Professional Documents
Culture Documents
SUPREME COURT
Manila
En Banc
-versus-
MEMORANDUM
“Monuments are for the living, not for the dead.” – Frank Wedekind
I.
PREFATORY STATEMENT
Propriety. The rule of law also requires that courts step in to invalidate
acts done contrary to the clear mandate of the law and prevent erring parties
from benefiting from their illegal acts. The Honorable Court is not without
power to pierce the veil of void permits that were used to construct Torre de
Manila, unlawfully creating “facts on the ground” which are now being used as
practical justification against the proper application of the law.
II.
PROCEDURAL POSTURE
The present case was originally a petition for injunction with prayer for
the issuance of a temporary restraining order and/or writ of preliminary
injunction filed by petitioner Knights of Rizal (KOR) before this Honorable
Court seeking to halt the construction of the Torre de Manila condominium
project of private respondent DMCI Homes, Inc. (DMCI) in the City of
Manila.1 The petition sought the immediate and complete demolition of the
said Torre de Manila condominium project,2 and the issuance by this
Honorable Court of a Writ of Pamana (Heritage) or a Writ of Kasaysayan
(History) “as a legal remedy for the protection of the citizen’s right to ‘all the
country’s artistic and historic wealth [which] constitutes the cultural treasure of
the nation’.”3
III.
STATEMENT OF RELEVANT FACTS AND
OTHER RELEVANT PROCEEDINGS
1
Petition, at 25.
2
Id.
3
Id. at 3.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 3 of 46
NHCP flipflops
When NHCP attended the June 22, 2012 hearing on Torre de Manila, their
position was clear: Torre de Manila violates NHCP guidelines on monuments
honoring national heroes.
In fact, according to Bagatsing who was present at the hearing, the NHCP
representatives Wilkie Delumen and Crisanto Lustre presented the guidelines
as basis for why DMCI's project should not push through.
… … …
But 6 months after the presentation, NHCP changed its stance.
“Your project site is outside the boundaries of the Rizal Park and well to the
rear of the Rizal National Monument, hence it cannot possibly obstruct the
front view of the said National Monument,” she wrote in the Nov 6, 2012
letter obtained by Rappler.
But in the next line, Diokno recommended that Manila City Hall enact “an
ordinance designating a buffer zone around Rizal Park and prescribing
guidelines building development” to prevent the recurrence of a similar
“dilemma” in the future.
To pursue the issue, he called NHCP Executive Director Ludovico Badoy but
only got exasperated.
“I called him and asked, ‘Sir, what’s your take on this project?’ I got shocked
because he said he was for it,” Bagatsing told Rappler.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 5 of 46
13. On 19 October 2012, the NHCP Board decided to advise the City
of Manila to designate a buffer zone around the Rizal Park. The Board,
however, agreed that it has no basis to prevent the construction of the Torre de
Manila since it does not obstruct the Rizal Monument’s front view.
6
City of Manila’s Position Paper dated 15 July 2015.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 6 of 46
19. According to the Manila City Council, the local Oversight Ad Hoc
committee found zonal law violations under City Ordinance No. 8119,
pertaining to floor area ratio and height restrictions within a
University/Institution Cluster Zone, and, inspite of enacted measures of the
City Council, such as Resolution No. 121, series of 2012, to curtail its
construction, DMCI had brazenly continued to build their proposed 41-storey
Torre de Manila condominium and pre-sell some units.9
7
NHCP Resolution No. 5, series of 2013.
8
City of Manila’s Position Paper dated 15 July 2015.
9
The relevant portions of Resolution No. 5, series of 2012, provides:
vista” of the Rizal Monument in Rizal Park, Manila,” the NHCP nonetheless
could not find “a legal leg to stand on in stopping [its] construction.” Thus:
In the case of the Torre de Manila Condominium, the visual
corridor is adversely affected but the structure is well outside any
conceivable buffer area. The Torre condominium stands about 450 meters
from the end of the Rizal Park facing Taft Ave., way beyond the standard 10-
meter radius. We do not have a buffer zone as large as 450-meter radius and
cannot imagine any local government agreeing to a buffer area this large.
The issue is which takes precedence: the visual corridor or the buffer
zone? If the first, then no tall building could ever be constructed because, as
in the case of Torre de Manila, the structure could stand 100 meters fa[r]ther
away from its present site or even farther, and it would still be seen. Even as
we wish to uphold the vista, however, there would still have to be a zone
area. Otherwise, we would have to legislate categorically that no tall buildings
are ever and forever allowed in identified areas. At the moment, obviously,
no such law exists.
For this reason, the Commission could not block the construction of
the Torre condominium, not because of any lack of appreciation of the
vista—the Commission does find that the condominium structure
visually obstructs the vista and adds an unattractive sight to what was
once a lovely public image—but because the NHCP could not find a legal
leg to stand on in stopping the construction.10
10
Emphases supplied.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 9 of 46
32. On 15 July 2015, the OSG moved that the deadline for filing the
Position Paper be extended to 14 August 2015, and the oral arguments be reset
at least thirty (30) days from the 21 July 2015 schedule.
33. Prior to the filing of its Position Paper on 30 July 2015, the OSG
met with the NHCP, NCCA, and NM to inform them that the OSG had taken
a second look at the merits of the case and had decided to reconsider the
government’s position. Notably, while NM and NCCA agreed with the
government’s reconsidered position, NHCP Chair Diokno maintained that the
NHCP, as a matter of law, cannot do anything about the Torre de Manila.
35. On 3 August 2015, the OSG received a letter from the NHCP
Board, officially expressing that it is maintaining the position stated in the
OSG’s Consolidated Comment dated 19 December 2014. On 4 August 2015,
the OSG filed a Manifestation, praying that the NHCP Board’s letter be noted.
11
Eight Justices voted to issue the TRO: Associate Justices Presbitero J. Velasco, Jr., Arturo
D. Brion, Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Martin S. Villarama, Jr., Jose
C. Mendoza, Estela M. Perlas-Bernabe, and Francis H. Jardeleza. Five Justices voted against
the issuance of the TRO: Chief Justice Maria Lourdes P.A. Sereno, and Associate Justices
Antonio T. Carpio, Mariano C. del Castillo, Jose P. Perez, and Bienvenido L. Reyes.
Associate Justices Diosdado M. Peralta and Marvic Mario Victor F. Leonen were on leave.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 10 of 46
IV.
ISSUES
V.
ARGUMENTS
VI.
DISCUSSION
40. The position of NHCP before the Senate therefore presents its
complete position on the Torre de Manila controversy, and explains away the
12
Emphases supplied.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 12 of 46
vagueness of its letter dated 6 November 2012 where it stated that Torre de
Manila “cannot possibly obstruct the front view” of the Rizal Monument.13
13
During the 1 September 2015 Oral Arguments, Justice De Castro and Atty. Diokno had
the following exchange:
JUSTICE DE CASTRO:
I noticed that there were two letters sent, two separate letters sent by your
Commission. On November 6 you wrote Mr. Andrade, the consultant of
DMCI and you had a very clear idea on what the issue was all about. You
mentioned it’s not about obstructing the front view because the issue was
about the background, the back view of the monument and you also said that
the issue is not about if it is within the boundary of a historical site, that is
not the issue you mentioned so you knew what the problem was all about
and yet you did not deal with the problem. You did not say anything about
the issue of Torre de Manila obstructing the background of the Rizal
Monument when you precisely knew that that was the conflict and the
position of the City of Manila was that, at that time, was that it will ruin the
image of the Rizal Monument. But you did not mention anything about it.
You did not make any opinion. Even if your opinion is not binding, why did
you not make an opinion? In the same way that you sent an opinion to the
Senate and if you only gave an opinion, the same opinion you gave to the
Senate, the City would have backed off from issuing or from ratifying the
building permit. But you didn’t say, you only said that for the future, you
think that the City of Manila should identify a buffer zone.
ATTY. DIOKNO:
May I respond to that?
JUSTICE DE CASTRO:
We understand that it is not for you to dictate but when your opinion is
asked as the National Historical Commission is mandated to issue guidelines,
don’t you think it was your duty to render an opinion as to the issue that you
were precisely able to identity in your letter to DMCI?
14
Not all monuments have or were meant to have a sightline. The existence or presence of a
sightline would depend on the intention of the artists and designers, the location of the
monument, the structures already existing at or around the area of the monument, the size
and prominence of the monument itself, and its ensuing history. The Bonifacio Monument
in Grace Park, Caloocan, for example, sits in a rotunda, and would have no legally protected
sightline. Another example would be the Ninoy Aquino Monument at the Ayala
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 13 of 46
Triangle.The monument, surrounded by tall, prominent buildings that have existed long
before it was made, was clearly meant to have no sightline.
15
During the 1 September 2015 Oral Arguments, Associate Justice Carpio and Solicitor
General Hilbay had the following exchange:
JUSTICE CARPIO:
How far from where you stand to the monument is protected?
SOLICITOR GENERAL HILBAY:
Again your Honor, what we are saying is there is no need for the Court to
determine the metes and bounds of the sightline. But when you stand in
front of that sightline, you can...
JUSTICE CARPIO:
What if now the Rizal Park will construct a tall building across the street of
the Rizal Monument? Does that mar the sightline?
SOLICITOR GENERAL HILBAY:
Again, your Honor...
JUSTICE CARPIO:
If because... there is Roxas Boulevard.
SOLICITOR GENERAL HILBAY:
Yes, your Honor.
JUSTICE CARPIO:
Now if the Rizal Park Management will put up a building on the other side
of the street is that a violation of the sightline?
SOLICITOR GENERAL HILBAY:
Well your Honor, certainly not because it doesn’t impair the sightline of the
Rizal Monument which is front facing.
JUSTICE CARPIO:
So you – when you say sightline, when you are standing just –
SOLICITOR GENERAL HILBAY:
In front of the Rizal Monument.
JUSTICE CARPIO:
In front. How far in front?
SOLICITOR GENERAL HILBAY:
Your Honor, the ordinary person looking at the Rizal Monument would
stand in front of it. I think the physics of the monument itself allows you a
certain leeway where you can stand in front of the monument –
JUSTICE CARPIO:
How far? Because you are now saying it is protected by law but the law has
to be specific. How far?
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 14 of 46
44. To be sure, the Court is not being asked in this case to legislate—
as if it were the Congress—for future purposes, the boundaries of the sightline
of the Rizal Monument. That is the function of the City of Manila and of the
concerned national agencies, consistent with their existing mandate.
45. Instead, the Honorable Court is only being asked, in this actual
case and controversy, to adjudicate the specific legal question whether, given
the NHCP’s finding of fact that the sightline of the Rizal Monument has
already been impaired, R.A. No. 10066 and R.A. No. 10086 provide legal bases
for the Court to issue an appropriate legal relief to remedy that impairment.
46. In any case, for the avoidance of error, the government agrees
with the NHCP’s findings of fact even as it emphatically disagrees with the
NHCP’s position that the situation we are in is damnum absque injuria—that
there is no law that can be invoked to remedy the impairment of the sightline
of the Rizal Monument. It is the position of the government that this legal self-
immolation is an abject refusal to perform a legal mandate and constitutes
grave abuse of discretion.
impairment to the sightline of the Rizal Monument is a question of law for the
Honorable Court to decide.
48. The Constitution declares 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.”16 The accompanying mandate is for the State to
“conserve, promote, and popularize the nation’s historical and cultural heritage
and resources.”17
49. From the sparse language of these twin provisions, we can distill
conservationist and protectionist policies that are unique to the 1987
Constitution.18
16
CONST., Art. XIV, §16.
17
CONST., Art. XIV, §15.
18
Compared with the 1935 and the 1973 Constitutions, only the 1987 Constitution contains
an express provision with respect to the conservation and promotion of historical and
cultural heritage. The 1935 Constitution is silent on this matter while Art. XV, § 9 (2) of the
1973 Constitution broadly states that the “Filipino culture shall be preserved and developed
for national identity.”
19
During the 1 September 2015 Oral Arguments, Associate Justice Jardeleza and Solicitor
General Hilbay had the following exchange:
JUSTICE JARDELEZA:
My first question is, I don’t think you made a categorical statement on the
status of Article XV of the Constitution. Is it or is it not a self-implementing
provision?
JUSTICE JARDELEZA:
And if it is not self-implementing, what implements Section 15?
JUSTICE JARDELEZA:
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 16 of 46
53. It also follows that the presence of a statute should entrench even
more the Constitution’s conservationist and protectionist policies, providing
greater justification for the practical implementation of the Constitution’s
mandate.
JUSTICE JARDELEZA:
Yes, so... again just to clarify, again the sequence is: you’re not staking a claim
that Section 15 is self-executing.
3. R.A. No. 10066, §25 and R.A. No. 10086 cover the
protection of sightlines.
57. This coercive power under §25 of R.A. No. 10066 should be read
in relation to the conservationist mandate of the same law which defines
broadly the concept of conservation—
3(i) “Conservation” shall refer to all the processes and measures of
maintaining the cultural significance of a cultural property including, but not
limited to, preservation, restoration, reconstruction, protection, adaptation or
any combination thereof.
58. Of crucial note is the NHCP’s charter, R.A. No. 10086, and its
remarkably even more expansive definition of conservation compared to §3(i)
of R.A. No. 10066—
3(c) “Conservation” refers to all processes and measures of
maintaining the cultural significance of a cultural property including, but not
limited to, physical, social, legal preservation, restoration, reconstruction,
protection, adaptation, or any combination thereof.
59. The addition of the phrase “physical, social, legal” to all manner
of conservation—“preservation, restoration, reconstruction, protection,
adaptation, or any combination thereof”—indicates the legislative intent to
promote the broadest possible conception of conservation, consistent with the
policy of the Constitution, and without a doubt, to legally empower cultural
agencies.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 18 of 46
61. The plain language of the law indicates that the mandate of
conservation of the NHCP goes well-beyond merely protecting the physical
structure of cultural artifacts. This is as it should be, considering that the
maintenance of the cultural significance of cultural property cannot simply be
equated with “preserving” the physical structure of an artifact.
62. In the case of the Rizal Monument, its cultural significance cannot
be equated with the existence of the Motto Stella. The special quality of the Rizal
Monument in Luneta—as opposed to all the other Rizal monuments all over
the world24—is precisely its hallowed location, a sacred secular space if there
ever was one. When outraged, shocked, and indignant Filipinos vent their fury
over the loss of the sightline of the Rizal Monument, they are simply protesting
that a part of the cultural commons they used to enjoy, admire, respect, and
reflect on has been appropriated for private use and profit.
63. Indeed, the additional clear evidence of this broad, if pragmatic,
conception of conservation is found in relation to the definition of
“preservation” in the charter of the NHCP, a concept defined in the NCHP
charter, not anywhere else—
(q) “Preservation” refers to all activities that employ means to
control, minimize or prevent damage or deterioration to cultural property.
64. Thus, both DMCI and NHCP clearly mistake the distinction
between conservation and preservation, as embodied in the language of the
statute and consistent with both logic and the normative goals of conservation.
65. Whereas preservation may very well be limited only to the idea of
preserving the physical structure of a cultural property, conservation is
obviously a much broader concept. Whereas preservation is about
“prevent[ing] damage or deterioration to cultural property,” conservation
includes preventing the “significant alteration [of a cultural property] from its
original state.” Put otherwise, preservation is simply a sub-category of
conservation.
23
As stated by its private counsel, Atty. Jose Manuel I. Diokno during the oral arguments
dated 1 September 2015.
24
There are 118 monuments and statues of Jose Rizal in the Philippines and 10 more
abroad. Available at:
http://www.gmanetwork.com/news/story/314079/lifestyle/travel/pinoy-visits-118-rizal-
monuments-in-phl; http://globalnation.inquirer.net/news/breakingnews/view/20090619-
211392/10-Rizal-monuments-around-the-worldGordon, last accessed 27 July 2015.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 19 of 46
25
During the 1 September 2015 Oral Arguments, Dr. Diokno stated—
DR. DIOKNO:
May I respond, Your Honor? Let me first clarify. The property that we are
talking about here, the site of the Torre de Manila, is privately-owned
property. That entire swat of land is not part of the Rizal Park that was
declared as a National Heritage Site in 1995. It is well beyond. That’s fact 1.
Fact 2, the National Historical Commission has been very strict about
constructions on the park...but the property that was being constructed upon
is well outside the park. 450 meters from Taft Avenue when the legal buffer
zone is 5 meters. Therefore, it was very clear to the Board of the
Commission that any decision with respect to that portion was well
outside the jurisdiction of the National Historical Commission. That
had to be determined by zoning ordinance or some regulation enacted
by the City Government...”
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
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agency and the local government the matter of issuing preventive reliefs in the
form of a cease and desist order. Thus—
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.
71. Necessarily, the NHCP’s power to issue a cease and desist order
when the physical integrity of a national cultural treasure or an important
cultural property is in danger of destruction or significant alteration from its original
state must be read in relation to its broader conservationist and protectionist
mandate. A cultural agency’s general license to conserve should therefore be
aided by its specific power to protect through the issuance of a cease and desist
order.
26
27
26
Photograph courtesy, and with the permission, of Mr. Paolo Alcazaren.
27
Available at http://www.nps.gov/storage/images/wamo/Webpages/originals/408.jpg,
last accessed 17 September 2015.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 22 of 46
76. The fact that these monuments have dominated the view of the
area is reflected in the shape of the park in which they are situated. One cannot
therefore separate the monuments from their vista which are integrated. The
integrity of their physics that require conservation demand the protection of
the monuments and their accompanying vista which is the cultural artifact.
77. The NHCP itself has made the determination that “[i]n the case
of the Torre de Manila Condominium, the visual corridor is adversely affected” and
that “the condominium structure visually obstructs the vista and adds an
unattractive sight to what was once a lovely public image.”28
1. DOMINANCE
Monuments are landmarks of our cities, towns and provinces. They must be
honored, preserved and protected. Monuments should be given due
prominence since they symbolize national significance. For the purposes of
these guidelines, the Rizal National Monument in Luneta (Rizal Park, Manila)
and the Bonifacio National Monument (Caloocan City) are established as
objects of reference. The monument should preferably be the focal point of
a city or town center…
… … …
Measures by which dominance could be achieved are the following:
… … …
b. Keep vista points and visual corridors to monuments clear for
unobstructed viewing appreciation and photographic opportunities;
… … …
g. Use strong contrast between the monument and its background. This will
enhance the monument as a focal point of the site; …
… … …
28
Emphases supplied.
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G.R. No. 213948
Page 23 of 46
79. The NHCP is, of course, bound by its own Guidelines, regardless
of its binding effect on others, and its Position Paper and its own findings that
the Torre de Manila obstructs the vista or adversely affects the visual corridor
of the Rizal Monument is a legitimate factual finding.
81. The physics of the Rizal Monument is such that the obelisk, the
bronze sculpture, and its sightline constitute a single piece of cultural heritage.
Stated differently, the sightline of the Rizal Monument—a front-facing
monument—is part of its physics. It therefore only follows that when that
sightline is impaired, the physical integrity of the Rizal Monument is likewise
impaired.
82. As a piece of art and as part of the nation’s history, the image
most Filipinos have of the monument is with its characteristic background of
clear sky. Pictures of the monument are often taken from its base—its viewing
platform—facing Rizal. To pay homage to (or simply just appreciate) the
monument is to stand in front of it.
83. This framed view of the monument is both historic and iconic. It
is the image Filipinos call to mind when thinking of the monument. It has been
memorialized in our postage stamps, in our history books, our currency, and in
the countless photographs by the millions of guests who have visited the
monument over the last hundred years. This framed view has always been part
of the aesthetic experience of the public, which makes it part of the cultural
commons of the Republic. This view, now gone, is part of the cultural treasure
of the nation.
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Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 24 of 46
84. It is also this “original state” of the Rizal Monument that has been
subjected to “significant alteration” by the presence of Torre de Manila. So
when we speak of the Rizal Monument as a cultural artifact that the
Constitution seeks to conserve and protect, we are talking about the Rizal
Monument as we used to see it.
29
85. In other words, when people say that the Rizal Monument has
been desecrated or ruined by the presence of Torre de Manila, the statutory
equivalent of that outrage is that the Rizal Monument has been significantly
altered from its original state due to the impairment to its sightline.
29
Decena, Ferdinand. Rizal Monument. 2 December 2006. Available at
https://www.flickr.com/photos/ironwulf/1408078866/, last accessed on 12 September
2015.
MEMORANDUM
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G.R. No. 213948
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92. The Honorable Court also chose to give a flexible reading to §15
of Article VII of the Constitution in De Castro v. JBC33 in order to strengthen
the independence of the judiciary.
94. In the instant case, the Honorable Court should choose the
government’s interpretation because:
95. Dr. Jose Rizal, with knowledge of his impending death, wrote:
“Bury me in the ground, place a stone and cross over it. My name, the date of my
birth and of my death. Nothing more. If you later wish to surround my grave with a fence,
you may do so. No anniversaries. I prefer Paang Bundok [the area where the Manila
North and Chinese Cemeteries now stand]”36
96. Rizal’s wish for a simple grave and apparent distaste for
anniversaries to commemorate his death indicates an acute foreknowledge of
his martyrdom and reflects his knowledge of history. They are the measures of
the man we consider our national hero. His will, however, also bears no
relevance to this case.
97. The issue in this case is whether the monument built in honor of
Rizal has a legally-protected sightline, a part of our cultural heritage or cultural
34
Supra note 22.
35
A.M. No. 09-6-8-SC (Rules of Procedure for Environmental Cases).
36
Ocampo, Ambeth R. “Much ado about Torre: Rizal asked only for cross on tombstone”, Philippine
Daily Inquirer, Commentary, 23 August 2015, http://opinion.inquirer.net/87853/much-
ado-about-torre-rizal-asked-only-for-cross-on-tombstone, last accessed on 05 September
2015.
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98. The patent logical disconnect between the attempt to relate the
legal question in the present case with Rizal’s will is such that if we were to
follow his will, we might even have to destroy the monument he did not wish
for himself. The apparent suggestion to turn the Rizal Monument towards the
east is even more disjointed, though perhaps reflective of a droll sense of
priority and progress.
99. The reality is that the Rizal Monument was built by a grateful
nation in honor of a humble man who was selfless enough to sacrifice an
otherwise magnificently well-lived existence. The monument is an invocation to
Rizal as a national symbol—it is not about him, but about us: it is about our
gratitude to the First Filipino and how his life continues to profoundly inspire
and exemplify our hopes and dreams as a people. The generation Rizal left
behind was impelled to embody this symbol in stone and metal, framed by the
bloodied ground of Bagumbayan and its expansive horizon.
100. The monument has stood for more than a century. By legal fiat
and with the passage of time, it has acquired power and value independent of
the final wishes of Rizal the man, regardless of how the monument may
allegedly embody historical inaccuracies.
101. The monument was erected more than a hundred years ago by
popular subscription.37 The people wished for a monument and funded it with
their donations.38 This subscription is renewed everyday by those who pay
homage to the monument, and who can no longer enjoy its sightline that has
been marred by a condominium.
102. In this case, the Honorable Court is simply being asked by the
government to provide legal relief to the private appropriation by DMCI of
what is otherwise public—the cultural commons of the Republic.
37
Act No. 243 dated 28 September 1901 entitled “An Act granting the right to use public land
upon the Luneta in the city of Manila upon the city of Manila upon which to erect a statue of Jose Rizal,
from fund to be raised by public subscriptions, and prescribing as a condition the method by which such
subscription shall be collected and disbursed.”
38
“The Centenary of the Rizal Monument”, http://www.gov.ph/rizal-monument/, last accessed
on 14 September 2015.
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G.R. No. 213948
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107. The Torre de Manila has a floor area of 97,549 sq. m. and a land
area of 7,475 sq. m.
108. On the face of the one-page zoning permit issued by the CPDO
to DMCI, that permit was patently beyond the maximum FAR of 4, as in fact
its FAR is 13.05 based on the simple formula of Total Floor Area/Total Lot
Area = FAR.
97,549 sq. m.
---------------------- = 13.05
7,475 sq. m.
authority to issue the zoning permit it issued. Having obtained a permit from
an office without authority to do so, DMCI’s zoning permit is therefore void.
112. Under §455 of the Local Government Code, the City Mayor is
mandated to enforce all laws and ordinances relative to the governance of the
city. He may issue an executive order, but only for the faithful and appropriate
enforcement and execution of laws and ordinances. Moreover, §48 of the Local
Government Code is very clear that the local legislative power shall be
exercised by the Sangguniang Panlungsod. DMCI cannot possibly rely on a
patently illegal order that may not have been issued.
113. That Mayor Lim does not have the authority to suspend the
zoning ordinance is bolstered by §707 of the National Building Code IRR
which expressly provides that the applicable law in determining the FAR limit
is the more restrictive law between the National Building Code and the local
zoning ordinance. The relevant provisions state:
Section 707. Maximum Height of Buildings
1. The maximum height and number of storeys of proposed building
shall be dependent upon the character of use or occupancy and the type of
construction, considering end-user population density, light and ventilation,
width of RROW/streets particularly of its roadway/carriageway component,
building bulk, off-street cum off-site parking requirements, etc. and in
relation to local land use plan and zoning regulations as well as other
environmental considerations, e.g., geological, hydrological, meteorological,
39
See LOCAL GOVERNMENT CODE, Art. 3, §458(a)(2)(9).
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 30 of 46
114. The defects in the zoning permit also taint the validity of DMCI’s
building and business permits. Under §69 of Ordinance No. 8119—
115. The prohibitory language of §69 can only mean that DMCI’s void
zoning permit cannot be used as justification for its building and business
permit. Therefore, DMCI’s building and business permits are also void.
116. Morever, the clear import of §69 is to impose an independent
obligation on the part of the Local Building Officer and Business Promotion
and Development Officer to ascertain the validity of the zoning permit. These
officers therefore cannot issue the building and business permits on the sole
ground that a zoning permit had already been issued. Thus, the issuance of
building permit and a business permit in the face of a patently invalid zoning
permit constitutes a second and third violation of the law. DMCI is therefore in a
situation where all three permits—zoning, building, and business—are
independently void.
117. The foregoing series of illegal acts is only worsened by the
inexplicable haste with which the Building Official granted the building permit
to DMCI—the permit was issued on 5 July 2012,41 or the same day it was
applied for, and despite the ongoing public hearings conducted by the Manila
City Council on the very issue of the construction of the Torre de Manila.
40
Emphases supplied.
41
DMCI’s Petition for Prohibition before the Regional Trial Court (RTC) of Makati.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 31 of 46
119. DMCI, however, never applied for a variance before the MZBAA
through the CPDO. Instead, on 18 December 2013, DMCI President Alfredo
R. Austria merely wrote Mayor Joseph Estrada to (a) seek clarification and
assistance on the Torre de Manila project, and (b) request Mayor Estrada not to
suspend DMCI’s building permit pending its compliance with the required
procedures.43
120. The following also militate against the claim that the 18 December
2013 letter is an application for variance within the contemplation of §61,
Ordinance No. 8119: (a) nowhere in the letter is it mentioned that DMCI was
applying for a variance; (b) DMCI failed to cite the provision in Ordinance No.
8119 upon which the variance is sought and the grounds to support its
application, assuming there was any; and (c) DMCI did not mention that it was
writing Mayor Estrada in his capacity as a member of the MZBAA.44
42
Section 61 of Ordinance No. 8119 provides the procedures for filing applications for
variances and exceptions, as follows:
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.
4. A written affidavit of non-objection to the project/s by the owner/s of the properties
adjacent to it shall be filed by the applicant with the MZBAA through the CPDO for
variance and exception.
5. The Sangguniang Panlungsod shall take action upon receipt of the recommendation
from MZBAA through the Committee on Housing, Urban Development and
Resettlements.
43
City of Manila’s Position Paper dated 15 July 2015.
44
See Ordinance No. 8119, §79.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 32 of 46
124. Apparently, this appears to have been done by the CPDO, upon
the instance of Mayor Estrada, who instructed him to help DMCI.46
125. Even assuming that the letter dated 18 December 2013 is a formal
application for variance, the same was belatedly filed. As mentioned, §63 of
Ordinance 8119 expressly mandates that the application for variance should
have been done “prior to conducting any business activity or construction on
the[ir] property/land.”
126. DMCI contends that Resolution No. 5 ratifies all the permits
previously issued by the City of Manila. This argument flies in the face of the
fact that a void act is not subject to ratification. It also conflates ratification
from the effects of obtaining a variance under the ordinance.
45
DMCI’s Comment Ad Cautelam in Case No. NCCA-1-2015-6.
46
During the 18 August 2015 Oral Arguments, Associate Justice Jardeleza and Manila City
Planning and Development Officer Dennis Lacuna, Jr. had the following exchange:
JUSTICE JARDELEZA:
You are the one who approached [Mayor Estrada], or not really approach,
during one of your daily lunches?
CPDO LACUNA:
Yes, Your Honor.
JUSTICE JARDELEZA:
You told him, Mr. President Mayor, there is a request for assistance...
CPDO LACUNA:
Yes, Your Honor.
JUSTICE JARDELEZA:
What did the President Mayor tell you?
CPDO LACUNA:
To help the developer [DMCI] to make sure that they go through the
process.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 33 of 46
127. In the first place, even assuming that the variance is valid, the
zoning, building, and business permits are void from inception and thus cannot
be ratified. A void permit cannot be the source of a legal right or duty because
it is non-existent in contemplation of law. Put plainly, DMCI never had any valid
zoning, building, or business permits.
130. A zoning permit is for compliant use, while a variance (or special
location clearance) is for non-conforming use. A zoning permit cannot
substitute for a variance, while a variance cannot ratify a void zoning permit.
131. Thus, the only meaning that may be attached to Resolution No. 5
(on the assumption that it is valid) is that it was only on 16 January 2014 that
DMCI may be said to have finally obtained a (special) locational clearance.
47
HLURB’s Guidelines for the Formulation/Revision of a Comprehensive Land Use Plan
(Model Zoning Ordinance), Art. 3(51).
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 34 of 46
134. DMCI simply cannot use its supposed ignorance of zoning laws
as an excuse. It is expected to have expertise on the requirements and
rudiments of seeking permits for the construction of condominium buildings,
not just because it is the law but, more important, because having such
knowledge is an indispensable requirement of its business. It chose to obtain an
invalid permit from the CPDO, perhaps to avoid the difficulty of having to
actually obtain a valid permit in the form of a special locational clearance or a
variance from the Sangguniang Panglungsod which, at the time, was clearly
opposed to the Torre de Manila project as it even issued an ordinance to
prevent the construction of the condominium.
136. The fact that DMCI knew its permits were defective is a matter of
record.
48
http://www.dmcihomes.com/about-us.php?company-history¸ last accessed on 7
September 2015.
49
https://www.dmciholdings.com/our_businesses/page/residential-development, last
accessed on 7 September 2015.
50
Joint Committee Hearing of the Senate Committees on Education, Arts & Culture and
Urban Planning.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 35 of 46
So do you have anything other than this zoning permit that shows that after
your explanations or after further discussions, “You are hereby allowed and
this is what you’re going to do”?
138. Second. The letter dated 18 December 2013 likewise shows the
clear intent and design of DMCI to circumvent Ordinance No. 8119:
The zoning permit was issued after we have submitted the required
development plans. As the former city planning and development officer did
not deny the applicant, we continued on with the application for the building
permit of the project. Had our application for zoning permit been
denied, we could have gone through the process of appealing to the
local zoning board, if any was then constituted, and applied for an
exemption from the city council.52
139. Third. The letter of Chair Diokno dated 6 November 2012 to Mr.
Andrade of DMCI—
As you may be aware, the matter of the construction of the Torre de
Manila project of DMCI Homes has been attended by some controversy,
starting on 25 May 2012 when some residents of Sta. Ana, Manila
complained that the construction of high-rise buildings in the area will violate
the existing zoning ordinance. Acting on that complaint, the City Council of
Manila declared that the issuances to DMCI by the City Planning and
Development Office and the Office of the Building Official of a Zoning
Permit and a Building Permit, respectively, were in gross violation of
Ordinance No. 8119 (Zoning Regulations of 2006) and that the issuing
officials may have committed grave abuse of discretion in the process, which
the City Council undertook to investigate in aid of legislation.
51
Minutes of the 27 August 2014 Senate Joint Committee on Education, Arts & Culture and
Urban Planning Hearing, pp. 82-83.
52
Position Paper of the City of Manila dated 15 July 2015.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 36 of 46
142. Whether DMCI knew that it would not have gotten the required
variance from the Sangguniang Panlungsod, given its expressed opposition to the
Torre de Manila is, of course, a different matter. But it certainly taxes one’s
credulity to believe DMCI sought its permit from the CPDO because it was
ignorant of the legal requirements. Either way, it cannot use its ignorance or
bad faith as an excuse.
145. Under §5 (d), Rule 135 of the Rules of Court, courts have an
inherent power “[t]o compel obedience to its judgments, orders and processes,
and to the lawful orders of a judge out of court, in a case pending therein.”54
146. DMCI should not be allowed to take advantage of its own illegal acts.
Plainly, from the facts of the case, there can be no doubt that DMCI had no
right to begin construction of the Torre de Manila on 5 July 2012, the day it
obtained its building permit.
147. With full knowledge of the defects in its permits, amidst the
public clamor, without due regard to resolutions from the City Council of
Manila, in the face of opposition from the NM and the NCCA, and unmindful
of a Senate investigation, DMCI proceeded with undue haste to construct the
Torre de Manila.
53
DMCI’s Comment Ad Cautelam in Case No. NCCA-1-2015-6.
54
RULES OF COURT, Rule 135, §5 (c).
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 37 of 46
149. This date is crucial because, in between the date when DMCI
obtained its void zoning permit (as well as its building and business permits)
and 16 January 2014, the Rizal Monument has already been declared a National
Monument on 15 April 2013 by NHCP55 and a National Cultural Treasure on
14 November 2013 by the National Museum.56
150. More important, had DMCI actually followed the law (on the
assumption that it had a valid permit by 16 January 2014), it would not have
been able to build as high as 39 floors by 16 June 2015.
151. The Honorable Court should therefore not consider itself
especially burdened by the responsibility of having to order the demolition of
the Torre de Manila, given that the danger of loss DMCI now confronts is
entirely self-imposed—it has assumed the risks to which it is now exposed.
152. For the Honorable Court to feel otherwise would be to allow
DMCI to create facts on the ground and unjustly benefit from the multiple
layers of violations it committed in this case. This idea is entirely corrosive to
the rule of law and incompatible with elementary notions of fair play.
153. In practical terms, had DMCI begun construction works on its lot
only after 16 January 2014, it would most likely not have been able to build
beyond (or way beyond) seven floors by the time this Honorable Court issued
its TRO on 16 June 2015. Instead, with the use of a void building permit
(issued 5 July 2012), it was able to build illegally—and apparently with undue
haste—for about one and a half years (or until 16 January 2014).
154. In other words, had DMCI started construction works on its lots
only after 16 January 2014 (and stopped on 16 June 2015), this Honorable
Court would be faced with only the purely legal question whether the Torre de
Manila can theoretically go beyond seven floors. Instead, the Honorable Court is
being sold a fait accompli, a situation entirely of DMCI’s making.
55
Resolution No. 05, series of 2013, dated 15 April 2013.
56
Museum Declaration 9-2013 dated 14 November 2013.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 38 of 46
156. DMCI is Entitled to Only Seven Floors Under Ordinance No. 8119. At
the very least, the Honorable Court should order DMCI to demolish the Torre
de Manila, at its own expense, insofar as it exceeds the maximum allowable
number of floors under Ordinance No. 8119.
Prescribed Maximum FAR x Total Lot Area = Maximum Allowable Gross Floor Area
Prescribed Maximum PLO x Total Lot Area = Maximum Allowable Building Footprint
As applied:
158. Clearly, what DMCI would have been normally entitled to under
Ordinance No. 8119 is merely seven floors. This computation was generally
accepted by counsel for DMCI, Atty. Lazatin, during interpellation with Justice
Diosdado Peralta.57
57
During the 11 August 2015 Oral Arguments, Associate Justice Peralta and DMCI’s
counsel Atty. Lazatin, had the following exchange:
JUSTICE PERALTA:
Under Ordinance No. 8119, the university cluster zone, the maximum
allowable gross floor area is computed as follows:
ATTY. LAZATIN:
That’s accurate your honor.
JUSTICE PERALTA:
FAR, FAR is 4 and your lot area is 7,475 square meters, right?
ATTY. LAZATIN:
That’s correct your Honor.
JUSTICE PERALTA:
So you come out with 29,900 square meters as gross floor area, am I correct?
Still accurate?
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 39 of 46
ATTY. LAZATIN:
That’s correct, Your Honor
... ... ...
JUSTICE PERALTA:
Now let’s go to maximum allowable building footprint, okay. The PLO is
fixed which is 0.6, the PLO is percentage of land occupancy.
ATTY. LAZATIN:
That’s correct.
JUSTICE PERALTA:
The PLO times lot area which is 7,475 square meters, you have 4,485 square
meters.
ATTY. LAZATIN:
That’s correct your honor.
JUSTICE PERALTA:
That is your maximum allowable building footprint.
ATTY. LAZATIN:
That’s correct your honor.
JUSTICE PERALTA:
Allowable stories, you have gross floor area divided by building footprint or
29,900 square meters in slide no. 4 over 4,485 square meters, you are only
allowed to build 6.6 stories, rounded up to 7 stories, 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, that’s correct your Honor.
JUSTICE PERALTA:
The 0.6 is fixed by law and you get the building footprint times the area of
your lot, did you change the area of your lot?
ATTY. LAZATIN:
That is the maximum building footprint your Honor.
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 na yung maximum
eh unless you want to lower it down, where will you get the figure, yun na
ang maximum eh, so you get 6.6 stories rounded up to 7 stories, 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 meaning it
can be less.
JUSTICE PERALTA:
That’s correct.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 40 of 46
Since actual building footprint of the Torre de Manila is 1,639 sq.m., then
the computation of maximum allowable floors is—
162. Assuming that the total lot area is indeed 7,556 sq. m., DMCI
cannot just increase the size of the total lot area of the Torre de Manila without
informing the City of Manila beforehand, as it did in this case, for the simple
reason that any alteration of the building project’s total lot area would change
its actual FAR. Necessarily, this would affect the validity of zoning and building
permits whose issuance was based on the assumption that the Torre de
Manila’s total lot area is 7,475 sq. m. Otherwise, developers may conveniently
circumvent the prescribed FAR in the Zoning Ordinance by simply altering the
total lot area of the building project after the issuance of zoning and building
permits.
ATTY. LAZATIN:
If it is less, then the tower or the building can be higher.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 41 of 46
163. Given that the construction of the Torre de Manila is illegal, the
Honorable Court may also order the City of Manila to cause the demolition of
the Torre de Manila by way of mandamus.
164. In particular, the Honorable Court may require the City Mayor of
Manila: (1) to require DMCI to make necessary changes in the construction of
the Torre de Manila, or (2) to demolish the same to the extent that it impairs
the sightline of the Rizal Monument.
165. The duty of the City Mayor of Manila to cause the demolition of
the Torre de Manila finds support in §455 (b) (3) (vi) of the Local Government
Code58—
166. Section 455 (b) (2) (ii) of the Local Government Code additionally
provides that the City Mayor has the duty to “[e]nforce all laws and ordinances
relative to the governance of the city,” and to “[i]ssue such executive orders for
the faithful and appropriate enforcement and execution of laws and
58
Emphasis supplied
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 42 of 46
168. In that case, petitioner did not secure the necessary permits prior
to construction, expansion and operation of a hotel. Notably, petitioner started
the construction of the hotel while its application for zoning compliance was
still pending before the Office of the Mayor. Thus, the Honorable Court
affirmed the power of the mayor to order closure and demolition of the entire
illegal construction concerned.
169. Section 5 of R.A. No. 10086 mandates NHCP to, among others,
“undertake and prescribe the manner of restoration, conservation and
protection of the country’s historical movable and immovable objects”61 and to
“manage, maintain, and administer national shrines, monuments, historical
sites, edifices and landmarks of significant historical-cultural value.”62
59
In Special People, Inc. v. the Secretary of the DENR, 688 SCRA 403 [2013], the Honorable
Court clarified as to when a writ of mandamus may be issued to compel the performance of a
duty, viz.:
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.
60
G.R. No. 211356, 29 September 2014.
61
Republic Act No. 10086, §5(e).
62
Republic Act No. 10086, §5(d).
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 43 of 46
171. In this case, the clear remedy to the impairment of the sightline of
the Rizal Monument is the demolition of the Torre de Manila. The NHCP
believes that such “manner of restoration, conservation and protection” is not
contemplated in its charter. Therefore, a finding by this Honorable Court that
such position constitutes grave abuse of discretion means that it can also order
the NHCP, by way of mandamus, to restore, conserve, and protect the sightline
of the Rizal Monument within the parameters of the decision of this Honorable
Court.
172. Given NHCP’s position on this matter, there may be a need for
an alternative method of enforcing reliefs coming from this Honorable Court.
Thus, this Honorable Court may likewise order the NCCA, by way of
mandamus, to oversee the demolition of Torre de Manila and to prescribe
policies for its conservation and preservation in coordination with other
national cultural agencies.
173. Section 8 of Republic Act No. 7356, or the “Law Creating the
National Commission for Culture and the Arts” provides, thus:
“A National Commission for Culture and the Arts is hereby created to
formulate policies for the development of culture and arts; implement
these policies in coordination with affiliated cultural agencies;
coordinate the implementation of programs of these affiliated
agencies; administer the National Endowment Fund for Culture and Arts
(NEFCA); encourage artistic creation within a climate of artistic freedom;
develop and promote the Filipino national culture and arts; and preserve
Filipino cultural heritage. The Commission shall be an independent
agency. It shall render an annual report of its activities and achievements to
the President and to Congress.”
175. Thus, to carry out its mandate, the NCCA may promulgate rules,
regulations and undertake any and all measures as may be necessary to
implement the Act,65 create committees and other mechanisms to help expedite
the implementation of its plans and strategies,66 and call upon and coordinate
with other government and non-government art and cultural institutions and
agencies such as the NM and the NHCP for assistance in any form.
63
Republic Act No. 7356, §12 (b).
64
Id., §12 (b) (3).
65
Id., §13 (k).
66
Id., §13 (d).
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 44 of 46
PRAYER
67
Id., §3 (d).
68
Amended Implementing Rules and Regulations of Republic Act. No. 7356, 4 February
2010, §18.2.
MEMORANDUM
Knights of Rizal v. DMCI Homes, Inc., et al.
G.R. No. 213948
Page 45 of 46
FLORIN T. HILBAY
Solicitor General
Roll No. 44957, IBP Lifetime No. 08505
MCLE Exemption No. IV-001068, 5/14/2013
EMERSON S. BAÑEZ
Associate Solicitor
Roll No. 56723, IBP Lifetime No. 013195
MCLE Compliance No. V-0002900, 7/9/14
IVAN M. BANDAL
Associate Solicitor
Roll No. 60070, IBP No. 0987316, 1/7/2015
MCLE Compliance No. V-0009286, 7/22/2015
GERARDO E. MENDOZA
Associate Solicitor
Roll No. 62511, IBP No. 965933, 3/11/15
MCLE Compliance No. V-000327
LILIBETH C. PEREZ
Associate Solicitor
Roll No. 62428, IBP No. 1005409, 7/7/15
MCLE Exempt, Admitted 2013
Copies furnished:
EXPLANATION
(Pursuant to Section 11, Rule 13 of the Rules of Court)
The foregoing Memorandum is being filed in court personally and served on counsel
for other parties by registered mail due to time constraints and lack of sufficient personnel
in the Office of the Solicitor General (OSG) to effect personal service.
IVAN M. BANDAL
Associate Solicitor