[] Like the opinion of the Office of Government Corporate Counsel on the LWUA-MCWD issue, the Office of the Solicitor General’s opinion on the Boljoon pulpit panels controversy is mostly a citation of applicable laws.
[] The OSG opinion was specific in two aspects:
(1) Archdiocese of Cebu needs to prove ownership of the panels in demanding return of the church objects to Boljoon Parish and (2) Fencing by the donors and
National Museum of the Philippines (NMP) is presumed from proof of theft or robbery of the panels.
WHAT NCCA ASKED, WASN’T ANSWERED. In a March 5, 2024 letter, the National Commission for Culture & Arts (NCCA) sought from the Office of the Solicitor General (OSG) answers to these questions:
[1] Under our criminal and civil laws, did spouses Edwin and Aileen Bautista
have legal ownership of the pulpit panels they donated to the National Museum?
[2] Were they legally free to donate the said panels?
THE STUFF THE OSG TOOK UP. The solicitor general’s opinion dated March 9, 2024 didn’t specifically and directly answer the two questions from NCCA, which took the cudgels for the National Museum of the Philippines (NMP). In a letter addressed to Victorino M. Manalo, NCCA chairperson, andsigned by two asst. solicitors general and four associate solicitors, the OSG opinion dwelt on:
1. NMP’s basis for claiming ownership: the spouses’ deed of donation;
2. How the Cebu Archdiocese may claim ownership and demand return of the panels: prove by “concrete evidence” that it is indeed the owner and the panels were in fact stolen; the Archdiocese’s right to sue civilly and criminally.
3. Right of one who has lost movable property from the person in possession
of the same, with no need to refund the possessor and no prescription against the claimant once proved that it was unlawfully taken from the owner.
4. NMP’s “possible criminal liability” if the elements of fencing are proved, namely,
the fact of unlawful taking; the “fence” is not a principal or accomplice to the
crime of theft or robbery, but with intent to gain, acquired, kept, concealed, bought, sold, or otherwise dealt with the article or item derived from the proceeds of the crime; he did so with intent to gain; and he “knew or should know” the properties were fruits
of the crime.
FAVORABLE’ TO NATIONAL MUSEUM? As one may notice, none of those answers directly tackled the donor spouses’ legal ownership of the panels and their right to donate them. The OSG opinion merely declared the NMP’s “basis for claiming ownership over the panels” (the spouses’ deed of donation) but didn’t say about the Bautistas’ ownership rights.
Cebu Governor Gwen Garcia was reported by Rappler Sunday, April 8, 2024 she’d write to the OSG to clarify about its legal opinion on the Boljoon panels. “The way the NMP interpreted the opinion made the National Museum think it was in their favor,” Garcia said.
That could be due to the OSG opinion’s focus on the law-imposed load of the Cebu Archdiocese in proving ownership and unlawful taking. The solicitor general’s opinion examinedmostly at the Cebu Archdiocese’s bid to recover the panels, saying in effect: Prove ownership and the theft or robbery. It didn’t take up the basis of the donors’ ownership. Nothing is known
abut how the Bautistas acquired the panels, from whom and how much.
The couple-donors may also be asked, Prove ownership and your right to donate
the panels. Which was what the NCCA asked OSG to determinebut the solicitor general didn’t categorically answer.
MERE POSSESSION IS ACT OF FENCING. Under the Anti-Fencing Law (Presidential Decree #1612 of 1979), “merepossession of any good, article, item, object or anything of value, which has been the subject of robbery or thievery is considered an act of fencing.” The burden is for the fence to show that the possessor “did not know or could not have known” that the property was stolen and there was “no intent to gain” on his part.
The OSG opinion tells the NMH and the Cebu Archdiocese how the act of fencing
is legally proved, particularly on knowing about the unlawful taking, and intent to gain.
‘BUYER IN GOOD FAITH’ DEFENSE. Could the donors, owner of the panels, just before the current possession, be considered buyers in good faith? Meaning, they had no knowledge of the unlawful taking of the properties from the Boljoonchurch. Or if they didn’t know that they were removed from the church pulpit, were they expected to have known about it? Sensible buyers, buying heritage properties, routinely investigate the origin of the panels, including asking the source itself.
THERE’S NOT MUCH INTEREST IN PROSECUTING the perpetrators, if crime was committed along the route taken by the panels: from the parish church pulpit in Boljoon, Cebu to the succession of buyers, up to the last buyers who became donor spouses, then to the National Museum in Manila.
The fuss over legal ownership is brought to the surface only by the demand of Cebu Archdiocese, along with Governor Garcia and the local legislatures of Boljoon and Cebu Province, for the National Museum to return the panels to Boljoon.
NMP has been pussy-footing, not meeting the question of ownership head-on,
talking only of concern for the preservation and protection of the panels and sharing
the historical and religious objects with the people of Cebu.
BURDEN OF PROOF ON ORIGINAL OWNERSHIP. The OSG opinion, citing the law, points to the burden of the Cebu Archdiocese to prove ownership of the panels and unlawful taking. Yet that must be easier because — aside from church records and testimony of church officials and Boljoon residents familiar with the pulpit features — the deed of donation executed by the Bautistas acknowledge ownership and origin of the panels.
That is where tracing legal ownership of the properties supposedly begins, but most everyone in Cebu considers “original ownership” a given fact and no longer subject of debate. The deed of donation signed by the Bautistas and NMP reportedly “showed that all the parties and signatories knew when they were signing the agreement that the panels came from ‘Church of the Roman Catholic Parish of Patrocinio of de Maria Santisima’ in Boljoon, Cebu.”
The question left is whether ownership was lawfully transferred by the Archdiocese of Cebu or its representative/s. If the panels were not unlawfully taken, the present possessor and the donors cannot be presumed to have violated the Anti-Fencing Law or Presidential Decree 1612.
The question is more on the “present ownership” given the trail the panels had taken. The properties allegedly passed from the parish church, where the priest had administrative custody, to buyer/buyers who in turn sold them to other buyers, ending up in the hands of the Bautista spouses, who ultimately donated them to the National Museum.
OPINION’S DISCLAIMER. The OSG opinion has theinherent limitation of not having all the facts of the issue to which the laws may be applied.
The opinion from the solicitor general on the Boljooncontroversy carries this disclaimer:
“In providing our comments….we have relied solely on the facts you have narrated and our appreciation of the same. Thus, this comment may not apply to situations with different set of facts.”
The disclaimer in the OSG opinion is strikingly similar to that of the Office of the Government Counsel (OGCC) in the LWUA-MCWD controversy, thus: “This office (OGCC) wishes to stress that this opinion is being issued based on the limited facts and particular situations presented, and may not be applicable under different sets of facts and circumstances.”
The result may seem to favor one side in a dispute but is actually an opinion based on incomplete facts or half the law.
In the LWUA case, the OGCC opinion focused only on the basic law, omitting LWUA board resolutions and the financial assistance contract (FAC), which provide that default could also come from violations of MCWD other than failure to pay its loan.
The OSG opinion didn’t consider that original ownership of the pulpit panels was already acknowledged in the contract of donation by the donor spouses and the National Museum.
