Tribune of the people

THE CASE against the Luneta “photobomber,” the Torre de Manila condominium, may have been bungled by the private lawyers before the Supreme Court, but all is not lost. The solicitor general, designated by law as the legal counsel of the Republic, has now stepped forward. He finds ample conservationist principles in the Constitution to preserve our cultural treasure as a nation, and finds that the “statutory mandate to protect the physical integrity of cultural artifacts necessarily includes the protection of the sightline of the Rizal Monument.”

To do this, he had to chastise his own principals, namely, the government agencies charged with our cultural and historical patrimony, and in particular the National Historical Commission of the Philippines (NHCP) which chooses to read its mandate rather narrowly. Solicitor General Florin Hilbay thus performs his office’s proverbial role as the “tribune of the people” to call out erring government agencies rather than defend them.

Yet until he filed his memorandum in the Supreme Court, what was supposed to have been a debate over the noble cause of respecting our cultural heritage vis-à-vis the protection of an otherwise legitimate investment had turned into a game of one-upmanship by the Court to show up the Knights of Rizal lawyers.

Some justices earlier took them to task for bypassing the lower courts and going straight to the high court. The solicitor general now ably reminds the Court that it has conveniently made so many exceptions to that rule many times in the past: for issues of “transcendental public importance,” when “dictated by public welfare,” or “when demanded by the broader interest of justice.” Whatever the rules say, for instance, if the Court wants to strike down an unsigned peace agreement or stop a contemplated Charter change plebiscite, the Court can easily find a way to acquire jurisdiction.

Yet in this case, the Court seems to prefer the procedural impediments that would allow it to wash its hands and let the Torre de Manila stand. When a Court that can blithely wave away procedural rules suddenly turns finicky about jurisdictional niceties, it signals us that the technical arguments are just a cover for substantive choices. In this case, it is not that the heart chose to respect our heritage but the law simply stood in the way. It is that we are shown the righteous legal path, and we refuse to take it.

Moreover, the issue is not whether the private parties are bound by the unregistered guidelines on historical monuments issued by the NHCP. The usual rule is that government agencies must register their issuances with the Office of the National Register at the University of the Philippines if they want to apply them to private parties. But when the Manila City council threatened to revoke the construction permits unless the NHCP was satisfied that the Torre de Manila gave due respect to historical patrimony, the issue was whether the NHCP would respect its own guidelines. This is much the same logic when peace negotiators invoke the Philippine Constitution against enemy rebels. No, we’re not making the rebels swear by our flag. It’s our own negotiators who are bound by the Constitution by whose mandate they negotiate.

The Constitution says that we must “conserve, promote and popularize the nation’s historical and cultural heritage.” The National Cultural Heritage Law of 2009 or Republic Act No. 10066 protects the “physical integrity of the national cultural treasure [if it is] in danger of destruction or significant alteration from its original state.”

For the NHCP, “physical integrity” means just that. The Rizal Monument remains intact for as long as there is no wrecking ball in sight. The solicitor general holds otherwise: “its status as a national cultural treasure lies in its visual presence” and its “physical value… requires the preservation of its sightlines.” The term “physical integrity [thus] necessarily includes its sightline,” and “the conservation of the cultural artifact… require[s] the preservation of the location in which the work is situated.”

The NHCP invokes “the right of the present generation to create its own heritage alongside that of earlier generations.” That is actually a wonderful argument. Had the naysayers had their way, would we have the Eiffel Tower today? Or I.M. Pei’s glass pyramid at the Louvre? That is all so noble, but to even suggest that the Torre de Manila is the heritage that this generation will bequeath is just so pathetic.