Critique on the House Bill 4649 (An Act Establishing the Cordillera Autonomous Region)
I. INTRO:
As part of the national minority of the Philippines belonging to the Indigenous
peoples of Cordillera, we the researchers have chosen this topic ‘Critiquing House
Bill 4649 (An Act Establishing the Cordillera Autonomous Region)’ as our research
for the subject in Statutory Construction. Although the researchers study and now
reside here at the lone chartered city of Cordillera, they trace back their roots from the different provinces of Cordillera namely Benguet, Mt. Province and Ifugao. Belonging
the marginalized and underrepresented sector of Indigenous Peoples of Cordillera,
the talk of Cordillera Regional Autonomy has once again filled the region’s air in which stirred our curiosity leading us to this study.
We are not good political analysts, much more as law interpreters, but through the help of some Indigenous Peoples’ Rights advocates together with Indigenous Peoples’ Organizations’ works, we were oriented and able to glimpse at the topic.
II. Regional Autonomy in consonance to the Indigenous Peoples’ right
to Self Determination
First, we would like to focus our paper on the indigenous peoples’ issues on resources
ownership, use and control of the lands and natural resources. And in doing so, we
would like to present the historical development on how the indigenous peoples
were institutionally and systematically deprived of their lands and resources and
if the historical deprivation is corrected under HB 4649, the proposed organic act
for a Cordillera autonomous region.
Centuries ago, [1]during the period of mercantilism at the dawn of capitalism,
two powerful maritime states were emerging: Portugal and Spain. They began to
explore and conquer new territories and with Pope Alexander VI’s[2] intervention
known as the Papal Bull of 1493, agreed to the divide the world: one division
open for colonization by Portugal and the other by Spain. This led to the “discovery”
of the Philippine Islands. Invoking the feudal conquest theory, they declared all
the lands and resources in their “newly-discovered” territories as owned by the
Spanish crown. This theory is now known in the legal circles as the Regalian Doctrine.
Through the [3]Treaty of Paris of 1898, the Regalian Doctrine was adopted by
the next colonial master – the United States of America – with the same motive
as its predecessor. The American regime passed law after law that legally grabbed
vast lands and resources within its newly-acquired Philippine colony. We can
clearly see that most basic laws on land and resources were never neutral. Instead,
they were enacted to further the basic socio-economic interests of the colonial rulers.
The US colonizers imposed their own concepts of land usage and ownership system
to combine with the Spanish colonial land system. Under the Torrens System, land ownership was proven only through a piece of paper called the Torrens Title or its
derivative. Lands not covered by such paper titles were automatically deemed part
of the public domain, hence, owned by the state.
This colonial land system continued even after the so-called Philippine
“independence” from the USA. All the succeeding Philippine Constitutions – the
1935, 1973, and 1987 contained the Regalian Doctrine.
Presently, under [4]Section 2, Article XII of the 1987 Constitution it states: “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.” This is the Regalian Doctrine
provision, a legacy of the colonial past.
Still reiterating the doctrine, the constitution added: the public domains are classified
into agricultural, forest or timber, mineral lands, and national parks and reservations.
Only agricultural lands are alienable and disposable, where state grant title through
its defined processes. Forest or timber, mineral lands, and national parks and
reservations are inalienable and disposable, or cannot be owned by an individual.
And as the owner, the state can lease these so called inalienable and indisposable
lands of the public domain. Several cases decided by the Supreme Court, otherwise
known as Philippine jurisprudence and form part of the law of the land, supported
the above concept.
In the latest case of [5]Gordula vs. CA, January 22, 1998, the Supreme Court ruled:
“Once again, we reiterate the rule enunciated by this Court in Director of [6]
Forestry vs. Munoz and consistently adhered in a long line of cases the more recent
of which is [7]Republic vs. CA, that forests land or forest reserves are incapable of
private appropriation, and possession thereof, however long, cannot convert them
into private properties.” This ruling is premised on the Regalian Doctrine enshrined
in the past Constitutions and the present 1987 constitution. And as the final arbiter
of any legal controversy, the Supreme Court clears doubt, that until now, we are still
under the aegis of the Regalian Doctrine.
As mentioned above, various laws were passed to strengthen the hold on the Regalian Doctrine. This paper wants to point out these state laws on resources that actually
institutionalize non-recognition of indigenous peoples’ resources ownership and
utilization.
First law, the [8]1975 Presidential Decree 705 or the Forestry Reform Code of the Philippines. It declares that no land of the public domain 18 % in slope and over
(or 10.2 degrees in slope or over) shall be classified as alienable and disposable,
as such is categorized as forest land. Interesting, too, this law criminalizes indigenous peoples’ since-time immemorial activities, if done without license, like the cutting,
gathering and/or collecting timber or other products; enters and occupies, or makes
kaingin, grazing; pasturing; or occupy for any length of time any portion of the
national park system.
This law disregards the indigenous system of forest use, ownership and management
whether communally or clan-owned like the [9]muyong, batangan, tayan
systems, among others. The Indigenous Peoples’ viewpoint on forests is sustainable
than the state’s viewpoint which is subjected to commercial and profit-oriented;
hence, the state can grant license, permit, or agreement to corporate interests for
the exploitation of the forests.
Second, [10]Republic Act 7586 known as the National Integrated Protected Areas
System (NIPAS) Act of 1992. The law is lauded as it aims to prohibits human
exploitations in the protected areas due to their physical and biological diversity.
While we (the Cordillerans) appreciate the intention of the law to protect the areas
through the system, it failed however to recognize the rights and roles of Indigenous
Peoples who actually nurtured and cared the area through their sustainable
development practices. Their economic activities are confined outside the protected
areas even if they had been utilizing it in the earlier times. And since these
protected areas are identified by the national level of government, the Indigenous
Peoples systems are disregarded.
Third, [11]PD 1067 or the water code and Energy laws (like PD no. 42 of 1972).
These reiterates the ownership of the state of these water resources which only the
state can grant privileges to corporate interests particularly. Just recently we heard
the application of the Bases Conversion Development Authority (BCDA) for water
rights at the National Water Resource Board. Three main springs of three barangays
within the Camp John Hay reservation were applied by BCDA. And in the case of
Happy Hallow barangay particularly, they were not consulted nor their Free, Prior
and Informed Consent was acquired by BCDA despite the village had already its
Certificate of Ancestral Domain Title (CADT). The BCDA move was done based on
the water code which is an act reiterating the Regalian Doctrine.
Lastly, [12]RA 7942 or the Mining Act of 1995. This is another law that reiterates
the Regalian Doctrine and disregards the rights of Indigenous Peoples’ to their land
and resources. Aside from the vast tracts of land subject for mining and auxiliary
rights like tax holiday, the law provides for the areas open to mining which are all
mineral resources in public or private lands, including timber or forest lands as
defined by existing laws. Even protected areas or reservations can be the subject of
mining as in the case of Mount Pulag where two foreign companies applied for
mining but were both rejected by the communities. Based on NGOs research which
came out at the Philippine Center for Investigative Journalism (PCIJ), Mines and Geosciences Bureau (MGB) head Jasareno explained, reiterating a Supreme Court
decision, that once a mineral land (even in these areas), they will remain as mineral
lands which can be subjected for mining.
In the Cordillera where too much minerals are located underground, more conflicts
happen due to rights of surface and sub-surface stakeholders. In conflicts involving
surface and sub-subsurface rights, the Supreme Court in the case of the [13]Atok Big
Wedge Mining vs. CA (160 SCRA 228, 1988) ruled that the issue be resolved as to
the classification of the area subject of the dispute. If it is a dominant mining area,
then the rights should be ruled in favor of the mining claim of a mining institution.
This is a concrete case: a title does not secure the holder from their lands and
resources in their lands are owned by the state.
With the advent of the RA 8371 or the Indigenous Peoples Rights Act of 1997, did
it correct the non-recognition of the rights of IPs over their land and resources?
Briefly, the [14]IPRA grants to IPs rights over their ancestral lands and domains,
and natural resources. As to ownership of resources, the following IPRA provisions:
Rights of ownership and possession to their ancestral domains, which include
right of ownership over lands, bodies of water traditionally and actually occupied by
the ICCs/IPs, sacred places, traditional hunting and fishing grounds….; right to
develop lands and natural resources….. (Section 7);
· Priority rights in the harvesting, extraction, development or exploitation of any
natural resources within the ancestral domain. (Section 57)
On September 25, 1988, the constitutionality of the IPRA was raised with the main
question: That the IPRA provisions on ancestral lands and domains (specifically
Section 3 (a) and (b), Sections 5 to 8, and Sections 57 to 58) are unconstitutional,
insofar as they conflict with the Regalian Doctrine on the ownership of lands of the
public domain and natural resources.
On December 6, 2000, [15]the SC came out with an en banc resolution where the
14 SC were equally divided on IPRA’s constitutionality, with a 7-7 vote. According
to the Rules on Civil Procedure, Section 7, Rule 56), in a case where SC members
are equally divided and neither side has the majority, the case will be re-deliberated;
if the vote remains the same after the deliberation, the Petition is dismissed.
On September 18, 2001, the SC issued a Resolution stating that the Justices who
deliberated on the original petition find no reason to change their views on the
questions raised by the petitioners, and thus maintain their votes as stated in the
resolution of December 6, 2000. The result was an exact repeat of the previous SC
decision – a 7 – 7 vote – that in effect denied the petitioner’s motion for
reconsideration and the law by technicality became constitutional (Cruz vs. NCIP,
G.R. No. 135385 December 6, 2000).
But the common point in the SC justices’ opinions, though, is their unanimous
position that the constitution prohibits the private ownership of natural resources
within the ancestral domains as the indigenous peoples have the preferential or
priority rights as to exploitation.
Since both resolutions failed to introduce new doctrine on State policy on land and
resources, such policy remains governed by the Regalian Doctrine.
The above state policies and programs on land and resources which perpetuated
injustices to indigenous peoples must be rectified through the substance of that
Organic Act for Autonomous Cordillera Region.
And we want to relate this with the proposed Bill for a Cordillera Autonomous
Region. Does the proposed bill (HB 4649) recognize the indigenous peoples’ ownership and control of their land and resources?
[16]Under its Declaration of Principles and Policies in Art II, Sections 9 paragraphs
(b) and (c) and Art VIII, Sections 95 and 96, the bill reiterates national policy on
preferential rights for indigenous peoples and providing limits on investments on
these resources; almost the same policies contained by the statutes we mentioned
above. The whole proposed bill failed to correct the state national policies on land
and resources which are anti-indigenous peoples. As a basic law, first and foremost,
the ownership and control of resources should be subjected to the rights of the
Indigenous Peoples under the context of their right to self-determination. In fact,
even the shares of the region from the wealth taxes reflect the system of begging
from the national government. We own the resources, why should be entitled for
fourty-percent share of the national wealth tax while the national government will
have the big piece of the pie of 60-percent.
As to the queries if we really have bases for to go against the established Regalian
Doctrine of the Constitution and to call for the full recognition of the IPs rights to own, control and manage their land and resources? The answer is a resounding YES!
And we can start utilizing provisions of the constitution and international laws in
advancing indigenous peoples rights to own and control their land and resources.
· [17]Section 2, Art XII states: “The state, subject to the provisions of this constitution
and national development policies and programs, shall protect the rights of ICCs to
their ancestral land to ensure their economic, social and cultural well-being.”;
· Section 5, Art XII states: “The Congress may provide for the applicability of the
customary law governing property rights or relations in determining the ownership
and extent of ancestral domain.”; and,
· Section 22, Art II which states: “The state recognizes and promotes the rights of
ICCs within the framework of national unity and development.”
By the abovementioned provisions, Congress can, in fact, adopt a legislation that
would truly recognize the indigenous peoples’ rights to own, utilize and manage
their land and resources. Like the other provisions of the Constitution (except Art
III or the Bill of Rights which is self-executory), these need any legislation from
Congress for the realizations of indigenous peoples’ rights, including the rights of
IPs to own and utilize their land and resources.
Also, the 1987 Constitution’s incorporation clause states that the generally accepted principles of international law forms part of the law of the land can also be utilized
for the advancement of indigenous peoples’ rights. Hence, we can use the Universal Declaration on Human Rights, International Covenant on Civil and Political Rights
and International Covenant on Economics, Social and Cultural Rights that recognized
the right to self-determination. The United Nations Declaration on the Rights of
Indigenous Peoples (DRIP) is a more comprehensive instrument that shall be invoked
for the advancement of the rights of indigenous peoples.
Clearly then, we have these instruments for the indigenous peoples rights and which
can be utilized to correct the historical injustices against indigenous peoples. In fact
at the international level, there is now a strong move for decolonization, in all its
aspects, to correct the vestiges of colonial injustices left by imperialism in their
former colonies. It is timely, to call and advance indigenous peoples’ rights to prevail
over these vestiges of colonialism, like the Regalian Doctrine, which continuously perpetuates injustices to indigenous peoples.
Still on the proposed autonomy bill, the Baguio issues by the indigenous Ibalois are not addressed as it in fact proposed to maintain the American-introduced Baguio City 1909 charter as contained under Section 42, Art III-B. This reiterates the IPRA Special Provision (Section 78, RA 8371) which states that Baguio shall remain governed by its charter, and all lands proclaimed as part of its town site reservation shall remain as such until otherwise reclassified by appropriate legislation. The autonomy law could have corrected such injustices but instead reiterated this colonial inspired Baguio City charter. In fact they could have utilized to institute the Carino vs. Insular Government – a doctrine recognized internationally but there was none in the proposed autonomy bill.
With that, going back with the indigenous peoples’ right to self-determination; [18]
Self-determination refers to the right of indigenous peoples to freely determine
their political status and freely pursue their economic, social and cultural
development. One of the expressions of the right to self-determination is regional
autonomy. For the substance and the processes in coming out with the proposed
autonomy law, truly it disregarded the principles enshrined on the right to self-determination. And the [19]Indigenous Peoples have the rights to self-determination
and other human rights, it seems their realizations would not be granted by the state
in a silver platter. It can be achieved through the collective effort from the Cordillerans, the people, as one united in aspirations for a true Cordillera autonomy. Again in an
autonomy law for the region, it must address the historical injustices, particularly
on indigenous peoples’ ownership of their land and resources, and their participation
in crafting of a law that truly would reflect their interests as people that have suffered historical injustice.
III. Critique on the HB 4649 (salient points based on the critique presented during the Summit on Genuine Regional Autonomy)
1. On Autonomous Region, Territory and its Citizens (Article I-VII)
In Article XVI, section 161 (b) of HB 4649 states “Any two or more provinces and/or
cities voting favorably for this Organic Act in the plebiscite shall compromise the
Cordillera Autonomous Region while those voting unfavorably for this Organic Act
in the plebiscite shall revert to its mother region prior to the establishment of the
Cordillera Administrative Region”. Thus, HB 4649 blatantly encourages the
sub-division of the peoples' votes into six separate provinces.
More so, this is being supported by Article I, section 2 and Article III, section 24.
Clearly, this is a form of intimidation to strike fear of disunity among the Cordillera
people and only to resort to voting ‘Yes’ to HB 4649.
In the concept of the rights to self determination, it is wrong to threaten the
Cordillerans into voting in favor of HB 4649. It is the right of the Cordillerans,
or any Filipino, to reject any wrong or iniquitous offers being offered to them
candidly and without any fear.
Moreover, HB 4649 under section 161 (B), section 2, and section 24 aims to break
the unity of the Cordillerans in their ‘territorial integrity’ as a one region. Implications
are that they want to dissolve Cordillera as the ‘historical homeland’ of the
indigenous peoples of region.
As one of the national minorities, Cordillera has the least numbers should it be
divided into different regions again will only constitute further minoritization and marginalization of the Cordillera Indigenous Peoples.
2. On patrimony, economy and development (Article VII)
Under the HB 4649, there were no remarks on the stopping destructive capitalist
projects and programs that furthers destruction of natural resources and displaces
the IPs from their ancestral lands.
Moreover, HB 4649 didn’t mention anything to revoke the ‘Regalian Doctrine’
which served as the root to countless land grabbing and tagged the IPs as squatters
in their own ancestral territory.
Instead of securing all natural resources for utilization and for the development
of the region, the word ‘consultation’ was the word used instead of the rightful term
which is ‘Free Prior and Informed Consent’ (FPIC) in managing their resources.
This is evident in section 95 “The exploration, development, utilization, management
and enjoyment of the region’s natural resources shall be under the control and
supervision of the Regional Governor upon consultation with the affected
communities subject to the provisions of RA 8371…”
Hence, what's the sense having an autonomous region if it doesn’t have the power
to correct the oppressive laws that bestowed years of abuse upon the IPs of the region?
3. On funds and taxes (Article IX)
The primary interest of politicians to push for HB 4649 is to take control and own
the huge funds and power of the region. For instance in section 167, it states
“Over and above that regularly given to Local Government Units and regional
agencies, the national government shall continue its annual allotment to the Regional Government.
In addition, the national government shall provide the Cordillera Autonomous
Region an annual assistance of Php10, 000,000,000.00 (ten billion) for the first
five years and Php 5,000,000,000.00 (five billion) pesos the next five years…” And,
in section 170, paragraph 2 it reads “the sum on Php 125,000,000.00
(one hundred twenty five million) is hereby appropriated…”
Aside from those mentioned funds to be allotted by the national government to the
LGUs and regional line agencies, under the HB 4649 are demands for additional
funds through the ‘share of the national taxes’ as stated in section 103 to section
108. Foreign loans play a huge role as funding as stated in section 109 and 110.
Basing on years of experience, foreign loans will only give power to foreign and
private investors in entering Cordillera to exploit resources. Worst, government
will lose power to collect taxes from private and foreign investors.
More so, in section 16 (a) states “provide incentives to investors, corporations and businesses…” Noticeably, even in imposing tax on investors as supposed addition
to our funds, it will be lessened instead because of these ‘incentive or exemptions’.
Regardless of of HB 4649, it is the responsibility and duty of the government to
secure and allot funds for basic social services for the IPs in which they rightly
deserve due to the hundreds of years of state abandonment and inequality.
4. On agriculture, agrarian reform, trade and industry, tourism and cooperatives (Article X)
In the Cordillera, unlike in the lowlands, the landlord is the state itself by the
provisions of the ‘Regalian Doctrine’ and other oppressive laws. In HB 4659,
comprehensive programs for land reform and urban reform were never mentioned.
Instead, it cited the Philippine constitution together with all the oppressive laws
which is the main hindrance for implementing a comprehensive land reform program
as stated in section 101 “Subject to ecological considerations, the Regional
Government shall adopt and implement a comprehensive rural agrarian reform
program, as well as an urban development program consistent with the constitution
and national laws and policies to ensure the just and sustainable utilization of land
within its jurisdiction”. The effects, Indigenous Peoples of Cordillera are again
identified as but squatters in their own ‘ili’ through the ‘Regalian Doctrine’ which is institutionalized in our constitution.
Most of the provisions are overflowing with agrarian reforms and industrialization
but concrete steps or plans to answer the ill effects of liberalization, deregulation
and privatization for the IPs in Cordillera were not mentioned. Rather, it only
maintained the status quo of Cordillera’s economy under the imperialist globalization
as export-oriented and import-dependent.
There is no clear industrialization program that would generate labor in HB 4649
and it will only worsen the problem of commercialization and bastardization of IP
culture as stated in section 119 that encourages mega-tourism programs.
5. On social justice, health and welfare (Article XI)
Social justice remains elusive in Cordillera, in HB 4649 the scrapping of the fascist
counter insurgency program ‘Oplan Bayanihan’ which viciously continuous to violate
human rights of the Indigenous Peoples is not mentioned in any of its provisions.
Commercialization of education will still continue under the HB 4649. Worst, the discriminatory type of education against IP students is not corrected.
6. On peace and order (Article XII)
In connection to social justice, the problems on state terrorism, militarization and
human rights violations were not answered rather it will escalate under HB 4649.
For instance, in section 153 it states “the Regional Governor may request the
President of the Philippines to call upon the Armed Forces of the Philippines: (a) to
prevent lawless, violence, invasion or rebellion when the public safety so requires, in accordance with the provisions of the Constitution. (b) To suppress the danger or
breach of peace in the autonomous region, when the police forces of the autonomous
region are not able to do so. (c) To avert any imminent danger to public order and
security in the autonomous region.”
With that, the Regional Governor is a powerful position that can use section 153 to
oppress and suppress the IPs for its selfish and vested interests. All forms of
legitimate peoples movement and democratic rights of the IPs can be easily tagged
as lawless, violence, imminent danger and rebellion acts to suppress basic human
rights like what happened in ARMM, the infamous Ampatuan Massacre.
That is why regional autonomy should not be rushed, it cannot be simply granted
from above it must be affirmed from the empowered grassroots level, and cannot
merely be structural or mechanical. For it to be considered, it has to be affirmed on a
full and substantial respect for IP's rights to ancestral land and self-determination.
No comments:
Post a Comment