Legal lies about Torre de Manila case

SINGAPORE—The Torre de Manila issue demonstrates in painful detail how Philippine democracy is incapable of debating legal issues that underlie broader social issues.

Last weekend’s ManilArt fair featured a huge painting of Jose Rizal coming down from his monument to spray paint graffiti onto the Torre behind it. This underscores how we must reflect on whether we object to the Torre “photobombing” the monument and whether we support Sen. Pia Cayetano in strengthening heritage laws.

However, weeks before ManilArt, the Supreme Court devoted an unprecedented six hearings to the Torre’s proposed demolition. This narrower issue is not subject to a vote because one must invoke a clear law to destroy someone else’s property.

A misinformed debate on narrow legal issues fuels a misinformed debate on broader political issues. Much comment on the Torre’s legal issues seemed ignorant, illogical or outright lies.

National Museum Director Jeremy Barns inexplicably lambasted the high court after the hearings. He complained that the National Museum had no chance to air its side. This is bizarre because his agency was party to the case and was represented by no less than Solicitor General Florin Hilbay, the country’s most prominent lawyer, who told justices he could guest on any talk show to speak on the Torre. Barns might lambast himself for not speaking up during the hearings instead of attacking the Court afterwards.

Barns also felt some justices’ questions disparaged the monument. One wonders why Barns did not directly criticize Prof. Ambeth Ocampo, as justices cited his Inquirer columns; and why such thought bubbles are even a ground to lambast a court.

Legal arguments deemed baseless in the Court hearings are presented as gospel outside. Some pundits stress the National Commission for Culture and the Arts (NCCA) issued a cease-and-desist order against the Torre last January. They omit how not even Hilbay—the NCCA’s own counsel—defends this and justices seem to accept that the NCCA has no apparent authority under the National Cultural Heritage Act.

Some pundits insist the Torre violates the 1964 Venice Charter on conservation. They omit that this was never signed by the Philippines. Further, Dean Manuel Diokno, who argued for the National Historical Commission of the Philippines (NHCP), examined dozens of international instruments and found few references to protecting sight lines, which implies there is no “international custom.” This should be familiar because it parallels the debate on whether Sen. Grace Poe is Filipino under the United Nations’ 1948 Universal Declaration of Human Rights and 1961 Convention on the Reduction of Statelessness.

Commentaries also glossed over key aspects of the hearings. Many omitted how the petitioner’s lawyer, William Jasarino, repeatedly admitted in the first hearing that his case had no legal basis. Later commentaries emphasized Hilbay over the actual petitioner.

Commentaries also omitted how Hilbay’s ethics were questioned at length by justices. It was widely reported that Hilbay reversed his position in the middle of the hearings and attacked the NHCP, his own client, for not stopping the Torre. However, justices went much further. They questioned his posting his explanation for this on Facebook, why he continued to represent the NCCA and the National Museum after turning on the NHCP, and how he can represent the NCCA while simultaneously arguing it had no authority to issue its cease-and-desist order against the Torre.

I applaud Hilbay’s transparency and sincerity. However, one cannot appreciate the ethical minefield he navigated without the complete details.

Most frustrating of all is how anti-Torre arguments changed in each iteration. Justice Francis Jardeleza aggressively proposed that a broad constitutional provision on conservation protects a monument’s sight lines. Torre lawyer Victor Lazatin responded there is no record of our Constitution’s drafters intending this. Senior Associate Justice Antonio Carpio asked the practical question how far such a constitutionally-mandated sight line extends so that developers may comply with it. He received no direct answer.

Hilbay counters that the constitutional provision is not “self-executing.” He instead invokes the National Heritage Act’s protection of monuments’ “physical integrity.” However, it is equally aggressive and contrary to the dictionary to argue that physical integrity includes visual background.

Later hearings shifted to how the Torre (and many other buildings) appeared to violate Manila’s zoning ordinance and had permits that may have been issued without sufficient authority. Despite following the hearings closely, I do not feel I can summarize the tangled web of bureaucracy and competing floor area ratio formulas.

What seems clear is that a 2014 city council resolution reaffirmed the Torre’s permits. Regardless, the case did not originally emphasize the ordinance, and justices repeatedly stressed they have no jurisdiction to thresh out convoluted facts.

We were aghast in 2013 at how anti-Reproductive Health Act advocates were hell-bent on pushing courts to enforce religious doctrine. Today, some culture advocates sound like secular zealots. We sorely need public legal debate with more integrity.

Returning to Poe, for example, her citizenship as a newborn is a legal issue. Voting for her even if she became an American as an adult is a political issue. Conflating these, such as accusing scholars who propose she was born a citizen of abandoning legal questions to elections, is sadly uncritical.

Incidentally, Manileños should be proud of City Legal Officer Jose Flaminiano for gaining the justices’ respect alongside the likes of Lazatin, Hilbay and Diokno in the Torre hearings.

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