HB 5343: Imperfect but a step towards Cordillera quest for autonomy

Regional autonomy is an expression of IP’s rights to self determination. One can’t have the former without recognizing the latter. If left unchecked, we risk our fellow IP’s in the Cordillera to once again endure the centuries long injustices bestowed upon them.

For centuries, blood, sweat and tears of our martyrs nourished the soil in Cordillera. They sacrificed their lives warding off imminent subjugation from colonizers. As a result, our customary political and social system structure are still alive, relevant and being practiced to this day.

One need not go beyond the borders of Cordillera and see how rich and genuine our customary practices are. But like any other achievement, this landmark which the Cordillerans have fought so hard to attain, was met with ridicule, disparagement and racial vilification from no less than our bureaucracy itself. Even now in a democratic society, our fellow IPs specifically Cordillerans are still marginalized.

We struggled and fought for this to be rectified. Provisions enshrined in our Constitution giving us privilege for regional autonomy are the fruits that sprouted from the blood, sweat and tears nourished soil of Cordillera. Said fruits are now ripe and ready to be harvested.

Macliing Dulag reenactment. IP Youth, through a street theatre performance, relives the assassination of Ama Macliing Dulag. A tribal leader of Kalinga who led the opposition against the World Bank Funded Chico Dams during the Marcos dictatorship that would've submerged parts of Bontoc and Kalinga displacing thousands of IPs away from their ancestral lands. This was the time when IPs are branded by the late Dictator as the sacrificial lambs for our country's development. 

With the crafting of House Bill 5343, a tool intended to reap the fruits of our struggles for the realization of an autonomous region of Cordillera, we are now nearing the end of our arduous journey. The aroma from a bountiful harvest seems to build up with each passing day following the certification of the President of the said bill as priority legislation of Congress.

 But amidst our premature celebration, many are still sceptical on the said Bill. In a democratic society, where dissent is encouraged from a sovereign populace, HB 5343 was met with criticism from numerous detractors.

This only shows how thorough and how dyed-in-the-wool Cordillerans are in achieving what’s long due to them -- realization of our right to self -determination through regional autonomy. Cordillerans are perfectionists to say the least and rightfully they should be.  

 Being a concerned Cordilleran, regardless of what views one has, transition from marginalization towards our clamor for self-determination through autonomy has a process which we have to abide with. But we must remain vigilant over the fundamental principles and causes on which we must be unyielding.

Obviously, this is to imply indirectly that HB 5343 our tool towards self- determination, like any other great human forged document, is an imperfect document including our Constitution. But regardless, the road to autonomy is just a small step en route to achieving supposed dignified development.  

A possible Charter change towards federalism may push through in the succeeding years. We need to ask ourselves: What happens if federalism pushes through and Cordillera has yet to assert its privileges as provided for in the in the 1987 Constitution to be autonomous?

Thirty years have passed since the ratification of the 1987 Constitution; will the provisions granting us the choice to be autonomous be enshrined once again in the text of the new Constitution inside the new federal government? Considering that Cordillera is not yet a regular region, will the provinces of the Cordillera return to their original regions?

These questions may be construed as “scare tactics” employed by politicians championing regional autonomy in order to secure a “yes” vote from people. But unfortunate as it may seem, these questions are also realities of law that we need to consider. We don’t want to see ourselves kicking our backs when the opportunity passes and all remedies we should have taken already lapsed. 

The road that the House Bill 5343 will be going through is winding and rough like our national roads in Cordillera. A clear picture of difficulties imposed upon us by underdevelopment. Said document will not be the tool to cure all the centuries-old maladies that plagued Cordillerans. It is, however, a vehicle, carting a large part of our aspirations wherein it is up to us, the concerned and ever vigilant Cordillerans, to steer and navigate through the dangerous and bumpy road of political opportunism and ambition, cynicism and despair, ideological conflict and partisanship.

We have now taken our small step and though nearing, the journey that lies before us still seems as yet to have no end in sight. But it is important that we have already begun. It is equally important that we do not bow down in our struggle until the dream of the ages is realized.

House Bill 5343 has its imperfections which are not insoluble. The Autonomous Region of Cordillera which the bill hopes to erect, should it draw support from the idealistic concerned public and the rest of its citizens, can accomplish many things towards rectifying historical inequities.

Thirty years and two failed plebiscite have already passed; this could be our final chance to resolve the tragic cycle of poverty, conflict and repression that afflicted this beautiful land - a land that is unique and the only one that we will ever have. 

Our fight may have curled our backs to bow down but did not bend our heads. Our fight goes on, and our trophy cannot be more modest than reaping that which has always been rightfully ours.  

Its been a year Manong Kissak; and your stubborn mentees are still at it

It’s been a year since you left us. Yet it seems that you were never gone at all. Law students and development workers still talk about the exploits and your banters everytime we are summoned at Assumption Libraries. There is nothing for you to banter anyway, because for the past year we haven’t flanked any subject yet. But I’m sure you will still pull rabbits off your hat and find ways to tease us on our hardships in law school. Only for you to rub on our faces your words, “ag fieldwork kayo gamin tapno pumasa kayo”.

In our freshmen years, you advised us to erect a wall so that we have something to bash our heads against every morning to maintain sanity. Well Manong Kissak, with the way things that are now, that wall was reduced to rubble. Following your death, our President, the one we campaigned and supported throughout the election period, seated into power. I guess with the consideration of the Pnoy Administration, our thirst for change pushed us and the majority of the Filipino populace to support Duterte’s bid for presidency. However, our hope in Duterte in quenching our thirst for change never came to realization.

To be fair, there were significant deeds which Duterte contributed for our beloved country that the past administrations failed to perform. One notable among others, is when he asked for the resumption of peace talks between the National Democratic Front of the Philippines (NDFP) and the Philippine government (GRP). This was prematurely halted last January only to recommence days after. And while we laud his deed when he appointed people oriented leader in his cabinet, we despise him when he went on and do the same to generals, who by the way smeared blood to communities during tenure as soldiers.

Manong Kisack, our President has erratic mood swings. He often times spit controversial, if not laudable statements in his speeches then retracting the same days after. His mood swings and foul mouth slurs became customary in all of his speeches. It is not Duterte speech if the words “putang ina”, fuck you, bullshit etc. don’t fly our airwaves. And what’s funny is that some people love him for that.

Manong Kissak, we are pleased to inform you that we went out countless times for fieldwork. We managed to squeeze ample amount of time for it, considering our hectic schedules in law school and our respective work. However, few were spent to the rural areas where the oppressed and marginalized communities are situated. Most of those fieldworks were here in the concrete urban city where we are mostly needed.

Though we are required in the rural areas, State security oppression was extended here in the urban during Duterte’s early months of power. Due process of law was mocked when the President launched his war on drugs. Corpses of suspected drug addicts and dealers pile our urban streets. For a moment, the law profession became irrelevant. Prosecution and handing out judgement, functions vested only to the officers of the court, were lodged in the hands of our State security forces and their co-horts.

Remember how we tease you during your birthdays Manong? Your birthday is hard to forget because it is historic. It is a day in which a lot of Filipinos including Westerners wished it would have been stricken out from existence. The 11th of September will always be remembered by the Westerners as the 9/11 attack on the World Trade Center in New York. For the Filipinos, especially the Martial Law victims and its descendants, 9/11 will remember it as the birth of the spawn of Satan. As for us, September 11 will be remembered as your birthday, the day the day when law gods gave Kissak as gift to the IPs of Cordillera.

Ferdinand Marcos, the dictator you share the same birth date with, is now six feet under the ground at the Libingan ng mga Bayani. Yes Manong, the once branded World’s Greatest Thief and famous human rights violator rests at the Libgingan ng mga Bayani. Thanks to the orders of the President. After months of deliberation, a 9-5 vote from the Supreme Court sealed the nail for Macoy’s burial. They did it so via ‘black ops’ style in broad daylight. They flew Macoy’s remains via helicopter over the disgruntled Filipino people hoping to prevent the said burial. It worked unfortunately; Macoy was buried without the people knowing. Later, it sparked a series of protest.

Maybe you are wondering; where were we when all of this happened? The event took place during the Bar month of November and we we were at the gates of University of Sto Tomas (UST) in solidarity with the National Union of People’s Lawyers (NUPL) ‘black to block’ campaign against the burial of Macoy and the return of the Marcos’ to power. Me and Karl even had a quick chat with our idol Bayan Muna Representative, Atty. Carlos Zarate while Jerry along with other Law Student comrades beat the gong along Espana Blvd. Our Dean and FLAG Chairman, Atty. Pablito Sanidad, Sr. also participated on the said campaign. Dean Sanidad even requested students to wear black during the Bar Operations in solidarity with the ‘black to block’ campaign; simple gesture reiterating that the ‘Solid North Norm’ is a myth.

With now Marcos six feet under the ground, people weep in not mourning but in disgust. Contrary to the claims of common Millennials that Macoy’s burial at the Libingan ng mga Bayani would espouse national closure.

Justice remains elusive to the victims of Martial Law, and to add salt to injury, like they haven’t suffered enough, a new dictator emerges. The very evil that they struggled and fought to contain locked inside a cage using a padlock which is our Constitution has somehow picked its lock, and now threatens to haunt them once again.

Manong Kissak, our Preisident Duterte ascended as a dictator.

I admit that we campaigned for him. But like any prudent man would do, one must stick to his principles and not to be blinded to the person who championed the former’s wants for the latter’s self benefit. Frankly, we felt that we were used Manong.

Duterte declared Martial Law for the entire Mindanao following the Maute siege in Marawi. He even went on public and announced that he might declare Martial Law beyond Mindanao and that he would extend it here in the north, if not nationwide. Insultingly enough he went on and announced that his soldiers can rape under Martial Law. He claimed that his Martial Law will be much harsh compared to Macoy’s. Imagine that Manong, the fear in the eyes of our Martial Law survivors coming back to haunt them upon hearing these words from Duterte. If indeed he’s keen in protecting our sovereignty against invasion, then why not declare Martial Law on Sabah or any of our disputed territory like Scarborough.

A month after the declaration, the city of Marawi was leveled to the ground leaving hundreds lost lives coming from both sides leaving thousands of Moro’s displaced. Deaths include friendly fire and civilian casualties caused by their so-called surgical bombings. Surgical bombing Manong Kissak to our own analogy is a trial and error method wherein armed forces will drop bombs in residential area with the hopes that it will hit its mark.

Manong Kissak, it is with heavy heart that we will inform you that our bureaucracy is slowly being militarized with the recent appointments of army generals to Duterte’s cabinet. And like that of Macoy’s Martial Law, there is also an indirect control with curtailment to information being dished out to the concerned and worried Filipino populace. News and information gets fabricated by the government itself. Journalists and various media outfits get harassed and labeled, if not put under duress in our social media by no less than the paid trolls plaguing the web.

But there is hope Manong! In the recently concluded Bar examinations, it yielded more than a thousand new breed of lawyers. Passing rate was 56.6%, the highest in history. This sudden spike of number of passers is what we theorized as the implied response of the Judiciary to the looming abuse of power being employed by the Executive. We can hear our Judiciary shouting “We need more lawyers! Lawyers to defend humans, dignity, rights and candid to humane justice system. We need Human Rights Lawyers!”

We are pleased to inform you Manong, that three of our brothers in Assumption Libraries passed the Bar. Jerry was elected as UB School of Law Vice Governor, while yours truly fell short during the election. But hey, with our growing number, the Paralegal Volunteers Organization (PVO), an institute of law students in Baguio where you once spearheaded, will breathe life again. We are lucky that we are being mentored by battle tested cerebral professors all products of PVO just like you Manong.

A year may have already passed since your demise. Yet, we still look up to you for guidance. The road going to the pantheon of great lawyers is difficult and dangerous. But with the path which you already have paved for us, hurdling these challenges will be forgiving. Though you’re not around already, your teachings and wisdom shall serve as our guiding light navigating inside the torturous tunnel of law school while helping others who are in need along the way until the very end.

IP champion Justice Leonen and the oppressive mining act of 1995

Allow me to share a piece of my reaction paper under our Human Rights Law class regarding the visit of Supreme Court Associate Justice Marvic Leonen to our university which I believe brought a new level of legal consciousness among the students of law attendees.

“Salus pupoli est suprema lex” – The welfare of the people is the supreme law.

In the landmark case of the Labugal B’laan, where then Atty. Marvic Leonen was legal counsel and as one of the petitioners, represented these indigenous peoples of the south (Mindanao) against the multi-national Western Mining Corporation Philippines Inc. (WMCP), that entered into a Financial and Technical Assistance Agreement with the Philippine Government.

WMCP is owned by WMC Resource International Pty., Ltd. (WMC), a wholly owned subsidiary of Western Mining Corporation Holdings Limited, a major Australian mining and exploration company.

WMCP displaced hundreds of indigenous peoples from their dwellings and means of livelihood in the south. It also extracted and exploited natural resources from the bowels of the indigenous peoples’ domain. This exploitation which our mining laws describes as a development project scored numerous cases of human rights violations against the indigenous peoples from the militarization at the entry of the WMCP.

Using our very own Armed Forces of the Philippines (AFP), WMCP suppressed the rights of indigenous peoples to forward foreign interests. Quite ironic because our AFP, vowed to protect the interests of the people are now used as guard dogs to protect the foreign owned Mining Company against the people. As mandated by our law, they must protect and serve the Filipino. You need not be a rocket scientist or need to finish law school to see that this is an atrocity against our indigenous peoples it is wrong.

Here now enters then Atty. Marvic Leonen, he as a private practicing lawyer petitioned and challenged the constitutionality of the RA 7942 otherwise known as the Mining Act of 1995. This Mining Act of 1995 gave foreign companies, which in this case, the WMCP, the full power and discretion to extract and exploit natural resources within the bowels of the indigenous peoples’ domain in Cotabato through the Financial and Technical Assistance Agreement (FTAA) with the Philippine Government.

Leonen with other petitioners asserted the supremacy of our 1987 Constitution under Section 2, Article XII of the constitution over the provisions of Mining Act of 1995. Leonen stressed in their petition that,the Mining Act of 1995 must be in consonance with the text of Section 2, Article XII of the Constitution. FTAA’s should be limited to ‘technical or financial’ assistance only. It should be observed however, that, contrary to the language of the Constitution, the WMCP’s FTAA allows WMCP, a to extend more than mere ‘financial or technical’ assistance of the State, for it permits WMCP to manage and operate every aspect of the mining activity.

WMCP, countered the argument saying that word technical in the fourth paragraph of Section 2 encompasses a broad number of possible services, perhaps, scientific and technological in basis. According to WMCP, ‘technical or financial’ assistance mentioned in the law extends and would include the area of ‘management or other forms of operations’ as it was originally stated in the 1973 Constitution.

The Supreme Court was not convinced then. In fact, it smashed the WMCP’s argument. The phrase ‘management or other forms of assistance’ in the 1973 Constitution was deleted in our 1987 Constitution, which allows only ‘technical or financial’ assistance. Casus omisus pro ommiso habendus est law principle was highlighted by our high court meaning ‘A person, object or thing omitted from an enumeration must be held to have been omitted intentionally’.

Clearly, the phrase which WMCP tries to argue was intentionally omitted by the framers of our constitution to avoid 100 percent foreign ownership of mining company. Management or operation of mining activities by foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987 Constitution sought to eradicate.

This was a classic case of ‘sintido komon’ and it did not need Einstein’s brain to interpret the sole intent of the framers of the constitution as to why they omitted ‘management or other forms of assistance’. The Supreme Court then struck Mining Act of 1995 unconstitutional further stating that the framers of the 1987 Constitution is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. Also, the courts are not to give words a meaning that would lead to absurd or unreasonable consequences and a literal interpretation is to be rejected if it would be unjust or lead to absurd results. Again, ‘sintido komon’.

Leonen together with his fellow petitioners won the case. Large scale mining companies scattered and operating all over the country through FTAA then were in a panic upon knowing the Supreme Court’s decision. The decision was expected to fall into Jurisprudence which will form a part of our Philippine laws. Other mining companies operating within Philippine territory under the power of FTAA would be forced to cease all operations. In this momentous event, Leonen, the petitioners together with the indigenous communities nationwide rejoiced.

However the victory was short lived, days after the decision an intervention by the Chamber of Mines was executed before our high court. They submitted a new argument asserting the constitutionality of Mining Act of 1995. And months after, in an en banc decision, the Supreme Court reversed its decision stating the Mining Act of 1995 as constitutional.

In the lengthy appeal, the supreme justices debated on their previous decision. If in the first decision they used the ‘Verba Legis’ principle of law, in which they interpreted the words literally, here in the second decision, they went deep down and created new definition of some selected words, like the words involving and either of the phrase ‘Agreements Involving Either Technical or Financial Assistance’ that is contained in paragraph 4 of section 2 of Article XII of the 1987 Constitution. In fact if you read the lengthy case, you would laugh because they had an English language debate during their oral arguments. They even went on to unearth oral discussions from the framers of the 1987 Constitution during the Constitutional Commission (ConCom). Their new interpretation of the words involving and either led to the reversal of their decision from unconstitutional to constitutional. And that ladies and gentlemen is what they call magic.

Clearly, the second decision is tinted with the Filipino saying ‘Kung ayaw may dahilan, kung gusto ay maraming paraan’. I’ll bet a lot of students of law after reading the case were scratching their heads saying ‘how the fuck did that happen’. This case is one of many cases, in my opinion, contrary to the intent and wisdom of our laws. Drafters of the 1987 Constitution might be rolling inside their graves upon knowing that their intent was not carried out in the December decision of Labugal B’laan case.

As of today, there is one pending case in our Supreme Court, again challenging the constitutionality of certain provisions of the Mining Act of 1995. Interestingly enough, then Atty, Marvic Leonen one of the petitioner of the Labugal B’laan case is now the Associate Justice of the Supreme Court. Also in the list is Chief Justice Sereno who’s also known as a champion of Indigenous Peoples’ rights. Her research work during her private practice speaks for itself. Notably her research work ‘The interface between national and Kalinga land law’ which was enshrined in our Philippine Law Journals later served as the bible for lawyers on land law conflicts here in the north.

Supreme Court recently had their oral arguments on the matter during their summer sessions here in Baguio. Will this pending case answer the Indigenous Peoples’ clamor against development aggression brought about the Mining Act of 1995? Will the two champions, now as our high court’s Associate and Chief Justices finally uphold the intent of our 1987 Constitution as it was envisioned by its framers?

These were the questions I wanted to ask Justice Leonen during his visit to our university. Sadly, too many of my fellows had many questions too during the open forum after his lecture, my question did not make it. Also, understandably the case is still pending and Justice Leonen as the current Associate Justice according to law must embrace the Sub Judice rule.

Be that as it may, my colleagues and I were enlightened by his lecture as to the proper usage of law and the responsibility behind its power. Indeed laws have an overwhelming power but depending on who is wielding it, laws can be use to displace indigenous peoples off their ancestral domains, exploit natural resources inside indigenous peoples’ domains, induce fear and terrorize the people who are taking a stand, militarized communities to use civilians as human shields like what’s currently happening in indigenous communities across the nation.

Laws matter according to Justice Leonen as to the ones who write them, who invokes them, and who gives them the most official interpretation. In other words, the coercive power of the law may alter the condition of parties. It can be a tool for social reform. However, it can also be an instrument to maintain a status quo. How it squares with reality is not pre-ordained by the text of its provisions. Its political, cultural and very human intervention that will determine its impact on our histories tragic story. As students of law we’re already agents tasked to seek justice.

With that, I’ll end this writing with a THANK YOU addressed to Justice Marvic Leonen.