5th of a six-part series
*This six part series is based on an article I wrote with Atty. Janice Lee entitled “The Draft Bangsamoro Basic Law: Overcoming Constitutional Challenges” which Ateneo de Davao University just published in a Compendium on the Draft Bangsamoro Basic Law.
CAGAYAN DE ORO CITY (MindaNews/14 March) — Under the draft Bangsamoro Basic Law (BBL), the rights of indigenous peoples (IPs) are recognized in several provisions. Among others, Indigenous peoples shall have freedom of choice, and the protection of their rights shall be under the exclusive powers of the Bangsamoro Government, which protection shall be in accordance with the United Nations Declaration on the Rights of Indigenous Peoples, and shall take into account in addition to economic and geographical criteria, their individual and communal property rights, cultural integrity, customary beliefs, historical and community traditions.
The Bangsamoro Parliament is mandated to create an appropriate office or ministry for the IPs, which shall be part of the Bangsamoro Cabinet to develop and implement the Bangsamoro programs for the indigenous peoples in accordance with a law passed by the Parliament. Further, IPs shall have the right to be represented in the Bangsamoro Council of Leaders and the Bangsamoro Parliament.
Section 5, Article IX of the draft BBL further recognizes IP rights, thus: “The Bangsamoro Government recognizes the rights of the indigenous peoples, and shall adopt measures for the promotion and protection of their rights, the right to their native titles and/or fusaka inged, indigenous customs and traditions, justice systems and indigenous political structures, the right to an equitable share in revenues from the utilization of resources in their ancestral lands, the right to free and prior informed consent, right to political participation in the Bangsamoro Government including reserved seats for the indigenous peoples in the Bangsamoro Parliament, the right to basic services and the right to freedom of choice as to their identity.”
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 (4) 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.
While the recognition for IP rights appear to well-provided for under the draft BBL, a matter of concern may be raised as to whether these IPs have been duly consulted with regard to the drafting and enactment of the BBL. This concern was voiced by Justice Antonio Carpio in his concurring opinion in the MOA-AD Case, which struck down the previously negotiated MOA-AD as unconstitutional. According to Justice Carpio, the incorporation of the Lumads, an indigenous people in Mindanao, as Bangsamoros in the 2008 Memorandum of Agreement on Ancestral Domain (MOA-AD), and the transfer of their ancestral domains to the then Bangsamoro Juridical Entity, without the Lumads’ knowledge and consent, violate the Constitutional guarantee that the “State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.”
Section 3(g) of IPRA requires that there be a “free and informed prior consent” by the indigenous peoples concerned to be exercised through consultations before any decision relating to their ancestral domain is made. This rule not only guarantees the right to information of the people in these areas, but also the right of the indigenous peoples to “free and informed prior consent” as an element of due process. In this case, in order to comply with the provisions of IPRA, consultations with the IPs concerned in the proposed Bangsamoro territory must be shown to have been made.
Interestingly, the Preamble to the draft BBL speaks of the “Bangsamoro people and other inhabitants of the Bangsamoro”, which presumably, would be comprised of non-Muslims such as IPs, Christians, and other persons living in the Bangsamoro territory, all of whom “[affirm] the distinct historical identity and birthright of the Bangsamoro people to their ancestral homeland and their right to self-determination”. While the draft BBL does not specifically provide that the Bangsamoro territory shall be deemed as ancestral domain, it is submitted that for there to be any delineation of ancestral domains, the provisions of IPRA will have to be complied with.
In order to ensure the continued protection of IP rights, Section 5, Article IX of the draft BBL may be amended thus: “The Bangsamoro Government recognizes the rights of the indigenous peoples, and shall adopt measures for the promotion and protection of their rights, the right to their native titles and/or fusaka inged, indigenous customs and traditions, justice systems and indigenous political structures, the right to an equitable share in revenues from the utilization of resources in their ancestral lands, the right to free and prior informed consent, right to political participation in the Bangsamoro Government including reserved seats for the indigenous peoples in the Bangsamoro Parliament, the right to basic services and the right to freedom of choice as to their identity. The Bangsamoro shall further ensure that all rights of indigenous peoples, including the rights guaranteed under the 1987 Constitution and Republic Act No. 8371, or the Indigenous Peoples Rights Act, shall continue to be respected and shall not, in any way, diminished or derogated by any act of the Bangsamoro Parliament.”
The suggested amendment would ensure that the Bangsamoro Parliament may not enact any laws that will deviate from the provisions of IPRA. While the Parliament may enhance or augment the rights already granted to the IPs, it may not diminish these. This places the IPRA in a separate plane of laws which the Bangsamoro Parliament from which may not derogate.
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 peoples of Mindanao.
(MindaViews is the opinion section of MindaNews. Dean Tony La Viña is a human rights and environmental lawyer from Cagayan de Oro City. He was a member of the Government of the Philippines Peace Panel that negotiated with the MILF from January-June 2010. He is currently the Dean of the Ateneo School of Government. Dean Tony can be reached at [email protected] Follow him on Facebook: [email protected] and on Twitter: tonylavs.)
Tomorrow: The Plebiscite for Enacting the BBL