Torre de Manila case: Operative fact may come into play

The raging issue of the day is whether or not DMCI’s “Torre de Manila” will face demolition in the event the Supreme Court rules its construction to be in blatant violation of Manila City Council ordinances and the guidelines set by the National Historical Commission.

This, to my mind, would entail due consideration of the basic facts. As vigorously asserted by DMCI, the construction is covered by official documents proving it was granted an exemption freeing it from all legal constraints (if any) under any city ordinance, and by building permits and clearances from all government agencies concerned (including those tasked with the preservation of our national cultural/historical heritage).

So, if there was ever any violation of any city ordinance, that exemption rendered it moot. Likewise, the clearances declaring such construction compliant with existing laws and not offensive to any cultural/historical heritage drowned all objections.

Operative fact doctrine

Under this factual milieu, the applicability of the “doctrine of operative fact” may come into play. In Commissioner of Internal Revenue v. Roque Power Corp. (G.R. No. 187485, Oct. 8, 2013), etc., the Supreme Court en banc ruled: “In the language of an American Supreme Court decision: ‘The actual existence of a statute, prior to a determination of unconstitutionality, is an operative fact and may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration. The effect of a subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private or official…’”

The court elaborated: “Clearly, for the operative fact doctrine to apply, there must be a ‘legislative or executive measure,’ meaning a law or executive issuance, that is invalidated by the court. From the passage of that law and promulgation of such executive issuance, until its invalidation by the court, the effects of the law or executive issuance, when relied upon by the public in good faith, may be recognized as valid.”

This doctrine was reiterated in the Development Acceleration Program case (G.R. No. 209287, July 1, 2014) where the Supreme Court en banc ruled: “The doctrine of operative fact recognizes the existence of the law or executive act prior to the declaration of its unconstitutionality as an operative fact that produced effects that cannot always be erased, ignored or disregarded.

“In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no effect.”

Can there be any serious debate as to whether DMCI had the right to “rely upon” the exemption, the building permits and clearances emanating from duly constituted authorities? And who is to say—and can prove in court—that its reliance on such official documents was nevertheless in “bad faith”?

Suspicions of bribery

Mere suspicions of bribery will not cut it. To date, there has not been any judicial declaration of invalidity with respect to the legislative act of the Manila City Council in granting that exemption to DMCI.

Nor has there been any such judicial declaration nullifying the grant of building permits by the building official of Manila and the clearances from the cultural/historical agency concerned. The “presumption of regularity” as to those official acts and issuances has remained intact.

Thus, even if the Supreme Court eventually trashes the legislative act and the executive/administrative issuances in question for being egregiously in violation of the laws invoked by those assailing them, it is not far-fetched to see another application of the “operative fact doctrine.”

Indeed, while probably seeing good enough reason to have the irresponsible legislators and the inept administrators nailed to the wall for “granting unwarranted benefits” to DMCI under the Anti-Graft and Corrupt Practices Act, the court may simply find it unjust and unfair to “erase” the almost-finished 49-story building erected by DMCI whose bona fide “reliance” upon those official acts prior to any judicial declaration of their invalidity cannot but be deemed a given at this point.

(Stephen L. Monsanto is connected with Monsanto Law Office in Loyola Heights, Quezon City. He can be reached at lexsquare.firm

@gmail.com.)