CAGAYAN DE ORO CITY (MindaNews / 28 May) — Let me go straight to the point. I am all for the enactment of the Bangsamoro Basic Law (BBL). After what happened to Marawi last year, it became clear to me that completing the peace processes with the Moro National Liberation Front (MNLF) and the Moro Islamic Liberation Front (MILF) was urgent if we are to prevent a repeat of what happened in that iconic city.
Young Moros will flock to Maute-type terrorist groups if the Philippine government once again reneged on the peace agreements it forged in 1996 and 2013 with the MNLF and the MILF respectively. Already, tensions in that city and among Maranaos is intensifying because of the manner the rehabilitation of Marawi is being pursued by the national government. The failure of Congress to once again enact the BBL can have serious consequences on peace in Mindanao.
State of play of the BBL
We are now at a critical juncture of the legislative process. It is possible that both the House of Representatives and the Senate can adopt their final versions of the BBL this week, assuming the President certifies its urgency and the three day rule from second to third reading is dispensed with. A bicameral conference can then be convened immediately and a final version ratified by both Houses before Congress adjourns sine die. There is also the possibility of a special session that the President can call next week.It is a challenging schedule but doable. All eyes must now be on the ball to make sure that this is done and a good BBL is enacted and signed into law.
As I have written before in MindaNews, there are four tests of a good BBL (all equally important): (1) It complies substantially with the Comprehensive Agreement on the Bangsamoro (CAB), which the version submitted by the Bangsamoro Transition Commission does); (2) It does not violate any provision of the Constitution which means it must be consistent with both spirit and letter of the 1987 Constitution on autonomous regions and is guided by Supreme Court jurisprudence; (3) It does not create an entity that is weaker than the current Autonomous Region of Muslim Mindanao; and, (4) Indigenous peoples rights must be assured legally and particularly and not just by general principles.
Based on the versions I have seen of the current drafts, they certainly meet criteria 1 and 3, but needs to be amended a bit more to address constitutional questions and indigenous peoples’ rights. For the constitutional law questions, I would encourage lawmakers to include new sections on constitutional basis and policy and on definition of terms that would make sure to peg all the novel concepts in the BBL (such as “asymmetrical governance” and “exclusive powers” to the 1987 Constitution provisions on regional autonomy.
I am still concerned about including into the BBL municipalities in Lanao del Norte and barangays in North Cotabato without the participation of their mother local government units into the referendum that will approve the BBL. If an acceptable way forward to comply with this political agreement in the CAB is not found, Congress must carefully draft this provision to make is separable from the rest of the BBL so if this specific provision is declared unconstitutional, the rest of the BBL can still survive.
The assumption Congress should make is that a conservative Supreme Court will be ruling on the constitutionality they will enact. I suspect that, on a case like this, the President will not go an extra mile to defend the law in the same way that he did not go out of his way to defend his progressive cabinet members like Gina Lopez, Judy Taguiwalo, and Rafael Mariano.
Indigenous peoples rights
At this point, my main concern with the current drafts of the BBL is its inadequacy in recognizing and protecting the rights of indigenous peoples, in particular those peoples who live in areas that will be included in the Bangsamoro.
This is also a constitutional issue because under the 1987 Constitution, the State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. Further, the State, subject to the provisions of the 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.
In 1997, the Philippine Congress enacted Republic Act No. 8371, or the Indigenous Peoples Rights Act (IPRA). The IPRA recognizes the four bundles of IPs’ rights, namely: a) Right to Ancestral Domains and Lands; b) Right to Self-Governance and Empowerment; c) Social Justice and Human Rights; and d) Cultural Integrity.
In 2007, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), recognizing essentially the same bundles of rights already acknowledged in IPRA.
It is essential that UNDRIP and IPRA, and specifically the bundle of rights they recognize, are incorporated in toto into the BBL. The principles and provisions of UNDRIP and IPRA should be legally binding within the Bangsamoro and should provide minimum guarantees that the Lumad can invoke.
The Bangsamoro Parliament can of course enact a law on indigenous peoples’ rights and on ancestral domains but such laws should not derogate but instead enhance existing IPRA and UNDRIP rights. Among the most important of these: the right to self-ascription and to define and determine their identity; to delineate their own territory and ancestral domains; to utilize, control, and manage the natural resources within those domains; the right to their cultural and cultural heritage and customs, subject of course to universally recognized human rights; the right to participate in development and governance decisions that affect them, including the right to free, prior, and informed consent to all decisions; and, finally, the right to self-governance within their territories.
Following this framework, I support the amendments to the current drafts being proposed by Loyukan, a coalition of Lumad groups. In particular, I propose a new provision the group wants included in the BBL, as follows: “Section 9. Declaration on the Rights of Moro and Non-Moro Indigenous Peoples. The Bangsamoro Government recognizes and promotes the rights of Moro and Non-Moro indigenous peoples within the framework of the1987 Constitution, the United Nations Declaration of the Rights of Indigenous Peoples, Republic Act No. 8371, or the Indigenous Peoples Rights Act and other existing laws.
On utilization of natural resources, I also support fully the inclusion of the following provision: “The Bangsamoro shall further ensure that all rights of Indigenous Peoples, including the rights guaranteed under the 1987 Constitution, the United Nations Declaration on the Rights of Indigenous Peoples, and Republic Act No. 8371, or the Indigenous Peoples Rights Act, shall be fully and completely respected and shall not, in any way, be diminished or derogated by any act of the Bangsamoro Parliament and Executive.”
Finally, a Non-Derogation Clause would give assurance to the Lumad in the Bangsamoro. Such clause could look like this: “The Bangsamoro Basic Law shall not, in any manner, diminish the rights and benefits of the Non-Moro Indigenous Peoples in the Bangsamoro, under the 1987 Constitution, national laws, particularly Republic Act No. 8371, or the Indigenous Peoples Rights Act, International Conventions and Covenants, Treaties, Awards, Customs and Traditional Agreements, Accords and Sacred Pacts.”
As I have written also in Mindanews before, the creation of the Bangsamoro is a response to a historical injustice committed to the Bangsamoro people. It would be perverse and distorted to correct that injustice by doing another injustice to the Lumad in the Bangsamoro.
(MindaViews is the opinion section of MindaNews. Tony La Viña of Cagayan de Oro City is former Dean and currently professor at Ateneo School of Government, as well as Constitutional Law professor of Xavier University, University of the Philippines College of Law, Polytechnic University of the Philippines College of Law, De La Salle University College of Law, San Beda Graduate School of Law, Lyceum College of Law and Pamantasan ng Lungsod ng Maynila Graduate School of Law. He was also a member of the government peace panel negotiating with the MILF from January to June 2010 following the aborted signing of the already initialed Memorandum of Agreement on Ancestral Domain in 2008).