Torre de Manila: law and aesthetics

Aesthetics is hardly a hot topic in the Philippine media. Perhaps, an impoverished country does not have the luxury to contemplate the fine distinction between the beautiful and the sublime. But the erection of a condominium that towers behind the Rizal Monument, like a gargantuan phallus piercing the undefiled skyline of Luneta Park, has changed this situation. Thanks to DM Consunji Inc.’s Faustian appetite and the cultural philistinism of Manila’s public officials, issues of beauty and cultural preservation have moved from the margins to the center of national attention.

The public outrage at DMCI’s Torre de Manila springs from two grounds. The first is aesthetic. The condo project, according to our sensus communis (common sense), produces an unaesthetic view. It is an ugly addition to the clear horizon behind Rizal’s monument. Recent commentaries suggest this aesthetic judgment. The structure has been variously described as “pollution,” a “ghostly tower,” and “the National Photobomber.” These characterizations prove that citizens are in universal intersubjective agreement about the project’s ugliness. Aesthetic judgments, though subjective, are no whimsical valuations. They have a subjective universal validity. Thus, taste can be communicated to our fellows and we can require the latter to agree with us. The pleasure we derive from art arises from this intersubjectivity.

The second ground concerns national interest. The project’s ugliness shows disrespect for the most hallowed monument of the national hero. Its towering presence mocks the historical site’s solemnity which extends not only to the statue and the immediate consecrated ground where it stands, but also to the skyline behind it. Indeed, the existence of a protruding phallic symbol in Rizal’s background is simply irreverent and sacrilegious.

The National Cultural Heritage Act (Republic Act No. 10066), however, does not provide ample legal remedies. Section 25 of the law states: “When the physical integrity of the national cultural treasures… are found to be in danger of destruction or significant alteration from its original state, the appropriate cultural agency shall immediately issue a cease and desist order ex parte suspending all activities that will affect the cultural property.”

The National Commission for Culture and the Arts clearly issued its cease and desist order against DMCI in excess of its powers. Section 25 only covers threats to the “physical integrity” of a cultural property. DMCI’s project does not significantly alter, much less destroy, the physical integrity of the Rizal monument. The words “physical integrity” literally refer to the statue and not to the skyline. No wonder DMCI ignored the NCCA order.

The same preoccupation with physical integrity is evident in Section 48 (Prohibited Acts). Subparagraph (a) punishes anyone who intentionally “destroys, demolishes, mutilates, or damages any… important cultural property.” Subparagraph (b) punishes anyone who “modifies, alters, or destroys the original features of or undertakes construction …in any national shrine.”

DMCI may argue again that it violated no law. Section 48 (a) prohibits destruction of the cultural property itself, while subparagraph (b) outlaws modification of the original features of such property. The ordinary sense of “original features” can only mean the physical properties of the monument. Only a liberal interpretation can expand Section 48 to include DMCI’s construction. Unfortunately, it is a penal provision and as such is strictly construed. As Antonin Scalia and Bryan Garner wrote that “when the government means to punish, its commands must be reasonably clear.”

DMCI’s case, therefore, lays bare the defects of RA 10066. Congress should have explicitly protected not only the physical integrity of cultural properties, but also their spatial and visual integrity. Legislators should also devise an easement of view that will apply to national historical monuments. This new easement should specifically prohibit property owners from destroying our vision of these cultural properties.

All is not lost for the cultural activists though. They may resort to Article 694 of the Civil Code which defines a “Nuisance” as “any act, omission, establishment, condition of property, or anything else which … (2) annoys or offends the senses.” The concept is so broad that it can cover the ugly. Although the Torre is not a nuisance per se, it may be considered a nuisance per accidens or “one that becomes a nuisance by reason of circumstances and surroundings.”

Finally, DMCI’s critics may also take comfort from the Supreme Court’s words in Churchill vs Rafferty:

“We think… that sight is as valuable to a human being as any of his other senses…. Objects may be offensive to the eye as well as to the nose or ear. Man’s esthetic feelings are constantly being appealed to through his sense of sight…. Governments have spent millions on parks and boulevards… the first aim of which is to appeal to the sense of sight. Why, then, should the Government not interpose to protect from annoyance this most valuable of man’s senses as readily as to protect him from offensive noises and smells?”

Let us hope, then, that the high court affirms the community’s aesthetic judgment and saves us from this outrageous eyesore. Questions of taste should be taken seriously. For, as Immanuel Kant reminds us, we find in taste the true sense of community.

Jose Duke S. Bagulaya is assistant professor of Comparative Literature at the University of the Philippines Diliman. He works as a lawyer in his spare time.