Debating Ancestral Domain

Whether it is Umbra Kato in North Cotabato, or Commanders Bravo and Pangalian in Lanao del Norte, the Moro Islamic Liberation Front has been suffering from an epidemic of Lost Commands in just the last week --that comfortable old shoe of plausible deniability that has been worn for generations by successions of rebel "leaderships". Now, the carnage of wanton death and destruction being left in the wake of brazen Moro Islamic Liberation Front attacks in Lanao del Norte and Saranggani provinces yesterday is being recorded by a perhaps incredulous media as Armed Forces Chief of Staff Gen. Alexander Yano characterized the MILF offensives and atrocities as a "virtual declaration of war." Everyone gets his meaning, but such a statement only abets the pretensions of the MILF to a status of belligerency, or worse, the recognition as some kind of sovereign power.

This is the inevitable result of a failed policy: agreeing to ceasefires that do not lead to disarmament or peace, but only to more "peace talks" . In Kauswagan and Kolambugan towns in Lanao which reject inclusion in the BJE homeland deal, MILF rebels have been "attacking civilians with machetes, burning down their homes, taking dozens hostage and using them as human shields before killing them like chickens." Spokesman Eid Kabalu denies that the "central command" of the MILF gave orders for the attacks in Lanao, and even the alleged renegade Commander Bravo reportedly called into Newsbreak in order to tersely deny leading the attacks in Lanao yesterday.

Meanwhile, in condemning the fresh MILF atrocities, the President once more vowed to "crush them." -- referring to her erstwhile partners in the peace process. Considering what a debacle this whole MOA on Ancestral Domain is turning out to be, they are altogether to blame: Gloria and her bungling advisers like Jess Dureza and Rodolfo Garcia, Gazali Jafar and Eid Kabalu and the MILF leadership and their bungling advisers. Also with egg on their faces are the Malaysians, who've been acting in Southern Philippines much as Russia has in South Ossetia, (which is to say with mischievous and malevolent intentions.)

The roots of the present morass lead back to the IPRA Law and the clash of Opinions that accompanied a challenged to its Constitutionality. On December 6, 2000 (on the eve of Joseph Estrada's historic Senate impeachment trial), the Supreme Court promulgated a most indecisive 7-7 Decision [GRP 135385 Dec. 6 2000] Republic Act No. 8371--THE INDIGENOUS PEOPLE's RIGHTS ACT OF 1997. According to the Separate Concurring Opinion of Justice Reynato Puno in the above case,

"When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts into the Philippine legal system which appear to collide with settled constitutional and jural precepts on state ownership of land and other natural resources. The sense and subtleties of this law cannot be appreciated without considering its distinct sociology and the labyrinths of its history. This Opinion attempts to interpret IPRA by discovering its soul shrouded by the mist of our history. After all, the IPRA was enacted by Congress not only to fulfill the constitutional mandate of protecting the indigenous cultural communities' right to their ancestral land but more importantly, to correct a grave historical injustice to our indigenous people."

Technically speaking, Justice Puno is talking about 110 separate historical injustices, but let that pass for now. I think IPRA's concepts are so radical and collide so mightily with those constitutional and jural precepts that Justice Puno refers to, that he ought to have struck IPRA down as unconstitutional, with all its "sense and subtleties" all at once. Indeed, despite the nobility of its goal, the IPRA Law only barely escaped being annulled by the Supreme Court in a 7-7 Decision [GRP 135385 Dec. 6 2000] Speaking for the seven Justices who who decided that IPRA is unconstitutional, then Justice Artemio V. Panganiban noted the gross and explicit violations of the Constitution inherent in IPRA, particularly on the matter of natural resources utilization:

Already, as of June 1998, over 2.5 million hectares have been claimed by various ICCs/IPs as ancestral domains; and over 10 thousand hectares, as ancestral lands.[34] Based on ethnographic surveys, the solicitor general estimates that ancestral domains cover 80 percent of our mineral resources and between 8 and 10 million of the 30 million hectares of land in the country.[35] This means that four fifths of its natural resources and one third of the country's land will be concentrated among 12 million Filipinos constituting 110 ICCs,[36] while over 60 million other Filipinos constituting the overwhelming majority will have to share the remaining. These figures indicate a violation of the constitutional principle of a "more equitable distribution of opportunities, income, and wealth" among Filipinos.

But wait. WHO are the indigenous peoples of the Philippines and how did they come to be "indigenous"? Justice Reynato Puno wrote in December, 2000 for the seven prevailing Justices:

"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."

I shall let Justice Artemio V. Panganiban reply:

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.