Part 7, last of the series

Discoveries in contradiction within the Basic law and Lessons

ILIGAN CITY (MindaNews / 12 October) — The 1987 Constitution is the first basic law of the land to recognize ancestral domain and uphold and protect the same; the RCC-MM had the first crack at attempting a workable definition.

Not very long after the first Committee meeting, the members discovered a seemingly insurmountable contradiction — within the Constitution itself! And my own description of it is: what the right hand has given away with a smile, the left hand has taken away without the courtesy of a smile.

And not too far from each other in the same Article XII on National Economy and Patrimony. Section 5 says:

“The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous 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 or relations in determining their ownership and extent of ancestral domain.”

Apart from the modifying clause “subject to the provisions of this Constitution and national development policies and programs” which in itself is ominous because there is already the element of double talk, there is further Section 2 of the same Article which is a straightforward assertion of State interests, to wit:

“All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated.” (Underscoring supplied)

We in the Committee figured that the only way out to assert the interest of the tribal communities is to convert areas of ancestral domain into local political units which in effect would make them an extension of the State, vested with corporate powers and could assert control, even proprietary rights over ancestral domain or those portions claimed as owned by the State.

This explains the last paragraph in the RCC-MM proposal on ancestral domain, namely, Art. VIII, Sec. 49, par. 2: “Such areas of ancestral domain may be declared as political units, subject to national and regional laws.”

Congress, however, decided to take the easy way out — uphold the interest of the State. Thus, after the definition of ancestral domain in the organic act (Art. XI, Sec. 1, Par. 2) it added the fatal phrase:

“except: strategic minerals such as uranium, coal, petroleum, and other fossil fuels, mineral oils, and all sources of potential energy; lakes, rivers, and lagoons; and national reserves and marine parks, as well as forest and watershed reservations.”

Wala ng itinira was one reaction to this coup d’grace.

As if this was not enough, Art. XIII, Sec. 2, Par, 2, provides that: “… when the natural resources are located within the ancestral domain, the permit, license, franchise or concession, shall be approved by the Regional Assembly after consultation with the cultural community concerned.”

The approval by the Assembly is just fine, but the word “consultation” has no fixed meaning in Philippine political life. It got into the 1987 Constitution in reaction to the negative experience during the dictatorial regime of President Marcos.

But if we are to judge the public consultations conducted by the members of the RCC-MM, it can mean any one of several things except: “the will of the majority of those consulted is binding.”

One can understand the insistence of the central government to exercise direct control over strategic minerals and similar resources, but other forms of arrangement by which indigenous communities can somehow benefit could have been provided for.

Through shares of equity or profit, for example.

Both the Senate and the House of Representatives may not be aware of it, but they have just hit the Lumad where it hurts most. It is like crippling them first, then providing them with all the technical assistance for participation in a marathon.

Not only have the poor Lumads failed to obtain a seat in the Legislative Assembly of the Autonomous Government, they also might miss membership in the regional cabinet because such is contingent on the mood of the Regional Governor.

But the most serious reason why they are the biggest loser in the Autonomous region is the State assertion of proprietary right over strategic natural resources within areas of ancestral domain.

Because of this we may conclude in their behalf: no amount of recognition and protection and propagation and enrichment of their indigenous culture shall have any meaning unless their ancestral domain is left intact.

The milieu of indigenous culture is precisely the area of ancestral domain.

The Autonomous Government is merely the bigger structure which will provide umbrella protection to areas of ancestral domain.

Some Observations and Conclusions

Was the multilateral or constitutional approach towards solution of the Bangsamoro Problem a success? It may be too soon to judge; the regional autonomy in Muslim Mindanao has not had time to prove itself. But we can certainly learn some lessons from the process.

First, it was a breakthrough in social conflict resolution, one that illustrates a complete cycle of “from the people to the people,” one that demonstrates an active interaction between government and people.

There was close interaction between government and people in the way the RCC-MM Commissioners were chosen; there was another round of interaction with the Commissioners conducted public consultations; a refine process took place among the Commissioners, between the Commissioners and responsible Congressional Committees, and in the Congressional deliberations, then after the President affixed her signature the organic act was passed back to the people for final judgment in a plebiscite.

There were kinks along the way but these did not nullify and positive gains of the entire process.

Second. some fundamental weaknesses point to the Constitution as the controlling factor. It was not clear on for whom is autonomy, or which part of Mindanao the autonomy is going to be in, and the contradiction in the provisions on ancestral domain is too fundamental to be resolved to the satisfaction of the indigenous communities. A constitutional amendment is certainly in order here.

Third, finally, the public consultations and other public forums on the organic act prior to the plebiscite have brought to the surface popular prejudices and perceptions among Muslims, Lumad and Christians which concerned educators and church leaders cannot help but respond to positively.

If these mutual perceptions were properly quantified, they can actually be used as take off points for dialogues and workshop-seminars organized for the purpose of transforming the social atmosphere into something more harmonious and healthier to all concerned.

One last question: was this an implementation of the Tripoli Agreement? No, not in any way. It was a bilateral agreement and implementation ought to be bilateral. That is why, in the time of President Fidel Ramos, his decisive move was to resume the peace negotiation with the MNLF. Which brings us to another chapter of trying to solve a very complex problem.

Was the RCC-MM and ARMM a success? Better to speak of lessons, and move forward from there, to Final Peace Agreement and, later the BARMM. (MindaViews is the opinion section of MindaNews. A peace specialist, Rudy Buhay Rodil is an active Mindanao historian and peace advocate)