Justice Carpio on Torre de Manila: ‘What’s not prohibited by law is allowed’

Anything that is not prohibited by law should be allowed, said Associate Justice Antonio Carpio as he pointed out the absence of a law protecting the background of historical and cultural sites in the Philippines.

This was the senior magistrate’s statement as he interpellated lawyer Victor Lazatin, legal counsel for DMCI Homes, which constructed the controversial 49-storey Torre de Manila condominium.

The building is currently the subject of a plea to be torn down for marring the visual corridor of the Rizal Monument in Luneta.

The property developer has repeatedly insisted it did not violate any law when it erected the tower, saying the Constitution and heritage laws in the country do not protect vistas and sight lines—a view that Carpio apparently shared.

"Since there is no implementing law to protect the background sight line, we go back to the general principle that what is not prohibited by law is allowed,” said Carpio.

"Otherwise, there would be a violation of the due process clause that no person shall be deprived of property without due process of law,” he added.

The senior magistrate stressed the importance of having a law before prohibiting something, adding that all other freedoms are anchored on this “core value.”

"It's a foundation of our value as democratic society [that] you must have a law before you are prohibited from doing an act because otherwise all our other freedoms, freedom of religion, freedom of speech, would be impaired if the government can just stop it without a law authorizing it to be stopped,” he said, adding that the Rule of Law is the "bedrock of our society."

Carpio also clarified that such a law prohibiting an act must likewise be based "on police power or some other power authorized by the Constitution.”

Carpio stressed that nobody can be deprived of property without due process. "Due process of law includes substantive law authorizing the demolition. But there must be a police power law saying you cannot build within one kilometer of the monument.”

Carpio, however, said there is currently no law giving such police power to tear down a structure marring a cultural site’s background.

"Substantive due process means there must be a law authorizing the demolition of Torre [de Manila] and procedural due process means there must be a hearing before it can be demolished,” he said.

Carpio said if the government wants vista and sight lines of historical and cultural sites to be protected, a law must first be crafted for it.

The DMCI earlier recalled that even the high court had planned to construct the Manila Hall of Justice right in front of the Torre de Manila. The plan was later shelved, and the justice hall is now set to be erected at the former GSIS building along Arroceros.

During interpellation, Associate Justice Diosdado Peralta, however, said it would be “inaccurate” to say that the Hall of Justice would have automatically violated zoning ordinance just because it was planned to be a 30-storey building.

For his part, Associate Justice Marvic Leonen pointed out how the DMCI had secured a zoning permit, started pre-selling and building the condominium in 2012, despite not having secured a variance yet from the local council.

The city council would only approve the variance two years later, in 2014. Records showed that the DMCI applied for the variance in December 2012. Leonen stressed that the variance must also be upon the recommendation of the Manila Zoning Board, prior to conducting business.

"To me it is very clear that the zoning permit of June 2012 already allows variance,” Leonen said.

Upon questioning from Associate Justice Estela Perlas-Bernabe, Lazatin confirmed that DMCI had previously sought intervention from the Office of the President regarding a certification it was seeking from the National Historical Commission of the Philippines.

Asked why the property developer sought Malacañang's help, Lazatin said: "At that time, the dispute was based on heritage, that DMCI could not build because allegedly Torre intrudes the sightline of the monument.”

“It was an issue that had to be addressed, to our mind, by the appropriate cultural agency. And our client made that request to the NHCP, and it took time. So they thought to seek the President’s action to expedite the action,” Lazatin added.

Lazatin also reiterated that the DMCI refused to honor a cease and desist order issued by the National Commission for Culture and the Arts, saying the agency does not have the authority to issue such an order.

During his interpellation, Associate Justice Francis Jardeleza conceded that under Section 25 of Republic Act 10066, the NCCA indeed has no authority to issue a cease and desist order (CDO) but asked Lazatin if the NCCA can have regulatory powers.

Lazatin responded: "Congress specifically stated that it is the concerned agency that issues CDO and the NCCA Guidelines itself limits coverage of CDO.”

Torre ‘absorbs’ Rizal monument

For her part, Associate Justice Teresita Leonardo-De Castro said she had observed, when passing by the Rizal Monument, that the Rizal Monument became “hardly visible...  absorbed by the imposing Torre building.”

"And the color of both Torre and the statue are the same. So you can hardly see the statue when you are in front,” De Castro said.

De Castro noted it was only now that a company has had the “courage to put up a building that dwarfed all the rest of the buildings in this area."

Lazatin responded by saying there was a demand for condominium units in the area, so DMCI decided to acquire the property and build Torre de Manila.

De Castro then said: "Earning much from this project is too hard to resist.”

Meanwhile, a video clip of an interview of Manila Mayor Alfredo Lim by Jessica Soho on GMA News TV’s State of the Nation Address about Torre de Manila was played towards the last part of the oral arguments.

The oral arguments will resume Tuesday next week, where it would be the turn of public respondents—the Manila City government, the National Commission for Culture and the Arts, and the National Museum, all represented by the Office of the Solicitor General—to defend their position.

Sereno also requested a certification from the Senate for the two treaties on cultural heritage that it had ratified.

Meanwhile, the National Historical Commission of the Philippines—named respondent in the case—has tapped lawyer Jose Manuel Diokno to represent it, after the Office of the Solicitor General changed its position on the issue. —NB/KG, GMA News