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On Architect-Pretenders and the Courts that Protect Them

Posted by David on April 6, 2012 2 Comments

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(or where I pretend to be a lawyer and analyze Philippine Institute of Civil Engineers Inc., and Gamolo vs.

Department of Public Works and Highways and United Architects of the Philippines)

Ever since the release of their January 2012 decision, Ive been meaning to write about the Court ofAppeals (CA) position on the issue of Architects, Civil Engineers, and the Architecture Law of 2004. Itsa little late, but at least Im writing this as an actual Registered and Licensed Architect (RLA)!

For some background, here is their ruling, in two parts.

To quote their first rationale (bold mine),

it is imperative to identify what documents the law considers us architectural documents. The



it is imperative to identify what documents the law considers us architectural documents. TheCourt notes at the outset that what specific documents are considered as architecturaldocuments are not spelled out in the Old Architecture Law (RA 545) nor in the ArchitectureAct of 2004 (RA 9266) but only under the implementing rules and regulations of the National

Building Code. In other words, while these documents are being labeled as architectural documents,there appears to be nothing, either in the old architecture law nor in the 2004 architecture act, toindicate that these documents are exclusive to architects and can be prepared only by them except thefact that they are being labeled as such

Neither can the basis be found in PD 1096 or the National Building Code. On that score, it bearsstressing that the Revised NBC IRR are merely rules and regulations which seek to implementPD 1096 which is its enabling law. If the labeling of such documents as architectural in nature is

not found in the two architecture laws- RA 545 and RA 9266, nor covered in PD 1096, then the Courtis of the view that the DPWH Secretary may have overstepped its rule making power when it labeleddocuments as architectural in nature in the implementing rules absent any basis in law for such aqualification. The rule-making power of administrative agencies, it bears stressing, must beconfined to details for regulating the mode or proceedings to carry into effect the law as it hasbeen enacted, and it cannot be extended to amend or expand the statutory requirements or toembrace matters not covered by the statute. Administrative regulations must always be in

harmony with the provisions of the law because any resulting discrepancy between the twowill always be resolved in favor of the basic law. (Office of the Solicitor General vs. Ayala LandInc., GR No. 177056, September 18, 2009)

In short,

1. Architectural Documents are not defined in RA 544, 545, 9266 or PD 1096.2. Architectural Documents are only defined in the IRR of PD 1096, however3. IRRs are confined to details for regulating the mode or proceedings to carry into effect the law as it

has been enacted4. IRRs cannot be extended to amend or expand the statutory requirements5. IRRs cannot be used to embrace matters not covered by the statute6. IRRs must always be in harmony with the law, therefore7. The definition of Architectural Documents in the IRR of PD 1096 do not count.

Before anything else, lets go to first principles here what is the purpose of having the IRR in the firstplace? If my understanding is correct, the principle behind having IRRs to begin with is because the

Legislature, regardless of how diverse and knowledgable they can potentially be (a potential that, aseveryone knows, has not been fulfilled in a long time), are not specialists in specific fields. Nevertheless,

as a basic building block of our government, we still need the Legislative branch to carry out theirpurpose, ie, to make laws. Sometimes then, they are required to make laws to cover certain issues that

they are not specialists of. In which case, they delegate this part of the law to whatever relevant body is

tasked to regulate the issue.

That allows the law to serve a three-fold purpose:

1. The actual law itself can be focused to protect the core principles and intent for creating the law;2. By delegating the specifics to the IRR, and having the IRR be part and parcel of the power of the



law, the law itself can be as comprehensive as it can possibly be;

3. Through the IRR, the law can be dynamic and responsive to a climate (certainly in the constructionindustry) wherein the context changes very quickly, bypassing the years it takes to even actually

pass a law.

The third point is especially relevant, considering that RA 9266, if I recall correctly, was originallywritten in the early 90s, meaning it took a little over ten years, a number of houses of congress, at least

4 presidents, just to become a law.

Items 3, 5, and 6 then, as specified in my summary above of the CAs decision is correct; IRRs in

principle are for the regulation of proceedings to carry into effect the law. It cannot be used to embracematters not covered by the statute, and it has to always be in harmony with the law it is regulating. The

question is,

Is the definition of Architectural Documents in the IRR of PD 1096 violating those threeprinciples?

The answer is no. Defining what architectural documents are is precisely a means for regulating the

mode or proceedings to carry into effect the law as it has been enacted, because otherwise, how elseare you going to implement all the clauses in the three laws above (RA 9266, RA 544, PD 1096) that

refer to architectural documents? Is everyone just supposed to assume what these documents are?

The CAs decision even refers to this dilemma in the first paragraph above, First, it is imperative toidentify what documents the law considers us architectural documents. The Court notes at the outset

that what specific documents are considered as architectural documents are not spelled out in theOld Architecture Law (RA 545) nor in the Architecture Act of 2004 (RA 9266) but only under the

implementing rules and regulations of the National Building Code.

The question then becomes,

Why should architectural documents in the first place, be defined in the IRR, and not in the

laws themselves?

The answer to that is twofold,

First, as mentioned above, because architectural documents are specialist items that the Legislaturecannot be held accountable for its definition, for the same reason that you do not ask an actor to

explain the Theory of Relativity it is not in their purview. Allowing congressmen and senators todefine something they are not familiar with will only result in poorly written laws.

This brings us to my second point; because the definition of architectural documents literally change

over time. Architectural Documents, to define it in the most general of terms, are a set of documents

that illustrate the architectural design intent of a building.

It is different from Civil/Structural Engineering Documents, which are a set of documents thatillustrate the the structural design and integrity of a building.

It is also different from Mechanical Engineering Documents or Electrical Engineering Documents



It is also different from Mechanical Engineering Documents or Electrical Engineering Documents

which are sets of documents which illustrate the various services, mechanical or electrical that

comprises a building.

Architectural Documents can come in any form it can be a set of specifications, a roll of floorplans, or even a sketch someone makes on a table napkin. Regardless of its medium, provided that it

illustrates the architectural design intent of the building it is classified as Architectural Documents.

This kind of definition, however, cannot be included inside the law, because it is too general. The law,is a precise endeavor. The law cannot risk becoming vague and open-ended, because in that case it

becomes ineffective; too open to interpretation. If its too specific, it becomes too limiting. The law also

has to be responsive, especially when it pertains to issues such as the Construction Industry wheretechnologies, methodologies, and practices can change a lot over time. The law cannot be responsive if

everything is limited and specified by the law, simultaneously, it cannot be too general as to beimpotent it needs its IRR.

To illustrate the above, for hundreds of years, you did not need site plans, development plans, floor

plans, elevations, sections, details, door/window schedules in order to construct a building. The Ancient

Egyptians or the Ancient Greeks didnt have any plans per se, they only had traditions and their visionsto guide them in their construction.

During the Renaissance, you didnt need them either, at least not in the same level of detail that we

require now. All Michelangelo and Leonardo da Vinci had to do was draw a few sketches, and be at theconstruction site, 24/7, either doing the actual construction themselves or guiding their artisans and

craftsmen to be consistent with their vision.

The use of a systematized list of drawings and documents for the construction of buildings only beganin the last 200 years or so, and, what was required then was certainly different from what is required

now.

Looking forward, a lot of firms are adopting Building Information Modelling (BIM) to create their

architectural documents and in fact, by 2014, Singapore is requiring all building plan submissions to bein the form of BIM.

The point is, what exactly comprises architectural documents has changed over time, and it will

certainly change some more in the future. To restrict the definition to what we call architecturaldocuments at present will only limit how much we progress as an industry, let alone a nation, in the

coming years.

To illustrate even further, that is why in RA 9266, Architect is defined as follows,

SEC 3.(2) Architect means a person professionally and academically qualified, registered and licensed

under this Act with a Certificate of Registration and Professional Identification Card issued by theProfessional Regulatory Board of Architecture and the Professional Regulation Commission, and who

is responsible for advocating the fair and sustainable development, welfare and cultural expression ofsocietys habitat in terms of space, forms and historical context;

The Legislature, in drafting the law, did not take it upon themselves to define what an Architect is, it



The Legislature, in drafting the law, did not take it upon themselves to define what an Architect is, it

delegated that definition to the Professional Regulatory Board of Architecture.

By the same principle, so should architectural documents be defined.

That is why Item 4 of the CAs Decision as summarised above (IRRs cannot be extended to amend orexpand the statutory requirements) is incorrect, because that is precisely what the IRR is supposed to

do it cannot serve its purpose of regulating the mode or proceedings to carry into effect the law as ithas been enacted without extending to amend or expand the statutory requirements, because in

some cases, it needs to. The only limitation should be that IRRs must always be in harmony with

the law it is referring to, which in this case it does. The CA contradicted its own self when drafting thisdecision.

But going back to my original point, the CA cannot say that the IRR does not count simply because its

an IRR and not the law because its a wrongheaded way of looking at things. The idea of an IRR, asestablished previously, is that it is an expanded upon extension of the law, equally as binding.

Otherwise, whats the point? Why follow the IRR if its not binding at all?

The rest of the CAs decision rests on the question of whether RA 9266 implicitly repealed RA 544 uponits enactment. The CAs decision was,

the Court cannot consider RA 544 and PD 1096 as having been impliedly(sic) repealed by RA 9266.

The failure to add a specific repealing clause indicates that the intent was not to repeal any existinglaw, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old laws.

In the present case, the Court finds no such inconsistency or repugnancy between RA 9266 and RA 544

and PD 1096. In fact, the aforesaid laws are different from each other since they govern inherentlydifferent subject matters. RA 9266 is a special law which governs the practice of architecture while RA544 is the special law governing the practice of civil engineering and PD 1096 is the law instituting a

National Building Code.

In this regard, the CA completely misreads RA 544, 545, 9266 and PD 1096. They are not completely

unrelated laws. The CA even mentions earlier in its decision that RA 544 and 545 are overlapping; andthey overlap precisely because both laws regulate which professionals are allowed to sign and sealarchitectural documents.

In fact, this overlapping of function- that the civil engineers could prepare plans and specificationsthat were also prepared by architects- could be clearly seen in Section 12 of the Old Architecture Law(RA 545).

PD 1096, in addition, regulate that architectural documents are required for the acquisition of abuilding permit.

RA 9266, on the other hand, revises the laws to limit the signing and sealing of architectural documentsto architects, and architects alone.

So to say that these laws are unrelated is patently false. RA 9266 repeals RA 545, but it also implicitly



So to say that these laws are unrelated is patently false. RA 9266 repeals RA 545, but it also implicitlyrepeals the particular clause in RA 544 by revising who exactly are allowed to prepare, sign, and sealarchitectural documents.

Is there inconsistency? Yes.

Is there repugnancy? Yes.

Unfortunately the CAs decision ends there, apparently they did not think it necessary to explain theirrationale further than, I see no relationship, so there isnt.

Ultimately however, the root of the CAs decision seems to stem from one question that is seemingly leftunanswered by either party,

Why were Civil Engineers allowed to sign architectural documents in the old laws, and why

change them now?

In order to answer this question, a little historical perspective is required. RA 544 and 545 were enacted

on the 17th of June 1950. Six years after the end of World War II. The Philippines, as part of the PacificTheatre of the war was badly damaged, and definitely in need of rebuilding and reconstruction.

Now this is pure speculation on my part, but isnt it possible that the reason why RA 544 and RA 545

allowed for overlapping functions in terms of architectural documents is because the country needed torebuild, and there werent enough architects to take charge of the rebuilding?

At present we currently have a little under 30,000 people who have become licensed since Tomas

Mapua became the first registered Architect in the country. UAPs records have less than 8,000members in good standing. Of course, finding out how many architects or maestro-de-obras there weresixty-two years ago would require a bit more research, but can you imagine how many of them there

were? Had we limited the preparation of architecture documents to architects only at the time, thereconstruction of the Philippines would have been exponentially longer.

Our priorities were in building our cities again, and not necessarily building them properly. (As made

apparent by Metro Manilas chaos-as-urban plan)

That is no longer the case now. We have more than enough architects doing their duties, and more

than enough civil engineers doing theirs. More importantly, our priorities these days have changed. Wedo not need more buildings, especially ones randomly, arbitrarily, or ignorantly designed. We needbetter ones. Better cities, better buildings, better plans. The way to progress is to get our cities tofunction, instead of getting stuck in a morass of dirt, grime, and traffic.

The question shouldnt be, why change the laws now. The question should be, why shouldnt we?

Times have changed. The context has changed. We as a nation have changed.

In the courts mind, the only difference between architects and civil engineers is aesthetics, and that todesign buildings, one does not need to take aesthetics into account.

However, even assuming it to be true that civil engineering does not have any subjects pertaining to



However, even assuming it to be true that civil engineering does not have any subjects pertaining toarchitectural design, the Court is of the view that such omission does not mean that civil engineers are

not qualified to design buildings but rather that in terms of designing structures with aesthetics inmind architects would have an advantage over civil engineers.

No.

On both points,

no.

The responsibility of the architect is not just to make a building beautiful, it is to make the buildingwork. That doesnt just entail poring over the details of the mouldings, and the finishes and the details;

it also pertains to coordinating the services of the building so that one engineers services will notinterfere the others. It pertains to rainwater downpipes and designing the building in such a way as toprevent driving rain from coming in. It pertains to making sure that all the rooms arent designed onlyfor midgets in mind because the civil engineers structural beams are all over the place.

Moreover, to ignore aesthetics in designing a building is short-sighted and wrong-headed at best,ultimately detrimental for us at worst. How the built environment looks matters, because thesurroundings affect peoples behaviors and attitudes. Countless studies have already proven that.

The basic gist is, having generic buildings, block after block after block, with no consideration of properurban planning guidelines, or even proper planning at all, will leave people less invested with their

environment.

More to the point, a philosophy like that will only make buildings disposable, and if theres anythingthat we cannot afford to treat so haphazardly, it is construction. Construction composes more than half

of the worlds energy consumption to date, which means it doesnt matter how many Earth Hours youhave, if you build and demolish buildings as if they were pieces of scrap paper, the planet is still goingto turn into shit.

The only thing civil engineers are qualified to do is to put structures up. No more, no less.

In other countries, especially developed ones, architects and civil engineers are two separate professions.

Either that, or both are specifically taught and trained to be the other. The latter is not the case in thePhilippines Architecture is Architecture, and Civil Engineering is Civil Engineering. There is nomiddle ground in our curricula, so there shouldnt be one in our professions.

In the inevitable Supreme Court hearing, DPWH & UAP should do well to remember that.

Filed under Architecture, Construction, Education, Practice + Ethics, Theory + Criticism

Comments

2 Responses to On Architect-Pretenders and the Courts that Protect Them



Glenn "MaiGensai" 26 says:

April 6, 2012 at 11:53 pmNow this is pure speculation on my part, but isnt it possible that the reason why RA 544 and RA545 allowed for overlapping functions in terms of architectural documents is because the countryneeded to rebuild, and there werent enough architects to take charge of the rebuilding?

as far as I know (and remember), this point is supported by Gerard Licos book ArkitekturangFilipino.

Replykeechang says:November 23, 2012 at 2:12 am

@ Glenn: ah ganun po bah plagiarism po ba?

Reply

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