Blogger Dean Jorge Bocobo observes that “a lot of the verbiage on ancestral domain in the MOA-AD comes verbatim” from The Indigenous Peoples Rights Act (IPRA). The MoA-AD is the Memorandum of Agreement between the Government of the Philippines (GRP) and the Moro Islamic Liberation Front on “ancestral domain” the constitutionality of which is currently being challenged before the Supreme Court.

Congress enacted IPRA and the President signed it into a law about a decade ago. When the constitutionality of IPRA had been challenged, seven (7) members of the SC in Cruz v. Sec. of Environment refused to declare the law as unconstitutional. Come to think of it, that’s Congress, the President and seven (7) SC justices sustaining the validity of the IPRA versus only seven (7) justices who thought otherwise.

The bottom line is that IPRA is a law of the land which is presently being implemented to enforce the 1987 Constitution’s mandate for the state to create a policy “to recognize
and promote the rights of indigenous peoples” (as a matter of fact, our town-based group has official dealings with the National Commission on Indigenous People (NCIP), an agency created by IPRA, regarding a project to build core shelters and sanitation facilities for the Aetas in Mt. Iriga).

I have argued (in another post) that the Bangsamoro under the MoA-AD is of lesser entity than the State of Bicol in Senate Joint Resolution 10 (the Pimentel proposal for federalism).

For one thing, whereas the MoA-AD only calls for “entrenching the Bangsamoro homeland as a territorial space” and states that the “relationship between the Central Government and the BJE [Bangsamoro Juridical Entity] shall be associative characterized by shared authority and responsibility,” the senate resolution expressly permits the State of Bicol to secede or dismember itself from the proposed Federal Republic.

On the other hand, the presidential power to conclude peace or contract alliance does not depend upon affirmative grants either in legislation or in the Constitution (as, I think, correctly suggested by Chief Justice Puno, if such a position were in fact accurately reported). It would indeed be treading on constitutional absurdity to entertain a contrary view such that what may be imperatively necessary for peace could not be done by the President under her commander-in-chief powers if she could not find some express or specific authorization to do so.

Matters of war and peace, it must be underscored, are essentially presidential under our present system of government; hence, the exercise by the commander in chief of powers in pursuit of one or the other is for Congress, or the people, and most certainly not for the court, to oversee.

It is almost discomforting to learn then that some of the justices – weeks after the SC issued the TRO (temporary restraining order) and while fighting has been intensifying and hundreds of lives have been lost because of it – were still talking about the President as no more than a law enforcer in the constitutional scheme of things or about applying simple contract principles to “treaty-making” involving rebel groups or sub-state peoples where mutual respect of the personalities of the parties and complete freedom in negotiation ought to be the model to rely on.

Mutual respect in this regard may mean that conflict resolution should proceed upon the recognition that the GRP and the Bangsamoro are two competing ideals in the first place and not where the government insists on state policies and principles as entrenched in the Constitution as the only frame of reference. And by complete freedom in negotiation the parties may reasonably assume that one or the other has at least the ability to deliver on its commitments and not renege on them at will by raising ultra vires as alibi after consent was given.

Joseph Porfirio L. Andaya, Assistant Professor, Department of Political Science, Saint Louis University, Baguio, Philippines, appears to be of similar frame of thought and in fact argues (as regards the ancestral domain claim of the Ibalois of Baguio) -

. . . that the State is itself a social fact and must be, therefore, demystified and denaturalized in order to cut through the singularity paradox (i.e. that the State encompasses its own opposing groups). When indigenous groups dialogue with the State, they do so with a group of people imbued with a culture of “State.” The State can be thought of, by itself, as a cultural entity with its own philosophy about itself and the world. It, nonetheless, possesses the infrastructure to take its declared truths, among this the claim that it is a collective representation of all groups in the polity, and apply them hegemonically.

The resolution of indigenous and State claims over national resources – including land – is to be done through the recognition that the state and an ethnic group constitute TWO cultures with oftentimes contrary and opposing philosophies about each other and the world. What is needed is mutual recognition of this cultural gap and an intercultural dialogue to bridge it. However, such intercultural dialogue is one which pits a subaltern culture against a dominant hegemonic one.

“The answer,” according to Prof. Andaya, “is the creation of a public sphere of communicative action where both entities recognize each other as distinct cultural entities.”

The SC has the first option in the MoA-AD case before it to defer to the powers of the President as commander in chief (i.e., dismiss the matter on “political question” ground). Should it decide to take cognizance of the case, the all-Christian court may either proceed to pick up from the rationale of IPRA or otherwise find some “invisible radiation” (to borrow from Justice Holmes) from the Constitution to work out the paradigm of “communicative action” where free exchange can take place under the absence of domination. In the latter instance, the court, which has shown its activism before, may rely upon the due process clause or simply the general principles of justice to recognize the human rights of the Bangsamoro people.

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