DOJ Opinion No. 048, s. 2001

DOJ OPINION NO. 048 , s. 2001 September 20, 2001 Administrative Dominador C. Ferrer, Jr. Intramuros Administration 5th Floor Palacio del Gobernador corner General Luna & Aduana Sts. Intramuros, Manila Sir : Reference is made to your letter dated July 27, 2001 requesting this Department to render opinion regarding the proposed transfer of two government-owned properties in Intramuros, Manila to the City Government of Manila in connection with the construction of the City College of Manila following plans to move it from its original site at the Mehan Garden to Intramuros. A careful perusal of the submitted documents reveals that City Mayor Jose L. Atienza, Jr. is planning to construct the New City College of Manila at Mehan Garden in Lawton. The Department of Environment and Natural Resources (DENR) and various conservation groups in order to save the Mehan Garden, as one of Filipino cultural heritages, suggested the former Ateneo Compound and the Old Sta. Lucia Barracks in Intramuros as alternative sites for the project. Mayor Atienza agreed provided these properties will be transferred to the City. However, further studies show that these properties have been subject to a lease agreement between Intramuros Administration and Renacimiento, Inc. dated February 18, 2001, for the construction of a luxury hotel. And it has been subject to a court decision rendered by the Regional Trial Court on February 8, 2000 in the case of "Offshore Construction & Development Company versus Hon. Gemma Cruz-Araneta and Dominador C. Ferrer". Hence this query. We regret to inform you that the Secretary of Justice has to decline rendition of opinion on the subject matter of your query for the following reasons: Firstly, it is noted that the issue raised relates to an RTC Decision that has been final and executory. To rule in your query would be an unwarranted intrusion into the exercise of the judicial powers and functions pertaining to the RTC or a separate and coordinate branch of the government and could subject this Department to criticisms for violation of the independence of the Secondly, the query also involves the substantive rights of private parties and since the opinion of the Secretary of Justice is merely advisory in nature, such opinion would not be binding upon said private parties who, if adversely affected by such opinion, may take issue therewith and contest it before the courts. As a matter of policy, therefore, the Secretary of Justice has consistently refrained from rendering opinion on questions which are justiciable in nature or those which may be the subject of litigation before the courts ( Ibid . No. 46, s. 1981; No. 108, s. 1978; Nos. 19 and 92, s. 1971; No. 91, s. 1957). Thirdly, the issue relates to the legality of the lease agreement, and the resolution thereof will indubitably call for the examination of the contract on a general basis. By settled policy and precedents, the Secretary of Justice does not rule on any issue that is anticipatory and hypothetical (Secretary of Justice Opinion No. 56, series of 1996). Neither does he review contracts because contract review calls for the legal examination of the contract on a general basis, not for the resolution of specific legal issues (Secretary of Justice Opinions Nos. 45, 27 & 13, series of 1997; No. 100, s. 2000) Finally, considering that the Intramuros Administration is an attached agency of the Department of Tourism, prudence dictates that this Department should refrain from rendering opinion on the matter out of due respect to a co-equal branch of government. This Department has always adhered to the policy that subordinate officials on questions involving the performance of their respective duties should first consult the head of their department who may himself competently resolve the same without the necessity of seeking advice of another office or who himself, if he believes it necessary, request the opinion of the Secretary of Justice ( Ibid . No. 111, s. 1979; No. 107, s. 1982; No. 121, S. 1985; No. 6, s. 1988 and No. 12, s. 1996). ESTcIA Very truly yours, (SGD.) HERNANDO B. PEREZ Secretary