "[m]andamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use and not a discretionary duty. It is nonetheless likewise available to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way or the retraction or reversal of an action already taken in the exercise of either."19 Further, while it has not been shown whether the conditions stated in Section 60 were complied with, it remains unclear whether or not these provisions can be - as it has been previously been - suspended due to justifiable reasons.20 What remains undisputed is the fact that DMCI-PDI applied for a variance, which application, upon due deliberation of the City's MZBAA, has been granted.

Again, whether proper or not, the fact remains that discretion has already been exercised by the City of Manila. Thus, mandamus is not the appropriate remedy to enjoin compliance with the provisions on variance. Needless to state, erring public officials who are found to have irregularly exercised their functions may, however, be subjected to administrative/criminal sanctions in the proper proceeding therefor.

Finally, Section 47 of Ordinance No. 8119, which enumerates several historical preservation and conservation standards, was supposedly not considered by the City of Manila when it allowed the construction of the Torre de Manila: SEC. 47. Historical Preservation and Conservation Standards.

- Historic sites and facilities shall be conserved and preserved. These shall, to the extent possible, be made accessible for the educational and cultural enrichment of the general public. The following shall guide the development of historic sites and facilities: 1.

Sites with historic buildings or places shall be developed to conserve and enhance their heritage values. 2. Historic sites and facilities shall be adaptively re-used.

3.

Any person who proposes to add, to alter, or partially demolish a designated heritage property will require the approval of the City Planning and Development Office (CPDO) and shall be required to prepare a heritage impact statement that will demonstrate to the satisfaction of CPDO that the proposal will not adversely impact the heritage significance of the property and shall submit plans for review by the CPDO in coordination with the National Historical Institute (NHI). 4. Any proposed alteration and/or re-use of designated heritage properties shall be evaluated based on criteria established by the heritage significance of the particular property or site.

5. Where an owner of a heritage property applies for approval to demolish a designated heritage property or properties, the owner shall be required to provide evidence to satisfaction [sic] that demonstrates that rehabilitation and re-use of the property is not viable. 6.

Any designated heritage property which is to be demolished or significantly altered, shall be thoroughly documented for archival purposes with a history, photographic records, and measured drawings, in accordance with accepted heritage recording guidelines, prior to demolition or alteration. 7. Residential and commercial infill in heritage areas will be sensitive to the existing scale and pattern of those areas, which maintains the existing landscape and streetscape qualities of those areas, and which does not result in the loss of any heritage resources.

8. Development plans shall ensure that parking facilities (surface lots, residential garages, stand-alone parking garages and parking components as parts of larger developments) are compatibly integrated into heritage areas, and/or are compatible with adjacent heritage resources. 9.

Local utility companies (hydro, gas, telephone, cable) shall be required to place metering equipment, transformer boxes, power lines, conduit, equipment boxes, piping, wireless telecommunication towers and other utility equipment and devices in locations which do not detract from the visual character of heritage resources, and which do not have a negative impact on its architectural integrity. 10. Design review approval shall be secured from the CPDO for any alteration of the heritage property to ensure that design guidelines and standards are met and shall promote preservation and conservation of the heritage property.

(Emphases and underscoring supplied) However, the fact that Section 47 speaks of the preservation of existing landscape and streetscape qualities (Section 47, paragraph 2 7), or conveys a mandate to local utility companies not to detract from the visual character of heritage resources (Section 47, paragraph 2 9) should not be enough for this Court to conclude that Ordinance No. 8119 imposes a prohibition against the obstruction of sightlines and vistas of a claimed heritage property via the construction of buildings at a particular distance therefrom. The operable norms and standards of protecting vistas and sightlines are not only undefined; it is also doubtful whether or not the phrases "landscape or streetscape qualities" and "visual character of heritage resources"

as used in the provision even include the aspects of vistas and sightlines, which connote regulation beyond the boundaries of a heritage site, building or place, as in this case. In the same light, it is also unclear whether or not a purported obstruction of a heritage property's vista and sightline would mean an "addition", "alteration", and/or "demolition" of the said property so as to trigger the application of Section 47, paragraph 2 (3) (which requires the prior submission of a heritage impact statement and the approval of the CPDO) and Section 47, paragraph 2 (4) (requiring evaluation based on the criteria of heritage significance) of Ordinance No. 8119.

In fact, it would be sensible to conclude that these concepts of "addition", "alteration", and/or "demolition" relate to the concept of "physical integrity" in Section 25 of RA 10066, which as above-discussed pertains only to the architectural stability of the structure.

Plainly speaking, there is no discernible reference from our existing body of laws from which we can gather any legal regulation on a heritage property's vista and sightline. After a careful study of this case, it is my conclusion that the realm of setting preservation is a new frontier of law that is yet to be charted by our lawmakers. It is therefore a political question left for Congress and not for this Court to presently decide.

Verily, our function as judges is to interpret the law; it is not for us to conjure legal niceties from general policies yet undefined by legislature. Until such time that our legal system evolves on this subject, I believe that this Court is unprepared to grant a mandamus petition to compel the stoppage of the Torre De Manila project simply on the premise that the Torre de Manila "visually obstructs the vista and adds an unattractive sight to what was once a lovely public image."21 In fact, this bare claim even appears to be in serious dispute, considering that the NHCP itself confirmed that the Torre de Manila was "outside the boundaries of the Rizal Park and well to the rear x x x of the Rizal National Monument; hence, it cannot possibly obstruct the front view of the said National Monument."22 Likewise, the City Legal Officer of Manila City confirmed that the area on which the Torre de Manila is situated "lies outside the Luneta Park"

and that it was "simply too far from the Rizal Monument to be a repulsive distraction or have an objectionable effect on the artistic and historical significance of the hallowed resting place of the national hero."23 And finally, DMCI-PDI had demonstrated that the Rizal Monument can be viewed/photographed at certain angles to avoid or at least minimize the Torre de Manila's presence;24 thus, the obstructive effects of the building on the monument's sightline are not only questionable but at most, insubstantial. To reiterate, case law exhorts that for mandamus to issue, it must be shown that the petitioner has a clear legal right to the performance of the act sought to be compelled and the respondent has an imperative duty to perform the same.25 The jurisprudential attribution is, in fact, exacting: "[a] clear legal right is a right which is indubitably granted by law or is inferable as a matter of law."26 No such right of petitioner exists in this case.

Neither do any of the respondents have the imperative duty to stop the Torre de Manila's construction. Accordingly, for the reasons discussed herein, I vote to DISMISS the mandamus petition. Footnotes 1 See rollo, Vol.

I, pp. 3-28. 2 Original respondent, DMCI Homes, Inc., was subsequently substituted by respondent DMCI Project Developers, Inc., as the owner and developer of the Torre de Manila project (see Manifestation and Motion of DMCI-PDI dated October 14, 2014; rollo, Vol. I, pp. 240-242).

Later on respondents the City of Manila, the National Historical Commission of the Philippines, the National Museum and the National Commission on Culture and the Arts were impleaded as respondents to this case (see Court's Resolution dated November 25, 2014; id. at 418-C-418-D). 3 Systems Plus Computer College v. Local Government of Caloocan City, 455 Phil. 956, 962 (2003), citing Section 3, Rule 65 of the Rules of Court.

4 Special People, Inc. Foundation v. Canda, 701 Phil. 365, 369 (2013); underscoring supplied. 5 Carolina v. Senga, G.R. No. 189649, April 20, 2015, 756 SCRA 55, 70; Calim v. Guerrero, 546 Phil. 240, 252 (2007); and Manila International Airport Authority v. Rivera Village Lessee Homeowners Association, Inc., 508 Phil. 354, 371 (2005); emphasis and underscoring supplied. 6 Special People, Inc. Foundation v.

Canda, supra note 4, at 386; emphasis, italics, and underscoring supplied. 7 Carolina v. Senga, supra note 5, at 70-71; emphases and underscoring supplied. 8 Sec. 15.

Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as well as artistic creations. 9 Sec. 16.

All the country's artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition. 10 See rollo, Vol. I, pp. 15-16.

11 See ponencia , pp. 8 and 9. 12 Particularly: (1) Republic Act No. (RA) 4846 entitled "AN ACT TO REPEAL ACT NUMBERED THIRTY EIGHT HUNDRED SEVENTY FOUR, AND TO PROVIDE FOR THE PROTECTION AND PRESERVATION OF PHILIPPINE CULTURAL PROPERTIES," otherwise known as "CULTURAL PROPERTIES PRESERVATION AND PROTECTION ACT"

(June 18, 1966); (2) RA 7356 entitled "AN ACT CREATING THE NATIONAL COMMISSION FOR CULTURE AND THE ARTS, ESTABLISHING A NATIONAL ENDOWMENT FUND FOR CULTURE AND THE ARTS, AND FOR OTHER PURPOSES," otherwise known as "LAW CREATING THE NATIONAL COMMISSION OF CULTURE AND THE ARTS" (April 3, 1992); and (3) RA 10066 entitled "AN ACT PROVIDING FOR THE PROTECTION AND CONSERVATION OF THE NATIONAL CULTURAL HERITAGE, STRENGTHENING THE NATIONAL COMMISSION FOR CULTURE AND THE ARTS (NCCA) AND ITS AFFILIATED CULTURAL AGENCIES, AND FOR OTHER PURPOSES,"

otherwise known as the "NATIONAL CULTURAL HERITAGE ACT OF 2009," approved on March 26, 2010. (See rollo, Vol.

I, pp. 16-17.) 13 Ponencia, p. 12. 14 See rollo, Vol.

I, pp. 19-20. 15 Ponencia, pp. 17-18. 16 See ponencia , pp. 9-10.

17 See Dissenting Opinion of Justice Francis H. Jardeleza. 18 See Carolino v. Senga, supra note 5, at 70; emphases and underscoring supplied. 19 Anchangco, Jr. v. Ombudsman, 335 Phil. 766, 771-772 (1997); emphases and underscoring supplied.

20 During the oral arguments, it was established that the granting of a variance is neither uncommon or irregular. On the contrary, current practice has made granting the variance the rule rather than the exception. (See ponencia , pp. 19-20, citing TSN, August 25, 2015, pp. 18-22.) 21 Rollo, Vol.

I, p. 172. 22 See DMCI-PDI's Comment Ad Cautelam dated November 11, 2014; id.

at 301-302; emphasis and underscoring supplied. 23 Id. at 302; emphasis and underscoring supplied.

24 See id. at 329-332. 25 See Special People, Inc. Foundation v. Canda, supra note 4, at 386.

26 Carolina v. Senga, supra note 5, at 70. The Lawphil Project - Arellano Law Foundation [](javascript:history.back\(1\)) [](https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#top) DISSENTING OPINION JARDELEZA,J.: Heritage is our legacy from the past, what we live with today, and what we pass on to future generations. Our cultural and natural heritage are both irreplaceable sources of life and inspiration.1 The concept of the public welfare is broad and inclusive.

The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well­balanced as well as carefully patrolled. - Justice William O. Douglas in Berman v. Parker2 To make us love our country, our country ought to be lovely.

- Edmund Burke The Rizal Park and the Rizal Monument lie at the heart of this controversy.

Petitioner Knights of Rizal (KOR) instituted this original action for injunction to stop what it views as "an impending permanent desecration of a National Cultural Treasure that is the Rizal Monument and a historical, political, socio-cultural landmark that is the Rizal Park."3 According to KOR, once finished at its highest level, the Torre de Manila will dwarf all surrounding buildings within a radius of two kilometers and "completely dominate the vista and consequently, substantially diminish in scale and importance the most cherished monument to the National Hero."4 Further alleging that the project is a nuisance per se and constructed in bad faith and in violation of the zoning ordinance of the City of Manila, KOR prayed, among others, for the issuance of an injunction to restrain construction of the Torre de Manila, and for an order for its demolition.5 In this case of first impression, the Court was asked to determine the constitutional dimensions of Sections 15 and 16, Article XIV of the Constitution.

These Sections mandate the State to conserve and protect our nation's historical and cultural heritage and resources. We should decide this case conscious that we here exercise our symbolic function as an aspect of our power of judicial review.6 Ours is a heavy burden; how we decide today will define our judicial attitude towards the constitutional values of historic and cultural preservation and protection, involving as they often do fragile and irreplaceable sources of our national identity. The majority has voted to dismiss the petition.

With respect, I dissent. I I shall first discuss the procedural issues. A. Petitioner KOR filed a petition for injunction, an action not embraced within our original jurisdiction.7 As correctly pointed out by DMCI-PDI, actions for injunction lie within the jurisdiction of the RTC pursuant to Sections 19 and 21 of Batas Pambansa Blg. 129, otherwise known as the "Judiciary Reorganization Act of 1980,"

as amended.8 Nevertheless, I submit that the circumstances of this case warrant a relaxation of the rule. First. KOR's petition appears to make a case for mandamus.

Section 3, Rule 65 of the Rules of Court provides: Sec. 3. Petition for mandamus. - When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

A writ of mandamus is a command issuing from a court of law of competent jurisdiction, directed to some inferior court, tribunal, or board, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law.9 For a petition for mandamus to prosper, petitioner must establish the existence of a clear legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required.10 In University of San Agustin, Inc. v. Court of Appeals,11 we stated: While it may not be necessary that the duty be absolutely expressed, it must however, be clear. The writ will not issue to compel an official to do anything which is not his duty to do or which is his duty not to do, or give to the applicant anything to which he is not entitled by law. The writ neither confers powers nor imposes duties.

It is simply a command to exercise a power already possessed and to perform a duty already imposed.12 (Emphasis supplied). Here, KOR's case is essentially founded on Sections 15 and 16, Article XIV of the Constitution giving rise to an alleged duty on the part of respondent DMCI-PDI to protect (or, at the very least, refrain from despoiling) the nation's heritage. In Uy Kiao Eng v. Lee, we held that mandamus is a "proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution."13 More importantly, a relaxation of procedural rules is warranted considering the significance of the threshold and purely legal question involved in this case.

As identified in the Court's Advisory, this threshold and purely legal question is: "whether 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."14 Apropos to this, I proposed that the Court also decide: (2) whether there are laws, statutes, ordinances, and international covenants that implement this mandate and which were breached as a result of the construction of the Torre de Manila; and (3) whether mandamus lies against public respondents. In Gamboa v. Teves,15 an original petition for prohibition, injunction, declaratory relief, and declaration of nullity was filed to stop the sale of shares of Philippine Telecommunications Investment Corporation (PTIC) stock to Metro Pacific Assets Holdings, Inc. (MPAH), a foreign owned corporation.

The sale, if allowed, would increase to 81% the common shareholdings of foreigners in Philippine Long Distance Telephone Company (PLDT), beyond the allowed constitutional limit on foreign ownership of a public utility. In Gamboa, this Court acknowledged that it had no original jurisdiction over the petition for declaratory relief, injunction, and annulment of sale filed by petitioners therein.16 Nevertheless, in view of the threshold and purely legal issue on the definition of the term "capital" in Section 11, Article XII of the Constitution which had far-­reaching implications to the national economy, this Court treated the petition as one for mandamus.17 Gamboa cited two other precedents where we had relaxed procedural rules and assumed jurisdiction over a petition for declaratory relief­ Salvacion v. Central Bank of the Philippines18 and Alliance of Government Workers v. Minister of Labor and Employment.19 Salvacion presented the issue of whether the protection afforded to foreign currency deposits can be made applicable to a foreign transient.

Alliance of Government Workers, on the other hand, involved the issue of whether government agencies are considered "employers" under a law requiring payment of 13th month pay to certain employees. As in Gamboa, in both cases, we ruled that while we had no original jurisdiction over the petitions as filed, "exceptions to this rule have been recognized."

In Salvacion, we declared: "where the petition has far-reaching implications and raises questions that should be resolved, it may be treated as one for mandamus."20 More, as in Alliance of Government Workers, "considering the important issues propounded and the fact that constitutional principles are involved," we decided "to give due course to the petition, to consider the various comments as answers and to resolve the questions raised through a full length decision in the exercise of this Court's symbolic function as an aspect of the power of judicial review."21 Alliance of Government Workers, in turn, cited as precedent the earlier cases Nacionalista Party v. Bautista22 and Aquino, Jr. v.

Commission on Elections.23 There we also relaxed the application of procedural rules and treated the petition for prohibition filed as one for quo warranto in view of "peculiar and extraordinary circumstances" and "far-reaching implications" attendant in both cases.

Here, the Court's judicial power has been invoked to determine the extent of protection afforded by the Constitution and our laws, if any, over cultural heritage properties. Our resolution of this issue will settle whether the Constitution's heritage conservation provisions are self-executing, and if not, whether the State has translated them into judicially enforceable norms through enabling legislation. Similar to Gamboa, Salvacion, and Alliance of Government Workers, I find that this case presents serious constitutional issues of far-reaching implications and significance warranting a liberal application of procedural rules.

B. Legal standing (locus standi) is defined as "a right of appearance in a court of justice on a given question."24 In Belgica v. Ochoa, Jr., we explained that "[t]he gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."25 While rules on standing in public suits have in some cases been relaxed especially in relation to non-traditional plaintiffs like citizens, taxpayers, and legislators,26 we have generally adopted the "direct injury test" to determine whether a party has the requisite standing to file suit. Under this test, for a party to have legal standing, it must be shown that he has suffered or will suffer a direct injury as a result of the act being challenged,27 that is, he must show that: (1) he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action.28 I am of the view that petitioner KOR sufficiently meets the requirements of the direct injury test.

Petitioner KOR is a public, non-profit organization created under Republic Act No. 646,29 one of whose main purposes include the organization and holding of programs to commemorate Rizal's nativity and martyrdom.30 These programs honoring the birth and death of our national hero are held by KOR at the Rizal Park at least twice a year.31 During oral arguments, counsel for KOR asserted that there is a violation ofKOR's legal mandate, as stated in its articles of incorporation, to celebrate the life of Jose Rizal at the Rizal Park insofar as the Torre de Manila mars the Park's previously "unhampered" and "unobstructed" panorama.32 Sierra Club v. Morton33 recognized that "[a]esthetic and environmental wellbeing, like economic wellbeing, are important ingredients of the quality of life in our society,"

similarly deserving of legal protection such that direct injury may be rooted on the destruction of "the scenery, natural and historic objects and wildlife of the park, and would impair the enjoyment of the park for future generations."34 While the US Supreme Court refused to grant standing to Sierra Club due to the latter's failure to allege that "it or its members would be affected in any of their activities or pastimes by the [challenged] Disney development,"35 the same is not true here. KOR has sufficiently demonstrated that it has suffered (or stands to suffer) a direct injury on account of the allegedly "illegal" condominium project insofar as KOR's regular commemorative activities in the Park have been (and continues to be) marred by the allegedly unsightly view of the Torre de Manila.

In any case, where compelling reasons exist, such as when the matter is of common and general interest to all citizens of the Philippines;36 when the issues are of paramount importance and constitutional significance;37 when serious constitutional questions are involved;38 or there are advance constitutional issues which deserve our attention in view of their seriousness, novelty, and weight as precedents,39 this Court, in the exercise of its sound discretion, has brushed aside procedural barriers and taken cognizance of the petitions before us. The significant legal issues raised in this case far outweigh any perceived impediment in the legal personality of petitioner KOR to bring this suit.40 II I shall now discuss the substantive issues raised in the petition. A. Petitioner KOR invokes Sections 15 and 16, Article XIV of the Constitution as bases for its claim that there is a constitutional "obligation of the State"

to protect the Rizal Monument.41 The Court has consequently identified the threshold legal issue to be whether Sections 15 and 16, Article XIV of the Constitution extend protection to the Rizal Monument and/or its prominence, dominance, vista points, vista corridors, sightlines, and setting. To me, the resolution of this issue largely depends on whether these sections are self-executing and thus judicially enforceable "in their present form."42 I will thus discuss these issues together. Sections 15 and 16, Article XIV of the Constitution read: Sec. 15.

Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources, as well as artistic creations. Sec. 16.

All the country's artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition. In constitutional construction, it is presumed that constitutional provisions are self-executing. The reason is that "[i]f the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law."43 This, however, does not make all constitutional provisions immediately self-executing.

In Basco v. Philippine Amusement and Gaming Corporation,44 we held that Sections 11 (Personal Dignity), 12 (Family), and 13 (Role of Youth) of Article II; Section 12 (Social Justice and Human Rights) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution are merely statements of principles and policies. They are not self-executing and would need a law to be passed by Congress to clearly define and effectuate such principles. Three years later, in the 1994 case of Tolentino v. Secretary of Finance,45 we held that the constitutional directives under Section 1, Article XIII (Social Justice and Human Rights) and Section 1, Article XIV (Education) to give priority to the enactment of laws for the enhancement of human dignity, the reduction of social, economic and political inequalities, and the promotion of the right to "quality education"

were put in the fundamental law "as moral incentives to legislation, not as judicially enforceable rights."46 In the subsequent case of Kilosbayan, Inc. v. Morato,47 we held that the provisions under Article II (Declaration of State Principles and Policies) of the Constitution are not self-executing provisions, "the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation."48 In Tañada v.

Angara,49 we affirmed that far from being provisions ready for enforcement through the courts, the sections found 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."50 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 legislation for completion and enforcement."51 In other words, the provision must set forth "a specific, operable legal right, rather than a constitutional or statutory policy."52 Justice Feliciano, in his Separate Opinion in the landmark case of Oposa v. Factoran, explained: It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.

One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration-where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution x x x. 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.53 (Emphasis supplied.) Following this test, I am of the view that Sections 15 and 16, Article XIV of the Constitution invoked by petitioner KOR are not self-executing provisions. These provisions relied upon by KOR, textually and standing alone, do not create any judicially enforceable right and obligation for the preservation, protection or conservation of the "prominence, dominance, vista points, vista corridors, sightlines and setting"

of the Rizal Park and the Rizal Monument. Similar to those constitutional provisions we have previously declared to be non-self-executing, Sections 15 and 16 are mere statements of principle and policy. The constitutional exhortation to "conserve, promote, and popularize the nation's historical and cultural heritage and resources,"

lacks "specific, operable norms and standards" by which to guide its enforcement.54 Enabling legislation is still necessary to define, for example, the scope, permissible measures, and possible limitations of the State's heritage conservation mandate. Congress, in the exercise of its plenary power, is alone empowered to decide whether and how to conserve and preserve historical and cultural property.

As in the situation posed by Justice Feliciano, Sections 15 and 16, by themselves, will be of no help to a defendant in an actual case for purposes of preparing an intelligent and effective defense. These sections also lack any comprehensible standards by which to guide a court in resolving an alleged violation of a right arising from the same.

The view that Sections 15 and 16 are not self-executing provisions is, in fact, supported by the deliberations of the Constitutional Commission, insofar as they reveal an intent to direct Congress to enact a law that would provide guidelines for the regulation as well as penalties for violations thereof.55 In particular, during the interpellation of Commissioner Felicitas Aquino, one of the proponents of the provision on heritage conservation, she conceded that there is a need for supplementary statutory implementation of these provisions.56 Petitioner KOR also claimed that the Torre de Manila project (1) "violates" the National Historical Commission of the Philippines (NHCP) "Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and Other Personages" which "guidelines have the force of law"

and (2) "runs afoul" an "international commitment" of the Philippines under the International Charter for the Conservation and Restoration of Monuments and Sites, otherwise known as the Venice Charter.57 I disagree.

The NHCP Guidelines is neither law nor an enforceable rule or regulation. Publication58 and filing with the Law Center of the University of the Philippines59 are indispensable requirements for statutes, including administrative implementing rules and regulations, to have binding force and effect.60 As correctly pointed out by respondent DMCI-PDI, no showing of compliance with these requirements appears in this case. The NHCP Guidelines cannot thus be held as binding against respondent.

Similarly, neither can the Venice Charter be invoked to prohibit the construction of the Torre de Manila project. The Venice Charter provides, in general terms, the steps that must be taken by State Parties for the conservation and restoration of monuments and sites, including these properties' setting. It does not, however, rise to a level of an enforceable law.

There is no allegation that the Philippines has legally committed to observe the Venice Charter. Neither am I prepared to declare that its principles are norms of general or customary international law which are binding on all states.61 I further note that the terms of both the NHCP Guidelines and the Venice Charter appear hortatory and do not claim to be sources of legally enforceable rights. These documents only urge (not require) governments to adopt the principles they espouse through implementing laws.62 Nevertheless, the Venice Charter and the NHCP Guidelines, along with various conservation conventions, recommendations, and resolutions contained in multilateral cooperation and agreements by State and non-state entities, do establish a significant fact: At the time of the enactment of our Constitution in 1987, there has already been a consistent understanding of the term "conservation"

in the culture, history, and heritage context as to cover not only a heritage property's physical/tangible attributes, but also its settings (e.g., its surrounding neighborhood, landscapes, sites, sight lines, skylines, visual corridors, and vista points). The setting of a heritage structure, site, or area is defined as "the immediate and extended environment that is part of, or contributes to, its significance and distinctive character."63 It is also referred to as "the surroundings in which a place is experienced, its local context, embracing present and past relationships to the adjacent landscape."64 It is further acknowledged as one of the sources from which heritage structures, sites, and areas "derive their significance and distinctive character."65 Thus, any change to the same can "substantially or irretrievably affect" the significance of the heritage property.66 The concept of settings was first formalized with the Xi'an Declaration on the Conservation of the Setting of Heritage Structures, Sites and Areas adopted by the 15th General Assembly of International Council on Monuments and Sites (ICOMOS) on October 21, 2005.

The concept itself, however, has been acknowledged decades before, with references to settings, landscapes, and surroundings appearing as early as 1962.67 To reiterate, my examination of the various multilateral and international documents on the subject shows a generally-accepted and oft-­repeated understanding of "heritage conservation" as covering more than a cultural property's physical attributes to include its surroundings and settings.68 This "understanding" had, unarguably, already acquired "term of art"

status even before the enactment of our Constitution in 1987. Verba artis ex arte. Terms of art should be explained from their usage in the art to which they belong.69 To me, absent proof of a clear constitutional expression to the contrary, the foregoing understanding of heritage conservation provide more than sufficient justification against a priori limiting the plenary power of Congress to determine, through the enactment of laws, the scope and extent of heritage conservation in our jurisdiction.

Otherwise put, the Congress can choose to legislate that protection of a cultural property extends beyond its physical attributes to include its surroundings, settings, view, landscape, dominance, and scale. This flows from the fundamental principle that the Constitution's grant of legislative power to Congress is plenary, subject only to certain defined limitations, such as those found in the Bill of Rights and the due process clause of the Constitution.70 B. Having established that Sections 15 and 16, Article XIV of the Constitution invoked by petitioner KOR are not self-executing constitutional provisions, I will discuss the existing laws or statutes that can be sources of judicially demandable rights for purposes of the ends sought to be attained by petitioner. a.

Over the years, Congress has passed a number of laws to carry out the constitutional policy expressed in Sections 15 and 16, Article XIV of the Constitution. Conservation and preservation have, notably, been recurring themes in Philippine heritage laws. Republic Act No. 4368,71 enacted in 1965 and which created the National Historical Commission, declared it the duty, among others, of the Commission to "identify, designate, and appropriately mark historic places in the Philippines and x x x to maintain and care for national monuments, shrines and historic markets x x x."72 A year later, Republic Act No. 4846, otherwise known as the "Cultural Properties Preservation and Protection Act,"

was passed declaring it an explicit state policy to "preserve and protect the important x x x cultural properties x x x of the nation and to safeguard their intrinsic value."73 Republic Act No. 735674 (RA 7356) later declared that culture is a "manifestation of the freedom of belief and of expression," and "a human right to be accorded due respect and allowed to flourish."75 Thus, it was provided that: Sec. 3. National Identity.

- Culture reflects and shapes values, beliefs, aspirations, thereby defining a people's national identity. A Filipino national culture that mirrors and shapes Philippine economic, social and political life shall be evolved, promoted and conserved. Sec. 7.

Preservation of the Filipino Heritage. - It is the duty of every citizen to preserve and conserve the Filipino historical and cultural heritage and resources. The retrieval and conservation of artifacts of Filipino culture and history shall be vigorously pursued.

(Emphasis and underscoring supplied.) With RA 7356, Congress created the National Commission for Culture and the Arts (NCCA) which had, among its principal mandates, the conservation and promotion of the nation's historical and cultural heritage.76 Later on, Republic Act No.

849277 (RA 8492) was enacted, converting the National Museum (NM) into a trust of the government whose primary mission includes the acquisition, preservation, and exhibition of works of art, specimens and cultural and historical artifacts.78 Our National Building Code also prohibits the construction of signboards which will "obstruct the natural view of the landscape x x x or otherwise defile, debase, or offend the aesthetic and cultural values and traditions of the Filipino people."79 Republic Act No. 1006680 (RA 10066) and Republic Act No. 1008681 (RA 10086) are heritage laws of recent vintage which further affirm the mandate to protect, preserve, conserve, and promote the nation's historical and cultural heritage and resources.82 Section 2 of RA 10066, for example, reads: Sec. 2. Declaration of Principles and Policies. - Sections 14, 15, 16 and 17, Article XIV of the 1987 Constitution declare that the State shall foster the preservation, enrichment and dynamic evolution of a Filipino culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression.

The Constitution likewise mandates the State to conserve, develop, promote and popularize the nation's historical and cultural heritage and resources, as well as artistic creations. It further provides that all the country's artistic and historic wealth constitutes the cultural treasure of the nation and shall be under the protection of the State, which may regulate its disposition. In the pursuit of cultural preservation as a strategy for maintaining Filipino identity, this Act shall pursue the following objectives: (a) Protect, preserve, conserve and promote the nation's cultural heritage, its property and histories, and the ethnicity of local communities; (b) Establish and strengthen cultural institutions; and (c) Protect cultural workers and ensure their professional development and well-being.

The State shall likewise endeavor to create a balanced atmosphere where the historic past coexists in harmony with modem society. It shall approach the problem of conservation in an integrated and holistic manner, cutting across all relevant disciplines and technologies. The State shall further administer the heritage resources in a spirit of stewardship for the inspiration and benefit of the present and future generations.

(Emphasis and underscoring supplied.) According to the City of Manila, "[u]nobstructed viewing appreciation and photographic opportunities have not risen to the level of a legislated right or an imposable obligation in connection with engineering works or even cultural creations."83 The NHCP, for its part, claims that there is "no law or regulation [which] imposes a specific duty on [the part of] the NHCP to issue a Cease and Desist Order (CDO) to protect the view of the Rizal Monument and Rizal Park."84 Even assuming that views are protected, the NHCP claims that it is the City of Manila in the exercise of its police power-not the NHCP-that should pass legislation to protect the Rizal Park and Rizal Monument.85 DMCI-PDI maintains that there is "absolutely no law, ordinance or rule prohibiting the construction of a building, regardless of height, at the background of the Rizal Monument and the Rizal Park."86 It argues that RA 10066, the law passed by Congress to implement the constitutional mandate of heritage conservation, "does not include provisions on the preservation of the prominence, dominance, vista points, vista corridors, sightlines, and settings of historical monuments like the Rizal Monument."87 It further claims that what RA 10066 protects is merely the physical integrity of national cultural treasures and important cultural properties "by authorizing the issuance of CDOs pursuant to Section 25 of the law."88 In my view, respondents are only PARTLY correct.

My reading of the foregoing statutes shows no clear and specific duty on the part of public respondents NCCA, NM, or NHCP to regulate, much less, prohibit the construction of the Torre de Manila project on the ground that it adversely affects the view, vista, sightline, or setting of the Rizal Monument and the Rizal Park.89 Nevertheless, there is to me existing local legislation implementing the constitutional mandate of heritage conservation. Ordinance No. 8119 provides for a clear and specific duty on the part of the City of Manila to regulate development projects insofar as these may adversely affect the view, vista, sightline, or setting of a cultural property within the city. b.

Republic Act No. 7160, otherwise known as the Local Government Code, vests local government units with the powers to enact ordinances to promote the general welfare, which it defines to include: Sec. 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare.

Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. (Emphasis supplied.) It also provides that zoning ordinances serve as the primary and dominant bases for the use of land resources.90 These are enacted by the local legislative council as part of their power and duty to promote general welfare,91 which includes the division of a municipality/city into districts of such number, shape, and area as may be deemed best suited to carry out the stated purposes, and within such districts "regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied x x x."92 Ordinance No. 8119 is a general zoning ordinance similar to the one upheld by the United States Supreme Court in the case of Village of Euclid v. Ambler Realty Co.93 as a valid exercise of police power.

The validity of a municipal ordinance dividing the community into zones was challenged in that case on the ground that "it violates the constitutional protection to the right of property x x x by attempted regulations under the guise of the police power, which are unreasonable and confiscatory."94 The US Supreme Court there stated that: Building zone laws are of modem origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities.

Regulations the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable.

And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. x x x95 This Court has similarly validated the constitutionality of zoning ordinances in this jurisdiction.96 In Victorias Milling Co., Inc. v. Municipality of Victorias, Negros Occidental,97 we held that an ordinance carries with it the presumption of validity.

In any case, the validity of Ordinance No. 8119, while subsequently raised by petitioner KOR as an issue, can be challenged only in a direct action and not collaterally.98 While the question of its reasonableness may still be subject to a possible judicial inquiry in the future,99 Ordinance No. 8119 is presumptively valid and must be applied. Ordinance No. 8119, by its terms, contains specific, operable norms and standards that implement the constitutional mandate to conserve historical and cultural heritage and resources. A plain reading of the Ordinance would show that it sets forth specific historical preservation and conservation standards which textually reference "landscape and streetscape,"100 and "visual character"101 in specific relation to the conservation of historic sites and facilities located within the City of Manila.

We quote: Sec. 47. Historical Preservation and Conservation Standards. - Historic sites and facilities shall be conserved and preserved.

These shall, to the extent possible, be made accessible for the educational and cultural enrichment of the general public. The following shall guide the development of historic sites and facilities: 1. Sites with historic buildings or places shall be developed to conserve and enhance their heritage values.

2. Historic sites and facilities shall be adaptively re-used. 3.

Any person who proposes to add, to alter, or partially demolish a designated heritage property will require the approval of the City Planning and Development Office (CPDO) and shall be required to prepare a heritage impact statement that will demonstrate to the satisfaction of the CPDO that the proposal will not adversely impact the heritage significance of the property and shall submit plans for review by the CPDO in coordination with the National Historical Institute (NHI). 4. Any proposed alteration and/or re-use of designated heritage properties shall be evaluated based on criteria established by the heritage significance of the particular property or site.

5. Where an owner of a heritage property applies for approval to demolish a designated heritage property or properties, the owner shall be required to provide evidence to satisfaction that demonstrates that rehabilitation and re-use of the property is not viable. 6.

Any designated heritage property which is to be demolished or significantly altered shall be thoroughly documented for archival purposes with a history, photographic records, and measured drawings, in accordance with accepted heritage recording guidelines, prior to demolition or alteration. 7. Residential and commercial infill in heritage areas will be sensitive to the existing scale and pattern of those areas, which maintains the existing landscape and streetscape qualities of those areas, and which does not result in the loss of any heritage resources.

8. Development plans shall ensure that parking facilities (surface lots, residential garages, stand-alone parking garages and parking components as parts of larger developments) are compatibly integrated into heritage areas, and/or are compatible with adjacent heritage resources. 9.

Local utility companies (hydro, gas, telephone, cable) shall be required to place metering equipment, transformer boxes, power lines, conduit, equipment boxes, piping, wireless telecommunication towers and other utility equipment and devices in locations which do not detract from the visual character of heritage resources, and which do not have negative impact on its architectural integrity. 10. Design review approval shall be secured from the CPDO for any alteration of the heritage property to ensure that design guidelines and standards are met and shall promote preservation and conservation of the heritage property.

(Emphasis and underscoring supplied.) Section 47, by its terms, provides the standards by which to "guide the development of historic sites and facilities," which include, among others, consideration of the "existing landscape, streetscape and visual character" of heritage properties and resources.

Under Section 47, the following matters are issues for consideration: (1) whether a certain property is considered a historic site, area and facility which has heritage value and significance; (2) whether the proposed development adds to or alters a historic site, area and facility; (3) whether a proposed development adversely impacts the heritage significance of a historic site, area or facility; (4) whether a project proponent needs to submit a heritage impact statement (HIS) and plans for review; and (5) whether the CPDO is required to coordinate with the respondent NHCP in assessing a proposed development's adverse impact, if any, to the heritage significance of a historic site, area, and facility. Petitioner KOR asserted that the Rizal Park is "sacred ground in the historic struggle for freedom"102 and the Rizal Monument is a "National Cultural Treasure."103 It alleged that respondent DMCI-PDI's Torre de Manila condominium project will have an "adverse impact"

by ruining the sightline of the Rizal Park and Rizal Monument thereby diminishing its value,104 scale, and importance.105 To my mind, petitioner's foregoing allegations should be sufficiently addressed by the City upon due consideration of the standards expressed under Section 47. In fact, Ordinance No. 8119 contains another provision that declares it in "the public interest" that all projects be designed in an "aesthetically pleasing"

manner. It makes express and specific reference to "existing and intended character of [a] neighborhood,"106 "natural environmental character" of its neighborhood, and "skyline,"107 among others.

Section 48 mandates consideration of skylines as well as "the existing and intended character of the neighborhood" where the proposed facility is to be located, thus: Sec. 48. Site Performance Standards.

- The City considers it in the public interest that all projects are designed and developed in a safe, efficient and aesthetically pleasing manner. Site development shall consider the environmental character and limitations of the site and its adjacent properties. All project elements shall be in complete harmony according to good design principles and the subsequent development must be pleasing as well as efficiently functioning especially in relation to the adjacent properties and bordering streets.

The design, construction, operation and maintenance of every facility shall be in harmony with the existing and intended character of its neighborhood. It shall not change the essential character of the said area but will be a substantial improvement to the value of the properties in the neighborhood in particular and the community in general. Furthermore, designs should consider the following: 1.

Sites, buildings and facilities shall be designed and developed with regard to safety, efficiency and high standards of design. The natural environmental character of the site and its adjacent properties shall be considered in the site development of each building and facility. 1.

The height and bulk of buildings and structures shall be so designed that it does not impair the entry of light and ventilation, cause the loss of privacy and/or create nuisances, hazards or inconveniences to adjacent developments. x x x 8. No large commercial signage and/or pylon, which will be detrimental to the skyline, shall be allowed.

9. Design guidelines, deeds of restriction, property management plans and other regulatory tools that will ensure high quality developments shall be required from developers of commercial subdivisions and condominiums. These shall be submitted to the City Planning and Development Office (CPDO) for review and approval.

(Emphasis and underscoring supplied.) Under the pertinent provisions of Section 48, the following items must be considered: (1) whether a proposed development was designed in an aesthetically pleasing manner in relation to the environmental character and limitations of its site, adjacent properties, and bordering streets; (2) whether the proposed development's design (including height, bulk and orientation) is in harmony with the existing and intended character of its neighborhood; (3) whether the development will change the essential character of the area; and (4) whether the development would be akin to a large commercial signage and/or pylon that can be detrimental to the skyline. I find that Section 48 appears relevant especially considering petitioner KOR's allegations that the Torre de Manila sticks out "like a sore thumb"108 and respondent NHCP's statement to the Senate that the Commission does find that the condominium structure (Torre de Manila) "look[s] ugly,"109 and "visually obstructs the vista and adds an unattractive sight to what was once a lovely public image x x x."110 The foregoing allegations should likewise be sufficiently addressed by the City of Manila upon due consideration of the standards stated under Section 48.

Finally, Ordinance No. 8119, by its terms, contains specific operable norms and standards that protect "views" with "high scenic quality," separately and independently of the historical preservation, conservation, and aesthetic standards discussed under Sections 47 and 48.

Sections 45 and 53 obligate the City of Manila to protect views of "high scenic quality" which are the objects of "public enjoyment," under explicit "environmental conservation and protection standards:"

Sec. 45. Environmental Conservation and Protection Standards. - It is the intent of the City to protect its natural resources.

In order to achieve this objective, all development shall comply with the following regulations: 1. Views shall be preserved for public enjoyment especially in sites with high scenic quality by closely considering building orientation, height, bulk, fencing and landscaping. x x x Sec. 53.

Environmental Compliance Certificate (ECC). - Notwithstanding the issuance of zoning permit (locational clearance) Section 63 of this Ordinance, no environmentally critical projects nor projects located in environmentally critical areas shall be commenced, developed or operated unless the requirements of ECC have been complied with. (Emphasis and italics supplied.) I note that the Torre de Manila is in a University Cluster Zone (INS-U), which is assigned a permissible maximum Percentage Land Occupancy (PLO) of 0.6 and a maximum Floor-Area Ratio (FAR) of 4.

Applying these Land Use Intensity Controls (LUICs), petitioner KOR claims that the City of Manila violated the zoning restrictions of Ordinance No. 8119 when it: (1) permitted respondent DMCI-PDI to build a structure beyond the seven-floor limit allowed within an "institutional university cluster;" and (2) granted respondent DMCI-PDI a variance to construct a building "almost six times the height limit."111 Petitioner KOR asserts that even at 22.83% completion, or at a height of 19 floors as of August 20, 2014, the Torre de Manila already obstructs the "view" of the "background of blue sky"

and the "vista" behind the Rizal Park and the Rizal Monument.112 I am aware that KOR does not in its petition invoke the constitutional right of the people to a balanced and healthful ecology,113 other environmental protection statutes, or Sections 45 and 53 of Ordinance No. 8119. Considering, however, the language of the petition's allegations, the texts of Sections 45 and 53, and the greater public interest in the just and complete determination of all issues relevant to the disposition of this case, I include the following consideration of Sections 45 and 53 in my analysis.

In my view, Section 45 in relation to Section 53, by their terms, provide standards by which "views" with "high scenic quality" enjoyed by the public should be preserved, i.e., "all developments shall comply with x x x regulations"

including those relating to "building orientation, height, [and] bulk x x x." To me, these Sections thus present the following questions for the City of Manila to consider and decide: (1) whether the Rizal Park and the Rizal Monument generate a view of high scenic quality that is enjoyed by the public;114 (2) whether this view comes within the purview of the term "natural resources;" (3) whether the orientation, height, and bulk of the Torre de Manila, as prescribed in its LUIC rating under the University Cluster Zone, or as approved by the variance granted by the City of Manila, will impair the protection of this view; and (4) whether the Torre de Manila is an environmentally critical project or is a project located in an environmentally critical area, as to require compliance with the requirements of an ECC.115 C. The majority states that the main purpose of zoning is the protection of public safety, health, convenience, and welfare.

It is argued that there is no indication that the Torre de Manila project brings any harm, danger or hazard to the people in the surrounding areas except that the building allegedly poses an unsightly view on the taking of photos or the visual appreciation of the Rizal Monument by locals and tourists. I disagree. The modern view is that health and public safety do not exhaust or limit the police power purposes of zoning.

It is true that the concept of police power (in general) and zoning (in particular) traditionally developed alongside the regulation of nuisance and dangers to public health or safety. The law on land development and control, however, has since dramatically broadened the reach of the police power in relation to zoning. The protection of cultural, historical, aesthetic, and architectural assets as an aspect of the public welfare that a State is empowered to protect pursuant to the police power would find its strongest support in Berman v. Parker.116 This 1954 landmark case broke new and important ground when it recognized that public safety, health, morality, peace and quiet, law and order-which are some of the more conspicuous examples of the traditional application of the police power-merely illustrate the scope of the power and do not limit it.117 Justice William O. Douglas in his opinion famously said: We deal, in other words, with what traditionally has been known as the police power.

An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition.

Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. x x x The concept of public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary.

It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.118 (Emphasis supplied. Citations omitted.) Building on Berman and later statutes, courts would, over time, accept newer definitions of the public welfare in support of expansive zoning laws. Some of the most significant applications of this expansion will occur in the use of zoning to effect public welfare interests in historical preservation, protection of the environment and ecology, and aesthetics.119 At this juncture, I would like to put into historical perspective the development of, and inter-relation between, town planning, police power and zoning.

a. Town planning, at least in the United States, traces its origins from early colonial days. Civil engineers and land surveyors dominated the design of frontier settlements.120 The advent of widespread land speculation then triggered the era of city-building.

When unplanned growth led to disease, poor sanitation, and problems of drainage and disposal of waste, the "water­-carriage sewerage system" was invented, paving the way for what we now know as the era of the Sanitary Reform Movement.121 After the Civil War, American cities rapidly grew, leading to "an increased awareness of the need for civic beauty and amenities in America's unplanned urban areas."122 With the growing agitation for "greater attention to aesthetics in city planning" came the City Beautiful Movement, whose debut is commonly attributed to the Chicago World Fair of 1893.123 This Movement is considered the precursor to modem urban planning whose hallmarks include "[w]ell-kept streets, beautiful parks, attractive private residences, fresh air and sanitary improvements."124 In the 1890s, townspeople formed ad hoc "village improvement associations"

to propagate the movement.125 Over time, the village improvement associations would give way to planning commissions. Much later, local governments adopted city plans which they eventually incorporated into comprehensive zoning ordinances.126 Thereafter, the United States Supreme Court in 1926 would uphold the constitutionality of a general zoning ordinance in Village of Euclid. b.

Historic preservation and conservation has a long history. It is said to have started in the United States in the mid 1800's, with efforts to save Mt. Vernon, the home of George Washington.

Before the Civil War, the United States (US) Congress initially harbored "strong doubts" as to the constitutional basis of federal involvement in historic preservation.127 Since the government at the time was not financing the acquisition of historic property,128 a group of ladies organized a private effort to acquire the property and save it from ruin.129 The US Congress injected itself into the preservation field only when it began purchasing Civil War battlefield sites. Sometime in 1893, the US Congress passed a law which provided for, among others, the acquisition of land to preserve the lines of the historic Battle of Gettysburg.

This law was challenged on constitutional grounds and gave rise to the landmark decision in United States v. Gettysburg Elec. Ry. Co.130 Gettysburg Electric Railway Co., a railroad company which acquired property for its railroad tracks that later became subject of condemnation, filed a case questioning the kind of public use for which its land is being condemned.

In unanimously ruling in favor of the federal government, the United States Supreme Court held that the taking of the property "in the name and for the benefit of all the citizens of the country x x x seems x x x not only a public use, but one so closely connected with the welfare of the republic itself x x x"131 With this Decision, historic preservation law was "canonized by the legislative, executive, and judicial branches of the Federal Government"132 and given "a constitutional foundation."133 On the other hand, environmental aspects of land use control were scarcely a concern before the 1960s.134 This, however, would change in 1969 with the passage of the federal National Environmental Policy Act135 (NEPA) which mandated that federal agencies consider the environmental effects of their actions. The policy goals as specified in the NEPA include "responsibilities of each generation as trustee of the environment for succeeding generations"136 and to "assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings"137 through the preparation of environmental impact statements on major federal actions which may have a significant impact on the environment, natural or built.138 The NEPA later led to the adoption of similar laws in over 75 countries.139 In the Philippines, President Marcos in 1977 issued Presidential Decree No. 1151, entitled "Philippine Environmental Policy,"

declaring it the responsibility of the government to, among others, "preserve important historic and cultural aspects of the Philippine heritage." It declared that an impact statement shall be filed in every action, project, or undertaking that significantly affects the quality of the environment. Presidential Decree No. 1586,140 issued in 1978, then authorized the President to declare certain projects, undertaking, or areas in the country as "environmentally critical."

Pursuant to this authority, President Marcos, under Proclamation No. 1586, declared areas of unique historic, archaeological, or scientific interests as among the areas declared to be environmentally critical and within the scope of the Environmental Impact Statement System.141 The broadening concept of the public welfare would also extend to considerations of aesthetics. The traditional rule has been that the authority for statutes and ordinances is the state's police power to promote the public safety, health, morals, or general welfare.142 Aesthetic considerations as a "primary motivation" to the enactment of ordinances are "insufficient"

where they are only "auxiliary or incidental" to the interests in health, morals and safety.143 In early court decisions concerning aesthetic regulation, the US Supreme Court viewed aesthetics as "not sufficiently important in comparison with traditional police power uses."144 At that time, the US Supreme Court would hold that aesthetic values were not important enough to warrant an infringement of more highly valued property rights.145 Aesthetic regulations were perceived to carry "great a danger of unbridled subjectivity, unlike other areas of state regulation, where objective evaluation of the governmental purpose is possible."146 The lack of any objective standard to determine what is aesthetically pleasing created a real danger that the state will end up imposing its values upon the society which may or may not agree with it. As earlier noted, this would change in 1954 with Berman.

Courts would thereafter take a more liberal and hospitable view towards aesthetics.147 "The modem trend of judicial decision x x x is to sanction aesthetic considerations as the sole justification for legislative regulation x x x."148 Writers and scholars would articulate the bases for extending to aesthetic stand-alone acceptance as a public welfare consideration. Newton D.

Baker, a noted authority in zoning regulations, argued that beauty is a valuable property right.149 Professor Paul Sayre argued that since "aesthetics maintains property values," the greater the aesthetic value of property the more it is worth, therefore it will generate more taxes to fund public needs "thereby making aesthetics a community need worthy of the protection of the police power."150 DiCello would make the formulation thus: "consequently, the general welfare may be defined as the health, safety and morals or aesthetics of the public."151 Costonis152 proposed that the legal justification for aesthetic laws is not beauty but rather our individual and group psychological well-being.153 Bobrowski argued that visual resource protection supports tourism which has undeniable economic benefits to the society; the protection of the visual resource is related to the preservation of property values.154 "Scenic quality is an important consideration for prospective purchasers.

Obstruction of views, and noxious or unaesthetic uses of land plainly decrease market value."155 Coletta explained that "an individual's aesthetic response to the visual environment is founded on the cognitive and emotional meanings that the visual patterns convey."156 c. In the Philippines, this Court, in the 1915 seminal case of Churchill v. Rafferty,157 declared that objects which are offensive to the sight fall within the category of things which interfere with the public safety, welfare, and comfort, and therefore, within the reach of the State's police power. Thus: Without entering into the realm of psychology, we think it quite demonstrable that sight is as valuable to a human being as any of his other senses, and that the proper ministration to this sense conduces as much to his contentment as the care bestowed upon the senses of hearing or smell, and probably as much as both together.

x x x Man's [a]esthetic feelings are constantly being appealed to through his sense of sight. x x x158 Forty years later, in People v. Fajardo,159` we would hold that "the State may not, under the guise of police power, permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community."160 In that case, we invalidated an ordinance that empowered the Municipal Mayor to refuse to grant a building permit to a proposed building that "destroys the view of the public plaza." In the more recent case of Fernando v. St.

Scholastica's College,161 this Court struck down a Marikina City ordinance which provided, among others, a six-meter setback requirement for beautification purposes. There, we held: "the State may not, under the guise of police power, permanently divest owners of the beneficial use of their property solely to preserve or enhance the aesthetic appearance of the community."162 Of course, Churchill and Fajardo were decided under the 1935 Constitution which simply provided that arts and letters shall be under the State's patronage.163 The 1973 and 1987 Constitutions would change this. The 1973 Constitution provided that "Filipino culture shall be preserved and developed for national identity."164 Then, in 1987, the Constitution devoted a whole new sub-section to arts and culture, including Sections 15 and 16 of Article XIV, which are subjects of this case.

More than that, it provided for a right of the people to a balanced and healthy ecology, which spawned Oposa v. Factoran, Jr.165 As also previously noted, Congress in 1991 enacted the Local Government Code which specifically defined as concerns of the public welfare, the preservation and enrichment of culture and enhancing the rights of the people to a balanced ecology. Then in 2006, the City of Manila enacted Ordinance No. 8119, which amended Ordinance No. 81-01166 of the Metropolitan Manila Commission. A "City Beautiful Movement,"

appears as one of the five-item "Plan Hi-­Lights" of Ordinance No.

8119 and includes, among others, "city imageability."167 I quote: This promotes the visual "imageability" of the City according to the Burnham Plan of 1905. As per plan recommendation from Daniel Burnham, it gives emphasis on the creation and enhancement of wide boulevards, public buildings, landscaped parks and pleasant vistas.

It also encourages the connectivity of spaces and places through various systems/networks (transport/parkways). But most of all, it is the establishment of a symbolic focus that would identify the City of Manila as well as become its unifying element. These are the main themes for Place Making revolving around creating a "sense of place"

and distinction within the City. (Emphasis and underscoring supplied.) I have compared the provisions of Ordinance No. 8119 with those of Ordinance No. 81-01 and find that they are both general zoning ordinances. Both similarly divide the City of Manila into zones, prescribe height, bulk and orientation standards applicable to the zones, and provide for a procedure for variance in case of non-conforming uses.

They, however, differ in one very significant respect relevant to the determination of this case. Ordinance No. 8119 provides for three completely new standards not found in Ordinance No. 81-01, or for that matter, in any of the other current zoning ordinances of major cities within Metro Manila, such as Marikina,168 Makati,169 or Quezon City.170 These, as discussed, are: (a) the historical preservation and conservation standards under Section 47; (b) the environmental conservation and protection standards under Sections 45 and 53; and (c) the aesthetic/site performance standards under Section 48. To my mind, these sets of distinctive provisions introduced into Ordinance No. 8119 constitute indubitable and irrefutable proof that the City of Manila has aligned itself with jurisdictions that have embraced the modern view of an expanded concept of the public welfare.

For this reason, I cannot accept the majority's view that zoning as an aspect of police power covers only "traditional" concerns of public safety, health, convenience, and welfare. I am also of the view that mandamus lies against respondents.

Generally, the writ of mandamus is not available to control discretion nor compel the exercise of discretion.171 The duty is ministerial only when its discharge requires neither the exercise of official discretion nor judgment.172 Indeed, the issuance of permits per se is not a ministerial duty on the part of the City. This act involves the exercise of judgment and discretion by the CPDO who must determine whether a project should be approved in light of many considerations, not excluding its possible impact on any protected cultural property, based on the documents to be submitted before it. Performance of a duty which involves the exercise of discretion may, however, be compelled by mandamus in cases where there is grave abuse of discretion, manifest injustice, or palpable excess of authority.173 In De Castro v. Salas,174 a writ of mandamus was issued against a lower court which refused to go into the merits on an action "upon an erroneous view of the law or practice."175 There, it was held: No rule of law is better established than the one that provides that mandamus will not issue to control the discretion of an officer or a court, when honestly exercised and when such power and authority is not abused.

A distinction however must be made between a case where the writ of mandamus is sought to control the decision of a court upon the merits of the cause, and cases where the court has refused to go into the merits of the action, upon an erroneous view of the law or practice.

If the court has erroneously dismissed an action upon a preliminary objection and upon an erroneous construction of the law, then mandamus is the proper remedy to compel it .to reinstate the action and to proceed to hear it upon its merits.176 In Association of Beverage Employees v. Figueras,177 the Court en banc explained: That mandamus is available may be seen from the following summary in 38 C. J. 598-600, of American decisions on the subject, including a U. S. Supreme Court decision: While the contrary view has been upheld, the great weight of authority is to the effect that an exception to the general rule that discretionary acts will not be reviewed or controlled exists when the discretion has been abused. The discretion must be exercised under the established rules of law, and it may be said to be abused within the foregoing rule where the action complained of has been arbitrary or capricious, or based on personal, selfish, or fraudulent motives, or on false information, or on a total lack of authority to act, or where it amounts to an evasion of a positive duty, or there has been a refusal to consider pertinent evidence, hear the parties when so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which if adopted would be effective.

If by reason of a mistaken view of the law or otherwise there has been in fact no actual and bona fide exercise of judgment and discretion, as, for instance, where the discretion is made to turn upon matters which under the law should not be considered, or where the action is based upon reasons outside the discretion imposed, mandamus will lie. So where the discretion is as to the existence of the facts entitling the relator to the thing demanded, if the facts are admitted or clearly proved, mandamus will issue to compel action according to law. x x x178 (Emphasis and underscoring supplied.) I find that the aforementioned provisions of Ordinance No. 8119 set out clear duties on the part of public respondent City of Manila for purposes of resolving whether the Torre de Manila construction project should be allowed and that the City, by reason of a mistaken or erroneous construction of its own Ordinance, had failed to consider its duties under this law when it issued permits in DMCI-PDI's favor.179 Thus, while a writ of mandamus generally only issues to compel the performance of a ministerial duty, where, as in this case, there is a neglect or failure on the part of the City to consider the standards and requirements set forth under the law and its own comprehensive land use plan and zoning ordinance, mandamus may lie to compel it to consider the same for purposes of the exercise of the City's discretionary power to issue permits.

I have earlier shown that Ordinance No. 8119 contains three provisions which, by their terms, must be considered in relation to the determination by the City of Manila of the issue of whether the Torre de Manila condominium project should be allowed to stand as is. Article VII (Performance Standards) of Ordinance No. 8119 provides the standards under which "[a]ll land uses, developments or constructions shall conform to x x x." The Ordinance itself provides that in the construction or interpretation of its provisions, "the term 'shall' is always mandatory."180 These standards, placed in the Ordinance for specific, if not already expressed, reasons must be seriously considered for purposes of issuance of building permits by the City of Manila.

Sections 43 in relation to 53, and 47 and 48, however, were not considered by the City of Manila when it decided to grant the different permits applied for by DMCI-PDI.

The City has, in fact, adamantly maintained that there is no law which regulates, much less prohibits, such construction projects.181 While I hesitate to find grave abuse of discretion on the part of the City of Manila in its actuations relating to its issuance of the permits and the variance, this is due to the disputed facts respecting these issues. There is, for example, a serious allegation of non-compliance with FAR and variance requirements under the Ordinance; this issue was, in fact, discussed and debated at great length during oral arguments.182 While I believe that the Court should refrain from making a determination of this particular issue, involving as it does findings of fact and technical matters, I do not hesitate to find that the City was mistaken in its view that there was no law which regulates development projects in relation to views, vista points, landscape, and settings of certain properties.

This law, as I have earlier sought to demonstrate, is Ordinance No. 8119, whose purposes include the protection of the "character" of areas within the locality and the promotion of the general welfare of its inhabitants.183 The standards and requirements under Ordinance No. 8119 were included in the law to ensure that any proposed development to be approved be mindful of the numerous public welfare considerations involved. Ordinance No. 8119 being the primary and dominant basis for all uses of land resources within the locality, the City of Manila, through the CPDO, knows or ought to know the existence of these standards and ought to have considered the same in relation to the application of DMCI-PDI to construct the Torre de Manila project.

Worse, the City has apparently been "suspending" the application of several provisions of the Ordinance purportedly to follow the more desirable standards under the National Building Code. In a letter dated October 10, 2012, the Manila CPDO wrote DMCI-PDI stating that while Torre de Manila exceeded the FAR allowed under the Manila Zoning Ordinance, it granted DMCI-PDI a zoning permit "because the FAR restriction was suspended by the executive branch, for the City Planning Office opted to follow the National Building Code."184 Neither does it appear that compliance was made pursuant to the requirements of Section 47(b) of Ordinance No. 8119 on the submission of a heritage impact statement (i.e., that the project will not adversely impact the heritage significance of the cultural property) for review by the CPDO in coordination with the NHCP.

Ordinance No. 8119's inclusion of standards respecting historic preservation, environmental protection, and aesthetics puts the City of Manila at the forefront of local governments that have embraced the expanded application of the public welfare. It is thus a major source of bafflement for me as to how the City of Manila could have missed these distinctive features of Ordinance No. 8119 when it processed DMCI­PDI's applications, up to and including its grant of the variance. The City of Manila's selective attitude towards the application of its own rules reminds of Justice Brion's statement in Jardeleza v. Sereno:185 The JBC, however, has formulated its own rules, which even commanded that a higher standard for procedural process be applied to Jardeleza.

But even so, by opting to selectively apply its own rules to the prejudice of Jardeleza, the JBC not only violated the precepts of procedural due process; it also violated the very rules it has set for itself and thus violated its own standards. This kind of violation is far worse than the violation of an independently and externally imposed rule, and cannot but be the violation contemplated by the term grave abuse of discretion.

The JBC cannot be allowed to create a rule and at the same time and without justifiable reason, choose when and to whom it shall apply, particularly when the application of these rules affects third persons who have relied on it.186 (Emphasis and underscoring supplied.) The City of Manila may have been of the honest belief that there was no law which requires it to regulate developments within the locality following the standards under Sections 45, 47, and 48. Still, the Court, without offending its bounden duty to interpret the law and administer justice, should not permit a disregard of an Ordinance by diminishing the duty imposed by Congress, through the local legislature, to effectuate the general welfare of the citizens of the City of Manila. The protection of general welfare for all citizens through the protection of culture, health and safety, among others, is "an ambitious goal but over time, x x x something that is attainable."187 To me, such mandate is as much addressed to this Court, as it is to the other branches of Government.

For this reason, I hesitate for the Court to allow the resulting effective disregard of the Ordinance (on the guise of technicalities) and be ourselves a stumbling block to the realization of such a laudable state goal. Under Section 75 of Ordinance No. 8119, responsibility for the administration and enforcement of the same shall be with the City Mayor, through the CPDO.188 For as long as it has not been repealed by the local sanggunian or annulled by the courts, Ordinance No. 8119 must be enforced.189 The City of Manila cannot simply, and without due justification, disregard its obligations under the law and its own zoning ordinance. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.190 In this specific sense, enforcement of the ordinance has been held to be a public duty,191 not only ministerial,192 the performance of which is enforceable by a writ of mandamus.

I hasten to clarify that, by so doing, the Court would not be directing the City of Manila to exercise its discretion in one way or another. That is not the province of a writ of mandamus.193 Lest I be misconstrued, I propose that the writ of mandamus issued in this case merely compel the City of Manila, through the CPDO, to consider the standards set out under Ordinance No. 8119 in relation to the applications of DMCI-PDI for its Torre de Manila project. It may well be that the City of Manila, after exercising its discretion, finds that the Torre de Manila meets any or all of the standards under the Ordinance.

The Court will not presume to preempt the action of the City of Manila, through the CPDO, when it re-evaluates DMCI-PDI's application with particular consideration to the guidelines provided under the standards. The majority makes much of the grant of a variance in respondent DMCI-PDI's favor and views the same as the exercise of discretion by the City of Manila which can only be corrected where there is a showing of grave abuse of discretion. This is inaccurate on two counts.

First, the rule that mandamus only lies to compel the performance of a ministerial duty has several exceptions; it is not limited to a case of grave abuse of discretion. As I have tried to discuss in detail, where respondent's exercise of discretion was based on an erroneous or mistaken view of the law, mandamus may be the proper remedy to compel it to reinstate the action and to proceed to hear it upon its merits.194 Second, the majority's view fails to appreciate the province of a variance, which is, essentially an exemption, under certain specified and stringent conditions, from compliance with the corresponding land use intensity controls (LUICs) provided for a specific zone, in this case, an institutional university cluster zone. Ordinance No.

8119 seeks to "[p]rotect the character and stability of residential, commercial, industrial, institutional, urban, open spaces and other functional areas within the locality "195 and "[p]romote and protect public health, safety, peace, morals, comfort, convenience and general welfare of the inhabitants of the City."196 It divided the City of Manila into 11 types of zones or districts,197 each assigned with their corresponding LUIC ratings.198 LUICs, in turn, specifically relate/pertain to percentages of land occupancy (PLO), floor-area ratios (FAR), and building height limits (BHL). At this point, some discussion of the zoning concepts of orientations, height, and bulk of buildings will be helpful. Building height limits can be regulated in several ways.

One involves the prescription of maximum building heights in terms of feet or stories or both: Height regulations state maximum heights either in terms of feet or number of stories or both. Their general validity was accepted by Welch v. Swasey, and most litigation questions their validity as applied. The regulations are imposed to effectuate some of the purposes, as stated in the Standard Act, namely "to secure safety from fire,"

"to provide adequate light and air" and "to prevent the overcrowding of land." They also are adopted for aesthetic reasons.199 (Citation omitted.) Building height can also be regulated through a combination of bulk and floor limits.

The PLO, for example, sets the maximum bulk of the building, or how much of the land a proposed building can occupy. The FAR, on the other hand, provides the maximum number of floors a building can have relative to its area. The zoning control devices for bulk (PLO) and floor (FAR) limits jointly determine height.

These concepts are explained as follows: Bulk zone regulations are those which provide a zoning envelope for buildings by horizontal measurement. They include such regulations as minimum lot size, minimum frontage of lots, the area of a lot that may be covered, yard requirements and setbacks. FAR, meaning floor-area ratio, is a device that combines height and bulk provisions.

x x x Under the FAR, the ordinance designates a floor-area ratio for a particular zone. If the ratio is 1:1, for example, a one-story building can cover the entire buildable area of the lot, a two-story building can cover one-half of the buildable area, a four-story building can cover one-fourth of the buildable area and so on. In commercial office building areas in large cities the ratios may be 10:1, which would permit a twenty[-]story building on half of the buildable area of the lot.

FAR may be used in conjunction with maximum height limits and other bulk controls, so that in a 10:1 area, it may not be possible to build a 200-story building on 1/20th of the buildable area of a lot or to eliminate yards entirely and build a 10-story building up to all lot lines. Nevertheless, FAR does give the builder some flexibility. In effect[,] it provides an inducement to the builder to leave more of his lot open by permitting him to build higher.200 Following this, a zoning ordinance can prescribe a maximum height for buildings: (1) directly, that is, by expressly providing for height limits in terms of feet or number of stories or both; or (2) indirectly, by employing a combination of bulk and floor limits.

Ordinance No. 8119 does not provide for an express BHL.201 Neither, for that matter, does the Building Code.202 Instead, Ordinance No. 8119 sets up a system whereby building height is controlled by the combined use of a prescribed maximum FAR and a prescribed maximum PLO. Theoretically, a property owner can maximize the allowed height of his building by reducing the area of the land which the building will occupy (PLO). This process, however, can only achieve an allowed height up to a certain point as the allowable number of floors is, at the same time, limited by the FAR.

Beyond the allowable maximum PLO or FAR, the property owner must avail of a mitigating device known in zoning parlance as a variance. Variances are provided under zoning ordinances to meet challenges posed by so-called "nonconforming uses," a generic term covering both nonconforming buildings and nonconforming activities.203 A nonconforming building, in the context of Ordinance No. 8119, is one that exceeds the LUIC rating, i.e., PLO and FAR limits, assigned to its zone.

The Ordinance allows the City of Manila to grant a variance, provided the project proponent complies with the stringent conditions and the procedure prescribed by Sections 60 to 62.204 Section 60 provides in pertinent part: Sec. 60. Deviations. - Variances and exceptions from the provisions of this Ordinance may be allowed by the Sangguniang Panlungsod as per recommendation from the Manila Zoning Board of Adjustment and Appeals (MZBAA) through the Committee on Housing, Urban Development and Resettlements only when all the following terms and conditions are obtained/existing: 1.

Variance - all proposed projects which do riot conformed (sic) with the prescribed allowable Land Use Intensity Control (LUIC) in the zone. a. The property is unique and different from other properties in the adjacent locality and because of its uniqueness, the owner/s cannot obtain a reasonable return on the property.

This condition shall include at least three (3) of the following provisions: - Conforming to the provisions of the Ordinance will cause undue hardship on the part of the owner or occupant of the property due to physical conditions of the property (topography, shape, etc.), which is not self created. - The proposed variance is the minimum deviation necessary to permit reasonable use of the property. - The variance will not alter the physical character of the district/zone where the property for which the variance sought is located, and will not substantially or permanently injure the use of the other properties in the same district or zone.

- That the variance will not weaken the general purpose of the Ordinance and will not adversely affect the public health, safety, and welfare. - The variance will be in harmony with the spirit of this Ordinance. Thus, "deviations,"

"variances and exceptions" from the standard LUICs of the Ordinance may be allowed by the Sangguniang Panlungsod as per "recommendation" from the Manila Zoning Board of Adjustment and Appeals (MZBAA) through the Committee on Housing, Urban Development and Resettlements only when specified conditions are obtained.

As earlier explained, LUICs specifically relate and pertain to PLOs, FARs, and BHLs. Variances, on the other hand, are essentially exemptions from the prescribed LUICs within a specific zone. By their terms, these standards and the considerations for the grant of a variance from the same are starkly different from the heritage, environmental, and aesthetic factors for consideration under Section 45 in relation to Sections 53, 47, and 48.

The first set of considerations governs the determination of the question of whether a property, in the first instance, is so physically "unique" in terms of its topography and shape that a strict enforcement of the standard LUICs in the area will deprive its owner from obtaining a "reasonable return" on the property.

The second set of considerations, on the other hand, pertains to the standards of heritage conservation, environmental protection, and aesthetics required from a developer as conditions to the issuance of a zoning and building permit. Compliance with one does not necessarily presuppose compliance with the other. For these reasons, I cannot accept the majority's view that the grant of a variance in this case should be treated as the City's exercise of discretion insofar as the standards under Section 45 in relation to Section 53, and Sections 47 and 48 are concerned.

Nevertheless, I wish to emphasize that while different, these two sets of considerations work to further general welfare concerns as seen fit by the local legislature. To my mind, these standards are inextricably intertwined and mutually reinforcing zoning concepts that operate as enforcement mechanisms of Ordinance No. 8119. Where the standards contained under these Sections represent the rule, a variance defines the exception.

In the context of an actual case, such as the litigation before us, where a deviation (i.e., variance) from prescribed standards is invoked, its legality as based on the facts must be established. Variances exist to mitigate the harsh application of the rule, but they were not invented to operate as ruses to render the rule inutile. The determination of how the balance is struck between law and equity will require a judicious appreciation of the attendant facts.

The record, however, is absolutely bereft of evidence supporting the City of Manila's approval of the variance. By its terms, Section 60 of Ordinance No. 8119 allows for only a single instance when a variance from the prescribed LUICs can be allowed: the property must be "unique and different from other properties in the adjacent locality and because of its uniqueness, the owners cannot obtain a reasonable return on the property." To hurdle this, an applicant for the variance must show at least three of the express qualifications under Section 60.

These qualifications, we reiterate, are as follows: (1) conforming to the provisions of the Ordinance will cause undue hardship on the part of the property owner or occupant due to physical conditions of the property (i.e., topography, shape, etc.) which are not self­-created; (2) the proposed variance is the minimum deviation necessary to permit reasonable use of the property; (3) the variance will not alter the physical character of the district/zone where the property for which the variance sought is located, and will not substantially or permanently injure the use of the other properties in the same district or zone; (4) that the variance will not weaken the general purpose of the Ordinance and will not adversely affect the public health, safety, and welfare; and (5) the variance will be in harmony with the spirit of this Ordinance. Significantly, none of the documents submitted by DMCI-PDI show compliance with any of the foregoing qualifications.

The record does not refer to any piece of evidence to show how: (1) the DMCI-PDI's property is physically "different" in topography and shape from the other properties in its zone; and (2) the DMCI-PDI cannot obtain a "reasonable return" on its property if it was compelled to comply with the prescribed LUICs in the area.

While I hesitate, at this time, to find the City of Manila's grant of the zoning and building permits and the variance to be unlawful or made in grave abuse of discretion, I do not endorse a finding that the City of Manila, under the facts of the case, acted in compliance with the requirements of Ordinance No. 8119. On the contrary, I would like to note a concern raised by Justice Peralta, during the oral arguments, that the grant of the permits for the Torre de Manila development may have violated the LUIC requirements of Ordinance No. 8119 from the very beginning. His concern is expressed in the following exchanges he had with respondent DMCI-PDI's counsel: (a) On the allowable seven-storey building based on FAR 4 without a variance: JUSTICE PERALTA: Allowable storeys, so, you have gross floor area divided by building footprint or 29,900 square meter in slide number 4, over 4,485 square meters, you are only allowed to build 6.6 storeys rounded up to 7 storeys.

My computation is still correct? ATTY. LAZATIN: On the assumption that your building footprint is 4,485, Your Honor.

Meaning, your building is fat and squat. x x x JUSTICE PERALTA: That's correct. That's why I'm saying your maximum building footprint is 4,845.

So, your gross floor area of 29,000 over 4,000... 'yun nanga ang maximum, eh, unless you want to rewrite it down, where will you get the figure? Yan na nga ang maximum, eh.

So, you got 6.6 storeys rounded up to 7 storeys. That's my own computation. I do not know if you have your own computation.

ATTY. LAZATIN: Your Honor, that is correct but that is the maximum footprint.205 (b) On the resulting 49-storey building based on FAR 13, with the variance: JUSTICE PERALTA: So, the building permit official here knew already from the very beginning that he was constructing, that DMCI was constructing a 49-storey? ATTY.

LAZATIN: That's correct, Your Honor. x x x JUSTICE PERALTA: It's even bigger no. So, your FAR, your FAR is 13, based on [these] documents, I'm basing this from your own documents, eh, because the zoning permit is based on the application of the builder, eh, diba?

Am I correct, Atty. Lazatin? ATTY. LAZATIN: That's correct, Your Honor, except that ...

JUSTICE PERALTA: So your FAR exceeded the prescribed FAR of 4 because your FAR is now 13.05?206 ATTY. LAZATIN: Without any variance, that is correct, Your Honor.207 (c) How adjusting the building footprint enables a developer, by means of a variance, to increase height of a building from FAR 4 to FAR 13: JUSTICE PERALTA: I think there is no prohibition to build a 30-storey as long as you do not violate the FAR. ATTY.

LAZATIN: That is correct, Your Honor. The height will be dependent on the so called building footprint. We can have like in the example that we gave, Your Honor, if you have a building of what they call the maximum allowable footprint, then the building that you will build is short and squat.

But if you have a smaller building footprint, then you can have a thin and tall building, Your Honor. JUSTICE PERALTA: A higher building? ATTY.

LAZATIN: Yes, Your Honor. That's exactly ... JUSTICE PERALTA: So, it's not accurate to say that just because there is a proposed 30-storey building, we will be violating this ordinance, is it right?

ATTY. LAZATIN: That's exactly our point, Your Honor.208 Certainly, the variance cannot be declared legal simply because it was already issued. On the contrary, the circumstances thus far shown appear to support a view that the general presumption of regularity in the performance of official duties should not be applied here: JUSTICE PERALTA: You include that in the memorandum.

It should be able to convince me that your computation is accurate and correct. Now, so, after all, from the zoning permit up to the building permit, the public officials here already knew that the DMCI was actually asking for permission to build 49-storeys although it is covered by the university cluster zone? ATTY.

LAZATIN: Yes, Your Honor. All the plans submitted to all the regulatory agencies show that it was for a 49-storey building, Your Honor. JUSTICE PERALTA: But using the computation in the building code, I mean, in the city ordinance, it could seem that the application should not have been approved from the very beginning because it violates the zoning law of the [C]ity of Manila?

ATTY. LAZATIN: The client DMCI was aware, Your Honor, that there have been other developers who have been able to get a variance, Your Honor. JUSTICE PERALTA: You know I'm not talking about the variance ....

ATTY. LAZATIN: That's why there are so many buildings in Manila, Your Honor, that are almost 50-storeys high, Your Honor. JUSTICE PERALTA: I wi11 go into that.

I will go into the variance later. My only concern is this, presumption of regularity in the performance of duty is not conclusive, you understand that, right? Presumption of regularity in the performance of duty is not conclusive, that is always disputable.

ATTY. LAZATIN: Agree, Your Honor, but .... JUSTICE PERALTA: If the public officials themselves do not follow the procedure, the law or the ordinance, are they presumed to [] have performed their duties in the regular manner?209 Justice Leonen would have even stronger words, suggesting that the grant of the permits, long prior to the grant of the variance, violated not only Ordinance No. 8119 but even Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act.210 More importantly, I would like to emphasize the difference in opinions as to the correct application of the FAR provisions of Ordinance No. 8119.

For example, respondent DMCI-PDI, during the oral arguments, claimed that it is allowed to build up to 66 storeys under the National Building Code and 18 storeys under the Ordinance even without a variance.211 Amicus curiae Architect Emmanuel Cuntapay posits that with the maximum FAR of 4, respondent DMCI-PDI "is allowed to construct 18.24 habitable stories or floors for Torre de Manila" or up to 25 actual floors if we add the seven floors allotted as parking areas, even without a variance.212 The OSG, on the other hand, would argue that DMCI-PDI is entitled to build only up to seven floors without a variance.213 Meanwhile, Acting Executive Director Johnson V. Domingo of the Department of Public Works and Highways computes the BHL at 7, 19, or 56 storeys, depending on the factors to be considered.214 All told, the issue as to the correct application of the FAR provisions and the resulting maximum allowable building height of the Torre de Manila sans variance is a technical issue which this Court is not equipped to answer at this time.

This issue is separate and distinct (albeit, admittedly related) to the issue regarding the propriety of the grant of the variance, which as earlier explained also involves the resolution of certain factual issues attending its grant. Thus, I find that a remand to the City of Manila is all the more appropriate and necessary in view of the critical questions of fact and technical issues still to be resolved. In any case, the City of Manila would be well advised to note that many of the textual prescriptions of Sections 45, 53, 47, and 48 are also textually imbedded in the terms of Section 60.

The first condition requires a showing that conforming to the provisions of the Ordinance will cause "undue hardship" on the part of the owner due to the physical conditions of the property, e.g., topography, shape, etc., which are not "self-created." Petitioner KOR has alleged that the Torre de Manila, because of its height, will have an "adverse impact"

on the Rizal Park and the Rizal Monument by "diminishing its value," "scale and importance." Section 47 of Ordinance No. 8119, on the other hand, prohibits any development that will "adversely impact"

the heritage significance of a property. Correlating the foregoing to this first condition of Section 60, the City of Manila should consider what is it in the physical (and not self­-created) conditions of the lot on which the Torre de Manila stands will cause undue hardship to DMCI-PDI unless a variance is granted. The City of Manila should also consider whether granting the variance will be consistent with the heritage, environmental and aesthetic standards of the Ordinance, including Section 47.

The second condition requires a showing that the proposed variance is the "minimum deviation necessary to permit reasonable use of the property." Petitioner KOR alleges that the Torre de Manila, at 19 floors, obstructs the view of the Rizal Monument, among its other allegations relating to the height of the Torre de Manila. The City of Manila should thus consider what the minimum deviation from the prescribed FAR 4 may be allowed the project, again consistent with the heritage, environmental, and aesthetic standards of Ordinance No. 8119.

This includes a determination of the maximum number of storeys Torre de Manila may be allowed to have that would cause: (1) minimum deviation from the prescribed FAR; and (2) minimal to no adverse effect on the heritage significance of nearby cultural properties. The third condition requires a showing that the variance will not "alter the physical character of the zone, or substantially or permanently injure the use of the other properties in the zone." Petitioner KOR has alleged that the Torre de Manila has diminished the scale and importance of the Rizal Park and the Rizal Monument.

Section 48, on aesthetic considerations, requires that all projects be designed in an "aesthetically pleasing manner" and that their "natural environmental character" be considered especially in relation to "adjacent properties."

In these lights, the City of Manila should consider the FAR variance that may be allowed the Torre of Manila, if any, which will not injure or alter the physical character of the zone and its adjacent properties, pursuant to the standards both laid down by Section 48. The fourth condition requires a showing that the variance will not "weaken the general purpose of the Ordinance" or "adversely affect the public health, safety, and welfare."

The fifth condition requires that the variance will be in "harmony with the spirit of the Ordinance." These two conditions encapsulate my view that the City of Manila has purposively embraced the modem, expanded concept of police power in the context of zoning ordinances. To my mind, they stand as shorthand instructions to the City of Manila in deciding the balance between enforcing the standards set forth in Sections 45, 53, 47 and 48; and Sections 60 to 62, to consider the Ordinance's overriding heritage, environmental, and aesthetic objectives.

Further, I would like to emphasize that my view and proposed disposition of the case do not entail a finding that Section 45, in relation to Section 53, and Sections 47 and 48, are already applicable for purposes of prohibiting the Torre de Manila construction project. On the contrary, the proposed ruling is limited to this: that Section 45 in relation to Sections 53, 47, and 48, by their terms and express intent, must be considered by the City of Manila in making its decisions respecting the challenged development. I propose that the City of Manila must consider DMCI-PDI's proposal against the standards clearly set by the provisions before it makes its decisions.

The standard under Section 47 is clear: that the proposed development will not adversely impact the heritage significance of the heritage property. Section 48 is also clear when it states that it is "in the public interest that all projects are designed and developed in a safe, efficient and aesthetically pleasing manner." Section 53 also clearly characterizes the protection of view enjoyed by the public as a "regulation."

These are standards textually operating as regulations and not mere guidelines. To clarify, I do not propose that the Court rule on the legality or propriety of the variance granted to DMCI-PDI under Section 60. Rather, I propose that the ruling be limited thus: the City of Manila must consider whether DMCI-PDI's proposed project meets the definition and conditions of a "unique"

property under Section 60, standing alone by the terms of Section 60, but also in relation to the heritage, environmental, and aesthetic standards of Sections 45, 53, 47 and 48. Without controlling how its discretion will thereafter be exercised, I vote that the Court direct the re­evaluation by the City of Manila, through the CPDO, of the permits previously issued in favor of the Torre de Manila project, including conducting a hearing, receiving evidence, and deciding compliance with the foregoing standards/requirements under Ordinance No. 8119.

I also do not propose a pro hac vice conversion of the proceedings into a "contested case" under the terms of the Administrative Code.215 I do, however, believe that notice and hearing requirements216 must be observed, with all concerned parties given the opportunity to present evidence and argument on all issues.217 Section 77 of Ordinance No. 8119 allows for the filing of a verified complaint before the MZBAA for any violation of any provision of the Ordinance or of any clearance or permits issued pursuant thereto, including oppositions to applications for clearances, variance, or exception. Otherwise put, I believe that the requirements of Ang Tibay v. Court of Industrial Relations218 and Alliance for the Family Foundation, Philippines, Inc. v. Garin219 are deemed written into Section 77.

With these clarifications, I vote that the City, through the Mayor and his representatives, be compelled by mandamus to consider its own conservation standards and LUIC requirements. I find the concern about estoppel irrelevant inasmuch as petitioner KOR's alleged development proposals appear to have been made more than five decades ago, and long before either the 1987 Constitution or Ordinance No. 8119 were ever conceived. Finally, it may well have been Rizal's wish to be buried a certain place and in a certain way.

If we were to pursue this line of reasoning to its logical conclusion, this argument would forbid the establishment of a Rizal Monument, a Rizal Park, and celebration of Rizal Day. In any case, and while not blind to history, we must be reminded that this Court, in the words of Justice Tinga, is a judge not of history but of the Constitution and the law.220 To reiterate, I do not propose to resolve the factual issues raised by the parties regarding DMCI-PDI's alleged violation of existing regulations under Ordinance No. 8119 (including compliance with the FAR and variance requirements), whether the Torre de Manila is a nuisance, and whether DMCI-PDI acted in good faith in the construction of the project. The constitutional guarantee of due process requires that such matters first be heard and resolved by the City of Manila, the appropriate administrative agency, or the courts.

I realize that, for all the debates during the oral arguments, it was only after the case has been submitted for resolution that the Court was first made aware, through the writer of this Dissenting Opinion, of the existence of Section 45 in relation to 53, and Sections 47 and 48 of Ordinance No. 8119, and their relevance in the resolution of this case. No party to the case or member of this Court had previously raised the applicability of these Sections of Ordinance No. 8119. I argued to remand the case to the City of Manila precisely for it to re-evaluate the grant of the permits to DMCI-PDI in light of the cited Sections and to hear the parties thereon.

A careful reading of the Decision would show that the majority concedes that there is a law that "provides for standards and guidelines to regulate development projects x x x within the City of Manila."221 However, instead of a remand, they went on to find that the standards and guidelines do not apply to "the construction of a building outside the boundaries of a historic site or facility, where such building may affect the background of a historic site."222 With respect, I disagree with the majority's peremptory dismissal of the case on the basis of such finding, considering that none of the parties were ever heard on this specific issue, i.e., the application of Section 45 in relation to 53, and Sections 47 and 48 of Ordinance No. 8119 based on the facts of the case. The constitutional guarantee of due process dictates that parties be given an opportunity to be heard before judgment is rendered.

Here, the parties were not heard on the specific subject of the performance standards prescribed by Ordinance No. 8119, insofar as they appear relevant to this case.

A remand would have been the just course of action. The absence of such a hearing, I would like to emphasize, is precisely the reason why I hesitate to attribute bad faith or grave abuse of discretion, at this point, on the part of any one party. A remand would have allowed for the building of a factual foundation of record with respect to underlying questions of fact (and even policy) not appropriate to be decided, in the first instance, by the Court.

I imagine that a remand would provide the opportune venue to hear and receive evidence over alternate/moderate views, including, as I said, the maximum number of storeys the Torre de Manila may be allowed that would pose minimal deviation from the prescribed LUICs and still be considered consistent with the other performance standards under the Ordinance. Furthermore, while the majority insists on according respect to the City of Manila's exercise of discretion, it seems to me that their finding at this point that the standards provided under Ordinance No. 8119 are not applicable does more to preempt the City of Manila in the exercise of its discretion than an order requiring it to merely consider their application. This, despite clear indications that they have not been considered at all during the processing of DMCI-PDI's application.

That the City of Manila has not considered these standards is a finding of fact that the Court can make because this was admitted as much by the local government itself when, based on its erroneous reading of its own zoning ordinance, it claimed that there is no law which regulates constructions alleged to have impaired the sightlines of a historical site/facility. At the risk of sounding repetitive, I believe a remand would, at the very least, allow the City of Manila to consider and settle, at the first instance, the matter of whether the Sections in question are applicable or not. To end, I am reminded of the view, first expressed in Tañada v. Angara,223 that even non-self-executing provisions of the Constitution may be "used by the judiciary as aids or as guides in the exercise of its power of judicial review."224 More than anything, this case presented an opportunity for the Court to recognize that aspirational provisions contained in Article II (Declaration of Principles and State Policies) and many more similar provisions spread in the Constitution, such as Sections 14 and 15, Article XIV, are not, in the words of Chief Justice Reynato Puno, "meaningless constitutional patter."225 These provisions have constitutional worth.

They define our values and embody our ideals and aspirations as a people. The command under Section 15, Article XIV of the Constitution for the State to conserve the nation's historical and cultural heritage is as much addressed to this Court, as it is to Congress and to the Executive. We should heed this command by ordering a remand, more so where there is an obvious intent on the part of the City of Manila, in the exercise of its delegated police power from Congress, to incorporate heritage conservation, aesthetics, and environment protection of views into its zoning ordinance.

In this modern world, heritage conservation has to constantly compete with other equally important values such as property and property development.ℒαwρhi৷ In litigations involving such clash of values, this Court sets the tone on the judicial solicitude it is duty-bound to display towards aspirational constitutional values, especially when implemented by specific and operable legislation. Here, we had the unique opportunity to give the value of heritage conservation, involving as it does the preservation of fragile and vulnerable resources, all the breathing space226 to make its case. This Decision, however, seems to have achieved the complete' opposite.

For all the foregoing reasons, I vote to PARTIALLY GRANT the petition. Footnotes 1 About World Heritage, UNESCO World Heritage Centre, (last accessed June 14, 2016). 2 348 U.S. 26, 33 (1954).

3 Rollo, p. 3. 4 Id.

at 23. 5 Id. at 27-28.

6 Alliance of Government Workers v. Minister of Labor and Employment, G.R. No. L-60403, August 3, 1983, 124 SCRA 1, 9-10. 7 CONSTITUTION, Art. VIII, Sec. 5. The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari , prohibition, mandamus , quo warranto, and habeas corpus ; x x x.

8 Rollo, pp. 308-309 citing Bank of the Philippine Islands v. Hong, G.R. No. 161771, February 15, 2012, 666 SCRA 71. 9 Uy Kiao Eng v. Lee, G.R. No. 176831, January 15, 2010, 610 SCRA 211, 216-217. 10 Henares, Jr. v. Land Transportation Franchising and Regulatory Board, G.R. No. 158290, October 23, 2006, 505 SCRA 104, 115 citing University of San Agustin, Inc. v. Court of Appeals, G.R. No. 100588, March 7, 1994, 230 SCRA 761, 771.

11 G.R. No. 100588, March 7, 1994, 230 SCRA 761. 12 Id. at 771-772.

13 Uy Kiao Eng v. Lee, supra at 217. 14 Rollo, pp. 1229-1230. 15 G.R. No. 176579, June 28, 2011, 652 SCRA 690.

16 Id. at 705-706. 17 Id.

at 706-709. 18 G.R. No. 94723, August 21, 1997, 278 SCRA 27. 19 G.R. No. L-60403, August 3, 1983, 124 SCRA 1.

20 Salvacion v. Central Bank of the Philippines, supra at 39-40. 21 Alliance of Government Workers v. Minister of Labor and Employment, supra at 9-10. 22 85 Phil. 101 (1949).

23 G.R. No. L-40004, January 31, 1975, 62 SCRA 275. 24 Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78, 149-150 citing David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 216. 25 G.R. No. 208566, November 19, 2013, 710 SCRA 1, 99.

(Citations omitted.) 26 Arigo v. Swift, G.R. No. 206510, September 16, 2014, 735 SCRA 102, 128. 27 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 217-218 citing People v. Vera, 65 Phil. 56 (1937). 28 Tolentino v. Commission on Elections, G.R. 148334, January 21, 2004, 420 SCRA 438, 452.

29 An Act to Convert the "Orden de Caballeros de Rizal" into a Public Corporation to be known in English as "Knights of Rizal" and in Spanish as "Orden de Caballeros de Rizal,"

and to Define its Purposes and Powers, Sec. 2. See also Rollo, p. 5.

30 Republic Act No. 646, Sec. 2. 31 TSN, July 21, 2015, p. 13-14.

32 TSN, July 21, 2015, p. 13-14: JUSTICE JARDELEZA: Now, do you organize and hold programs to commemorate the birth and death of Dr. Jose Rizal? ATTY.

JASARINO: Yes, Your Honor, we do. JUSTICE JARDELEZA: And where do you hold these programs? ATTY.

JASARINO: Rizal Park, Your Honor. JUSTICE JARDELEZA: You have been there yourself. ATTY.

JASARINO: Yes, Your Honor. JUSTICE JARDELEZA: How often do you do this? ATTY.

JASARINO: Talking of nativity and martyrdom, at least, twice a year. JUSTICE JARDELEZA: And how does, again, the Torre injure you or the organization in the [discharge] of this specific corporate purpose? ATTY.

JASARINO: I cannot imagine having the celebrations, the programs with Torre at the back. I cannot imagine that activity to be inspiring, to be reminding us of Rizal, of his works, of his ideals while looking at Torre marring the background that we used to have, the panorama that is unhampered, that is unobstructed. (Underscoring supplied.) 33 405 U.S. 727 (1972).

34 Id. at 734. 35 Id.

at 735. 36 Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993, 224 SCRA 792, 802. 37 Bagong Alyansang Makabayan v. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 449, 480.

38 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, 364-365. 39 Tolentino v. Commission on Elections, supra at 453-454. 40 Gamboa v. Teves, supra note 15, at 713.

41 Rollo, pp. 15-16. 42 See Oposa v. Factoran, Jr., supra at 816-817 (Feliciano, J., concurring). 43 Manila Prince Hotel v. Government Service Insurance System, G.R. No.

122156, February 3, 1997, 267 SCRA 408, 431-432. 44 G.R. No. 91649, May 14, 1991, 197 SCRA 52. 45 G.R. No. 115455, August 25, 1994, 235 SCRA 630.

46 Id. at 684-685. 47 G.R. No. 118910, July 17, 1995, 246 SCRA 540.

48 Id. at 564. 49 G.R. No. 118295, May 2, 1997, 272 SCRA 18.

50 Id. at 54. 51 Agabon v. National Labor Relations Commission, G.R. No. 158693, November 17, 2004, 442 SCRA 573, 688 (Tinga, J., concurring).

52 Oposa v. Factoran, Jr., supra note 36, at 817. 53 Id. at 817-818.

54 See Agabon v. National Labor Relations Commission, supra (Tinga, J., concurring). 55 IV RECORD, CONSTITUTIONAL COMMISSION 558-560 (September 11, 1986). 56 Id.

57 Rollo, pp. 19-20. 5.10 This PROJECT blatantly violates the National Historical Commission of the Philippines' "Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos and Other Personages" which guidelines have the force of law.

The said guidelines dictate that historic monuments should assert a visual "dominance" over the surroundings by the following measures, among others: DOMINANCE (i) Keep vista points and visual corridors to monuments clear for unobstructed viewing and appreciation and photographic opportunities; (ii) Commercial buildings should not proliferate in a town center where a dominant monument is situated; SITE AND ORIENTATION (i) The conservation of a monument implies preserving a setting, which is not out of scale. Wherever the traditional setting exists, it must be kept.

No new construction, demolition or modification, which would alter the relations of mass and color, must be allowed. (ii) The setting is not only limited with the exact area that is directly occupied by the monument, but it extends to the surrounding areas whether open space or occupied by other structures as may be defined by the traditional or juridical expense of the property. 5.11 The PROJECT also runs afoul of an international commitment of the Philippines, the International Charter for the Conservation and Restoration of Monuments and Sites, otherwise known as the Venice Charter.

That agreement says, in part, as follows: ARTICLE 1. The concept of an historic monument embraces not only the single architectural work but also the urban or rural setting in which is found the evidence of a particular civilization, a significant development or a historic event. This applies not only to great works of art but also to more modest works of the past which have acquired cultural significance with the passing of time; x x x x ARTICLE 6.

The conservation of a monument implies preserving a setting which is not out of scale. Wherever the traditional setting exists, it must be kept. No new construction, demolition or modification which would alter the relations of mass and colour, must be allowed.

(Underscoring in the original.) 58 Tañada v. Tuvera, G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453-454. 59 ADMINISTRATIVE CODE, Book VII, Chapter 2, Sec. 3. 60 Republic v. Pilipinas Shell Petroleum Corporation, G.R. No. 173918, April 8, 2008, 550 SCRA 680, 689.

61 See Pharmaceutical and Health Care Association of the Philippines v. Duque, G.R. No. 173034, October 9, 2007, 535 SCRA 265. 62 The NHCP Guidelines, for example, reads in pertinent part: 11. DEVELOPMENT OF THE VICINITY (EXISTING AND FUTURE) It is highly recommended that towns and cities formulate zoning guidelines or local ordinances for the protection and development of monument sites and the promotion of a clean and green environment, and strictly implement these laws, especially in places where important monuments and structures are located.

A buffer zone should be provided around the vicinity of monuments/sites, and should be made part of the respective city or municipal land use and zoning regulations through local legislation.

Height of buildings surrounding or in the immediate vicinity of the monument/site should be regulated by local building code regulation or special local ordinance to enhance the prominence, dominance and dignity of the monument, more importantly, the national monuments. 63 Xi'an Declaration on the Conservation of the Setting of Heritage Structures, Sites and Areas, par 1. [hereinafter "Xi'an Declaration"] 64 ICOMOS Guidance on Heritage Impact Assessments for Cultural World Heritage Properties, par.

5-3. 65 Xi'an Declaration, par. 2.

66 Xi'an Declaration, par. 9. 67 UNESCO Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites (1962).

See International Charter for the Conservation and Restoration of Monuments and Sites (1964 Venice Charter), UNESCO Recommendation concerning the Preservation of Property Endangered by Public or Private Works (1968), Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage (1972), UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage, otherwise known as the World Heritage Convention (1972), Declaration of Amsterdam (1975), UNESCO Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas (1976), ICOMOS Committee for Historic Gardens (1981), Charter for the Conservation of Historic Towns and Urban Areas (1987), among others. 68 See Takahiro Kenjie C. Aman & Maria Patricia R. Cervantes-Poco, What's in a Name?: Challenges in Defining Cultural Heritage in Light of Modern Globalization, 60 ATENEO L.J. 965 (2016).

69 BLACK'S LAW DICTIONARY 1200 (1995). See Laurence H. Tribe, I AMERICAN CONSTITUTIONAL LAW 60 (2000). See also Dante Gatmaytan, LEGAL METHOD ESSENTIALS 46 (2012) citing Francisco, Jr. v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44.

70 See Vera v. Avelino, 77 Phil. 192 (1946). 71 An Act to Establish a National Historical Commission, to Define Its Powers and Functions, Authorizing the Appropriation of Funds erefor, and for Other Purposes (1965). 72 Republic Act No. 4368, Sec. 4(e).

73 Republic Act No. 4846, Sec. 2. 74 Law Creating the National Commission for Culture and the Arts (1992). 75 Republic Act No. 7356, Sec. 2.

76 Republic Act No. 7356, Sec. 12(b). 77 National Museum Act of 1998. 78 Republic Act No. 8492, Sec. 3.

79 Republic Act No. 6541, Chapter 10.06, Sec. 10.06.01: General - (a) No signs or signboards shall be erected in such a manner as to confuse or obstruct the view or interpretation of any official traffic sign signal or device. (b) No signboards shall be constructed as to unduly obstruct the natural view of the landscape, distract or obstruct the view of the public as to constitute a traffic hazard, or otherwise defile, debase, or offend the aesthetic and cultural values and traditions of the Filipino people. (Emphasis supplied.) 80 National Cultural Heritage Act of 2009.

81 Strengthening Peoples' Nationalism Through Philippine History Act (2009). 82 Republic Act No. 10066, Sec. 2 and Republic Act No. 10086, Sec. 2. 83 Rollo, p.

435. 84 Id. at 2428.

85 Id. at 2440. 86 Id.

at 3213. 87 Id. at 1279.

88 Id. 89 Considering the pendency of Civil Case No. 15-074 (before the Regional Trial Court in Makati City) and G.R. No. 222826 (before this Court), we shall refrain from discussing the matter of the propriety of the NCCA's issuance of a CDO at this time. 90 Republic Act No. 7160, Sec. 20(c).

91 The pertinent portions of the Local Government Code provide: Sec. 458. Powers, Duties, Functions and Compensation. - The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall: (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: x x x (ix) Enact integrated zoning ordinances in consonance with the approved comprehensive land use plan, subject to existing laws, rules and regulations; establish fire limits or zones, particularly in populous centers; and regulate the construction, repair or modification of buildings within said fire limits or zones in accordance with the provisions of the Fire Code; x x x (4) Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare x x x.

(Emphasis supplied.) 92 Donald G. Hagman & Julian Conrad Juergensmeyer, URBAN PLANNING AND LAND DEVELOPMENT CONTROL LAW 55 (1986) [hereinafter "HAGMAN & JUERGENSMEYER"]. 93 272 U.S. 365 (1926). 94 Id.

at 386. 95 Id. at 386-387.

96 Gancayco v. City Government of Quezon, G.R. No. 177807, October 11, 2011, 658 SCRA 853; Social Justice Society v. Atienza, Jr., G.R. No. 156052, February 13, 2008, 545 SCRA 92; United BF Homeowners' Association, Inc. v. City Mayor of Parañaque, G.R. No. 141010, February 7, 2007, 515 SCRA 1; Sangalang v. Intermediate Appellate Court, G.R. No. 71169, December 22, 1988, 168 SCRA 634; People v. De Guzman, 90 Phil. 132 (1951); Tan Chat v. Municipality of Iloilo, 60 Phil. 465 (1934); Seng Kee & Co. v. Earnshaw, 56 Phil. 204 (1931); People v. Cruz, 54 Phil. 24 (1929). 97 G.R. No. L-21183, September 27, 1968, 25 SCRA 192 cited in Smart Communications, Inc. v. Municipality of Malvar, Batangas, G.R. No. 204429, February 18, 2014, 7I6 SCRA 677. 98 Solicitor General v. Metropolitan Manila Authority, G.R. No. 102782, December 11, 1991, 204 SCRA 837, 842.

99 Id. 100 Ordinance No. 8119, Sec. 47(7). 101 Ordinance No. 8119, Sec. 47(9).

102 Rollo, p. 10. 103 Id.

at 12. 104 Id. at 13.

105 Id. at 23. 106 Ordinance No. 8119, Sec. 48(2).

107 Ordinance No. 8119, Sec. 48(8). 108 Rollo, p.13. 109 Id.

at 172. 110 Id. 111 Rollo, p.

22. 112 Id. at 23.

113 CONSTITUTION, Art. II, Sec. 16. 114 The Rizal Park is described by the National Parks Development Committee, the entity tasked with Rizal Park's maintenance and development, "the Philippine's premier open space, the green center of its historical capital" and the "central green of the country."

NATIONAL PARKS DEVELOPMENT COMMITTEE, PARKS FORA NATION 11 (2013). 115 The record shows that an Environmental Compliance Certificate was issued by the DENR to the City of Manila.1a⍵⍴h!1 (Rollo, p. 385) However, the record does not contain the Environmental Impact Statement (EIS) on which the ECC was based, and whether the EIS considered the impact of the Torre de Manila on the Rizal Park land and the Rizal Monument, under the terms of Sections 45 and 53.

It is well to remember that it was the concern of the Environmental Management Bureau-National Capital Region, over the impact of the Torre de Manila on the setting of the Rizal Park and the Rizal Monument that triggered the first contact of DMCI-PDI with NHCP. The ECC refers to an Initial Environmental Examination (IEE) Checklist which was submitted and intended to protect and mitigate the Torre de Manila's adverse impacts on the environment. The IEE Checklist Report, which the DENR uses for projects to be located within Environmentally Critical Areas (ECA), is not itself part of the record.

The IEE Checklist Report form requires the DENR to consider, under Environmental Impacts and Management Plan, "possible environmental/social impacts" in the form of "impairment of visual aesthetics." The record is bereft of information on how this possible impact to the visual aesthetics of the Rizal Park and the Rizal Monument was considered or handled.

116 Supra note 2. See Terence H. Benbow & Eugene G. McGuire, Zoning and Police Power Measures for Historic Preservation: Properties of Nonprofit and Public Benefit Corporations, 1 PACE L. REV. 635 (1981).

117 Berman v.

Parker, supra note 2, at 32-33. 118 Id. 119 HAGMAN & JUERGENSMEYER, supra note 92, at 378-388, 446-472.

120 Id. at 13-14. 121 Id.

at 14-16. 122 Id. at 16.

123 Id. 124 Id. at 17.

125 Id. 126 Id. at 18-24.

127 Richard West Sellars, Pilgrim Places: Civil War Battlefields, Historic Preservation, and America's First National Military Parks, 1863-1900, 2 CRM: THE JOURNAL OF HERITAGE STEWARDSHIP 45-47 (2005) [hereinafter "SELLARS"]. 128 HAGMAN & JUERGENSMEYER, supra note 92, at 461. 129 Seth Porges, The Surprising Story of How Mount Vernon Was Saved From Ruin, FORBES, January 14, 2016, (last accessed April 5, 2017).

130 160 U.S. 668 (1896). 131 Id. at 682.

The US Supreme Court held: Upon the question whether the proposed use of this land is public one, we think there can be no well founded doubt. And also, in our judgment, the government has the constitutional power to condemn the land for the proposed use. x x x The end to be attained by this proposed use, as provided for by the act of Congress, is legitimate, and lies within the scope of the Constitution.

The battle of Gettysburg was one of the great battles of the world. x x x Can it be that the government is without powel to preserve the land and properly mark out the various sites upon which this struggle took place? Can it not erect the monuments provided for by these acts of Congress, or even take possession of the field of battle in the name and for the benefit of all the citizens of the country for the present and for the future?

Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the Constitution for the purpose of protecting and preserving the whole country. x x x (Id. at 680-682.

Emphasis supplied.) 132 SELLARS, supra at 46-47. 133 J. Peter Byrne, Hallowed Ground: The Gettysburg Battlefied in Historic Preservation Law, GEORGETOWN LAW FACULTY WORKING PAPERS, Paper 91 (2008), (last accessed July 25, 2016). See also SELLARS, supra.

134 HAGMAN & JUERGENSMEYER, supra note 92, at 378. 135 Pub. L. No. 91-190, 83 Stat.

852, codified at 42 U.S.C §§4321-4361. 136 42 USC §4331. 137 Id.

138 HAGMAN & JUERGENSMEYER, supra note 92, at 382. 139 Larry W. Canter, ENVIRONMENTAL IMPACT ASSESSMENT 35 (1996). 140 Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes.

141 See HAGMAN & JUERGENSMEYER, supra note 92, at 385-386: Alternatives are at the heart of the EIS [requirement]. All reasonable alternatives are to be described and analyzed for their environmental impacts. Alternatives include abandonment of the project and delay for further study.

Even those alternatives which are not within the preparing agency's powers are to be discussed. x x x Properly utilized, the EIS process achieves two goals. First, it forces agencies to consider the environmental effect of their decisions.

Second, it provides a disclosure statement showing both the environmental consequences of the proposed action and the agency's decision-making process. 142 Aesthetic Purposes in the Use of the Police Power, 9 DUKE L.J. 299, 303 (1960). 143 Robert J. DiCello, Aesthetics and the Police Power, 18 CLEV.

MARSHALL L. REV. 384, 387 (1969) [hereinafter "DICELLO"]. 144 James Charles Smith, Law, Beauty, and Human Stability: A Rose Is a Rose Is a Rose, 78 CAL.

L. REV. 787, 788 (1990) [hereinafter "SMITH"] reviewing John Costonis, ICONS AND ALIENS: LAW, AESTHETICS, AND ENVIRONMENTAL CHANGE (1989). 145 Id.

at 788-789. 146 Id. at 789.

147 Id. at 790-791. 148 Aesthetic Purposes in the Use of the Police Power, 1960 DUKE L.J. 299, 301.

149 DICELLO, supra at 380-390. 150 Id. at 390 citing Paul Sayre, Aesthetics and Property Values: Does Zoning Promote the Public Welfare?, 35 A.B.A. J. 471 (1949).

151 Id. 152 See John Costonis, ICONS AND ALIENS: LAW, AESTHETICS, AND ENVIRONMENTAL CHANGE (1989). 153 See SMITH, supra at 793.

154 See Mark Bobrowski, Scenic Landscape Protection Under the Police Power, 22 B.C. ENVTL. AFF. L. REV.

697 (1995). 155 Id. 156 See also J.J. Dukeminier, Jr., Zoning For Aesthetic Objectives: a Reappraisal, 20 LAW & CONTEMPORARY PROBLEMS 218 (1955), which confronts squarely the problem raised by the subjective quality of the central element of aesthetics: what is beauty?: Now it seems fairly clear that among the basic values of our communities, and of any society aboriginal or civilized, is beauty.

Men are continuously engaged in its creation, pursuit, and possession; beauty, like wealth, is an object of strong human desire. Men may use a beautiful object which they possess or control as a basis for increasing their power or wealth or for effecting a desired distribution of any one or all of the other basic values of the community, and, conversely, men may use power and wealth in an attempt to produce a beautiful object or a use of land which is aesthetically satisfying. It is solely because of man's irrepressible aesthetic demands, for instance, that land witb a view has always been more valuable for residential purposes than land without, even though a house with a view intruding everywhere is said to be terribly hard to live in.

Zoning regulations may, and often do, integrate aesthetics with a number of other community objectives, but it needs to be repeatedly emphasized that a healthful, safe and efficient community environment is not enough. More thought must be given to appearances if communities are to be really desirable places in which to live. Edmund Burke-no wild-eyed radical-said many years ago, "To make us love our country, our country ought to be lovely."

It is still so today. x x x x Furthermore, in specifying and evaluating indices of attractive environments, it is important that community decision-makers-judges and planning officials-realize that they must promote land use which in time will succeed in appealing to people in general. In public planning that environment is beautiful which deeply satisfies the public; practical success is of the greatest significance.

In the long run, what the people like and acclaim as beautiful provides the operational indices of what is beautiful so far as the community is concerned. All popular preferences will never be acceptable to connoisseurs who urge their own competence to prescribe what is truly beautiful, yet it seems inescapable that an individual's judgment of beauty cannot be normative for the community until it is backed with the force of community opinion. History may be of some comfort to the connoisseurs: widely acknowledged great artists and beautiful architectural styles produced popular movements and not cults.

A great age of architecture has not existed without the popular acceptance of a basic norm of design. (Emphasis in the original.) 157 32 Phil. 580 (1915). 158 Id.

at 608. 159 104 Phil. 443 (1958). 160 Id.

at 447-448. 161 G.R. No. 161107, March 12, 2013, 693 SCRA 141. 162 Id.

at 160. 163 1935 CONSTITUTION, Art. XIII, Sec. 4. 164 1973 CONSTITUTION, Article XV, Sec. 9(2) 165 Supra note 36.

166 Comprehensive Zoning Ordinance for the National Capital Region (1981). 167 II MANILA COMPREHENSIVE LAND USE PLAN AND ZONING ORDINANCE 2005-2020, Sec. 3. "Imageability"

was defined as "that quality in a physical object which gives it a high probability of evoking a strong image in any given observer." 168 Ordinance No. 161 (2006). 169 Ordinance No. 2012-102.

170 Ordinance No. SP-2200, S-2013. 171 Metropolitan Bank and Trust Company v. Reynado, G.R. No. 164538, August 9, 2010, 627 SCRA 88, 106. 172 Civil Service Commission v. Department of Budget and Management, G.R. No. 158791, July 22, 2005, 464 SCRA 115, 133-134.

173 See MA. Jimenez Enterprises, Inc. v. Ombudsman, G.R. No. 155307, June 6, 2011, 650 SCRA 381, 399; Corpuz v. Sandiganbayan, G.R. No.

162214, November 11, 2004, 442 SCRA 294, 308; Civil Service Commission v. Department of Budget and Management, supra. See also Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001, 370 SCRA 394, 411; Angchangco, Jr. v. Ombudsman, G.R. No. 122728, February 13, 1997, 268 SCRA 301, 306; Antiquera v. Baluyot, 91 Phil. 213, 220 (1952). 174 34 Phil. 818 (1916).

175 Id. at 823-824. See also Eraña v. Vera, 74 Phil. 272 (1943).

176 De Castro v. Salas, supra at 823-824. 177 91 Phil. 450 (1952). 178 Id.

at 455. See also Rene de Knecht v. Desierto, G.R. No. 121916, June 28, 1998, 291 SCRA 292 and Eraña v. Vera, supra (where the Court held that a mistaken or erroneous construction of the law may be a ground for the issuance of a writ of mandamus). 179 Ordinance No. 8119, Sec. 47.

180 Ordinance No. 8119, Sec. 6(f). 181 Rollo, p. 434.

182 See interpellations by Justices Diosdado Peralta and Francis Jardeleza, among others. TSN, August 11, 2015, pp. 6-7,20-36,48-52, 65-67; TSN, August 18, 2015, pp. 26-onwards. 183 Ordinance No. 8119, Sec. 3.

184 Rollo, p. 302. (Emphasis supplied.) 185 G.R. No. 213181, August 19, 2014, 733 SCRA 279.

186 Id. at 427 (Brion, J., concurring). 187 Aquilino Pimentel, Jr., THE LOCAL GOVERNMENT CODE REVISITED 70 (2011).

188 Ordinance No. 8119, Sec. 75. Responsibility for Administration and Enforcement. - This Ordinance shall be enforced and administered by the City Mayor through the City Planning and Development Office (CPDO) in accordance with existing laws, rules and regulations.

For effective and efficient implementation of this Ordinance, the CPDO is hereby authorized to reorganize its structure to address the additional mandates provided for in this Ordinance. 189 Social Justice Society v. Atienza, G.R. No. 156052, March 7, 2007, 517 SCRA 657, 665-666. 190 Id.

at 666 citing Dimaporo v. Mitra, Jr., G.R. No. 96859, October 15, 1991, 202 SCRA 779, 795. 191 Miguel v. Zulueta, G.R. No. L-19869, April 30, 1966, 16 SCRA 860, 863. 192 See Social Justice Society v. Atienza Jr., supra at 665-666.

193 Angchangco, Jr. v. Ombudsman, G.R. No. 122728, February 13, 1997, 268 SCRA 301, 306 citing Kant Kwong v. Presidential Commission on Good Government, G.R. No. L-79484, December 7, 1987, 156 SCRA 222, 232-233. 194 See De Castro v. Salas, supra note 174, at 823-824 (1916). 195 Ordinance No. 8119, Sec. 3(2).

196 Ordinance No. 8119, Sec. 3(3). 197 Namely: high density residential/mixed use; medium intensity commercial/mixed use; high intensity commercial/mixed use; industrial; general institutional; university cluster; general public open space; cemetery; utility; water, and overlay. (Ordinance No. 8119, Sec. 7.) 198 The LUIC ratings are in the form of prescribed percentage of land occupancy and floor area ratio maximums.

199 HAGMAN & JUERGENSMEYER, supra note 92, at 82. 200 Id. at 83.

201 Ordinance No. 8119, Sec. 27. Height Regulations. - Building height must conform to the height restrictions and requirements of the Air Transportation Office (ATO), as well as the requirements of the National Building Code x x x.

202 NATIONAL BUILDING CODE, Sec. 3.01.07. 203 See HAGMAN & JUERGENSMEYER, supra note 92, at 114-129. 204 Sec. 61.

Procedures for Granting Variances and Exceptions. - The procedure for the granting of exception and/or variance is as follows: 1. A written application for an exception for variance and exception shall be filed with the Manila Zoning Board of Adjustment and Appeals (MZBAA) through the CPDO citing the section of this Ordinance under which the same is sought and stating the ground/s thereof.

2. Upon filing of application, a visible project sign, (indicating the name and nature of the proposed project) shall be posted at the project site. 3.

The CPDO shall conduct studies on the application and submit report within fifteen (15) working days to the MZBAA.

The MZBAA shall then evaluate the report and make a recommendation and forward the application to the Sangguniang Panlungsod through the Committee on Housing, Urban Development and Resettlements. The Lawphil Project - Arellano Law Foundation [](javascript:history.back\(1\)) [](https://lawphil.net/judjuris/juri2017/apr2017/gr213948so2017.html#top)