What was the Solicitor General thinking?

Its just a scorecard, folks. A single battle may have been won but the war isn’t over. And how was that single battle lost? Through the fault and negligence of “concerned” artists who never collectively objected earlier (in 2006) when Caparas was already being awarded for his so-called excellence in movie-making and komiks writing.

From 2006, other award-giving bodies followed suit and yet, we still saw no howls of protest from the “art community” at large. Their silence and inaction for approximately 4 years practically led all, particularly the Office of the President, to believe (rightly or wrongly) that indeed, Magno Jose Carlo J. Caparas is “National Artist” award material. So what happens? In 2009, the massacre king finally gets annointed as a “National Artist for visual art and film” and it is only then, when the damage has already been done, that we see all this Dali-esque hee-haw performance protest from the community of “refined” artists; some of whom pompously and audaciously declare that they are the damaged party and (*gulp*) the “suffering light” who will lead the way. Clearly, these so-called (and self-proclaimed) “concerned” artists with messianic complexes are partly to blame for all this and not just the Office of the President.

And let's get another thing straight: just because we've found fault on BOTH the “concerned” artists and the Office of the President, doesn’t mean that this blog is necessarily siding with the latter. That is just plain dyslexic.

The net is dominated right now by plain “free speech protest” writings of komikeros and indies against Caparas and Malacanang with the single recycled theme that a B-movie massacre film director or has-been komiks novelist has no real artistic merit. Hey, we're there already. We know that. But why stop there? Unfortunately this kind of tunnel-vision never tries to consider any other point of view, especially one that’s contrary to, and even finds them partly to blame for this whole stinking mess.

And when that lone perspective, however unpopular, gets to be posted in the spirit of balance and fairplay, all sorts of accusations arise, particularly that this blog is really in favor of Caparas. Sta. Banana! PLEASE move on. That kind of comment we can do without. Please make like a tree and LEAVE. That’s what you get when have concerned artists following this blog.

But it doesn’t end there. You think this is the only thing these concerned artists have been guilty of? Let's consider the others.

One of the arguments put forth by the concerned artists is that in the selection process of nominees, Malacanang “bypassed” the artists committee at the NCCA (National Center for Culture and the Arts). In short, the NCCA was never consulted. The insertion of Caparas (et. al.) in the list of 2009 nominees for National Artist was unilaterally made by Malacanang, which is allegedly contrary to the procedure of first “consulting” with the NCCA artists committee.

Columnist Ducky Paredes of "Malaya" broadsheet newspaper puts it this way:

“Nominations are submitted to the National Artist Secretariat created by the National Artist Award Committee; experts from the different art fields then sit on a First Deliberation to prepare the short list of nominees. A Second Deliberation, which is a joint meeting of the NCCA and the Board of Trustees of the CCP, decides on the final list. The list is then forwarded to the President of the Philippines, who, by Presidential Proclamation, announces the final nominees as members of the Order of National Artists.

Emily Abrera, chair of the CCP Board of Trustees, says it very well:” Throughout the history of the National Artist Awards, Presidents of the Philippines have exercised the privilege of adding their choices to the final list of National Artist Awardees. And they have done so.

“But never was there an instance when the name of a person deemed truly deserving and who went through the rigorous process of selection, was struck off the list.

“While we respect the President’s prerogative to name her choices, we deplore the disregard of the established process whereby our National Artists are chosen. It was reported in the media (through Secretary Gabriel Claudio) that the President’s choices were a product of thorough consultations with the NCCA and CCP. We wish to clarify that we were never consulted about these final choices, nor have we been officially informed about them, to this day.”

The nominees of the CCP and the NCCA were Architect Francisco Manosa, Filmmaker Manuel Conde (Posthumous), Painter Federico Aguilar Alcuaz and Roman Santos for music. Gloria deleted Ramon Santos from the list."

Well, the above runs counter to the other Malaya newspaper report on the OSG’s comment that the NCCA and CCP’s list of nominees were indeed submitted to Malacanang BUT WERE ONLY TAKEN INTO CONSIDERATION as Malacanang finally decided to follow the recommendation and nomination of its Honors Committee created in 2003 under Executive Order No. 236. So, its incorrect for Emily Abrera to claim that the NCCA and CCP were NEVER consulted. In truth, their “recommended” nominations were submitted but were unfortunately never approved. That’s consultation enough. And when it was disregarded by the higher Honors Committee in Malacanang, its “Tough luck, Chuck”. That's the procedure right now. After the CCP and NCCA, it next goes to the Honors Commitee in Malacanang as provided under E.O. 236 (as amended).

There is no LAW saying that the NCCA and CCP’s “recommendations” are final and can never be amended or disregarded by the higher Honors Commitee.

To argue that it is a “custom and tradition” for the President to first consult with the NCCA and CCP on whose names are to be deleted and substituted anew in the nomination list, or worse, that such “recommendations” are final and not even the word of God can change it, is woefully INCORRECT.

Such “custom or tradition” does not amend, repeal or modify Art. VII of the 1987 Constitution and the procedure outlined by law in R.A. 7356, E.0. 236 and E.O. 451, the latter two having the force and effect of law. Only laws, not customs, traditions or other practices to the contrary, can repeal, amend or modify other laws. Significantly, the concerned artists, NCCA and CCP have not cited any clear, provision of law declaring otherwise. They staged a mock funeral of the “arts” at the CCP, but that will not reverse the petition in their favor.

This may come as a shock to the concerned artists but the National Artist award (from the beginning) is a recognition given NOT by a private group of “artists”, but is an award given by the government or incumbent administration as mandated by pertinent laws. What were they thinking? That men in government are “artistic” and will always side with them? Hokey smoke.

It began with dictator Marcos in 1973 when, having arrogated to himself law-making powers, enacted Presidential Decree No. 208, which declared for the first time the grant of “National Artist” awards and providing for their funding and selection process by the Cultural Center of the Philippines. The CCP at the time was staffed by Marcos appointees and cronies who appointed “national artists” within their social circle of co-cultural elitists.

After the EDSA revolution of February, 1986, P.D. 208 was partly repealed and modified due to the enactment in its place of Republic Act No. 7356, creating the National Commission on Culture and the Arts. This was signed into law on September, 1992 by the late Corazon Aquino, who was nearing the end of her term then as President. To stress, the grant and conferment of the national artist award under PD 208 was not totally repealed in that the CCP is not anymore the sole administrator of the award as before.

Rather, under Section 18 of R.A. 7356, the CCP had to now “coordinate”, “share” and “subordinate” that function with the NCCA under this new procedure under the Republic Act:

“Sec. 18. The National Cultural Agencies. — The Commission shall coordinate with the national cultural agencies including but not limited to the Cultural Center of the Philippines, the Institute of Philippine Languages, the National Historical Institute, the National Library, the National Museum, the Records Management and Archives Office, However, they shall continue operating under their respective charters or as provided by law where provisions therein are not inconsistent with the provisions of this Act. They shall serve as the national repository and/or showcase, as the case may be of the best of Philippine culture and arts. For this purpose, these agencies shall submit periodic reports, including recommendations to the Commission.”

And under Section 9 of R.A. 7356, MOST of the people who comprised the NCCA are either presidential appointees, cabinet members and career government executives while only a few were private and individual “artists”, to wit:

“Sec. 9. Composition. — The Commission shall be composed of the following members;

(a) the Undersecretary of the Department of Education, Culture and Sports;

(b) the Undersecretary of the Department of Tourism;

(c) the Chairman of the House Committee on Culture;

(d) the Chairman of the Senate Committee on Culture;

(e) the President of the Cultural Center of the Philippines;

(f) the Executive Director of the National Historical Institute;

(g) the Director of the National Museum;

(h) the Director of the National Library;

(i) the Director of the Institute of Philippine Languages;

(j) the Director of the Records Management and Archives Office;

(k) the Executive Director of the Commission;

(l) the Head of the Subcommission on Cultural Communities and Traditional Arts;

(m) three (3) representatives from the private sector who shall be the elected heads of the three (3) Subcommission identified hereunder, namely: the Subcommission on Cultural Heritage, the Subcommission on the Arts and the Subcommission on Cultural Dissemination. They shall be elected by the chairpersons of the national committees under their respective Subcommissions.”

So really, the governing body of the NCCA is not entirely representative of the artist community at all. Note that from (a) to (l) above but with the notable exception of (c) and (d), these are not all private individuals but government officers under the control and supervision of the Executive branch of government. And who heads the executive branch of government? Answer: the President of the Philippines. Being mere subordinates, the President can always set aside their decisions by virtue of his/her control power.

Under our present system of government, executive power is vested in the President. The members of the Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed. This can be gleaned from the following provisions of Art. VII of the 1987 Constitution:

"Section 1. The executive power shall be vested in the President of the Philippines."

"Section 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed."

Not only this but under Section 13 (j) of R.A. 7356, it further gave the implication that since the NCCA's function was merely "advisory", that is, to merely give "advise" on matters relating to the grant of an award to deserving individuals, it follows that the grant and even "creation" of such an award is part of executive power of the President; that the next Presidents (Ramos and Macapagal-Arroyo) had the power to create new “national artist” award categories:

“Sec. 13. Powers and Functions. — To carry out its mandate, the Commission shall exercise the following powers and functions: xxx

(j) advise the President on matters pertaining to culture and the arts, including the creation of a special decoration or award, for persons who have significantly contributed to the development and promotion of Philippine culture and arts;”

When Fidel V. Ramos was elected President, he created new national artist award categories e.g. “visual arts”, “theater”, “cinema”, “music” and “historical literature” by way of his Executive Order Nos. 208 and 451, and under E.O. 208, created a new award for national artists in the form of granting state funerals in case of their deaths. Was Ramos first "advised" by the NCCA or CCP to make these new awards? There is none. It was all at Ramos' initiative.

After Ramos, came Joseph Ejercito Estrada and then at present, Gloria Macapagal-Arroyo. Estrada, who did not last long because of EDSA 2, made no Executive Order affecting the national artist award. Macapagal-Arroyo however, did in the form of Executive Order no. 236, creating in 2003 the Honors Committee whose purpose, under Section 9 thereof, was to merely "assist" the President in evaluating nominations for Presidential awards such as the National Artist award, fortifying even more the mere "advisory" function of the NCCA under Section 13 of R.A. 7356, thus:

"Section 9. xxx The Committee shall assist the President in evaluating nominations for recipients of Honors hereunder, as well as of Presidential Awards. For this purpose the Committee may authorize relevant departments or government agencies to maintain Honors and/or Awards Committees to process nominations for Honors and/or Presidential Awards. xxx"

Arroyo was never advised by the CCP or NCCA to do this. It was her sole initiative as President and Chief Executive.

Under the same Section 9 of E.O. 236, the Honors Committee is composed of the Executive Secretary, Secretary of Foreign Affairs, head of the Presidential Management Staff, Presidential Assistant for Historical Affairs, Chief Presidential Protocol and State Visits – Department of Foreign Affairs. Again, all of these people are under the executive branch of government and the Office of the President. Whatever they say and do can always be reversed under the President’s executive control power.

With the creation of the Honors Committee, the procedure since 2003 is that after the CCP and NCCA make their nomination and selection, the same is submitted to a third body for further evaluation: the Honors Committee in Malacanang.

Now, suppose the Honors Committee gave a recommendation contrary to that of the CCP and NCCA’s recommendations. Can the President just consider the Honors Committee recommendation WITHOUT going back to the NCCA and CCP for a second “consultation”? We believe the answer is YES. Why? Because of her control power as Chief Executive of the land and that the NCCA, CCP and Honors Committee under her are staffed by her “alter-egos” whose acts she can always modify.

If the Honors Committee sided with the CCP and NCCA and the President does not agree, insisting that Caparas should be included in the nomination, can she again do this unilaterally? Once more, the answer is YES. That is her prerogative as Chief Executive under Philippine laws, the Constitution and jurisprudence. The national artist award is an award of the government, the administration, and under the 1987 Constitution, the President is the head of such government or administration; has control over all her “alter-ego’s” actions.

Let’s go to another issue raised by the concerned artists: Can the President award an entirely new category, that of fusing two categories into one: “national artist for visual arts and film” which is contrary to their treatment as separate awards by the CCP and NCCA? Again the answer is YES under the control powers of the President. Considering that these recommendations by the CCP and NCCA are merely advisory. This was made explicit in the following highlighted and underscored provision of E.O. 435 amending E.O. 236, to wit:

[Executive Order No. 435]
June 08, 2005

AMENDING SECTION 5 (IV) OF EXECUTIVE ORDER NO. 236 ENTITLED "ESTABLISHING THE HONORS CODE OF THE PHILIPPINES TO CREATE AN ORDER OF PRECEDENCE OF HONORS CONFERRED AND FOR OTHERPURPOSE"

WHEREAS, Executive Order ("EO") No. 236 (s. 2003) nationalized the roster of civil awards and decorations of the Philippines to ensure consistency of criteria in conferring honors, preserve integrity and prestige thereof, clarify and definitively establish their order of precedence, in conformity with internationally-accepted traditional and protocular norms and practices;

WHEREAS, under EO 236, the Order of National Artists shall be conferred upon the recommendation of the Cultural Center of the Philippines ("CCP") and the National Commission for Culture and the Arts ("NCCA");

WHEREAS, there is a need to harmonize the procedure for awarding the Order of National Artists with the purpose and intent of existing laws, i.e. Proclamation No.1001, as amended by Proclamation No1144 and Presidential Decree No. 208, as well as Republic Act No 7356, in relation to Section 20, Chapter 7, Title I, Book III of Executive Order No. 292, otherwise known as the "Administrative Code of 1987";

WHEREAS, due recognition must be given to National Artists for their valuable contributions to the cultural heritage of the country, as well as in encouragement of the spirit of excellence in the arts and letters;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby amend Section 5 (IV) of EO No. 236, entitled "Establishing the Honors Code of the Philippines to create an Order of Precedence of Honor Conferred and for Other Purposes," on Order of the National Artists, to read as follows:

"IV. Order of National Artists (Order ng mga Pambansang Alagad ng Sining); Order of National Scientists (Order ng mga Pambansang Alagad ng Agham); Order of National Social Scientist (Order ng mga Pambansang Alagad ng Agham Panlipunan); Gawad sa Manlilikha ng Bayan (Award for National Living Treasures)-Order of National Artists

Pursuant to Proclamation No. 1001 dated April 27, 1972 and Republic Act No. 7356, the National Commission for Culture and the Arts and the Cultural Center of the Philippines shall advise the President on the conferment of the Order of National Artists, the highest national recognition conferred upon Filipinos who have made distinct contributions to development and promotion of Philippine culture and the arts. (Emphasis Ours)

The National Artist for Historical Literature, created under Executive Order No. 451 dated October 9, 1997, is subsumed under the Order of National Artists."

This amendment shall take effect immediately.

DONE in the City of Manila on this 8th day of June in the year of Our Lord Two Thousand and Five.

(Sgd.) GLORIA MACAPAGAL – ARROYO”

Indeed, what could be higher than a national artist award for film and a national award for visual arts? Answer, a combination of the two as one: national artist for visual art and film. Can the President do this unilaterally despite the mere advise of her alter-egos in the CCP and NCCA to treat these awards separately? Again, the unfortunate answer is YES because of her control power over her alter-egos, and the procedure outlined in E.O. 236 and 435.

Which brings us to the other view that the concerned artists' petition for prohibition may again be dismissed on a serious technical error. Prohibition is a preventive remedy. It seeks to prevent the proceedings of any tribunal, corporation, board, officer or person, in this case the President of the Philippines and the Honors Committee (members of her cabinet) from performing the act sought to be prevented during pendency of the restraining order.

The Solicitor General appears to be correct in that, what is there to prevent when the President already made her choice earlier for 2009 national artists and that the awarding ceremony/conferment stage to follow is only a mere formality? Its too late. The purpose of the petition is absent. The act sought to be prevented is already fait accompli. It has to be denied.

To that, we can cite other reasons. The preventive remedy of prohibition lies only against judicial or ministerial functions. The Honors Committee is not a judicial body or court of law, nor is the President a judicial officer. As a general rule, prohibition will not lie against legislative and executive branches of government acting in the exercise of their official functions basically in consideration of the respect due from the judiciary (Supreme Court) to said departments of co-equal and coordinate ranks under the principle of separation of powers.

Worse if the acts to be impugned may be essentially political in nature and, as a rule, non-justiciable, since the remedy therefrom lies not in the courts but in the department in regard to which full discretionary authority is vested, (i.e., Office of the President and/or Honors Committee) or by the submission thereof to the judgment of the citizenry in the proper political forum. As was previously discussed the conferment of a national artist award is "political" in nature subject to the discretion of the executive branch of government. There is NO law explicitly declaring that such choices of the Honors Committee or the President, have to be subsumed to the nominations made by either the CCP or NCCA. There was a previous "custom" , "tradition" or contrary practice made before by former Presidents Aquino and Ramos. But this is just that: custom. It is not LAW.

Neither was the Honors Committee or the President performing ministerial functions, that is, performing an act mandated by law requiring them to follow the "custom and tradition" of consulting first with the CCP and NCCA, or of unquestionably following their "recommended" nominees. There is no LAW cited by the concerned artists to support this, only a contrary "practice" that had gone before, which Arroyo and her Honors Committee shunned only now, based of course on the President's executive control power under the 1987 Constitution, R.A. 7356, E.O. 236 and E.O. 451.

Moreover, before you can avail of prohibition, you should first prove that you exhausted all administrative remedies available to rectify the situation. That is, the petitioning concerned artists should have first filed a motion for reconsideration before the President and Honors Committee and allow them the opportunity to first correct their mistakes or errors after they made their "new" choices for national artist nominees. This was not done. This was bypassed by the petitioners in favor of their mock "luksa ng sining" at the CCP on August 7, 2009. Later, the petition for prohibition was filed directly and immediately without any prior motion for reconsideration filed with the Office of the President. This is a FATAL legal blunder and the petition could be dismissed on this SERIOUS technicality.

Though it is a general rule that a petition for prohibition will not lie against an official act of the legislative or executive branch of government, the recognized exception is IF the legislative or executive act complained of, is patently illegal or contrary to law. This is so even if the act sought to be prevented has already occurred.

The awards for "fashion design" and "for visual art and film" are entirely new and were created solely by Arroyo. Despite this however, as was previously discussed and shown, the executive control powers of the President legally grants her the prerogative of making such choices. She has discretion on the matter, even when she deleted the nomination of Dr. Ramon Santos as national artist for music. It is political.

The judiciary or the Supreme Court, will not intervene in the matter because there is no clear provision of law violated when the choices were made. The concerned artists cite no such law in their petition or public interviews with media.

Ah, but the concerned artists counter, NCCA Director Cecille Guidote Alvarez is another matter entirely. Section 11 of R.A. 7356 (the 1992 law creating the NCCA) explicitly states that during his or her term as member of the Commission, an NCCA Commissioner shall not be eligible for any grant or such other financial aid from the Commission as an individual. So, her award as national artist for theater is ILLEGAL and the President has committed an illegal act when she nominated and chose her for the award. This too is faulty. There is a misreading of the law.

Clearly, when you read Section 11 of R.A. 7356, it defines the prohibited act as a grant or other financial aid made by the NCCA to a member of its Commission. Here, the act is by the Office of the President and Honors Committee who are not part of the NCCA.

Moreover, the national artist award is not per se, a financial grant or aid. As defined under Marcos' P.D. 208 of 1973, the national artist award is essentially a "special privilege" (not a financial aid or monetary grant) that does not only involve the grant of monetary aid, but also other non-monetary privileges such as a state funeral, forever retaining Filipino citizenship regardless of acts to the contrary, and a place of honor in state functions, national commemoration ceremonies and all other cultural presentations. Hence, on these counts, Section 11 of R.A. 7356 is inapplicable against Guidote-Alvarez and the President. The concerned artists' argument on this score have no merit.

Well, there you have it. In all probability that’s how the concerned artists’ arguments would be legally struck down by the Supreme Court. Its also a two-cent educated guess at what was probably going on in the mind of the Solicitor General when she made her 51 page Comment.

In parting, we still maintain the position that HAD these concerned artists collectively raised their voices against Caparas’ merits as an “artist” way back in 2006, this big cosmic joke would never have happened in the first place. But, sadly, you can't win them all. As Jimmy Santos would say: "That's the way the ball pen."

Jesus, save us!