Good intentions mark the passage of the National Cultural Heritage Act of 2009, but legal fester points abound.

With not much fanfare, Republic Act 10066, also known as the National Cultural Heritage Act of 2009 (NCHA), was signed into law on March 26, 2010. The law has, since then, taken effect. But even before its full implementation, certain sectors are pointing out at least two areas that need discussion and clarification.

For a long time, cultural conservationists have decried the seeming lack of a legal mechanism to save tangible expressions of heritage from being unduly modified or demolished.

The Jai Alai Building, for example, was torn down on orders of a local government chief despite a loud and strong clamor for its conservation as an architectural jewel and a visible reminder of the rich history of the city.

The building was demolished to supposedly give way to a Hall of Justice. Many years after its destruction, the lot on Taft Avenue where it stood remains vacant.

Buildings, churches, bridges, natural formations, even street names serve as visible historical and cultural markers for a people. The destruction of these structures literally erases our collective consciousness of the past which they symbolically represent.

The disappearance or unconsidered modification of these heritage signifiers is—in the era of globalization and cultural homogeneity—equivalent to cultural amnesia.

The NCHA was seen as a way of fighting back at wanton destruction of dwindling cultural resources. The underlying spirit of the law is to arm the cultural agencies and advocates of cultural preservation with a system of legal remedies to help preserve, restore and maintain cultural heritage in its many forms.

Vague, unimplementable

But some sectors are pointing out that some of the provisions are vague or unimplementable. Moreover, that the protective measures provided by the law are restrictive and may even encroach on the constitutional right to hold property. Consider, for example, the restriction under the new law pertaining to the sale of cultural property.

Article III, section 5 identifies what the law considers important cultural property by presumption. This includes, among others, the works of a Manlilikha ng Bayan (National Folk Artist) or a National Artist.

Section 11 of the same chapter states that all such cultural property cannot “be sold, resold, or taken out of the country without first securing a clearance from the cultural agency concerned. In case the property shall be taken out of the country, it shall solely be for the purpose of scientific scrutiny or exhibit.”

This provision needs careful clarification since a literal interpretation and direct implementation may give rise to absurd situations. When it talks about monitoring the sale or exportation of works of a Manlilikha or the National Artists, does the provision apply to all kinds of work?

Clearly, it does apply to works of art, such as painting or sculpture. And it can also apply to the original manuscript of a book authored by a National Artist. But does it apply to each subsequent print of the book?

What about if the cultural property is in the form of a movement, dance or a chant? Will performance royalty payments be considered a “sale” so that performance of a dance or a chant original to a Manlilikha require a clearance?

What if the work protected is a house or building by a National Artist for Architecture, will its subsequent sale or modification also require the same kind of clearance from the cultural agency?

Will the transfer of the work by any legal means other than sale, such as lease, donation or inheritance, exempt the parties from this clearance requirement? Does this option defeat the purpose of protecting the cultural property?

Protective principle

Another protective principle found in the law involves structures “dating at least 50 years old,” which Article III, section 5 states can only be modified or demolished upon the clearance of the National Historical Commission of the Philippines. A pressing concern is the manner in which this principle will be implemented if the structure is privately owned.

There are ancestral houses still standing in Quiapo or Sta. Ana that can fall under this rule. By neglect or lack of resources, a lot of these grand houses have fallen into disrepair or been sold to new owners not interested in maintaining the old structure. Can the cultural agency impose upon the owners the obligation to maintain the structure’s historical authenticity?

The law, in Article VII, section 26, can obligate the owner to repair the house by serving “on the owner or occupant of such property, an order to repair or maintain such site. If the owner fails to comply with the said order within 30-45 days, repairs may be undertaken by the appropriate cultural agency for the account of the owner.”

What is the practical consequence of this provision if the owner, like the house, has fallen into hard times?

More complicated point

A clear and more complicated fester point arises in the case where the owner is interested in demolishing the structure to give way to a more profitable enterprise where the heritage house stands. Extended to the profit mandate of real-estate developers, this matter can escalate into an interesting development in the jurisprudence on art, culture and private property.

Everyone agrees that a major part of nation-building is to accord protection to cultural resources by way of restrictions and controls. Under the new law, the cultural agency is given substantial control over the disposition of art objects and buildings.

As one can see, the clash becomes more apparent and complex in cases where the object or building sought to be protected is privately owned.

Hence, the question on everyone’s mind: Can government interfere in the disposition of private property? And if so, to what extent?

Even in conservation instances where the spirit of cooperation between government and private owner is strong, there are other provisions in the law that need to be carefully operationalized.

Institutional framework

A clear institutional framework needs to be laid out to determine the following key issues: What should be required to ensure that the process for de-listing of protected property adhere to democratic processes without being unduly litigious? What basic standards shall be used for ordering conservation measures? How will disputes on conservation measures, such as adaptive-reuse, be resolved? What is the prioritization process for state support for conservation?

It is understandable how the affected sectors are breathlessly waiting for the law’s implementing rules and regulations.

Can this law be implemented effectively without fostering discord among the various members of the cultural sector? Will there be a way of respecting property rights without diluting the authority of the cultural agencies over our cultural heritage?

For sure, the cultural agencies cannot disregard the concerns of art owners, gallery operators and real-estate developers. At the outset, a balance must be achieved in the light of the constitutional provision stated in Article III, section 9, which states: “Private property shall not be taken for public use without just compensation.”

Therein lies the big challenge.

Nicolas B. Pichay is a lawyer who heads Art&Law, a firm specializing in intellectual property, entertainment and cultural heritage law. His book “A Guide to the Intellectual Property Rights Code: Understanding the Law, Empowering the Artist” was published by Anvil in 2010. He is also a poet and playwright who spent six months in New York under an Asian Cultural Council Grant.