Cultural property law has art world up in arms

New National Cultural Heritage Act sets limits on ownership of works of art

Published on 5 June 2011

Author(s): Business World/SAM L. MARCELO

Type:  Comment Two parts

Collectors are already thinking of unloading works by Masters and National Artists rather than be “harassed” by the government.

(Part I) An uproar erupted recently in the local art world over a law setting limits on ownership of works considered "Important Cultural Property" (ICP).

While the implementing rules of Republic Act 10066 -- also known as the National Cultural Heritage Act and signed by then President Gloria Macapagal Arroyo in 2010 -- still haven’t been approved, collectors are already thinking of unloading works by Masters and National Artists rather than be "harassed" by the government.

"The Heritage Act infringes on private property, both moveables and immovables, by effectively limiting the owner’s liberty to dispose of the property as he wishes," said art critic, historian and author Ramon Villegas, who moderated a forum on the issue last May 21.

Article 3, Section 11 of the law states that no ICP shall be "sold, resold, or taken out of the country without first securing clearance from the cultural agency concerned."

"In case the property shall be taken out of country," it continues, "it shall solely be for the purpose of scientific scrutiny or exhibit."

"The Heritage Act says that ‘private collectors and owners of cultural property shall not be divested of their possession and ownership,’" Mr. Villegas said, "but the law, in fact, places limitations on the ownership of such property."

National Museum of the Philippines.gif
National Museum Philippines

Trixie Angeles, legal counsel of the National Commission for Culture and the Arts (NCCA), disagreed and said that there was no reason to panic since property owners may petition the appropriate agency to remove the presumption of ICP and delist a work for export (for international auctions, for example).

The procedure, the lawyer explained, would be in the nature of a public hearing.

Silvana Diaz of Galleria Duemila countered that this could take forever, adding: "Out of the thousands of Amorsolos that are out there, who will decide which ones are important?"

The lack of experts -- and art education, in general -- is the problem, she noted.

As defined by the law, ICP refers to "cultural property having exceptional cultural, artistic, and historical significance to the Philippines as determined by the National Museum (NM) and/or the National Historical Commission of the Philippines (NHCP)."

These include:

  • works by Manlilikha ng Bayan (such as Juan Luna, Felix Ressurrecion Hidalgo, Lorenzo Ma. Guerrero, Simon Flores y dela Rosa, Jorge Pineda, Miguel Zaragoza, Dominador Castaneda, Antonio Malantic and Damian Domingo) and National Artists, unless declared by the NCCA;
  • archaeological and traditional ethnographic materials, unless declared by the NM;
  • works of National Heroes, marked structures, and structures dating at least 50 years old, unless declared by the NHCP; and
  • archival material dating at least 50 years old, unless declared by the National Archives.

Much of the discussion in last month’s forum revolved around Article V, Section 14 of the law, which calls for the establishment of the Philippine Registry of Cultural Property (PRECUP), a listing of "all cultural property of the country deemed important to cultural heritage" that will be maintained by the NCCA.

Asked to clarify what the phrase "deemed important" meant, Ms. Angeles replied that it would probably include works dating at least 50 years old; works that are significant for particular periods in history, both political and aesthetic; and works by artists up to the 1970s.

The lawyer’s definition, quipped Ms. Diaz, covered "everything."

(Part II). Private collectors and owners must register "properties deemed important to cultural heritage" within three years from the effectivity of the National Cultural Heritage Act, which became law last year. Registration of recent works, which still have to establish their importance, is voluntary.

"There appears to be so much hysteria with the requisites of registration, but this isn’t anything new," National Commission for Culture and the Arts (NCCA) legal counsel Trixie Angeles said in an e-mail, adding that registration has been required since 1968 under Republic Act 4846. This is, however, the first time that the law imposes the penalty of confiscation for those who refuse to register their property. (The old penalties were limited to fines and the law was rarely enforced, if at all.)

"Our law is actually rather mild and a bit late in coming," Ms. Angeles said. "Its underlying principle is simply to make the information contained in these cultural materials available to the general public. Everything else remains confidential at the request of the owners."

The registry will keep details identifying the cultural object’s owner and its location highly confidential, even against other government agencies such as the Bureau of Internal Revenue.
But information on the material itself -- its measurements, the medium used, as well as an image -- will be available. "Remember the Amorsolo painting stolen from the Metropolitan Theater?" she asked, referring to a pair of murals, titled The Dance and History of Music, which disappeared after the theater in Manila was abandoned.

"Whoever has that has to register it, and it opens a whole can of worms now, doesn’t it?"

In her e-mail, the lawyer added that another consideration -- which might explain the violent response to the registry -- is that some of the country’s cultural property is of doubtful provenance (for example, objects bought from tomb raiders, pot hunters, and, in some instances, thieves and fences). During last month’s forum on the issue, Ms. Angeles said the issue of fakes was within the purview of Art Forgery Act, which still hasn’t been implemented by the National Museum (NM) despite predating the National Cultural Heritage Act by several years.

Angel Bautista, the museum’s cultural properties division head, told BusinessWorld in a telephone interview that the NM was still waiting for the Art Forgery Act’s implementing rules and regulations (IRR).

Draconian

Meanwhile, gallerists balked at the severity of a section requiring them to submit a quarterly inventory of items carried, along with a history of each item. One opined that the draconian system smacked of communism and would push galleries out of business.

Legitimate dealers also complained that the requirement was unfair since private individuals flipping art wouldn’t have to submit a quarterly inventory. Eyebrows were also raised over Article VII, which outlines the powers of the NCCA and other cultural agencies.

Section 27, for example, grants visitorial powers to cultural agencies, which means they can inspect Important Cultural Properties (ICPs) at any time to ensure their protection and integrity. Public or private collections categorized as cultural property may also be inspected, provided that prior written consent of the owner is obtained.

Section 28 also gives the NCCA the power to deputize other government agencies such as the Philippine National Police and other local or national law enforcement agencies to protect cultural items under the National Registry.

Not confiscatory

"It might seem scary at first, but the intent of the law is to protect and track cultural specimens, especially in rebel-infested areas," said Ms. Angeles, dismissing fears of policemen storming into houses and seizing paintings.

"We are not here to take what you own away from you," added Esperanza Gatbonton, consultant to the technical working group that crafted the initial bill.
She emphasized that the purpose of the National Cultural Heritage Act of 2009 (and the registry) was not confiscatory. "Speaking from the point of view of the state, the idea of the databank is to piece our history together -- pre-history included -- and to assess the development of our own culture," she said.

Trickie Lopa, a collector, told BusinessWorld in an e-mail that she hopes the bill does not turn out to be short-sighted -- one that will lead to the curtailing of any opportunity the Philippines has of making a cultural impact on the global arts scene.

In a separate e-mail, Felice Prudente Sta. Maria, who proposed the initial bill in the early 1990s while she was an NCCA commissioner, said that the "administering agency really needs to sit down with its different publics to determine what of the law can be implemented as a first phase and how best to do it." "[The NCCA] needs to assess its capabilities and adjust in order to implement the law," she said. "Both implementing agencies and public understanding have to grow together."

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