Friday, September 14, 2007

Creation Myth of the Indigenous Peoples of the Philippines

In December 2000, the Supreme Court rendered a 7-7 tie decision on the Constitutionality of the Indigenous People's Rights Act (RA 8371) in the case of Isagani Cruz versus DENR & National Commission on Indigenous Peoples.

Today's BLOOPER, probably just an onomatopoeic-pronunciation typo, is from a Dissenting Opinion in that celebrated case:

"IPRA effectively withdraws from the public domain the so-called ancestral domains covering literally millions of hectares. The notion of community property would comprehend not only matters of proprietary interest but also some forms of self-governance over the curved-out territory."
Nota bene, above is not some 40 peso public school textbook, but from the written Ruling of a Supreme Court Justice which only proves that the occurrence of serendipitously funny mistakes in all kinds of printed matter is no one's exclusive domain. This example is from one of the ponencias on IPRA with which I agree.

Here is the En Banc Ruling on IPRA and the various dissenting and concurring Opinions:
Puno, Vitug, Kapunan, Mendoza and Panganiban
(all from the Supreme Court Website).

The current Chief Justice Reynato Puno presents the case for the seven Justices voting to uphold the Constitutionality of IPRA.
Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream. They are non-Christians. They live in less accessible, marginal, mostly upland areas. They have a system of self-government not dependent upon the laws of the central administration of the Republic of the Philippines. They follow ways of life and customs that are perceived as different from those of the rest of the population.[97] The kind of response the indigenous peoples chose to deal with colonial threat worked well to their advantage by making it difficult for Western concepts and religion to erode their customs and traditions. The "infieles societies" which had become peripheral to colonial administration, represented, from a cultural perspective, a much older base of archipelagic culture. The political systems were still structured on the patriarchal and kinship oriented arrangement of power and authority. The economic activities were governed by the concepts of an ancient communalism and mutual help. The social structure which emphasized division of labor and distinction of functions, not status, was maintained. The cultural styles and forms of life portraying the varieties of social courtesies and ecological adjustments were kept constantly vibrant.
Yet substantial errors in historical fact are pointed out about the above ponencia in Laughable Textbook Errors In Crucial Supreme Court Decisions which looks at how Justice Puno cites legends of Datu Sumakwel and the Code of Maragtas as real history, and weaves a politically correct anti colonialist Creation Myth for the Indigenous Peoples of the Philippines. In this conception, the ancient Filipinos, the original indigenous peoples, lived in harmony with Nature and with each other, even developing literature, culture and laws to govern what is pictured as an idyllic Garden of Eden in the Philippines. Into this pastoral scene intrudes the Spanish colonialists, who are like the Snake in the Tree of the Knowledge of Good and Evil, who seduces, conquers and converts SOME of the indios they found here and turn them by religious conversion into the Catholic Majority population. The Fall from Ancient Grace by those who would become the present Christian Majority population of the Philippines results in the expulsion of those who would become the present day indigenous peoples from the Garden of Eden, their flight from the colonial subjugators. The Savior that will reconcile them all again, by offering the Indigenous Peoples a third of the present garden archipelago, is of course the Supreme Court itself and IPRA.

The long and short of the decision is not some fuzzy-wuzzy conclusion, but a definite result. There is an OFFICIAL LIST of 110 INDIGENOUS PEOPLES of the Philippines, representing some 12 million persons, who are entitled to about one third of the Philippine Territory in the form of ancestral lands and domains. However, by virtue of the fact that their ancestors succumbed to Spanish colonialism, the Tagalogs, Pampangos, Ilocanos, Cebuanos, Samarnon, and even the purported descendants of that fabled Datu Sumakwel on Panay Island, are NOT indigenous peoples of the Philippines.

No Catholic majority ethnic group or tribe is on the list of official Indigenous Peoples of the Philippines, even though the Definition itself is vague and even self-contradictory:

"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples-- refer to a group of people or homogeneous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains."

SPECIAL CASE OF THE IGOROTS: There is a curious inconsistency in the prevailing Supreme Court view in the matter of the Igorots of the Cordillera. You see, the Igorots successfully resisted Spanish efforts to conquer and convert them to Roman Catholicism for centuries, and on that basis are considered to be "Indigenous Peoples of the Philippines." Yet, it is a fact that most Igorots now are Christians by the action of American missionaries in the 20th Century, as evidenced by the widespread and fluent use of the English language throughout the highlands. (Most of the residents of Mount Pulag are Lutherans!) Methinks that the Christianized Igorots do not fit the definition of Indigenous People or Indigenous Cultural Community that is found in Puno's ponencia! Igorots are NOT, from my reading of Puno, indigenous peoples at all, but are closer in legal status to the non-indigenous peoples, like the Ilocanos, Tagalogs and Cebuanos.

From the Boondocks (Bill Billig) is a blog on the indigenous Igorots of the Cordillera with whom I've exchanged some interesting comments. The Igorots have been central to some of the historical evolution of the concept of indigenous peoples in the Philippines. The celebrated early case of Mateo Carino is amply discussed in all the ponencias and was important to the concept of "native title." However, my take on that case, which was decided by the US Supreme Court is that "native title" can be claimed by individuals and individual families of descendants and ascendants but not by entire classes of individuals, tribes that are assembled by "self-ascription or ascription by others." However, this is a deep topic and goes to the heart of land ownership, titling, and other matters that are indeed a big part of the controversy.

Justice Artemio Panganiban presents the most succinct and cogent case for the Dissent (the seven Justices who voted against IPRA):
Section 5, Article XII of the Constitution, provides:

"SEC. 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well being.

"The Congress may provide for the applicability of customary laws governing property rights and relations in determining the ownership and extent of ancestral domain."

Clearly, there are two parameters that must be observed in the protection of the rights of ICCs/IPs: (1) the provisions of the 1987 Constitution and (2) national development policies and programs.

Indigenous peoples may have long been marginalized in Philippine politics and society. This does not, however, give Congress any license to accord them rights that the Constitution withholds from the rest of the Filipino people. I would concede giving them priority in the use, the enjoyment and the preservation of their ancestral lands and domains.[41] But to grant perpetual ownership and control of the nation's substantial wealth to them, to the exclusion of other Filipino citizens who have chosen to live and abide by our previous and present Constitutions, would be not only unjust but also subversive of the rule of law.

In giving ICCs/IPs rights in derogation of our fundamental law, Congress is effectively mandating “reverse discrimination.” In seeking to improve their lot, it would be doing so at the expense of the majority of the Filipino people. Such short-sighted and misplaced generosity will spread the roots of discontent and, in the long term, fan the fires of turmoil to a conflagration of national proportions.

Peace cannot be attained by brazenly and permanently depriving the many in order to coddle the few, however disadvantaged they may have been. Neither can a just society be approximated by maiming the healthy to place them at par with the injured. Nor can the nation survive by enclaving its wealth for the exclusive benefit of favored minorities.

Rather, the law must help the powerless by enabling them to take advantage of opportunities and privileges that are open to all and by preventing the powerful from exploiting and oppressing them. This is the essence of social justice – empowering and enabling the poor to be able to compete with the rich and, thus, equally enjoy the blessings of prosperity, freedom and dignity.
WHEREFORE, I vote to partially GRANT the Petition and to DECLARE as UNCONSTITUTIONAL Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and related provisions of RA 8371.
It is noteworthy that the AUTHOR of the Indigenous People's Rights Act is none other than Gloria Macapagal Arroyo. I have theorized that her "Peace Legacy" is going to involve the IPRA in a big and spectacular way in Mindanao, a prospect recently examined here under GMA's Gift to Bin Laden on September 11.


Alan said...

Agree, agree. IPRA on its face is downright unconstitutional. It is a blatant disregard of the long-held "regalian doctrine" adopted by our constitution. But Puno says in that decision that the grant to ICCs/IPs is a "distinct" kind of ownership., and that such ancestral lands and domain held by native title as "never to have been" public land (probably to give it a tint of constitutionality). Nothing could be more absurd.

blackshama said...

The only indigenous primate in the Philippines is the tarsier.

Even the Pinoy matsing (Macaca fascicularis) may have immigrated from Malaysia.

This idea of defining IPs on the basis of their being not Christian is offensive since it puts a religious test on the exercise of citizen's rights.