Law schools to teach ESP after Torre case

A BUSINESS must absorb losses from wild lawsuits, even ones where the petitioner repeatedly admits that he has no legal basis and the government agency and city concerned give every clearance. Law students should no longer aspire to deliver meticulously researched arguments like former Philippine Dispute Resolution Center president Victor Lazatin, and should instead develop their extrasensory perception, tarot card reading and ability to see the future. This might sum up the second Supreme Court hearing last Aug. 4 regarding the Torre de Manila condo that overlooks Rizal Park.

Once upon a time, there lived William Jasarino, who disliked the sight of the Torre. He found a magic sword named “Laws That Do Not Exist” and slew it. And he lived happily ever after. This is how Jasarino, representing the anti-Torre petitioner, might summarize the first hearing last

July 21, where he repeatedly admitted his case had no legal basis and a justice hinted it was blatantly unethical to pursue it.

The fairy tale took a magical turn when Solicitor General Florin Hilbay reversed his position on July 30, contradicting the cultural agencies he represented mere days before the hearing. Hilbay posted on Facebook that he had a change of heart and his original position felt “too legalistic.” He now argues that the “physical integrity” cited in our National Cultural Heritage Act necessarily includes the skyline behind Rizal Park, even after Jasarino himself rejected this argument because the monument was never touched.

Lazatin outlined his case for the Torre in less than five minutes. No one can say what law was violated. The City of Manila issued a building permit and reaffirmed this in a 2014 resolution. The National Historical Commission of the Philippines (NHCP) concluded that the Torre did not obstruct the monument’s front view and that it had no jurisdiction to halt construction. Lazatin stressed that the NHCP, not Hilbay, is the proper agency to consult. Finally, no one hid the 49-story building, belying alleged bad faith. Lazatin decried “complete disregard of the rule of law” in relation to the rights to property and due process.

Justice Francis Jardeleza conducted an unprecedented four-hour solo questioning as devil’s advocate. He had his own prepared slides like retired Justice Roberto Abad, his nemesis from the Reproductive Health Act debates. It was a magnificent advertisement for Accralaw, where he was once the partner of Lazatin, whom he addressed as a “renowned corporate lawyer.”

Jardeleza pounded on this sentence in the Constitution: “The State shall conserve, promote, and popularize the nation’s historical and cultural heritage.” Lazatin gave the textbook perfect answer that this is not “self-executing” and neither the Constitution nor any law discusses sight lines. The Constitution states only general policies, and specific prohibitions must be in a law or city ordinance. For example, Lazatin argued that there is a legally prescribed five-meter buffer zone around monuments and the court cannot impose its own standards.

Jardeleza argued that the term “conserve” has a technical meaning and was understood even in 1987, when the Constitution was ratified, to include emerging international heritage preservation standards. Lazatin again gave the textbook perfect answer that a constitution is interpreted from the perspective of citizens who ratified it, who would not have understood “conserve” as a technical term. He added there is no mention of sight lines in the deliberations for the Constitution or any heritage law.

Jardeleza asked Lazatin to prove that the Venice Charter, which Jasarino admitted the Philippines had not signed, does not embody “international custom.” Lazatin argued that commentators consider only rules on preserving cultural sites during armed conflict as binding custom. Further, he should not be made to disprove something Jasarino never established.

Jardeleza suggested that a constitution must be interpreted with reference to national values. Lazatin answered that upholding fair play is a fundamental Filipino value. Jardeleza stated that the right to property comes with social responsibility. Lazatin answered that the government cannot take property without just compensation. Lazatin is correct; drugstores, for example, can be required to offer discounts to senior citizens but social justice cannot justify outright confiscation or destruction of property.

Jardeleza tangentially asked how enterprise risk management was done. He posited the developer knew there might be a lawsuit because Carlos Celdran started a public campaign in 2012 but calculated the risk would be worthwhile. However, legal analysis is not a statistical gamble when one can read a law, and Celdran is not a source of law.

I would have to agree that no lawyer without ESP would think that the Constitution or any law prohibits the Torre. Even with one of the country’s finest lawyers grilling Lazatin, the case appears dubious. If the court rules against the Torre, it signals that one can lose one’s property if enough people make noise. If one wants a referendum on improving heritage laws, one must go to Congress, not the courts.

After four hours, Acting Chief Justice Antonio Carpio (the Chief Justice was absent from both hearings) asked who is lawyering for the NHCP, given Hilbay’s reversal. Jardeleza suggested that NHCP chair Ma. Serena Diokno, who signed the letter stating the Torre “is outside the boundaries of the Rizal Park and well to the rear of the Rizal National Monument, hence it can’t possibly obstruct the front view,” be present at the next hearing on Aug. 11.

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