The Heritage Conservation Society

The
brilliance of gold is dazzling and blinds the eyes of those who may
gaze upon it. Indeed, it corrupts in much the same way as power, to
which history has been witness from the birth of civilization. Its
metaphorical image in the minds of people pierces deep within their
skin and into their consciousness, excluding neither the poor nor the
rich, that even if juxtaposed with our equally treasured symbols and
relics of traditions and values, its temptation lingers, and not
uncommonly, overpowers. We need not look far beyond, for even right
before our eyes, in the premier City of Manila, it weaves its mystique,
threatening to cast away to oblivion two public and inalienable lands,
and the cultural worth that has been attached to them.

These two lands, inseparably identified with institutions
devoted to education and imbued with memories of the Manileños’ past,
having existed for decades as public schools, accommodating no less
than 10,000 poor students of Tondo, for free, the Rajah Sulayman High
School and Jose Abad Santos High School, are awaiting their unexpected
and dreaded demise, as their death certificates have been signed by no
less than the City Council, with the death sentence struck - with a
thumb-up sign, by its City Mayor. As heralded, from the schools’ burial
sites will rise luxurious malls: the stereotypical symbols of the
modern care-free lifestyle – luxurious wares, expensive foods,
entertainment centers, fully air-conditioned establishments.

Without a doubt, this is the voice of gold, the whisper of wealth, heard and heeded by ears of avarice and greed.

It
is a paradox that those people who traded the worth of these two humble
schools for the sophistication and grandeur of commercial malls, are
the same people chosen by the residents of Manila who put them in
office so that their children may be guaranteed free education. It is
equally ironic, that those who wield the derivative authority granted
by the Local Government Code of 1991, do not seem to know how to
properly exercise it. Or, are they merely pretending to be strangers to
it?

Yet, these "chosen" people in Manila project to be ignorant of
this doctrine in land ownership, a decree that has been consistently
written from the 1935 up to the 1987 Constitution. In its most recent
articulation, the Regalian Doctrine declares in Article XII, Section 2,
of the 1987 Constitution that "all lands of public domain, waters,
mineral oils, all forces of potential energy, fisheries forests or
timber, wildlife, flora and fauna and other natural resources are owned
by the state" and "shall not be alienated", except agricultural lands.

In the landmark case of Chavez vs. PEA and AMARI, 384 SCRA
152, the origin of the doctrine was re-examined. It dates back during
the Spanish conquest of the Philippines when "all lands, territories
and possessions" were public domain of the King, except those he
disposed of by grant or sale to private individuals. In the adoption of
the Regalian doctrine, the State took the place of the King, manifested
initially in Art. 339 of the Civil Code of 1889, and restated in Art.
420 of our present Civil Code, wherein it is written that property of
public dominion are not only those devoted to public use but also to
property not so used and employed for some economic or commercial
activity, yet designed to increase the national wealth. Republic vs.
Court of Appeals, 383 SCRA 611.

But as early as 1919, the Philippine Legislature approved Act
No. 2874, the Public Land Act, which authorized the lease but not the
sale of public lands of the government to corporations and individuals,
even before the passage of the 1935, 1973 and 1987 Constitutions. Upon
approval of the 1936-Commonwealth Act No. 141, also known as Public
Land Act, the President was authorized by the National Assembly to
classify lands of the public domain into "alienable or disposable"
lands of the public domain and declare them open to disposition or
concession.

Then President Ferdinand Marcos, through his 1977 PD No.
1084, created the Public Estates Authority (PEA), which was empowered
to hold titles, not only of private lands but also of the public
domain. Yet, it needed legislative authority to sell these lands, in
view of Commonwealth Act No. 141 which provides that it can only do so
when authorized by Congress. The late dictator also mandated the
creation of the old Local Government Code, BP No. 881, which granted to
local government units the authority to acquire, possess and own, as
well as to dispose of their own property.

With the passage of the Local Government Code of 1991 or
Republic Act No. 7160, authored by no less than our esteemed colleague,
Sen. Aquilino Pimentel Jr., the era of local autonomy saw its advent.
The authority then enjoyed by local government units under the old
local government code was adopted. Thus, by virtue of Section 18 of
R.A. 7160, they were empowered to generate and apply resources, among
which was "to acquire, develop, lease, encumber, alienate or otherwise,
dispose of real or personal property held by them in their proprietary
capacity", making the same even more meaningful especially since the
thrust was administrative independence. Still, the privilege was not
unlimited, just as what the Constitution decreed. Particularly, as far
as disposition of property is concerned, only those patrimonial in
nature can be alienated.

These legal premises considered, disturbing, to say the least,
are the circulating reports that the City of Manila, through its
colluding City Council and Local Chief Executive, and despite the
contrary mandates of the Constitution and the laws, is lustfully eager
with selling several of its strategically posted properties -
properties as old and famous as the important events to which these
have been witnesses through the years. Who would not know the aged
Rizal Memorial Stadium, the nearby Harrison Plaza and Sheraton Hotel?
How about the Army and Navy Club where the present historic Museum
stands and a host of other priceless places which became part of our
national economy and patrimony?

What is the forthcoming fate of these portals of Filipino
heritage if the vagabond conscience of those authoring their lucrative
dispositions is not flustered? Commercial districts being projected to
rise from their ruins, is a nightmare forthcoming to the Manila
constituents in the not-too-distant future, if we fail to manacle this
excessive penchant for the sale of our symbols of heritage and culture.

Indeed, we ask: why are these City Officials of Manila so
obsessed with selling otherwise key establishments and institutions in
the City, only to have in their places the usual commercial centers
which have casually become the "theme parks" for our people, promoting
indolence and impracticality, and further diverting their attention to
more meaningful and worthwhile activities?

Without a doubt, it is the lust and avarice for commissions
expected to be generated from these multi-million peso projects – the
hunger for power and wealth, summoning the vicious appetite for
absoluteness and perpetuity, defying the voice of righteousness and
integrity.

Of course, even these local executives will admit that
majority of them saw light, later than the birth of those historical
edifices and buildings, yet, they connive to deliberately pretend that
these places are classified as agricultural lands and therefore
alienable. Sadly, they project to be unknowing that Section 3 of the
same Article XII of the Constitution is absolute and unalterable:
public properties, being outside the commerce of man, could not be
alienated or leased or otherwise be the subject matter of contracts, as
ruled in Municipality of Cavite vs. Rojas, 30 Phil. 20; Li Seng Giap
vs. Municipal Council of Daet, (CA), Off. Gaz. Supp., November 1, 1941,
p. 217.

In the course of business, they may well argue that under Art.
422 of the Civil Code, the property of public dominion, when no longer
intended for public use or for public service, shall form part of the
patrimonial property of the State or its private property. Yet, it may
be so only upon a declaration by the government, through the executive
or legislative departments, to the effect that it is no longer needed
for public use or service. (Ignacio vs. Director of Lands, (SC), 58
Off. Gaz. 2403; Cebu Oxygen and Acetylene Co. vs. Bercilles, 66 SCRA
481) For so long as the property has been intended for public use or
service, and the government has neither devoted it otherwise, nor
adopted any measure removing it from the public domain, the same
remains property for public use or service, its non-employment as such
notwithstanding. (Capitulo, et al. vs. Aquino, etc., (SC), 53 Off. Gaz.
1477)

Hence, the mere possession of land does not by itself
automatically divest it of its public character. (Cuevas vs. Pineda,
143 SCRA 674; Director of Lands vs. Court of Appeals, 129 SCRA 689)

Consider
the Roppongi site in Japan. Its non-use in a long time for actual
diplomatic service did not automatically convert it to patrimonial
property. Any such conversion happens only if the property is withdrawn
from public use, since it is not, it continues to be part of public
domain and thus, outside the commerce of man (Cebu Oxygen and Acetylene
Co. vs. Bercilles, 66 SCRA 481 [1975]; Ignacio v. Director of Lands,
108 Phil. 335 [1960]).

No less than the Supreme Court was emphatic in several cases
that where the municipality has occupied lands distinctly for public
purposes, such as for the municipal court house, the public school, the
public market, or necessary municipal building, in the absence of proof
to the contrary, there can be no presumption of its grant from the
state in favor of the municipality. (Municipality of Hinunangan vs.
Director of Lands, 24 Phil. 125)

Beyond cavil, the extent of legislative control over
properties of municipal corporations is simple. If the property is
owned by the municipality or city in its public and governmental
capacity, the property is public and Congress has absolute control over
it. But if the property is owned in its private or proprietary
capacity, then it is patrimonial and Congress has no absolute control.
Province of Zamboanga del Norte vs. City of Zamboanga, L-24440, March
28, 1969

Although there is some authority to the effect that at the
common law a municipal corporation, unless restrained by the express
terms of its charter or by necessary implication, could dispose of
lands and other property in the same manner as private persons, there
is a clear distinction, recognized by practically all authorities,
between property purchased and held by municipal corporations for the
use of the corporation as an entity and that purchased and held by such
corporation for the public use and benefit of its citizens. In other
words, its title to and power of disposition of property acquired for
strictly corporate uses and purposes are different from its title to
and power of disposition of property acquired for and actually
dedicated to the public use of inhabitants. As to the former class, the
power of the corporation to dispose of it, unless restrained by charter
or statute, is unquestioned. As a general rule, the power of a
municipal corporation to convey such property is equal to its power to
acquire it. A municipal corporation having absolute title to property
without limitation or restriction as to its alienation may dispose of
such property at any time before it is dedicated to public use.

On the other hand, it is generally held that a municipal
corporation has no implied power to sell real property which is held
for a public use, and that such power cannot be implied from general
charter or authority to acquire, hold, or convey property. The
principle is that all such property is held by the municipality in
trust for the use and benefit of its citizens and is dedicated to the
use of the public, and the corporation cannot divest itself of title
without specific authority from the legislature. It is only when the
public use has been abandoned, or the property has become unsuitable or
inadequate for the purpose to which it was dedicated, that a power of
disposition is recognized in the corporation. Municipal Corporations,
etc., 56 Am Jur 2d, 602-604

Considering these precepts, the city officials of Manila, for
instance, cannot rely upon the March 3, 2006 endorsement to the City
Council of Manila from the Office of the City Mayor relative to the
projected "sale, lease or for joint venture of the city’s patrimonial
properties with a lot area of less than 250 square meters in Manila",
in line with its granted authority to Manila Mayor Jose Atienza through
its enacted Resolution No. 10, dated February 1, 1996. Indeed, recourse
to legal procedures of exercising the power of expropriation through
enacted Resolution of the City Council is not an iron-clad guarantee of
its success.

At the moment, let us be reminded of the lessons eruditely
written by the ponente in the landmark Manila Hotel case, in which we
may liken the present City Mayor and City Council of Manila to those
GSIS officials who nearly sold to a Malaysian firm-bidder the block of
51% shares of the Manila Hotel, deigned as the repository of the 20th
century Philippine history and culture, the reflection of the Filipino
soul and not an ordinary piece of property in a commercial district.
The Highest Tribunal aptly censured them in the Manila Hotel vs. GSIS,
267 SCRA 408, in the following tenor:

"The conveyance of Manila Hotel, an epic exponent of the
Filipino psyche, to alien hands cannot be less than mephistophelean,
for it is, in whatever manner viewed, a veritable alienation of a
nation’s soul for some pieces of foreign silver."

It is for these reasons that I call upon you, my esteemed
colleagues, who have been chosen not by our constituents in one
locality or region, but by the multitude of our fellow Filipinos across
the land and even beyond its borders, to remind the aldermen in the
City of Manila not to be blinded by the dazzling brilliance of gold,
and certainly not to be blind to our past embedded and reflected in the
gates, hallways, walls of the very same institutions which they would
apparently bury in history with the sale of the lands on which they are
situated.

Our experience more extensive, our concerns more
nationalistic, our perspective more comprehensive, we, the Senate, have
not been daunted nor cowered by attempts at intrusions into our own
prerogatives and desecration of our own place in the Philippine
Government and society by even the most powerful of the powers that be.
Surely, we would not let other lesser people from fooling us right
before our eyes!

Let us therefore make this firm: that Congress did not enact
the Local Government Code in order to make council members and local
executive officers in the localities and provinces masters above their
makers, nor masters within their own respective domains. For while we
in the National Government remain servants of our true sovereign, so
should our creations in the local government, which we have made our
agents in our goals for this country, remain loyal and faithful to
those who have chosen them, and to their respective oaths to uphold and
protect the Constitution and our laws.

As a final statement, let those officials in Manila be
reminded: The postulates of our Constitution are not mere platitudes
which we should honor only in rhetoric but not in reality. To contract
for the sale of an inalienable property is illegal; to bargain the
ideals of our Constitution through such sale is suicidal.