G.R No.

187167 August 16, 2011

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act
No. 95221(RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline regime of
nearby territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial
Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of
States parties over their "territorial sea," the breadth of which, however, was left undetermined. Attempts
to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile.
Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in
1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of
baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February
1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended
continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the
location of some basepoints around the Philippine archipelago and classified adjacent territories, namely,
the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of islands" whose islands
generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens,
taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two
principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of
the Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution, 10 embodying the
terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the country’s waters
landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the country’s nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions.13

In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands" not only results
in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen. 14 To
buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded
and included – its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS III’s
framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the petition’s
compliance with the case or controversy requirement for judicial review grounded on petitioners’ alleged
lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the
constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the country’s compliance
with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the country’s security, environment and economic
interests or relinquish the Philippines’ claim over Sabah.

Respondents also question the normative force, under international law, of petitioners’ assertion that what
Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found
within the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners’ prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily –

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and
(2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On
the merits, we find no basis to declare RA 9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus
Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the
petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned
by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners’ locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the case which
undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the
peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing "a more direct
and specific interest" to bring the suit, thus satisfying one of the requirements for granting citizenship
standing.17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test
the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance
of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any
showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the
part of respondents and resulting prejudice on the part of petitioners. 18

Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and
prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of
other branches of government.20Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life
of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass
upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute
sought to be reviewed here is one such law.

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool
to Demarcate the Country’s
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory

Petitioners submit that RA 9522 "dismembers a large portion of the national territory" 21 because it
discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision
denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of
the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the
Treaty of Paris’ technical description, Philippine sovereignty over territorial waters extends hundreds of
nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty
of Paris.22

Petitioners’ theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify norms regulating the
conduct of States in the world’s oceans and submarine areas, recognizing coastal and archipelagic
States’ graduated authority over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-
out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.
Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic
zone and the continental shelf. – The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with
precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of
the international community of the scope of the maritime space and submarine areas within which States
parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2),
the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article
33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56)
and continental shelf (Article 77).

Even under petitioners’ theory that the Philippine territory embraces the islands and all the waters within
the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be
drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with
UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular
area delineated in the Treaty of Paris, but from the "outermost islands and drying reefs of the
archipelago."24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional international law typology, States acquire (or conversely,
lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to
delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III,
and are instead governed by the rules on general international law.26

RA 9522’s Use of the Framework

of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines’ Claim of Sovereignty
Over these Areas

Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our
territorial claim" over that area.27Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion from
the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles of territorial
waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the
baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each
law, coupled with a reading of the text of RA 9522 and its congressional deliberations, vis-à-vis the
Philippines’ obligations under UNCLOS III, belie this view.1avvphi1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely
followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to
optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS
III’s limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory
renunciation of the Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.

Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is
similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines’ total maritime space (covering its internal waters, territorial sea
and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29

Extent of maritime
area using RA 3046, Extent of maritime
as amended, taking area using RA 9522,
into account the Treaty taking into account
of Paris’ delimitation UNCLOS III (in square
(in square nautical nautical miles)
miles)
Internal or
archipelagic waters 166,858 171,435

Territorial Sea 274,136 32,106

 Exclusive
Economic Zone 382,669

TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will
have to be a delineation of maritime boundaries in accordance with UNCLOS III.30

Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines that
RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text
the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of
two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such
baselines shall not depart to any appreciable extent from the general configuration of the archipelago."
Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100
nautical miles," save for three per cent (3%) of the total number of baselines which can reach up to 125
nautical miles.31

Although the Philippines has consistently claimed sovereignty over the KIG 32 and the Scarborough Shoal
for several decades, these outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the
nearest basepoint will inevitably "depart to an appreciable extent from the general configuration of the
archipelago."

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which states: "The drawing of such
baseline shall not depart to any appreciable extent from the general configuration of the archipelago." So
sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi
natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as
our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by the
orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa
itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the
Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines
para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng
United Nations because of the rule that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits.1avvphi1 The need
to shorten this baseline, and in addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of
its maritime zones including the extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some
technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point)
is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of
the [UNCLOS III], which states that "The length of such baselines shall not exceed 100 nautical
 miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago
may exceed that length, up to a maximum length of 125 nautical miles."

2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.

3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of
Luzon down to Palawan were later found to be located either inland or on water, not on low-water
line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’
decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under the Republic of
the Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine State’s responsible
observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III,
any "naturally formed area of land, surrounded by water, which is above water at high tide," such as
portions of the KIG, qualifies under the category of "regime of islands," whose islands generate their own
applicable maritime zones.37

Statutory Claim Over Sabah under

RA 5446 Retained

Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’ claim over
Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps
open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in
this Act is without prejudice to the delineation of the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has
acquired dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not

Incompatible with the Constitution’s
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally
"converts" internal waters into archipelagic waters, hence subjecting these waters to the right of innocent
and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage
rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation
of the Constitution.38

Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as "archipelagic
waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water
lying landward of the baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed
and subsoil. –

1. The sovereignty of an archipelagic State extends to the waters enclosed by the

archipelagic baselinesdrawn in accordance with article 47, described as archipelagic waters,
regardless of their depth or distance from the coast.
 2. This sovereignty extends to the air space over the archipelagic waters, as well as to
their bed and subsoil, and the resources contained therein.

xxxx

4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the exercise
by the archipelagic State of its sovereignty over such waters and their air space, bed and
subsoil, and the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious international navigation, consistent with the international
law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress. 41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to
grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary
international law,43 thus automatically incorporated in the corpus of Philippine law. 44 No modern State can
validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with
customary international law without risking retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent
passage and sea lanes passage45 does not place them in lesser footing vis-à-vis continental coastal
States which are subject, in their territorial sea, to the right of innocent passage and the right of transit
passage through international straits. The imposition of these passage rights through archipelagic waters
under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic
waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States’
archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of
their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime
zones, placing the waters between islands separated by more than 24 nautical miles beyond the States’
territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III. 47

Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of Principles and

State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as
mere legislative guides, which, absent enabling legislation, "do not embody judicially enforceable
constitutional rights x x x."49 Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the Constitution.
Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of
Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA
9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of all living and non-living resources within such zone.
Such a maritime delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space – the exclusive economic zone – in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone
up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other
States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to
pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners’
reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this
Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally
acceptable baselines from where the breadth of its maritime zones and continental shelf is measured.
This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely
enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it
weakens the country’s case in any international dispute over Philippine maritime space. These are
consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas,
as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the
Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.

WHEREFORE, we DISMISS the petition

[ G.R. No. 213948, April 25, 2017 ]

KNIGHTS OF RIZAL, PETITIONER, VS. DMCI HOMES, INC., DMCI PROJECT
DEVELOPERS, INC., CITY OF MANILA, NATIONAL COMMISSION FOR
CULTURE AND THE ARTS, NATIONAL MUSEUM, AND NATIONAL HISTORICAL
COMMISSION OF THE PHILIPPINES, RESPONDENTS.

DECISION

CARPIO, J.:

Bury me in the ground, place a stone and a 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.

- Jose Rizal
 The Case

Before this Court is a Petition for Injunction, with Applications for Temporary
Restraining Order, Writ of Preliminary Injunction, and Others[1] filed by the Knights
of Rizal (KOR) seeking, among others, for an order to stop the construction of
respondent DMCI Homes, Inc.'s condominium development project known as the
Torre de Manila. In its Resolution dated 25 November 2014, the Court resolved to
treat the petition as one for mandamus.[2]

The Facts

On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI)[3] acquired a

7,716.60-square meter lot in the City of Manila, located near Taft Avenue, Ermita,
beside the former Manila Jai-Alai Building and Adamson University.[4] The lot was
earmarked for the construction of DMCI-PDI's Torre de Manila condominium
project.

On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the construction
of its project. It then obtained a Zoning Permit from the City of Manila's City
Planning and Development Office (CPDO) on 19 June 2012.[5]

Then, on 5 July 2012, the City of Manila's Office of the Building Official granted
DMCI-PDI a Building Permit, allowing it to build a "Forty-Nine (49) Storey w/
Basement & 2 penthouse Level Res'l./Condominium" on the property.[6]

On 24 July 2012, the City Council of Manila issued Resolution No. 121 enjoining the
Office of the Building Official to temporarily suspend the Building Permit of DMCI-
PDI, citing among others, that "the Torre de Manila Condominium, based on their
development plans, upon completion, will rise up high above the back of the
national monument, to clearly dwarf the statue of our hero, and with such towering
heights, would certainly ruin the line of sight of the Rizal Shrine from the frontal
Roxas Boulevard vantage point[.]"[7]

Building Official Melvin Q. Balagot then sought the opinion of the City of Manila's
City Legal Officer on whether he is bound to comply with Resolution No. 121.[8] In
his letter dated 12 September 2012, City Legal Officer Renato G. Dela Cruz stated
that there is "no legal justification for the temporary suspension of the Building
Permit issued in favor of [DMCI-PDI]" since the construction "lies outside the
Luneta Park" and is "simply too far to be a repulsive distraction or have an
objectionable effect on the artistic and historical significance" of the Rizal
Monument.[9]He also pointed out that "there is no showing that the [area of]
subject property has been officially declared as an anthropological or archeological
area. Neither has it been categorically designated by the National Historical
Institute as a heritage zone, a cultural property, a historical landmark or even a
national treasure."

Subsequently, both the City of Manila and DMCI-PDI sought the opinion of the
National Historical Commission of the Philippines (NHCP) on the matter. In the
letter[10] dated 6 November 2012 from NHCP Chairperson Dr. Maria Serena I.
Diokno addressed to DMCI-PDI and the letter[11] dated 7 November 2012 from
NHCP Executive Director III Ludovico D. Badoy addressed to then Manila Mayor
Alfredo S. Lim, the NHCP maintained that the Torre de Manila project site is outside
the boundaries of the Rizal Park and well to the rear of the Rizal Monument, and
thus, cannot possibly obstruct the frontal view of the National Monument.

On 26 November 2013, following an online petition against the Torre de Manila

project that garnered about 7,800 signatures, the City Council of Manila issued
Resolution No. 146, reiterating its directive in Resolution No. 121 enjoining the City
of Manila's building officials to temporarily suspend DMCI-PDI's Building Permit.[12]

In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-PDI

President Alfredo R. Austria sought clarification on the controversy surrounding its
Zoning Permit. He stated that since the CPDO granted its Zoning Permit, DMCI-PDI
continued with the application for the Building Permit, which was granted, and did
not deem it necessary to go through the process of appealing to the local zoning
board. He then expressed DMCI-PDI's willingness to comply with the process if the
City of Manila deemed it necessary.[13]

On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals

(MZBAA) issued Zoning Board Resolution No. 06, Series of 2013,[14] recommending
the approval of DMCI-PDI's application for variance. The MZBAA noted that the
Torre de Manila project "exceeds the prescribed maximum Percentage of Land
Occupancy (PLO) and exceeds the prescribed Floor Area Ratio (FAR) as stipulated in
Article V, Section 17 of City Ordinance No. 8119[.]" However, the MZBAA still
recommended the approval of the variance subject to the five conditions set under
the same resolution.

After some clarification sought by DMCI-PDI, the MZBAA issued Zoning Board
Resolution No. 06-A, Series of 2013,[15] on 8 January 2014, amending condition (c)
in the earlier resolution.[16]

On 16 January 2014, the City Council of Manila issued Resolution No. 5, Series of
2014,[17] adopting Zoning Board Resolution Nos. 06 and 06-A. The City Council
resolution states that "the City Council of Manila find[s] no cogent reason to deny
and/or reverse the aforesaid recommendation of the [MZBAA] and hereby ratif1ies]
and confirm[s] all previously issued permits, licenses and approvals issued by the
City [Council] of Manila for Torre de Manila[.]"

Arguments of the KOR

On 12 September 2014, the KOR, a "civic, patriotic, cultural, nonpartisan, non-
sectarian and non-profit organization"[18] created under Republic Act No.
646,[19] filed a Petition for Injunction seeking a temporary restraining order, and
later a permanent injunction, against the construction of DMCI-PDI's Torre de
Manila condominium project. The KOR argues that the subject matter of the present
suit is one of "transcendental importance, paramount public interest, of overarching
significance to society, or with far-reaching implication" involving the desecration of
the Rizal Monument.

The KOR asserts that the completed Torre de Manila structure will "[stick] out like a
sore thumb, [dwarf] all surrounding buildings within a radius of two kilometer/s"
and "forever ruin the sightline of the Rizal Monument in Luneta Park: Torre de
Manila building would loom at the back and overshadow the entire monument,
whether up close or viewed from a distance."[20]

Further, the KOR argues that the Rizal Monument, as a National Treasure, is
entitled to "full protection of the law"[21] and the national government must abate
the act or activity that endangers the nation's cultural heritage "even against the
wishes of the local government hosting it."[22]

Next, the KOR contends that the project is a nuisance per se[23] because "[t]he
despoliation of the sight view of the Rizal Monument is a situation that 'annoys or
offends the senses' of every Filipino who honors the memory of the National Hero
Jose Rizal. It is a present, continuing, worsening and aggravating status or
condition. Hence, the PROJECT is a nuisance per se. It deserves to be abated
summarily, even without need of judicial proceeding."[24]

The KOR also claims that the Torre de Manila project violates the NHCP's Guidelines
on Monuments Honoring National Heroes, Illustrious Filipinos and Other
Personages, which state that historic monuments should assert a visual
"dominance" over its surroundings,[25] as well as the country's commitment under
the International Charter for the Conservation and Restoration of Monuments and
Sites, otherwise known as the Venice Charter.[26]

Lastly, the KOR claims that the DMCI-PDI's construction was commenced and
continues in bad faith, and is in violation of the City of Manila's zoning ordinance.[27]

Arguments of DMCI-PDI

In ts Comment, MCI-PDI argues that the KOR's petition should be dismissed, on the
following grounds:

I.
 THIS HONORABLE COURT HAS NO JURISDICTION OVER THIS ACTION.

II.

KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PROSECUTE

THIS ACTION.

III

TORRE DE MANILA IS NOT A NUISANCE PER SE.

IV.

DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE

MANILA; AND

V.

KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER

AND/OR A WRIT OF PRELIMINARY INJUNCTION.[28]

First, DMCI-PDI asserts that the Court has no original jurisdiction over actions for
injunction.[29] Even assuming that the Court has concurrent jurisdiction, DMCI-PDI
maintains that the petition should still have been filed with the Regional Trial Court
under the doctrine of hierarchy of courts and because the petition involves
questions of fact.[30]

DMCI-PDI also contends that the KOR's petition is in actuality an opposition or

appeal from the exemption granted by the City of Manila's MZBAA, a matter which
is also not within the jurisdiction of the Court.[31] DMCI-PDI claims that the proper
forum should be the MZBAA, and should the KOR fail there, it should appeal the
same to the Housing and Land Use Regulatory Board (HLURB).[32]

DMCI-PDI further argues that since the Rizal Monument has been declared a
National Treasure, the power to issue a cease and desist order is lodged with the
"appropriate cultural agency" under Section 25 of Republic Act No. 10066 or
the National Cultural Heritage Act of 2009.[33] Moreover, DMCI-PDI asserts that the
KOR availed of the wrong remedy since an action for injunction is not the proper
remedy for abatement of a nuisance.[34]

Second, DMCI-PDI maintains that the KOR has no standing to institute this
proceeding because it is not a real party in interest in this case. The purposes of the
KOR as a public corporation do not include the preservation of the Rizal Monument
as a cultural or historical heritage site.[35] The KOR has also not shown that it
suffered an actual or threatened injury as a result of the alleged illegal conduct of
the City of Manila. If there is any injury to the KOR at all, the same was caused by
the private conduct of a private entity and not the City of Manila.[36]

Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se. DMCI-
PDI reiterates that it obtained all the necessary permits, licenses, clearances, and
certificates for its construction.[37] It also refutes the KOR's claim that the Torre de
Manila would dwarf all other structures around it, considering that there are other
tall buildings even closer to the Rizal Monument itself, namely, the Eton Baypark
Tower at the corner of Roxas Boulevard and T.M. Kalaw Street (29 storeys; 235
meters from the Rizal Monument) and Sunview Palace at the corner of M.H. Del
Pilar and T.M. Kalaw Streets (42 storeys; 250 meters from the Rizal Monument).[38]

Fourth, DMCI-PDI next argues that it did not act in bad faith when it started
construction of its Torre de Manila project. Bad faith cannot be attributed to it since
it was within the "lawful exercise of [its] rights."[39] The KOR failed to present any
proof that DMCI-PDI did not follow the proper procedure and zoning restrictions of
the City of Manila. Aside from obtaining all the necessary permits from the
appropriate government agencies,[40] DMCI-PDI also sought clarification on its right
to build on its site from the Office of the City Legal Officer of Manila, the Manila
CPDO, and the NHCP.[41] Moreover, even if the KOR proffered such proof, the Court
would be in no position to declare DMCI-PDI's acts as illegal since the Court is not a
trier of facts.[42]

Finally, DMCI-PDI opposes the KOR's application for a Temporary Restraining Order
(TRO) and writ of preliminary injunction. DMCI-PDI asserts that the KOR has failed
to establish "a clear and unmistakable right to enjoin the construction of Torre de
Manila, much less request its demolition."[43] DMCI-PDI further argues that it "has
complied with all the legal requirements for the construction of Torre de Manila x x
x [and] has violated no right of KOR that must be protected. Further, KOR stands to
suffer no damage because of its lack of direct pecuniary interest in this petition. To
grant the KOR's application for injunctive relief would constitute an unjust taking of
property without due process of law."[44]

Arguments of the City of Manila

In its Comment, the City of Manila argues that the writ of mandamus cannot issue
"considering that no property or substantive rights whatsoever in favor of [the
KOR] is being affected or x x x entitled to judicial protection[.]"[45]

The City of Manila also asserts that the "issuance and revocation of a Building
Permit undoubtedly fall under the category of a discretionary act or duty performed
by the proper officer in light of his meticulous appraisal and evaluation of the
pertinent supporting documents of the application in accordance with the rules laid
out under the National Building Code [and] Presidential Decree No. 1096,"[46] while
the remedy of mandamus is available only to compel the performance of a
ministerial duty.[47]

Further, the City of Manila maintains that the construction of the Torre de Manila
did not violate any existing law, since the "edifice [is] well behind (some 789
meters away) the line of sight of the Rizal Monument."[48] It adds that the City of
Manila's "prevailing Land Use and Zoning Ordinance [Ordinance No. 8119] x x x
allows an adjustment in Floor Area Ratios thru the [MZBAA] subject to further final
approval of the City Council."[49] The City Council adopted the MZBAA's favorable
recommendation in its Resolution No. 5, ratifying all the licenses and permits issued
to DMCI-PDI for its Torre de Manila project.

In its Position Paper dated 15 July 2015, the City of Manila admitted that the
Zoning Permit issued to DMCI-PDI was "in breach of certain provisions of City
Ordinance No. 8119."[50] It maintained, however, that the deficiency is "procedural
in nature and pertains mostly to the failure of [DMCI-PDI] to comply with the
stipulations that allow an excess in the [FAR] provisions."[51] Further, the City of
Manila argued that the MZBAA, when it recommended the allowance of the project's
variance, imposed certain conditions upon the Torre de Manila project in order to
mitigate the possible adverse effects of an excess FAR.[52]

The Issue

The issues raised by the parties can be summed up into one main point: Can the
Court issue a writ of mandamus against the officials of the City of Manila to stop the
construction of DMCI-PDI's Torre de Manila project?

The Court's Ruling

The petition for mandamus lacks merit and must be dismissed.

There is no law prohibiting the construction of the Torre de Manila.

In Manila Electric Company v. Public Service Commission,[53] the Court held that
"what is not expressly or impliedly prohibited by law may be done, except
when the act is contrary to morals, customs and public order." This principle
is fundamental in a democratic society, to protect the weak against the strong, the
minority against the majority, and the individual citizen against the government. In
essence, this principle, which is the foundation of a civilized society under the rule
of law, prescribes that the freedom to act can be curtailed only through law.
Without this principle, the rights, freedoms, and civil liberties of citizens can be
arbitrarily and whimsically trampled upon by the shifting passions of those who can
shout the loudest, or those who can gather the biggest crowd or the most number
of Internet trolls. In other instances,[54] the Court has allowed or upheld actions
that were not expressly prohibited by statutes when it determined that these acts
were not contrary to morals, customs, and public order, or that upholding the same
would lead to a more equitable solution to the controversy. However, it is the law
itself - Articles 1306[55] and 1409(1)[56] of the Civil Code - which prescribes that acts
not contrary to morals, good customs, public order, or public policy are allowed if
also not contrary to law.

In this case, there is no allegation or proof that the Torre de Manila project is
"contrary to morals, customs, and public order" or that it brings harm, danger, or
hazard to the community. On the contrary, the City of Manila has determined that
DMCI-PDI complied with the standards set under the pertinent laws and local
ordinances to construct its Torre de Manila project.

There is one fact that is crystal clear in this case. There is no law prohibiting the
construction of the Torre de Manila due to its effect on the background "view,
vista, sightline, or setting" of the Rizal Monument.

Zoning, as well as land use, in the City of Manila is governed by Ordinance No.
8119. The ordinance provides for standards and guidelines to regulate development
projects of historic sites and facilities within the City of Manila.

Specifically, Section 47 reads:

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 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. (Emphasis supplied)

It is clear that the standards laid down in Section 47 of Ordinance No. 8119 only
serve as guides, as it expressly states that "the following shall guide the
development of historic sites and facilities." A guide simply sets a direction or gives
an instruction to be followed by property owners and developers in order to
conserve and enhance a property's heritage values.

On the other hand, Section 48 states:

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.

1 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. Abutments to adjacent properties shall not be allowed without the

neighbor's prior written consent which shall be required by the City
Planning and Development Office (CPDO) prior to the granting of a
Zoning Permit (Locational Clearance).

4. The capacity of parking areas/lots shall be per the minimum

requirements of the National Building Code. These shall be located,
developed and landscaped in order to enhance the aesthetic quality of
the facility. In no case, shall parking areas/lots encroach into street
rights-of-way and shall follow the Traffic Code as set by the City.

5. Developments that attract a significant volume of public modes of

transportation, such as tricycles, jeepneys, buses, etc., shall provide
on-site parking for the same. These shall also provide vehicular
loading and unloading bays so as street traffic flow will not be
impeded.
 6. Buffers, silencers, mufflers, enclosures and other noise-absorbing
materials shall be provided to all noise and vibration-producing
machinery. Noise levels shall be maintained according to levels
specified in DENR DAO No. 30 - Abatement of Noise and Other Forms
of Nuisance as Defined by Law.

7. Glare and heat from any operation or activity shall not be radiated,
seen or felt from any point beyond the limits of the property.

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
supplied)

Section 47 of Ordinance No. 8119 specifically regulates the "development of

historic sites and facilities." Section 48 regulates "large commercial signage
and/or pylon." There is nothing in Sections 47 and 48 of Ordinance No. 8119 that
disallows 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.
In this case, the Torre de Manila stands 870 meters outside and to the rear of the
Rizal Monument and "cannot possibly obstruct the front view of the [Rizal]
Monument."[57] Likewise, the Torre de Manila is not in an area that has been
declared as an "anthropological or archeological area" or in an area designated as a
heritage zone, cultural property, historical landmark, or a national treasure by the
NHCP.[58]

Section 15, Article XIV of the Constitution, which deals with the subject of arts and
culture, provides that "[t]he State shall conserve, promote and popularize the
nation's historical and cultural heritage and resources x x x." Since this provision is
not self-executory, Congress passed laws dealing with the preservation and
conservation of our cultural heritage.

One such law is Republic Act No. 10066,[59] or the National Cultural Heritage Act of
2009, which empowers the National Commission for Culture and the Arts and other
cultural agencies to issue a cease and desist order "when the physical integrity of
the national cultural treasures or important cultural properties [is] found to be in
danger of destruction or significant alteration from its original
state."[60] This law declares that the State should protect the "physical integrity"
of the heritage property or building if there is "danger of destruction or significant
alteration from its original state." Physical integrity refers to the structure
itself - how strong and sound the structure is. The same law does not mention
that another project, building, or property, not itself a heritage property or
building, may be the subject of a cease and desist order when it adversely affects
the background view, vista, or sightline of a heritage property or building. Thus,
Republic Act No. 10066 cannot apply to the Torre de Manila condominium project.

Mandamus does not lie against the City of Manila.

The Constitution states that "[n]o person shall be deprived of life, liberty or
property without due process of law x x x."[61] It is a fundamental principle that no
property shall be taken away from an individual without due process, whether
substantive or procedural. The dispossession of property, or in this case the
stoppage of the construction of a building in one's own property, would violate
substantive due process.

The Rules on Civil Procedure are clear that mandamus only issues when there is a
clear legal duty imposed upon the office or the officer sought to be compelled to
perform an act, and when the party seeking mandamus has a clear legal right to
the performance of such act.

In the present case, nowhere is it found in Ordinance No. 8119 or in any law,
ordinance, or rule for that matter, that the construction of a building outside the
Rizal Park is prohibited if the building is within the background sightline or view of
the Rizal Monument. Thus, there is no legal duty on the part of the City of Manila
"to consider," in the words of the Dissenting Opinion, "the standards set under
Ordinance No. 8119" in relation to the applications of DMCI-PDI for the Torre de
Manila since under the ordinance these standards can never be applied outside
the boundaries of Rizal Park. While the Rizal Park has been declared a National
Historical Site, the area where Torre de Manila is being built is a privately-owned
property that is "not part of the Rizal Park that has been declared as a National
Heritage Site in 1995," and the Torre de Manila area is in fact "well-beyond" the
Rizal Park, according to NHCP Chairperson Dr. Maria Serena I. Diokno.[62] Neither
has the area of the Torre de Manila been designated as a "heritage zone, a cultural
property, a historical landmark or even a national treasure."[63]

Also, to declare that the City of Manila failed to consider the standards under
Ordinance No. 8119 would involve making a finding of fact. A finding of fact
requires notice, hearing, and the submission of evidence to ascertain compliance
with the law or regulation. In such a case, it is the Regional Trial Court which has
the jurisdiction to hear the case, receive evidence, make a proper finding of fact,
and determine whether the Torre de Manila project properly complied with the
standards set by the ordinance. In Meralco Public Service Commission,[64] we held
that it is the cardinal right of a party in trials and administrative proceedings to be
heard, which includes the right of the party interested or affected to present his
own case and submit evidence in support thereof and to have such evidence
presented considered by the proper court or tribunal.

To compel the City of Manila to consider the standards under Ordinance No. 8119 to
the Torre de Manila project will be an empty exercise since these standards cannot
apply outside of the Rizal Park - and the Torre de Manila is outside the Rizal Park.
Mandamus will lie only if the officials of the City of Manila have a ministerial duty to
consider these standards to buildings outside of the Rizal Park. There can be no
such ministerial duty because these standards are not applicable to buildings
outside of the Rizal Park.

The KOR also invokes this Court's exercise of its extraordinary certiorari power of
review under Section 1, Article VIII[65] of the Constitution. However, this Court can
only exercise its extraordinary certiorari power if the City of Manila, in issuing the
required permits and licenses, gravely abused its discretion amounting to lack
or excess of jurisdiction. Tellingly, neither the majority nor minority opinion in
this case has found that the City of Manila committed grave abuse of discretion in
issuing the permits and licenses to DMCI-PDI. Thus, there is no justification at all
for this Court to exercise its extraordinary certiorari power.

Moteover, the exercise of this Court's extraordinary certiorari power is limited to

actual cases and controversies that necessarily involve a violation of the
Constitution or the determination of the constitutionality or validity of a
governmental act or issuance. Specific violation of a statute that does inot raise the
issue of constitutionality or validity of the statute cannot, as a rule, be the subject
of the Court's direct exercise of its expanded certioraripower. Thus, the KOR's
recourse lies with other judicial remedies or proceedings allowed under the Rules of
Court.

In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved

Medical Centers Association, Inc.,[66]we held that in cases where the question of
constitutionality of a governmental action is raised, the judicial power that the
courts exercise is likewise identified as the power of judicial review - the power to
review the constitutionality of the actions of other branches of government. As a
rule, as required by the hierarchy of courts principle, these cases are filed with the
lowest court with jurisdiction over the subject matter. The judicial review that the
courts undertake requires:

1) there be an actual case or controversy calling for the exercise of judicial power;

2) the person challenging the act must have "standing" to challenge; 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 possible opportunity; and
 4) the issue of constitutionality must be the very lis mota of the case.

The lower court's decision under the constitutional scheme reaches the Supreme
Court through the appeal process, through a petition for review on certiorari under
Rule 45 of the Rules of Court.

In the present case, the KOR elevated this case immediately to this Court in an
original petition for injunction which we later on treated as one for mandamus
under Rule 65. There is, however, no clear legal duty on the City of Manila to
consider the provisions of Ordinance No. 8119 for applications for permits to
build outside the protected areas of the Rizal Park. Even if there were such legal
duty, the determination of whether the City of Manila failed to abide by this legal
duty would involve factual matters which have not been admitted or established in
this case. Establishing factual matters is not within the realm of this Court. Findings
of fact are the province of the trial courts.

There is no standard in Ordinance No. 8119 for defining or determining the

background sightline that is supposed to be protected or that is part of the
"physical integrity" of the Rizal Monument. How far should a building like the Torre
de Manila be from the Rizal Monument - one, two, three, four, or five kilometers?
Even the Solicitor General, during the Oral Arguments, conceded that the ordinance
does not prescribe how sightline is determined, neither is there any way to measure
by metes and bounds whether construction that is not part of the historic
monument itself or is outside the protected area can be said to violate the
Rizal Monument's physical integrity, except only to say "when you stand in front
of the Rizal Monument, there can be no doubt that your view is marred and
impaired." This kind of a standard has no parameters and can include a sightline or
a construction as far as the human eyes can see when standing in front of the Rizal
Monument. Obviously, this Court cannot apply such a subjective and non-uniform
standard that adversely affects property rights several kilometers away from a
historical sight or facility.

The Dissenting Opinion claims that "the City, by reason of a mistaken or erroneous
construction of its own Ordinance, had failed to consider its duties under [Ordinance
No. 8119] when it issued permits in DMCI-PDI's favor." However, MZBAA Zoning
Board Resolution Nos. 06 and 06-A[67] easily dispel this claim. According to the
resolutions, the City of Manila, through the MZBAA, acted on DMCI-PDI's application
for variance under the powers and standards set forth in Ordinance No. 8119.

Without further proof that the MZBAA acted whimsically, capriciously, or arbitrarily
in issuing said resolution, the Court should respect MZBAA's exercise of discretion.
The Court cannot "substitute its judgment for that of said officials who are in a
better position to consider and weigh the same in the light of the authority
specifically vested in them by law."[68] Since the Court has "no supervisory power
over the proceedings and actions of the administrative departments of the
government," it "should not generally interfere with purely administrative and
discretionary functions."[69] The power of the Court in mandamus petitions does not
extend "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."[70]

Still, the Dissenting Opinion insists on directing the re-evaluation by the City of
Manila, through the CPDO, of the permits previously issued in favor of the Torre de
Manila project to determine compliance with the standards under Ordinance No.
8119. It also declares that the circumstances in this case warrant the pro hac
viceconversion of the proceedings in the issuance of the permits into a "contested
case" necessitating notice and hearing with all the parties involved.

Pro hac vice means a specific decision does not constitute a precedent because the
decision is for the specific case only, not to be followed in other cases. A pro hac
vice decision violates statutory law - Article 8 of the Civil Code - which states that
"judicial decisions applying or interpreting the laws or the Constitution shall form
part of the legal system of the Philippines." The decision of the Court in this case
cannot be pro hac vice because by mandate of the law every decision of the Court
forms part of the legal system of the Philippines. If another case comes up with the
same facts as the present case, that case must be decided in the same way as this
case to comply with the constitutional mandate of equal protection of the law. Thus,
a pro hac vice decision also violates the equal protection clause of the Constitution.

It is the policy of the courts not to interfere with the discretionary executive acts of
the executive branch unless there is a clear showing of grave abuse of discretion
amounting to lack or excess of jurisdiction. Mandamus does not lie against the
legislative and executive branches or their members acting in the exercise of their
official discretionary functions. This emanates from the respect accorded by the
judiciary to said branches as co-equal entities under the principle of separation of
powers.

In De Castro v. Salas,[71] we held that 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.

In exceptional cases, the Court has granted a prayer for mandamus to compel
action in matters involving judgment and discretion, only "to act, but not to act one
way or the other,"[72] and only in cases where there has been a clear showing
of grave abuse of discretion, manifest injustice, or palpable excess of
authority.[73]

In this case, there can be no determination by this Court that the City of Manila had
been negligent or remiss in its duty under Ordinance No. 8119 considering that this
determination will involve questions of fact. DMCI-PDI had been issued the proper
permits and had secured all approvals and licenses months before the actual
construction began. Even the KOR could not point to any law that respondent City
of Manila had violated and could only point to declarations of policies by the NHCP
and the Venice Charter which do not constitute clear legal bases for the issuance of
a writ of mandamus.

The Venice Charter is merely a codification of guiding principles for the preservation
and restoration of ancient monuments, sites, and buildings. It brings together
principles in the field of historical conservation and restoration that have been
developed, agreed upon, and and laid down by experts over the years. Each
country, however, remains "responsible for applying the plan within the framework
of its own culture and traditions."[74]

The Venice Charter is not a treaty and therefore does not become enforceable as
law. The Philippines is not legally bound to follow its directive, as in fact, these are
not directives but mere guidelines a set of the best practices and techniques that
have been proven over the years to be the most effective in preserving and
restoring historical monuments, sites and buildings.

The City of Manila concedes that DMCI-PDI's Zoning Permit was granted without
going through the process under Ordinance No. 8119. However,the same was
properly rectified when, faced with mounting opposition, DMCI-PDI itself sought
clarification from the City of Manila and immediately began complying with the
procedure for applying for a variance. The MZBAA did subsequently recommend the
approval of the variance and the City Council of Manila approved the same, ratifying
the licenses and permits already given to DMCI-PDI. Such ratification was well
within the right of the City Council of Manila. The City Council of Manila could have
denied the application had it seen any reason to do so. Again, the ratification is a
function of the City Council of Manila, an exercise of its discretion and well within
the authority granted it by law and the City's own Ordinance No. 8119.

The main purpose of zoning is the protection of public safety, health, convenience,
and welfare. 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. In fact, the Court must
take the approval of the MZBAA, and its subsequent ratification by the City Council
of Manila, as the duly authorized exercise of discretion by the city officials. Great
care must be taken that the Court does not unduly tread upon the local
government's performance of its duties. It is not for this Court to dictate upon the
other branches of the government how their discretion must be exercised so long
as these branches do not commit grave abuse of discretion amounting to lack or
excess of jurisdiction.

Likewise, any violation of Ordinance No. 8119 must be determined in the propel
case and before the proper forum. It is not within the power of this Court in this
case to make such determination. Without such determination, this Court cannot
simply declare that the City of Manila had failed to consider its duties under
Ordinance No. 8119 when it issued the permits in DMCI-PDI's favor without making
a finding of fact how the City of Manila failed "to consider" its duties with respect to
areas outside the boundaries of the Rizal Park. In the first place, this Court has no
jurisdiction to make findings of fact in an original action like this before this Court.
Moreover, the City of Manila could not legally apply standards to sites outside the
area covered by the ordinance that prescribed the standards. With this, taken in
light of the lack of finding that there was grave abuse of discretion on the part of
the City of Manila, there is no basis to issue the writ of mandamus against the City
of Manila.

During the Oral Arguments, it was established that the granting of a variance s
neither uncommon nor irregular. On the contrary, current practice has made
granting of a variance the rule rather than the exception:

JUSTICE CARPIO: Let's go to Ordinance 8119. For residential

condominium that stand alone, in other words not part of a
commercial complex or an industrial complex...
ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is uniform for the
entire City of Manila, the FAR 4, correct?
ATTY. FLAMINIANO: I believe so, Your Honor, it's FAR 4.

JUSTICE CARPIO: So it's FAR 4 for all residential condominium

complex or industrial projects.
ATTY. FLAMINIANO: There might be, the FAR might be different when
it comes to condominiums in commercial areas, Your Honor.

JUSTICE CARPIO: Yes, I'm talking of stand-alone...

ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: ...residential condominiums...

ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.

JUSTICE CARPIO: And the percentage of land occupancy is always 60

percent.
ATTY. FLAMINIANO: 60 percent, correct, Your Honor.

JUSTICE CARPIO: Okay...how many square meters is this Torre de

Manila?
xxxx
ATTY. FLAMINIANO: The land area, Your Honor, it's almost
5,000...5,556.

JUSTICE CARPIO: So, it's almost half a hectare.

ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: And at FAR 4, it can only build up to 18 storeys, I

mean at FAR 4, is that correct?
ATTY. FLAMINIANO: If the 60 percent of the lot...

JUSTICE CARPIO: Yes, but that is a rule.

ATTY. FLAMINIANO: That is a rule, that's the rule, Your Honor.

JUSTICE CARPIO: 60 percent of...

ATTY. FLAMINIANO: Of the land area.

JUSTICE CARPIO: ...buildable, the rest not buildable.

ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: Okay, so if you look around here in the City of

Manila anywhere you go, you look at stand alone residential
condominium buildings...
ATTY. FLAMINIANO: There's a lot of them, Your Honor.

JUSTICE CARPIO: It's always not FAR 4, it's more than FAR 4.
ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: And the buildable area is to the edge of the

property...it's not 60 percent, correct?
ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: So, if you look at all the...residential

buildings in the last ten years, they [have] all variances. They
did not follow the original FAR 4 or the 60 percent (of land
occupancy). Every residential building that stand alone was a
variance.
ATTY. FLAMINIANO: That's correct, Your Honor.

JUSTICE CARPIO: So the rule really in the City of Manila is

variance, and the exception which is never followed is FAR 4.
ATTY. FLAMINIANO: FAR 4, it appears to be that way, Your
Honor.
 xxxx

JUSTICE CARPIO: Every developer will have to get a variance

because it doesn't make sense to follow FAR 4 because the land
is so expensive and if you can build only two storeys on a
1,000-square meter lot, you will surely lose money, correct?
ATTY. FLAMINIANO: Exactly, Your Honor.[75] (Emphasis supplied)

Thus, the MZBAA's grant of the variance cannot be used as a basis to grant
the mandamus petition absent any clear finding that said act amounted to
"grave abuse of discretion, manifest injustice, or palpable excess of
authority."

The KOR is Estopped from Questioning the Torre de Manila Construction.

The KOR is now estopped from questioning the construction of the Torre de Manila
project. The KOR itself came up with the idea to build a structure right behind the
Rizal Monument that would dwarf the Rizal Monument.

In the mid-1950s, the Jose Rizal National Centennial Commission (JRNCC)

formulated a plan to build an Educational Center within the Rizal Park. In July 1955,
the KOR proposed the inclusion of a national theater on the site of the Educational
Center. The JRNCC adopted the proposal. The following year, a law - Republic Act
No. 1427[76] - authorized the establishment of the Jose Rizal National Cultural
Shrine consisting of a national theater, a national museum, and a national library
on a single site.[77]

To be built on the open space right behind the 12.7 meter high Rizal Monument
were: the KOR's proposed national theater, standing 29.25 meters high and 286
meters in distance from the Rizal Monument; the national library, standing 25.6
meters high and 180 meters in distance from the Rizal Monument, with its rear
along San Luis Street (now T.M. Kalaw Street); and facing it, the national museum,
at 19.5 meters high and 190 meters in distance from the Rizal Monument, with its
back along P. Burgos Street.[78]

However, several sectors voiced their objections to the construction for various
reasons. Among them, the need to preserve the open space of the park, the high
cost of construction, the desecration of the park's hallowed grounds, and the fact
that the proposed cultural center including the 29.25 meter high national
theater proposed by the KOR would dwarf the 12.7 meter high Rizal
Monument.[79] The JRNCC revised the plan and only the National Library - which
still stands today - was built.[80]

According to the NHCP, the KOR even proposed to build a Rizal Center on the park
as recently as 2013.[81] The proposal was disapproved by the NHCP and the
Department of Tourism.

Surely, as noble as the KOR's intentions were, its proposed center would have
dwarfed the Rizal Monument with its size and proximity.

In contrast, the Torre de Manila is located well outside the Rizal Park, and to the
rear of the Rizal Monument - approximately 870 meters from the Rizal Monument
and 30 meters from the edge of Rizal Park.[82]

It is a basic principle that "one who seeks equity and justice must come to court
with clean hands."[83] In Jenosa v. Delariarte,[84] the Court reiterated that he who
seeks equity must do equity, and he who comes into equity must come with clean
hands. This "signifies that a litigant may be denied relief by a court of equity on the
ground that his conduct has been inequitable, unfair and dishonest, or fraudulent,
or deceitful as to the controversy in issue."[85] Thus, the KOR, having earlier
proposed a national theater a mere 286 meters in distance from the back of the
Rizal Monument that would have dwarfed the Rizal Monument, comes to this Court
with unclean hands. It is now precluded from "seeking any equitable
refuge"[86] from the Court. The KOR's petition should be dismissed on this ground
alone.

Torre de Manila is Not a Nuisance Per Se.

In its petition, the KOR claims that the Torre de Manila is a nuisance per se that
deserves to be summarily abated even without judicial proceedings.[87] However,
during the Oral Arguments, counsel for the KOR argued that the KOR now believes
that the Torre de Manila is a nuisance per accidens and not a nuisance per se.[88]

Article 694 of the Civil Code defines a nuisance as any act, omission,
establishment, business, condition of property, or anything else which: (1) injures
or endangers the health or safety of others; (2) annoys or offends the senses; (3)
shocks, defies or disregards decency or morality; (4) obstructs or interferes with
the free passage of any public highway or street, or any body of water; or (5)
hinders or impairs the use of property.

The Court recognizes two kinds of nuisances. The first, nuisance per se, is one
"recognized as a nuisance under any and all circumstances, because it constitutes a
direct menace to public health or safety, and, for that reason, may be abated
summarily under the undefined law of necessity."[89] The second, nuisance per
accidens, is that which "depends upon certain conditions and circumstances, and its
existence being a question of fact, it cannot be abated without due hearing thereon
in a tribunal authorized to decide whether such a thing in law constitutes a
nuisance."[90]
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The Torre
de Manila project cannot be considered as a "direct menace to public health or
safety." Not only is a condominium project commonplace in the City of Manila,
DMCI-PDI has, according to the proper government agencies, complied with health
and safety standards set by law. DMCI-PDI has been granted the following permits
and clearances prior to starting the project: (1) Height Clearance Permit from the
Civil Aviation Authority of the Philippines;[91] (2) Development Permit from the
HLURB;[92] (3) Zoning Certification from the HLURB;[93] (4) Certificate of
Environmental Compliance Commitment from the Environment Management Bureau
of the Department of Environment and Natural Resources;[94] (5) Barangay
Clearance;[95] (6) Zoning Permit;[96] (7) Building Permit;[97] (8) and Electrical and
Mechanical Permit.[98]

Later, DMCI-PDI also obtained the right to build under a variance recommended by
the MZBAA and granted by the City Council of Manila. Thus, there can be no doubt
that the Torre de Manila project is not a nuisance per se.

On the other hand, the KOR now claims that the Torre de Manila is a nuisance per
accidens.

By definition, a nuisance per accidens is determined based on its surrounding

conditions and circumstances. These conditions and circumstances must be well
established, not merely alleged. The Court cannot sinlply accept these conditions
and circumstances as established facts as the KOR would have us do in this
case.[99]The KOR itself concedes that the question of whether the Torre de Manila is
a nuisance per accidens is a question of fact.[100]

The authority to decide when a nuisance exists is an authority to find facts, to

estimate their force, and to apply rules of law to the case thus made.[101] This Court
is no such authority. It is not a trier of facts. It cannot simply take the allegations in
the petition and accept these as facts, more so in this case where these allegations
are contested by the respondents.

The task to receive and evaluate evidence is lodged with the trial courts. The
question, then, of whether the Torre de Manila project is a nuisance per
accidens must be settled after due proceedings brought before the proper Regional
Trial Court. The KOR cannot circumvent the process in the guise of protecting
national culture and heritage.

The TRO must be lifted.

Injunctive reliefs are meant to preserve substantive rights and prevent further
injury[102] until final adjudication on the merits of the case. In the present case,
since the legal rights of the KOR are not well-defined, clear, and certain, the
petition for mandamus must be dismissed and the TRO lifted.
The general rule is that courts will not disturb the findings of administrative
agencies when they are supported by substantial evidence. In this case, DMCI-PDI
already acquired vested rights in the various permits, licenses, or even variances it
had applied for in order to build a 49-storey building which is, and had been,
allowed by the City of Manila's zoning ordinance.

As we have time and again held, courts generally hesitate to review discretionary
decisions or actions of administrative agencies in the absence of proof that such
decisions or actions were arrived at with grave abuse of discretion amounting to
lack or excess of jurisdiction.

In JRS Business Corp. v. Montesa,[103] we held that mandamus is the proper remedy
if it could be shown that there was neglect on the part of a tribunal in the
performance of an act which the law specifically enjoins as a duty, or there was an
unlawful exclusion of a party from the use and enjoyment of a right to which he is
clearly entitled. Only specific legal rights may be enforced by mandamus if they are
clear and certain. If the legal rights of the petitioner are not well-defined, definite,
clear, and certain,[104] the petition must be dismissed. Stated otherwise, the writ
never issues in doubtful cases. It neither confers powers nor imposes duties. It is
simply a command to exercise a power already possessed and to perform a duty
already imposed.[105]

In sum, bearing in mind the Court does not intervene in discretionary acts of the
executive department in the absence of grave abuse of discretion,[106] and
considering that mandamus may only be issued to enforce a clear ahd certain legal
right,[107] the present special civil action for mandamus must be dismissed and the
TRO issued earlier must be lifted.

A FINAL WORD

It had been Rizal's wish to die facing the rising sun. In his Mi Ultimo Adios, the
poem he left for his family the night before he was executed, Rizal wrote:

Yo muero cuando veo que el cielo se colora Y al fin anuncia el dia tras
lobrego capuz[108]

[Ako'y mamamatay, ngayong namamalas na sa Silanganan ay

namamanaag yaong maligayang araw na sisikat sa likod ng luksang
nagtabing na ulap.][109]

[I die just when I see the dawn break, Through the gloom of night, to
herald the day][110]
Yet at the point of his execution, he was made to stand facing West towards Manila
Bay, with his back to the firing squad, like the traitor the colonial government
wished to portray him. He asked to face his executioners, facing the East where the
sun would be rising since it was early morning, but the Spanish captain did not
allow it. As he was shot and a single bullet struck his frail body, Rizal forced
himself, with his last remaining strength, to turn around to face the East and thus
he fell on his back with his face to the sky and the rising sun. Then, the Spanish
captain approached Rizal and finished him off with one pistol shot to his head.

Before his death, Rizal wrote a letter to his family. He asked for a simple tomb,
marked with a cross and a stone with only his name and the date of his birth and
death; no anniversary celebrations; and interment at Paang Bundok (now, the
Manila North Cemetery). Rizal never wanted his grave to be a burden to future
generations.

The letter never made it to his family and his wishes were not carried out. The etter
was discovered many years later, in 1953. By then, his remains had been
entombed at the Rizal Monument, countless anniversaries had been celebrated,
with memorials and monuments built throughout the world.

Rizal's wish was unmistakable: to be buried without pomp or pageantry, to the

point of reaching oblivion or obscurity in the future.[111] For Rizal's life was never
about fame or vainglory, but for the country he loved dearly and for which he gave
up his life.

The Rizal Monument is expressly against Rizal's own wishes. That Rizal's statue now
stands facing West towards Manila Bay, with Rizal's back to the East, adds salt to
the wound. If we continue the present orientation of Rizal's statue, with Rizal facing
West, we would be like the Spanish captain who refused Rizal's request to die
facing the rising sun in the East. On the other hand, if Rizal 's statue is made to
face East, as Rizal had desired when he was about to be shot, the background - the
blue sky above Manila Bay would forever be clear of obstruction, and we would be
faithful to Rizal's dying wish.

WHEREFORE, the petition for mandamus is DISMISSED for lack of merit. The
Temporary Restraining Order issued by the Court on 16 June 2015
is LIFTED effective immediately.

SO ORDERED.

G.R. No. 166330 September 11, 2013

SMART COMMUNICATIONS, INC., Petitioner,

vs.
ARSENIO ALDECOA, JOSE B. TORRE, CONRADO U. PUA, GREGORIO V. MANSANO, JERRY
CORPUZ and ESTELITAACOSTA, Respondents.

DECISION
LEONARDO-DE CASTRO, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by
petitioner Smart Communications, Inc., seeking the reversal of the Decision1 dated July 16, 2004
and Resolution2 dated December 9, 2004 of the Court of Appeals in CA-G.R. CV No. 71337. The
appellate court (I) reversed and set aside the Order3dated January 16, 2001 of the Regional Trial
Court (RTC), Branch 23, of Roxas, Isabela, in Civil Case No. Br. 23-632-2000 dismissing the
complaint for abatement of nuisance and injunction against petitioner, and (2) entered a new
judgment declaring petitioner's cellular base station located in Barangay Vira, Municipality of Roxas,
Province of Isabela, a nuisance and ordering petitioner to cease and desist from operating the said
cellular base station.

The instant Petition arose from the following facts:

Petitioner is a domestic corporation engaged in the telecommunications business. On March 9,

2000, petitioner entered into a contract of lease4 with Florentino Sebastian in which the latter agreed
to lease to the former a piece of vacant lot, measuring around 300 square meters, located in
Barangay Vira, Roxas, Isabela (leased property).Petitioner, through its contractor, Allarilla
Construction, immediately constructed and installed a cellular base station on the leased property.
Inside the cellular base station is a communications tower, rising as high as150 feet, with antennas
and transmitters; as well as a power house open on three sides containing a 25KVA diesel power
generator. Around and close to the cellular base station are houses, hospitals, clinics, and
establishments, including the properties of respondents Arsenio Aldecoa, Jose B. Torre, Conrado U.
Pua, Gregorio V. Mansano, Jerry Corpuz, and Estelita Acosta.

Respondents filed before the RTC on May 23, 2000 a Complaint against petitioner for abatement of
nuisance and injunction with prayer for temporary restraining order and writ of preliminary injunction,
docketed as Civil Case No. Br. 23-632-2000. Respondents alleged in their Complaint that:

5. Petitioner’s communications tower is 150 feet in height equivalent to a 15-storey building.

It is a tripod-type tower made of tubular steel sections and the last section, to which the huge
and heavy antenna/transponder array will be attached, about to be bolted on. Weight of the
antenna mast is estimated at one (1) to three (3) tons, more or less. As designed, the
antenna/transponder array are held only by steel bolts without support of guy wires;

6. This SMART tower is no different from the Mobiline tower constructed at Reina Mercedes,
Isabela which collapsed during a typhoon that hit Isabela in October 1998, an incident which
is of public knowledge;

7. With its structural design, SMART’s tower being constructed at Vira, Roxas, Isabela, is
weak, unstable, and infirm, susceptible to collapse like the Mobiline tower which fell during a
typhoon as earlier alleged, and its structural integrity being doubtful, and not earthquake
proof, this tower poses great danger to life and limb of persons as well as their property,
particularly, the respondents whose houses a but, or are near or within the periphery of the
communications tower;

8. This tower is powered by a standby generator that emitsnoxious and deleterious fumes,
not to mention the constant noise it produces, hence, a hazard to the health, not only of the
respondents, but the residents in the area as well;

9. When in operation, the tower would also pose danger to the life and health of respondents
and residents of the barangay, especially children, because of the ultra high frequency (UHF)
radio wave emissions it radiates. Only recently, Cable News Network (CNN) reported that
cell phones, with minimal radiated power, are dangerous to children, so more it is for this
communications tower, whose radiated power is thousands of times more than that of a
cellphone;

10. Worse, and in violation of law, petitioner constructed the tower without the necessary
public hearing, permit of the barangay, as well as that of the municipality, the Environmental
Compliance Certificate of the [Department of Environment and Natural Resources
(DENR)],construction permit, and other requirements of the National Telecommunications
Commission (NTC), and in fact committed fraud in its application by forging an undated
certification " that Barangay Vira does not interpose any objection to the proposed
construction of a 150 ft. tower & site development, " as this certification was never issued
byrespondent Jose Torre, the Barangay Captain of Vira, Roxas, Isabela, and without the
official barangay seal, attached as Annex "A" and Certification of the Barangay Officer of the
Day that no public hearing was held, attached as Annex "B" made integral part hereof;

11. Not being armed with the requisite permits/authority as above mentioned, the
construction of the tower is illegal and should be abated;

12. Respondents and petitioner should not wait for the occurrence of death, injuries and
damage on account of this structure and judicial intervention is needed to ensure that such
event will not happen.5

Respondents thus prayed for the RTC to:

1. Issue a temporary restraining order and after due hearing to issue a writ of
preliminary mandatory injunction;

2. Render judgment:

- Making the writ of preliminary mandatory injunction permanent;

- Declaring the construction of the SMART tower as a nuisance per se or per

accidens;

- Ordering the abatement of this nuisance by ordering the removal and/or

demolition of petitioner’s communication tower;

- Condemning petitioner to pay respondents moral damages in the sum of

₱150,000.00 and exemplary damages in the sum of ₱30,000.00;

- Ordering petitioner to pay attorney’s fees in the amount of ₱20,000.00 plus

trial honoraria of ₱1,000.00 for every appearance in Court;

- Ordering petitioner to refund to respondents litigation expenses in the

amount of not less than ₱10,000.00;

3. And for such other reliefs as are just and equitable in the premises.6

In its Answer/Motion to Oppose Temporary Restraining Order with Compulsory

Counterclaim, petitioner raised the following special and affirmative defenses:
 13. Petitioner through its contractor, Allarilla Construction(hereafter Allarilla), applied
for a Building Permit through the office of Municipal engineer Virgilio A. Batucal on 13
April 2000 and subsequently received its approval 17 April 2000. (a copy of the
Official receipt and the Building Permit is hereto attached respectively as Annex "A"
and "B" and made an integral part hereof)

14. Petitioner, again through Allarilla applied for an Environmental Compliance

Certificate (ECC) the approval of which, at present, remains pending with the DENR-
[Environment Management Bureau (EMB)].

15. Petitioner should not in anyway be liable for fraud or bad faith as it had
painstakingly secured the consent of majority of the residents surrounding the
location of the Tower in order to seek their approval therewith. (a copy of the list of
residents who consented there to is attached herewith as Annex "C" and made an
integral part hereof)

16. Among the residents who signed the consent list secured by petitioner include
the respondent Jose B. Torre and a certain Linaflor Aldecoa, who is related to
respondent Arsenio Aldecoa.

17. Petitioner did not forge the Barangay Certification but actually secured the
consent of Barangay Captain Jose Torre through the efforts of Sangguniang Bayan
(SB) Board Member Florentino Sebastian.(a copy of the Barangay Certification is
attached herewith as Annex "D" and made an integral part hereof)

18. Petitioner Tower’s safety has been pre-cleared and is unlikely to cause harm in
exposing the members of the public to levels exceeding health limits considering that
the antenna height of the Tower is 45.73 meters or equivalent to 150 feet as stated in
a Radio Frequency Evaluation report by Elizabeth H. Mendoza health Physicist II, of
the Department of Health Radiation Health Service dated 9 May 2000. (a copy is
hereto attached as Annex "E" and made an integral part hereof)

19. The structural stability and soundness of the Tower has been certified by Engr.
Melanio A. Guillen Jr. of the Engineering Consulting firm Microflect as contained in
their Stress Analysis Report (a copy is hereto attached as Annex "F" and made an
integral part hereof)

20. petitioner’s impetus to push through with the construction of the Tower is spurred
by the Telecommunications Act of 1995 or Republic Act 7925 which states that the
"expansion of the telecommunications network shall give priority to improving and
extending basic services to areas not yet served." Article II, Sec. 4 par. B.(a copy of
RA 7925 is hereto attached as Annex "G" and made an integral part hereof)7

In the end, petitioner sought the dismissal of respondents’ Complaint; the denial of respondents’
prayer for the issuance of a temporary restraining order and writ of preliminary mandatory injunction;
the award of moral, nominal, and exemplary damages in the amounts which the court deem just and
reasonable; and the award of attorney’s fees in the sum of ₱500,000.00 and litigation expenses as
may be proven at the trial.

Respondents then contested petitioner’s allegations and averred in their Reply and Answer to
Counterclaim that:
- Petitioner’s cell site relay antenna operates on the ultra high frequency (UHF) band, or
gigabyte band, that is much higher than that of TV and radio broadcasts which operates only
on the Very High Frequency (VHF) band, hence, petitioner’s equipment generates
dangerously high radiation and emission that is hazardous to the people exposed to it like
respondents, whose houses are clustered around petitioner’s cell site
antenna/communications tower;

- As admitted, petitioner has not secured the required Environmental Compliance Certificate
(ECC). It has not even obtained the initial compliance certificate (ICC). In short,petitioner
should have waited for these documents before constructing its tower, hence, it violated the
law and such construction is illegal and all the more sustains the assertions of respondents;

- The alleged building permit issued to petitioner is illegal because of the lack of an ECC and
that petitioner’s application for a building permit covered only a building and not a cell site
antenna tower. Moreover, the petitioner failed to obtain a National Telecommunications
Commission (NTC) Clearance to construct the communications tower. As will be seen in the
application and permit, the documents are dated April, 2000 while the construction begun in
March, 2000;

- The technical data that served as the basis of the Radio Frequency Radiation Evaluation of
petitioner’s mobile telephone base station was provided solely by the petitioner and in fact
misled the DOH Radiation Health Service. It states an absurdly low transmitted power of
twenty (20) watts for a dual band mobile phone service such as petitioner Smart’s GSM
900/1800 Dual Band which is the standard service it offers to the public;

- The Stress Analysis Report is self-serving and tested against the communications tower,
the structural integrity is flawed;

- While respondents may yield to the mandate of Republic Act No.7925, otherwise known as
the Telecommunications Act of 1995,extending and improving or upgrading of basic services
to are as not yet served, this should not be taken as a license to gamble and/or destroy the
health and well-being of the people;

- Petitioner’s alleged certification (Annex "D", should be Annex "4") is the very same
certification appended to respondents’ complaint which they have assailed as a forgery and
which respondent Jose Torre, the Barangay Captain of Vira, Roxas, Isabela, emphatically
denies having signed and/or issued the same. Moreover, the certification gives petitioner
away because respondent Jose Torre has no technical education using the
telecommunications term "SMART GSM & ETACS project," in said falsified certification;

- Petitioner’s claim that it is not liable for fraud or bad faith, proudly stating that it has
painstakingly secured the consent of the majority of the residents surrounding the tower site,
is belied by the alleged Conformity of Host Community (Residential) – Annex "C" – should be
Annex "3" – where only a handful of residents signed the document prepared by petitioner
and the contents of which were misrepresented by a Sangguniang Bayan Member in the
person of Nick Sebastian who is an interested party being the owner of the land where the
tower is constructed. It was misrepresented to Linaflor Aldecoa, wife of respondent Arsenio
Aldecoa that it was already anyway approved and signed by Barangay Captain Jose Torre
when in truth his signature was again forged by the petitioner and/or its employees or agents
or person working for said company. Also, there are persons who are not residents of Vira,
Roxas, Isabela who signed the document such as Melanio C. Gapultos of Rizal, Roxas,
Isabela, Carlito Castillo of Nuesa, Roxas, Isabela, and another, Gennie Feliciano from San
 Antonio, Roxas, Isabela. Certainly six (6) persons do not constitute the conformity of the
majority of the residents of Vira, Roxas, Isabela, and those immediately affected by the
cellsite tower like respondents. This document is likewise flawed and cannot help petitioner’s
cause. Besides, respondents and other residents, sixty-two (62) of them, communicated their
protest against the erection of the cell tower specifying their reasons therefor and expressing
their sentiments and fears about petitioner’s communications tower, xerox copy attached as
Annex "A" and made integral part hereof;

- Respondents likewise specifically deny the truth of the allegation in paragraph 12 of the
answer, the truth being that the lot leased to petitioner is owned by SB Member Nick
Sebastian and that Florentino Sebastian is dummying for the former in avoidance of possible
anti-graft charges against his son concerning this project. It is also further denied for lack of
knowledge or information sufficient to form a belief as to the truth thereof. Moreover, the
lease contract, copy not annexed to petitioner’s answer, would automatically be terminated
or ended in the event of complaints and/or protests from the residents.8

Civil Case No. Br. 23-632-2000 was set for pre-trial on September 28, 2000.9

On September 11, 2000, petitioner filed its Pre-Trial Brief in which it identified the following issues:

4.1. Whether respondents have a cause of action against the petitioner SMART for this
Honorable Court to issue a Preliminary Mandatory Injunction over the SMART tower in
Roxas, Isabela as it allegedly poses a threat to the lives and safety of the residents within the
area and if respondents are entitled to moral and exemplary damages as well as attorney’s
fees and expenses of litigation.

4.2 Whether the complaint should be dismissed in that the claim or demand set forth in the
Complaint is fictitious, imaginary, sham and without any real basis.

4.3. What petitioner SMART is entitled under its compulsory counterclaim against
respondents for moral and exemplary damages, attorney’s fees, and other expenses of
litigation.10

On even date, petitioner filed a Motion for Summary Judgment that reads:

Petitioner SMART Communications Inc., thru counsel, respectfully manifests that:

1. There is no need for a full-blown trial as the causes of action and issues have already
been identified in all the pleadings submitted to this Honorable court by both respondents
and petitioner

2. There is clearly no genuine issue as to any material fact or cause in the action.

3. There is no extreme urgency to issue a Preliminary Mandatory Injunction as stated in an

affidavit executed by SMART Senior Supervisor Andres V. Romero in an affidavit hereto
attached as Annex "A"

4. Petitioner seeks immediate declaratory relief from respondents’ contrived allegations as

set forth in their complaint;
Wherefore, it is most respectfully prayed of this Honorable Court that summary judgment be
rendered pursuant to Rule 35 of the Revised Rules of Court.11

Respondents filed their Pre-Trial Brief on September 21, 2000, proposing to limit the issues,

viz:

- Whether petitioner’s communications tower is a nuisance per se/per accidens and together
with its standby generator maybe abated for posing danger to the property and life and limb
of the residents of Vira, Roxas, Isabela more particularly the respondents and those whose
houses are clustered around or in the periphery of the cell site.

- Damages, attorney’s fees, litigation expenses and other claims.12

Respondents likewise filed on September 21, 2000 their Opposition to petitioner’s Motion for
Summary Judgment, maintaining that there were several genuine issues relating to the cause of
action and material facts of their Complaint. They asserted that there was a need for a full blown trial
to prove the allegations in their Complaint, as well as the defenses put up by petitioner.13

In its Order14 dated September 28, 2000, the RTC indefinitely postponed the pre-trial until it has
resolved petitioner’s Motion for Summary Judgment. In the same Order, the RTC directed the
counsels of both parties to submit their memoranda, including supporting affidavits and other
documents within 30 days.

Petitioner submitted its Memorandum15 on October 26, 2000; while respondents, following several
motions for extension of time, filed their Memorandum16 on November 22, 2000. In their
Memorandum, respondents additionally alleged that:

The cellsite base station is powered by a roaring 25 KVA power generator. Operated 24 hours since
it started more than a month ago, it has sent "jackhammers into the brains" of all the inhabitants
nearby. Everyone is going crazy. A resident just recently operated for breast cancer is complaining
that the noise emanating from the generator is fast tracking her appointment with death. She can no
longer bear the unceasing and irritating roar of the power generator.

For this, the residents, led by the respondents, sought a noise emission test of the power generator
of petitioner SMART Communications with the DENR. The test was conducted on November 14 and
15, 2000 and the result shows that the petitioner’s power generator failed the noise emission test,
day and night time. Result of this test was furnished the Municipal Mayor of Roxas, Isabela (See
Communication of DENR Regional Director Lorenzo C. Aguiluz to Mayor Benedicto Calderon dated
November 16, 2000 and the Inspection Monitoring Report).

With these findings, the power generator is also a nuisance. It must also be abated.17

On January 16, 2001, the RTC issued its Order granting petitioner’s Motion for Summary Judgment
and dismissing respondents’ Complaint. The RTC ruled as follows:

What is of prime importance is the fact that contrary to the respondents’ speculation, the radio
frequency radiation as found out by the Department of Health is much lower compared to that of TV
and radio broadcast. The respondents’ counter to this claim is that the Department of Health was
misled. This is a mere conclusion of the respondents.
The respondents in opposing the Smart’s construction of their cellsite is anchored on the supposition
that the operation of said cellsite tower would pose a great hazard to the health of the alleged cluster
of residents nearby and the perceived danger that the said tower might also collapse in case of a
strong typhoon that fell the Mobiline Cellsite tower of Mobiline (sic). The structured built of the
Smart’s Cellsite tower is similar to that of the Mobiline.

Now, as to the Court’s assessment of the circumstances obtaining, we find the claim of the
respondents to be highly speculative, if not an isolated one. Elsewhere, we find several cellsite
towers scattered (sic) allover, both of the Smart, Globe, and others, nay even in thickly populated
areas like in Metro Manila and also in key cities nationwide, yet they have not been outlawed or
declared nuisance as the respondents now want this Court to heed. To the thinking of the Court, the
respondents are harping imagined perils to their health for reason only known to them perhaps
especially were we to consider that the Brgy. Captain of Vira earlier gave its imprimatur to this
project. Noteworthy is the fact that the alleged cluster of residential houses that abut the cellsite
tower in question might be endangered thereby, the respondents are but a few of those residents. If
indeed, all those residents in Vira were adversely affected for the perceived hazards posed by the
tower in question, they should also have been joined in as respondents in a class suit. The sinister
motive is perhaps obvious.

All the foregoing reasons impel this Court to grant the petitioner’s motion for the dismissal of the
complaint, the perceived dangers being highly speculative without any bases in fact. Allegations in
the complaint being more imaginary than real, do not constitute factual bases to require further
proceeding or a trial. As to the claim that there is no certification or clearance from the DENR for the
petitioner to lay in wait before the construction, suffice it to say that no action as yet has been taken
by said office to stop the ongoing operation of said cellsite now in operation. There has been no hue
and cry from among the greater majority of the people of Roxas, Isabela, against it. Al contrario, it is
most welcome to them as this is another landmark towards the progress of this town.18

The dispositive portion of the RTC Order reads:

WHEREFORE, in view of the foregoing considerations, the Court hereby renders judgment
dismissing the complaint as the allegations therein are purely speculative and hence no basis in fact
to warrant further proceedings of this case.

The Court finds no compelling grounds to award damages.

Without costs.19

In another Order20 dated February 27, 2001, the RTC denied respondents’ Motion for
Reconsideration.

Respondents filed an appeal with the Court of Appeals, docketed as CA-G.R. CV No. 71337.

The Court of Appeals rendered its Decision on July 16, 2004. The appellate court declared the
cellular base station of petitioner a nuisance that endangered the health and safety of the residents
of Barangay Vira, Roxas, Isabela because: (1) the locational clearance granted to petitioner was a
nullity due to the lack of approval by majority of the actual residents of the

barangay and a barangay resolution endorsing the construction of the cellular base station; and (2)
the sound emission of the generator at the cellular base station exceeded the Department of
Environment and Natural Resources (DENR) standards. Consequently, the Court of Appeals
decreed:
WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE. A new one is entered
declaring the communications tower or base station of petitioner Smart Communications, Inc.
located at Brigido Pascual Street in Vira, Municipality of Roxas, Province of Isabela, a nuisance.
Petitioner is ordered to cease and desist from operating the said tower or station.21

Petitioner filed its Motion for Reconsideration arguing that: (1) the basis for the judgment of the
appellate court that the cellular base station was a nuisance had been extinguished as the generator
subject of the Complaint was already removed; and (2) there had been substantial compliance in
securing all required permits for the cellular base station.22

The Court of Appeals, in a Resolution dated December 9, 2004,refused to reconsider its earlier
Decision, reasoning that:

Petitioner principally anchors its pleas for reconsideration on the Certification issued by Roxas,
Isabela Municipal Engineer Virgilio Batucal, declaring that upon actual inspection, no Denyo
Generator Set has been found in the company’s cell site in Roxas, Isabela. We hold, however, that
the certification dated August 12, 2004, taken on its own, does not prove Smart’s allegation that it
has abandoned using diesel- powered generators since January 2002. Respondents’ current
photographs of the cell site clearly shows (sic) that Smart continues to use a mobile generator
emitting high level of noise and fumes.

We have gone over [petitioner’s] other arguments and observed that they are merely repetitive of
previous contentions which we have judiciously ruled upon.23 (Citations omitted.)

Petitioner seeks recourse from the Court through the instant Petition, assigning the following errors
on the part of the Court of Appeals:

21.0 The Court of Appeals erred when it encroached upon an executive function of
determining the validity of a locational clearance when it declared, contrary to the
administrative findings of the Housing Land Use and Regulatory Board ("HLURB"), that the
locational clearance of Petitioner was void.

22.0 The Court of Appeals erred when it resolved an issue that was not submitted to it for
resolution and in the process had usurped a purely executive function.

23.0 The Court of Appeals erred in declaring Petitioner’s entire base station a nuisance
considering that it was only a small part of the base station, a generator that initially powered
the base station, that was reportedly producing unacceptable levels of noise.

24.0 The Court of Appeals erred in not considering that the supervening event of shut down
and pull out of the generator in the base station, the source of the perceived nuisance, made
the complaint for abatement of nuisance academic.24

The Petition is partly meritorious. While the Court agrees that the Court of Appeals should not have
taken cognizance of the issue of whether the locational clearance for petitioner’s cellular base
station is valid, the Court will still not reinstate the RTC Order dated January 16, 2001 granting
petitioner’s Motion for Summary Judgment and entirely dismissing Civil Case No. Br. 23-632-2000.
The issues of (1) whether petitioner’s cellular base station is a nuisance, and (2) whether the
generator at petitioner’s cellular base station is, by itself, also a nuisance, ultimately involve disputed
or contested factual matters that call for the presentation of evidence at a full-blown trial.
On the finding of the Court of
Appeals that petitioner’s locational
clearance for its cellular base station
is a nullity

Based on the principle of exhaustion of administrative remedies and its corollary doctrine of primary
jurisdiction, it was premature for the Court of Appeals to take cognizance of and rule upon the issue
of the validity or nullity of petitioner’s locational clearance for its cellular base station.

The principle of exhaustion of administrative remedies and the doctrine of primary jurisdiction were
explained at length by the Court in Province of Zamboanga del Norte v. Court of Appeals,25 as
follows:

The Court in a long line of cases has held that before a party is allowed to seek the intervention of
the courts, it is a pre-condition that he avail himself of all administrative processes afforded him.
Hence, if a remedy within the administrative machinery can be resorted to by giving the
administrative officer every opportunity to decide on a matter that comes within his jurisdiction, then
such remedy must be exhausted first before the court's power of judicial review can be sought. The
premature resort to the court is fatal to one's cause of action. Accordingly, absent any finding of
waiver or estoppel, the case may be dismissed for lack of cause of action.

The doctrine of exhaustion of administrative remedies is not without its practical and legal reasons.
Indeed, resort to administrative remedies entails lesser expenses and provides for speedier
disposition of controversies. Our courts of justice for reason 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 every opportunity to correct its error and to dispose of the case.

xxxx

The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to
resolve a controversy the jurisdiction over which is initially lodged with an administrative body of
special competence.

We have held that while the administration grapples with the complex and multifarious problems
caused by unbridled exploitation of our resources, the judiciary will stand clear. A long line of cases
establishes the basic rule that the court will not interfere in matters which are addressed to the
sound discretion of government agencies entrusted with the regulation of activities coming under the
special technical knowledge and training of such agencies.

In fact, a party with an administrative remedy must not merely initiate the prescribed administrative
procedure to obtain relief, but also pursue it to its appropriate conclusion before seeking judicial
intervention. The underlying principle of the rule on exhaustion of administrative remedies rests on
the presumption that when the administrative body, or grievance machinery, is afforded a chance to
pass upon the matter, it will decide the same correctly. (Citations omitted.)

The Court again discussed the said principle and doctrine in Addition Hills Mandaluyong Civic &
Social Organization, Inc. v. Megaworld Properties & Holdings, Inc., et al.,26 citing Republic v.
Lacap,27 to wit:

We have consistently declared that the doctrine of exhaustion of administrative remedies is a

cornerstone of our judicial system. The thrust of the rule is that courts must allow administrative
agencies to carry out their functions and discharge their responsibilities within the specialized areas
of their respective competence. The rationale for this doctrine is obvious. It entails lesser expenses
and provides for the speedier resolution of controversies. Comity and convenience also impel courts
of justice to shy away from a dispute until the system of administrative redress has been completed.

In the case of Republic v. Lacap, we expounded on the doctrine of exhaustion of administrative

remedies and the related doctrine of primary jurisdiction in this wise:

The general rule is that before a party may seek the intervention of the court, he should first avail of
all the means afforded him by administrative processes. The issues which administrative agencies
are authorized to decide should not be summarily taken from them and submitted to a court without
first giving such administrative agency the opportunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary

jurisdiction; that is, courts cannot or will not determine a controversy involving a question which is
within the jurisdiction of the administrative tribunal prior to the resolution of that question by the
administrative tribunal, where the question demands the exercise of sound administrative discretion
requiring the special knowledge, experience and services of the administrative tribunal to determine
technical and intricate matters of fact. (Citations omitted.)

The Housing and Land Use Regulatory Board (HLURB)28 is the planning, regulatory, and quasi-
judicial instrumentality of government for land use development.29 In the exercise of its mandate to
ensure rational land use by regulating land development, it issued HLURB Resolution No.R-626,
series of 1998, Approving the Locational Guidelines for Base Stations of Cellular Mobile Telephone
Service, Paging Service, Trunking Service, Wireless Loop Service and Other Wireless
Communication Services (HLURB Guidelines). Said HLURB Guidelines aim to protect" providers
and users, as well as the public in general while ensuring efficient and responsive communication
services."

Indeed, the HLURB Guidelines require the submission of several documents for the issuance of a
locational clearance for a cellular base station, including:

IV. Requirements and Procedures in Securing Locational Clearance

A. The following documents shall be submitted in duplicate:

xxxx

g. Written Consent:

g.1 Subdivisions

xxxx

g. 1.2 In the absence of an established Homeowners Association, consent/affidavit of non-objection

from majority of actual occupants and owners of properties within a radial distance equivalent to the
height of the proposed base station measured from its base, including all those whose properties is
adjoining the proposed site of the base station.(Refer to Figure 2)

xxxx

h. Barangay Council Resolution endorsing the base station.

Correlatively, the HLURB provides administrative remedies for non-compliance with its
requirements.

In 2000, when factual precedents to the instant case began to take place, HLURB Resolution No. R-
586, series of 1996, otherwise known as the 1996 HLURB Rules of Procedure, as amended, was in
effect. The original 1996 HLURB Rules of Procedure was precisely amended by HLURB Resolution
No. R-655, series of 1999, "so as to afford oppositors with the proper channel and expeditious
means to ventilate their objections and oppositions to applications for permits, clearances and
licenses, as well as to protect the rights of applicants against frivolous oppositions that may cause
undue delay to their projects. "Under the 1996 HLURB Rules of Procedure, as amended, an
opposition to an application for a locational clearance for a cellular base station or a complaint for
the revocation of a locational clearance for a cellular base station already issued, is within the
original jurisdiction of the HLURB Executive Committee. Relevant provisions read:

RULE III

Commencement of Action, Summons and Answer

xxxx

SECTION 2. Opposition to Application for Permit/License/ Clearance. – When an opposition is filed

to an application for a license, permit or clearance with the Board or any of its Regional Field Office,
the Regional Officer shall make a preliminary evaluation and determination whether the case is
impressed with significant economic, social, environmental or national policy implications. If he/she
determines that the case is so impressed with significant economic, social, environmental or national
policy implications, such as, but not limited to:

1) Projects of national significance, for purposes of this rule, a project is of national

significance if it is one or falls under any of those enumerated in Rule III, Section 3 of these
Rules, as amended;

2) Those involving zoning variances and exceptions;

3) Those involving significant public interest or policy issues;

4) Those endorsed by the zoning administrators of local government units.

The Regional Officer shall cause the records of the case to be transmitted to the Executive
Committee which shall assume original jurisdiction over the case, otherwise, the Regional Officer
shall act on and resolve the Opposition.

SECTION 3. A project is of national significance if it involves any of the following:

a) Power generating plants (e.g., coal-fired thermal plants)and related facilities (e.g.,
transmission lines);

b) Airport/seaports; dumping sites/sanitary landfills; reclamation projects;

c) Large-scale piggery and poultry projects;

d) Mining/quarrying projects;
 e) National government centers;

f) Golf courses;

g) Fish ponds and aqua culture projects;

h) Cell sites and telecommunication facilities;

i) Economic zones, regional industrial centers, regional agro-industrial centers, provincial

industrial centers;

j) All other industrial activities classified as high-intensity uses (1-3 Projects).

SECTION 4. Any party aggrieved, by reason of the elevation or non-elevation of any contested
application by the Regional Officer, may file a verified petition for review thereof within thirty (30)
days from receipt of the notice of elevation or non-elevation of the contested application with the
Executive Committee which shall resolve whether it shall assume jurisdiction thereon.

The contested application for clearance, permit or license shall be treated as a complaint and all
other provisions of these rules on complaints not inconsistent with the preceding section shall, as far
as practicable, be made applicable to oppositions except that the decision of the Board en banc on
such contested applications shall be final and executory as provided in Rule XIX, Section 2 of these
Rules, as amended.

The Rules pertaining to contested applications for license, permit or clearance shall, by analogy,
apply to cases filed primarily for the revocation thereof.

xxxx

RULE XVII
Proceedings Before the Board of Commissioners

xxxx

SECTION 15. The Executive Committee. – The Executive Committee shall be composed of the four
regular Commissioners and the Ex-Officio Commissioner from the Department of Justice.

xxxx

The Executive Committee shall act for the Board on policy matters, measures or proposals
concerning the management and substantive administrative operations of the Board subject to
ratification by the Board en banc, and shall assume original jurisdiction over cases involving
opposition to an application for license, permit or clearance for projects or cases impressed with
significant economic, social, environmental or national policy implications or issues in accordance
with Section 2, Rule II of these Rules, as amended. It shall also approve the proposed agenda of the
meetings of the Board en banc. (Emphases supplied.)

After the HLURB Executive Committee had rendered its Decision, the aggrieved party could still
avail itself of a system of administrative appeal, also provided in the 1996 HLURB Rules of
Procedure, as amended:
 RULE XII
Petition for Review

SECTION 1. Petition for Review. – Any party aggrieved by the Decision of the Regional Officer, on
any legal ground and upon payment of the review fee may file with the Regional Office a verified
Petition for Review of such decision within thirty (30) calendar days from receipt thereof.

In cases decided by the Executive Committee pursuant to Rule II, Section 2 of these Rules, as
amended, the verified Petition shall be filed with the Executive Committee within thirty (30) calendar
days from receipt of the Committee’s Decision. Copy of such petition shall be furnished the other
party and the Board of Commissioners. No motion for reconsideration or mere notice of petition for
review of the decision shall be entertained.

Within ten (10) calendar days from receipt of the petition, the Regional Officer, or the Executive
Committee, as the case may be, shall elevate the records to the Board of Commissioner together
with the summary of proceedings before the Regional Office. The Petition for Review of a decision
rendered by the Executive Committee shall betaken cognizance of by the Board en banc.

RULE XVIII
Appeal from Board Decisions

SECTION 1.

Motion for Reconsideration. – Within the period for filing an appeal from a Board decision, order or
ruling of the Board of Commissioners, any aggrieved party may file a motion for reconsideration with
the Board only on the following grounds: (1) serious errors of law which would result in grave
injustice if not corrected; and (2) newly discovered evidence.

Only one (1) motion for reconsideration shall be entertained.

Motions for reconsideration shall be assigned to the division from which the decision, order or ruling
originated.

SECTION 2. Appeal. – Any party may upon notice to the Board and the other party appeal a
decision rendered by the Board of Commissioners en banc or by one of its divisions to the Office of
the President within fifteen (15) calendar days from receipt thereof, in accordance with P.D. No.
1344 and A.O. No. 18 Series of 1987.

RULE XIX
Entry of Judgment

xxxx

SECTION 2. Rules on Finality. – For purposes of determining when a decision or order has become
final and executory for purposes of entry in the Book of Judgment, the following shall be observed:

a. Unless otherwise provided in a decision or resolution rendered by the Regional Officer, the
Executive Committee, or the Board of Commissioners, as the case may be, the orders contained
therein shall become final as regards a party thirty (30) calendar days after the date of receipt
thereof and no petition for review or appeal therefrom has been filed within the said period.
(Emphases supplied.)
There is no showing that respondents availed themselves of the afore-mentioned administrative
remedies prior to instituting Civil Case No. Br. 23-632-2000 before the RTC. While there are
accepted exceptions to the principle of exhaustion of administrative remedies and the doctrine of
primary jurisdiction,30 respondents never asserted nor argued any of them. Thus, there is no cogent
reason for the Court to apply the exceptions instead of the general rule to this case.

Ordinarily, failure to comply with the principle of exhaustion of administrative remedies and the
doctrine of primary jurisdiction will result in the dismissal of the case for lack of cause of action.
However, the Court herein will not go to the extent of entirely dismissing Civil Case No. Br. 23-632-
2000. The Court does not lose sight of the fact that respondents’ Complaint in Civil Case No. Br. 23-
632-2000 is primarily for abatement of nuisance; and respondents alleged the lack of HLURB
requirements for the cellular base station, not to seek nullification of petitioner’s locational clearance,
but to support their chief argument that said cellular base station is a nuisance which needs to be
abated. The issue of whether or not the locational clearance for said cellular base station is valid is
actually separate and distinct from the issue of whether or not the cellular base station is a nuisance;
one is not necessarily determinative of the other. While the first is within the primary jurisdiction of
the HLURB and, therefore, premature for the courts to rule upon in the present case, the latter is
within the jurisdiction of the courts to determine but only after trial proper.

On the declaration of the Court of

Appeals that petitioner’s cellular
base station is a nuisance that must
be abated

Article 694 of the Civil Code defines nuisance as:

ART. 694. A nuisance is any act, omission, establishment, business, condition of property, or
anything else which:

(1) Injures or endangers the health or safety of others; or

(2) Annoys or offends the senses; or

(3) Shocks, defies or disregards decency or morality; or

(4) Obstructs or interferes with the free passage of any public highway or street, or any body
of water; or

(5) Hinders or impairs the use of property.

The term "nuisance" is so comprehensive that it has been applied to almost all ways which have
interfered with the rights of the citizens, either in person, property, the enjoyment of his property, or
his comfort.31

The Court, in AC Enterprises, Inc. v. Frabelle Properties Corporation,32 settled that a simple suit for
abatement of nuisance, being incapable of pecuniary estimation, is within the exclusive jurisdiction of
the RTC. Although respondents also prayed for judgment for moral and exemplary damages,
attorney’s fees, and litigation expenses, such claims are merely incidental to or as a consequence
of, their principal relief.
Nonetheless, while jurisdiction over respondents’ Complaint for abatement of nuisance lies with the
courts, the respective judgments of the RTC and the Court of Appeals cannot be upheld.

At the outset, the RTC erred in granting petitioner’s Motion for Summary Judgment and ordering the
dismissal of respondents’ Complaint in Civil Case No. Br. 23-632-2000.

Summary judgments are governed by Rule 35 of the Rules of Court, pertinent provisions of which
state:

SEC. 2. Summary judgment for defending party. – A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his favor as to all or any part
thereof.

SEC. 3. Motion and proceedings thereon. – The motion shall be served at least ten (10) days before
the time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or
admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall
be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file,
show that, except as to the amount of damages, there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law. (Emphases supplied.)

In Rivera v. Solidbank Corporation,33 the Court discussed extensively when a summary judgment is
proper:

For a summary judgment to be proper, the movant must establish two requisites: (a) there must be
no genuine issue as to any material fact, except for the amount of damages; and (b) the party
presenting the motion for summary judgment must be entitled to a judgment as a matter of law.
Where, on the basis of the pleadings of a moving party, including documents appended thereto, no
genuine issue as to a material fact exists, the burden to produce a genuine issue shifts to the
opposing party. If the opposing party fails, the moving party is entitled to a summary judgment.

A genuine issue is an issue of fact which requires the presentation of evidence as distinguished from
an issue which is a sham, fictitious, contrived or a false claim.

The trial court can determine a genuine issue on the basis of the pleadings, admissions, documents,
affidavits or counter affidavits submitted by the parties. When the facts as pleaded appear
uncontested or undisputed, then there is no real or genuine issue or question as to any fact and
summary judgment called for. On the other hand, where the facts pleaded by the parties are
disputed or contested, proceedings for a summary judgment cannot take the place of a trial. The
evidence on record must be viewed in light most favorable to the party opposing the motion who
must be given the benefit of all favorable inferences as can reasonably be drawn from the evidence.

Courts must be critical of the papers presented by the moving party and not of the
papers/documents in opposition thereto. Conclusory assertions are insufficient to raise an issue of
material fact. A party cannot create a genuine dispute of material fact through mere speculations or
compilation of differences. He may not create an issue of fact through bald assertions, unsupported
contentions and conclusory statements. He must do more than rely upon allegations but must come
forward with specific facts in support of a claim. Where the factual context makes his claim
implausible, he must come forward with more persuasive evidence demonstrating a genuine issue
for trial. (Emphases supplied; citations omitted.)
Judging by the aforequoted standards, summary judgment cannot be rendered in this case as there
are clearly factual issues disputed or contested by the parties. As respondents correctly argued in
their Opposition to petitioner’s Motion for Summary Judgment:

1. Contrary to the claim of petitioner, there are several genuine issues as to the cause of action and
material facts related to the complaint. For one there is an issue on the structural integrity of the
tower, the ultra high frequency (UHF) radio wave emission radiated by the communications tower
affecting the life, health and well being of the[respondents] and the barangay residents, especially
their children. Also, the noxious/deleterious fumes and the noise produce[d] by the standby
generator and the danger posted by the tower if it collapses in regard to life and limb as well as the
property of the [respondents] particularly those whose houses abut, or are near/within the periphery
of the communications tower. x x x34

Likewise constituting real or genuine issues for trial, which arose from subsequent events, are the
following: whether the generator subject of respondents’ Complaint had been removed; whether said
generator had been replaced by another that produces as much or even more noise and fumes; and
whether the generator is a nuisance that can be abated separately from the rest of the cellular base
station.

Furthermore, the Court demonstrated in AC Enterprises, Inc. the extensive factual considerations of
a court before it can arrive at a judgment in an action for abatement of nuisance:

Whether or not noise emanating from a blower of the air conditioning units of the Feliza Building is
nuisance is to be resolved only by the court in due course of proceedings. The plaintiff must prove
1âwphi 1

that the noise is a nuisance and the consequences thereof. Noise is not a nuisance per se. It may be
of such a character as to constitute a nuisance, even though it arises from the operation of a lawful
business, only if it affects injuriously the health or comfort of ordinary people in the vicinity to an
unreasonable extent. Injury to a particular person in a peculiar position or of especially sensitive
characteristics will not render the noise an actionable nuisance. In the conditions of present living,
noise seems inseparable from the conduct of many necessary occupations. Its presence is a
nuisance in the popular sense in which that word is used, but in the absence of statute, noise
becomes actionable only when it passes the limits of reasonable adjustment to the conditions of the
locality and of the needs of the maker to the needs of the listener. What those limits are cannot be
fixed by any definite measure of quantity or quality; they depend upon the circumstances of the
particular case. They may be affected, but are not controlled, by zoning ordinances. The delimitation
of designated areas to use for manufacturing, industry or general business is not a license to emit
every noise profitably attending the conduct of any one of them.

The test is whether rights of property, of health or of comfort are so injuriously affected by the noise
in question that the sufferer is subjected to a loss which goes beyond the reasonable limit imposed
upon him by the condition of living, or of holding property, in a particular locality in fact devoted to
uses which involve the emission of noise although ordinary care is taken to confine it within
reasonable bounds; or in the vicinity of property of another owner who, though creating a noise, is
acting with reasonable regard for the rights of those affected by it.

Commercial and industrial activities which are lawful in themselves may become nuisances if they
are so offensive to the senses that they render the enjoyment of life and property uncomfortable.
The fact that the cause of the complaint must be substantial has often led to expressions in the
opinions that to be a nuisance the noise must be deafening or loud or excessive and unreasonable.
The determining factor when noise alone is the cause of complaint is not its intensity or volume. It is
that the noise is of such character as to produce actual physical discomfort and annoyance to a
person of ordinary sensibilities, rendering adjacent property less comfortable and valuable. If the
noise does that it can well be said to be substantial and unreasonable in degree, and
reasonableness is a question of fact dependent upon all the circumstances and conditions. There
can be no fixed standard as to what kind of noise constitutes a nuisance.

The courts have made it clear that in every case the question is one of reasonableness. What is a
reasonable use of one’s property and whether a particular use is an unreasonable invasion of
another’s use and enjoyment of his property so as to constitute a nuisance cannot be determined by
exact rules, but must necessarily depend upon the circumstances of each case, such as locality and
the character of the surroundings, the nature, utility and social value of the use, the extent and
nature of the harm involved, the nature, utility and social value of the use or enjoyment invaded, and
the like.

Persons who live or work in thickly populated business districts must necessarily endure the usual
annoyances and of those trades and businesses which are properly located and carried on in the
neighborhood where they live or work. But these annoyances and discomforts must not be more
than those ordinarily to be expected in the community or district, and which are incident to the lawful
conduct of such trades and businesses. If they exceed what might be reasonably expected and
cause unnecessary harm, then the court will grant relief.

A finding by the LGU that the noise quality standards under the law have not been complied with is
not a prerequisite nor constitutes indispensable evidence to prove that the defendant is or is not
liable for a nuisance and for damages. Such finding is merely corroborative to the testimonial and/or
other evidence to be presented by the parties. The exercise of due care by the owner of a business
in its operation does not constitute a defense where, notwithstanding the same, the business as
conducted, seriously affects the rights of those in its vicinity.35(Citations omitted.)

A reading of the RTC Order dated January 16, 2001 readily shows that the trial court did not take
into account any of the foregoing considerations or tests before summarily dismissing Civil Case No.
Br. 23-632-2000. The reasoning of the RTC that similar cellular base stations are scattered in
heavily populated areas nationwide and are not declared nuisances is unacceptable. As to whether
or not this specific cellular base station of petitioner is a nuisance to respondents is largely
dependent on the particular factual circumstances involved in the instant case, which is exactly why
a trial for threshing out disputed or contested factual issues is indispensable. Evidently, it was the
RTC which engaged in speculations and unsubstantiated conclusions.

For the same reasons cited above, without presentation by the parties of evidence on the contested
or disputed facts, there was no factual basis for declaring petitioner's cellular base station a nuisance
and ordering petitioner to cease and desist from operating the same.

Given the equally important interests of the parties in this case, i.e., on one hand, respondents'
health, safety, and property, and on the other, petitioner's business interest and the public's need for
accessible and better cellular mobile telephone services, the wise and prudent course to take is to
remand the case to the RTC for trial and give the parties the opportunity to prove their respective
factual claims.

WHEREFORE, premises considered, the instant Petition is PARTIALLY GRANTED. The Decision
dated July 16, 2004 and Resolution dated December 9, 2004 of the Court of Appeals in CA-G.R. CV
No. 71337 are REVERSED and SET ASIDE. Let the records of the case be REMANDED to the
Regional Trial Court, Branch 23, of Roxas, Isabela, which is DIRECTED to reinstate Civil Case No.
Br. 23-632-2000 to its docket and proceed with the trial and adjudication thereof with appropriate
dispatch in accordance with this Decision.