Dean Raul Panganiban is objecting to the proposed Memorandum of Agreement on Ancestral Domain (MoA-AD) between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF) on the following grounds:
1) The 1987 Constitution uses “autonomous region in Muslim Mindanao” (ARMM) while MoA-AD uses the term “Bangsamoro Juridical Entity” (BJE) covering a much larger area. “The term is at best amorphous, at worst evasive.”
2) Muslim Filipinos might be difficult to call as “indigenous people” (IP), unless we classify Islam as an indigenous religion, to be entitled to ancestral domain.
3) By extending ancestral domain claims to maritime zones and creatively adopting the language of the Law of the Sea, it makes the BJE “starting to appear like a state.”
4) Finally, the Constitution lists only nine items that may be devolved to the autonomous region, and says that any powers not delegated are deemed retained by the national government. Among those reserved powers are foreign relations and finance. Contrast that to the powers of the Juridical Entity: “to enter into any economic cooperation and trade relations with foreign countries”; “open trade missions in foreign countries”; the right to “participat[e] in [Philippine official missions and delegations] in international meetings …, e.g. ASEAN meetings and … the United Nations”; and develop its own “financial and banking” institutions. (Verbatim quote)
Panganiban’s conclusion: “the genuine and historic grievances of Muslim Filipinos are being used for the cheap workaday politics of greed and ambition.”
Let me start by appreciating Dean Panganiban’s acknowledgement in his concluding statement of “the genuine and historic grievances of Muslim Filipinos.” I can only hope it’s as sincere a remark as Senator Flavier’s profession of concern during his sponsorship speech of “The Indigenous Peoples Rights Act of 1997” (IPRA).
First, the senator’s brief historical account:
The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the dominance and neglect of government controlled by the majority. Massive migration of their Christian brothers to their homeland shrunk their territory and many of the tribal Filipinos were pushed to the hinterlands. Resisting the intrusion, dispossessed of their ancestral land and with the massive exploitation of their natural resources by the elite among the migrant population, they became marginalized. And the government has been an indispensable party to this insidious conspiracy against the Indigenous Cultural Communities (ICCs). It organized and supported the resettlement of people to their ancestral land, which was massive during the Commonwealth and early years of the Philippine Republic. Pursuant to the Regalian Doctrine first introduced to our system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of lands to migrant homesteaders within the traditional areas of the ICCs.
And now Flavier’s deep and honest trepidation:
The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land long before any central government was established. Their ancestors had territories over which they ruled themselves and related with other tribes. These territories- the land- include people, their dwelling, the mountains, the water, the air, plants, forest and the animals. This is their environment in its totality. Their existence as indigenous peoples is manifested in their own lives through political, economic, socio-cultural and spiritual practices. The IPs culture is the living and irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending on it. Otherwise, IPs shall cease to exist as distinct peoples.
Dean Panganiban is making a sweeping assertion that “the incompatibilities (of the MoA-AD) with the Constitution are legion.” So far, he has only cited four as shown above but such objections appear to encapsulate the key points of opposition to the MoA-AD by various sectors.
Let me respond here to each of those objections.
On objection 1
Will Dean Panganiban drop his first objection, based on the claim of the term being “amorphous” and “evasive” if instead of BJE, ARMM is retained as the appellation for the autonomous region or simply Bangsamoro is used?
Also, the area covered is “expanded” but shouldn’t the negotiating peace panel from either side be deemed to understand that there obviously would be further process such as ironing out an agreement on the final “comprehensive pact”? Such a process is in fact provided in the MoA-AD which implies consultation with their principals (especially on the part of the GRP) so that the negotiated political settlement would fall within the legal framework, e.g., the passage of an enabling law to authorize the expansion, and then the conduct of a plebiscite to approve it.
On objection 2
The 1989 ILO Convention 169 defines indigenous peoples as “peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions” (Article 1(b).
IPRA similarly defines “indigenous people” as follows:
Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples– refer to a group of people or homogeneous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains.
Based on the foregoing, very clearly Moros are also IPs.
On objection 3
The proposed entity, according to Dean Panganiban, is “starting to appear like a state.”
But, is the entity contemplated really a state, a separate or “dismembered” sovereign state, by virtue of MoA-AD?
Is there anything in the MoA-AD that denies GRP the exercise of police power (for instance, to regulate labor relations such as establishing a national minimum wage law) that will be applicable to the proposed entity?
Is there anything in the MoA-AD that states the Bill of Rights will cease to exist in the territory covered such that a law may be passed therein providing the death penalty for women, Muslim or Christian, who don’t cover their heads in public or an edict promulgated converting estates of Christian warlords into Muslim shrines?
Is there anything in the MoA-AD that states the current income tax law will be inoperative in Bangsamoro?
Or are we simply seeing things or phantoms because of our entrenched prejudice, ideological bias and unfounded fears?
On objection 4
Dean Panganiban acknowledges the proposition of lawyer and author Soliman Santos “that constitutional reform is a legitimate enterprise, especially when warring groups talk peace.”
Secession, rebellion, and similar forms of exercise of self-determination are supposed to be direct challenges to the legal order of the existing State. And rebels and secessionists are expected to negotiate outside the constitutional context of that order they are defying. Such expectation includes the ability of the negotiating panel of the other side to go through certain structural reforms that may take into account the adoption of a new constitutional system embracing the negotiated political settlement.
I am not however even going as far as the foregoing constitutional empiricism although such a scheme is both very logical and realistic for the purpose of resolving the current political dilemma, indeed something that courts in our system of government are not supposed to meddle with in the first place or dip their fingers into too early given the limited information usually available to them to have a fuller grasp of the political forces in action. (Arguably, the TRO the SC has issued enjoining the GRP peace panel from signing the MoA-AD in Malaysia has already caused untold embarrassment to the Philippine government before the international community.)
But if the judiciary is daring to get wet in the highly politically charged dynamics of the Mindanao peace process, there are many ways for it to skin the cat so to speak – in terms of judicial “social engineering” within the present constitutional framework – for as long as the will for creative jurisprudence or the sagaciousness to be functional agents of progress (to paraphrase legal realist Dean Pound) obtains. Precedents are not wanting. Besides, constitutional interpretation is after all applied politics. Not too long ago, the SC has reversed itself on the constitutionality of the Mining Law, finding it valid apparently to pave the way for, or to attain the end of, economic development. We will need that same judicial realpolitik to attain peace in the land and render justice to all Filipinos.
In McCullough v. Maryland, to approve the establishment of a national bank (a power not specifically delegated to the national government in the US Constitution), the US Supreme Court has enunciated:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
In Cariño vs. Insular Government, the US Supreme Court during the colonial period essentially relied on the mandate of the due process clause and the broader conception of justice to uphold the “native title” of an Igorot to his ancestral land in Baguio even against a US military reservation.
Peace and justice (even Christian love) are legitimate constitutional ends and are within the scope of our Constitution and in cases of prolonged conflict and bloodshed that have already cost tens of thousands of human lives and displaced a million more, such ends should be allowed to prevail over some pedantic reading of enumerated powers.
Popularity: 1% [?]
Prof. Abe,
Thank you so much from immediately sharing your perspectives on Dean Pangalagan’s objections to the MoA-AD. I hope you can do the same on Justice Isagani Cruz’s views which he wrote about in the Inquirer.
Will shortly post the views on another senior member of your profession po. These I hope will contribute to a reasoned understanding of the controversy at hand, specially in the face of the breakout of fighting in Cotabato. Best regards, po.
Abe,
The more salient thing about IPRA is who are NOT indigenous peoples and why they are not to be considered as such. As you know, this question is not mere word play but a substantive one because of the fact that ancestral lands and domains are said in the Supreme Court decision to be not in the public domain at all but private property of the indigenous peoples.
Since the law enumerates 110 out of the 160 known ethnic groups in the Philippines as “indigenous” the 50 or so others are not indigenous peoples. These happen to be the Tagalogs, Ilocanos, Pampangos, all the Bisayan tribes–all those in other words whose ancestors converted to Catholicism under Spain (but not those who were Christianized by the Americans!).
Yet, is it not a fact that the Muslims themselves are actually mostly converts to Islam? Islam itself has not been here “since time immemorial” as Shariff Kabunsuan, the legendary founder of the Cotabato sultanates himself arrived here only in 1511 (10 years before Magellan).
Whereas, many of those not considered indigenous because they later converted to Catholicism have been round for about 30,000 years, since around the Paleolithic or Stone Age. And that they did so in resistance to the slave-raids annually mounted by the same Moro sultanates.
IPRA is an absurd law. As Cruz v. IPs points out, its Constitutionality will be further tested in real justiciable cases. The MOA-AD is a futile attempt to reverse the irreversible effects of colonialism–both Western and Islamic.
It is plain and simple ethnoreligious apart-hate.
I take it then that in certain matters having to do with extraconstitutional challenges as you have described above, the principle is that the Executive has the prerogative to offer amendments and revisions tou the Constitution in order to resolve such challenges. In short, the concept of ultra vires on the part of the Executive does not apply?
Abe,
Former Senate Pres. Franklin Drilon is quite right that the signing would be a culpable violation of the Constitution. Take a look at the very first line of the MOA-AD, which to me espresses the real essence of its motivation as the establishment of religious apartheid:
IN THE NAME OF GOD, THE BENEFICENT, THE MERCIFUL
These are the very words that MILF/ASG ambushmen were screaming as they sawed off the heads of ten marines last year, and which every suicide bomber utters as they press the trigger that takes them up to a paradise of sexual debauchery.
The fact that the MOA AD does not even mention the Philippine Constitution in its Terms of Reference, as Dean Pangalangan and even Joaquin Bernas noted today, drives home the point that it is a treacherous and unacceptable document that no one ought to seriously believe is about peace.
Much as I join in your enthusiasm for peace to be achieved in Mindanao, we cannot do it by giving up our most unalterable convictions about the need for secular society in which the State does not do things in the name of Relgion, any religion.
It is a misdirection play to bring about chacha.
Whichever one is referred to here, (though one would be utterly disingenuous to deny that it is Malayasia’s preferred deity), it is simply NOT in the name of God that we ought to be pursuing peace–for that would surely lead to war.
Dean,
The Constitution in the following provisions mentions indigenous cultural communities or rights of indigenous cultural communities to their ancestral lands:
1. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. (Art. II, Sec. 22)
2. The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (Sec.5 (2), Art. VI)
3. The State, subject to the provisions of this 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. (Sec. 5, Art. XII)
4. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. (Sec. 6, Art. XIII)
5. The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies. (Sec. 17, Art. XV)
6. The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities. (Sec. 12, Art. 16)
Do you think all the above provisions also refer to the Tagalogs, Ilocanos, Pampangos, Bisayans and their right to their ancestral domains?
Also, until otherwise amended, repealed or annulled, the IPRA remains a law of the land. It does not need the imprimatur of the SC to be so.
cvj,
What I’ve said is that “rebels and secessionists are expected to negotiate outside the constitutional context of that order they are defying” and “such expectation includes the ability of the negotiating panel of the other side (that is, the GRP in the instant case) to go through certain structural reforms that may take into account the adoption of a new constitutional system embracing the negotiated political settlement.”
In other words, in the case of the MILF as regards the MoA-AD, we should take them to understand that the proposed MoA is still basically an interim agreement and conditional upon a final “comprehensive pact” that must pass muster the existing legal framework or otherwise a restructuring of that framework to accommodate the negotiated settlement. But I also said “I’m not however even going as far as” that proposition because even the interim agreement, as it is, is still constitutionally defensible.
DJB,
The MoA-AD provides “The protection of civil rights and religious liberties of individuals underlie the basis of peace and justice of their totality of relationships.”
ABE,
the MOA-AD far exceeds anything written in the Constitution OR the IPRA, as even its proponents admit the need for charter change and new legislation to enable its objectives to be achieved, and even the means by which to attain them. For example, the idea of “barangay level” plebiscites is truly innovative and inconsistent with the manner by which the ARMM itself was formed. Neither talks about a homeland separate from the Republic. Nor can they in any practical sense because there would be 110 lil Indigenostans that would have to be formed out of elementary fairness to each of them. Why? Is it just the Bangsamoro, who after all oppressed enslaved and predatorily treated so many of them that now deserves a new base from which to operate and chant their sultanic verses?
Furthermore, a law like IPRA is certainly not self-executing, as the law itself implies. Bangsamorostan is NOT an implementation of IPRA in any way shape or form because it will result in virtual dismemberment of Mindanao, and become a dangerous locus for political Islam that would benefit no one but Malaysia, and even them, only for a very short while.
i see the whole development as equivalent to the US Civil War, and the parallel of our own southern confederacy with the American South as a clear step backwards into theocracy, and slavery to a “sanctified inequality,” striking.
As I said, it is in form and substance an ethnoreligious apartheid which surrenders to the idea that our differences are so irreconcilable that we must let democracy fail and sink into separation as the only solution.
But it is no solution, for we cannot correct historical injustices with further injustices. We cannot pay the pound of flesh without ourselves bleeding to death.
Regarding the question you pose, I know that IPRA does not consider Tagalogs, Ilocanos, etc, to be indigenous peoples and therefore all their lands are in the public domain. We are second class citiens under IPRA who have no ancestral domains as private property, ONLY because our ancestors became Catholics!
It’s just like racial apartheid, where blacks were second class citizens because their ancestors stayed in the hot sun of Africa and never lost the pigmentation of their dark skin, unlike the European settlers.
What I find ironic is that Islam is just as foreign to all inhabitants of the archipelago as Christianity, once you look past 1511. It has not been here since time immemorial, but only just a few decades longer than Christianity.
It is simply absurd for the IPRA to assert that we are not all indigenous to the archipelago, which ought to belong to all of us as an ancestral homeland, not be partitioned into armed camps based on what God we worship, or not worship as it most obviously does out of a misbegotten Guilt Trip.
Just a thought, using the same frame that the MILF and its cohorts are using, the ancestral domain bogey, I am reminded of Rajas Sulayman and Lakandula of pre-Spanish Manila.
Are we willing to consider the idea of the MILF or some other “non-Filipino” clique whose ‘First Nation’ paradigm will be used to now force the government into ‘ancestral domain negotiations’?
Sir Abe,
Sir Abe,
I agree with your point of view pertaining to Dean Pangalagan’s opposition to MOA-AD. Upon looking into different perspective regarding this MOA-AD. It will only turn the Philippine archipelago towards “Fragmentation”. Dapat ibasura nlang ang MOA-AD na ito, nakiki-isa ako sa pananaw ni Former Senate Pres. Franklin Drilon patungkol sa pagbabasura sa controversial MOA-AD. This is the root of the war in some parts of North Cotabato. Thus, this MOA-AD is unconstitutional,this MOA-AD is nothing hence it will only jeopardize the legitimacy of our constitution.
Fine. The MOA is not unconstitutional.
But does that mean it would benefit us?
So where’s the real politik if it’s all legal and ideological considerations?
Real politik is all about ‘practical’ approaches e.g. martial law, invasion of Sabah (as what planned by Marcos), etc. ‘The end justifies the means’ in case people forgot.
Realpolitik angle I see is a US scheme to have access to the energy resources of Sulu Sea and Liguasan Marsh and the creation of a US foothold in the area that would serve as a check to China and as a springboard to confront the JI.
Which makes me wonder whether the US isn’t making the same mistake it did when it coddled the Taliban before.
The MOA is not unconstitutional. But does that mean it would benefit us? – J
Mindanao is the Philippines’ second largest island. Economic progress in the Philippines will remain uncertain until the conflict in Mindanao is resolved. I see the MoA-AD as a critical initial step toward a lasting peace settlement.
So where’s the realpolitik if it’s all legal and ideological considerations? – Philman
The SC has basically two options in the case before it:
1) Leave President Arroyo alone for now (i.e., dismiss the case on “political question” ground). GMA may be a bad president but she is still our president. If the MoA-Ad had been formally signed, she would have, by analogous application, 30 days to inform Congress (See last par. of Sec.2, Art. XII, Phil. Const.). Let full debate then begin on the substantive aspects of what should form part of the final “comprehensive pact”, e.g., on referencing the Philippine Constitution if it’s absence in MoA is a problem now; or
2) If the SC is really hot, it can play real realpolitik. After all, upon dipping its finger too early in this highly politically nuanced peace process, the Court must now decide whether it is a peace spoiler or a functional agent of progress. A law, a treaty, an executive agreement or a MoA is constitutional if the SC says it is. If the SC declares the MoA-AD constitutional, what would Mar Roxas or DJB do then? Join Sonny Trillanes?
ABE,
Oh I’m really shaking in my boots now that the Supreme Court might declare the MOA-AD constitutional. But it’s just like when they acquiesced to Marcos’s martial law, and recently when they passed on Neri and executive privilege. I will feel superior to them knowing that my mind and and my conscience are in unanimous agreement with the truth as i perceive it and cannot be awed by what is merely political or mediocre. But here is the real politik we are looking for…the judiciary is really on the ropes now with that Sabio case, and the briberies in the Supreme Court itself are about to be blown wide open by a press that rightly feels threatened by the recent decision against jake macasaet. Who are these appointed, unelected Judges that they should have a free pass and be treated with kid gloves, which now may come off? When the high and mighty fall like the walls of jericho and scamper like rats, what will they do then, join Eid kabbalu?
En passant, the fact that the President herself has called for Charter change so as to enable the BJE is a tacit, nay indubitable admission that the MOA-AD’s contents as written, violate the Constitution. CVJ’s earlier question therefore becomes the germane issue: can the Executive agree to such provisions and only post-facto seek to make them lawful?
Ruling in the affirmative would open a pandora’s box to every sort of action beyond the powers of government (ultra vires) that not even Abe might approve of.
Who are these appointed, unelected Judges that they should have a free pass and be treated with kid gloves, which now may come off? – DJB
I’ve actually been hitting the robed sires with bare knuckles. But since they want to be in the ring when they should only be towel boys on the side at this point, we might as well nudge them to aim digging those floating ribs instead of just throwing lazy jabs.
cvj always asks sensible questions. What’s looking more and more embarrassing is that the GRP peace panel may have a very weak mandate to negotiate on the critical “ancestral domain” issue in the first place because 1) GMA has emaciated political capital and 2) the three branches of government appear to have no consensus at all on what to offer to the Moros. For another thing, Puno quickly undercut everybody by issuing those empty ultimatums. GRP seems more like the dysfunctional Democrats trying to wrest control of the White House from the Republicans.
ABE
The question of this MOA AD are the members of GRP who presumed knowledgeable about muslim’s cultures and attitudes in Mindanao.
When the colonizers from Visayas and Luzon arrived in Mindanao, it’s a hinterland. According to my Lolo, a member of colony number 9 group from Cebu with 17 member that before they leave Cebu, they were brief to guard themselves from Moros harassment. They were issued 4 shot guns.
Mindanao is called the “Land of Promise” because it was believed that this place offers opportunities to colonizers. When they arrived in their destination, their excitement turned into frustrations,.. A very thick timber land. The colonizers bravely deforested the areas and immediately planted coconut, rice and bananas that they brought… Moros at that time are contented in fishing and hunting wild animals. No development has been established because all moros establsihed tribal community in the shore lines.
Now that Mindanao is fully developed by the Colonizers, they will claim that it’s their ancestral land?. . . Shame on them !!!
I for one, MOA AD is a wrong error mistake faulty false move of the government. Moros has no personality to claim Mindanao. They are not the first inhabitant of Mindanao. MOA AD is a product of a kinder garden mind…. Mr. Government, you cannot achieved lasting peace by implementing a double, triple or multi standard government. There must only one Law to be enforced and nothing else.
You better abolish ARMM region. Why?. because instead of achieving peace, it create more chaos. The budget of ARMM from the National Government is used to support MILF, Abu Sayyaf, etc…as to food and guns.
Let the role of Law rule Mindanao and nothing else.. Run after those rebel whoever they are. Disenfranchise all armed groups. Arrest and imprison the supporter and coddler of any armed group.. . Kill or Arrest scalawag Generals who make money out of this chaos. . . .
I agree the present move of the military, running against those MILF cowards. Ganyan lang ka simple if the government wanted to achieved real peace.. Hwag na nating asahan ang ating mga pulitikong nag dunong-dunungan, lalo na ang mga oposisyon, kabal-balan lang ang alam katulad nina Pedro Cayetano, Lacson, Roxas, Pangilinan, Pimentel, Ungoy Estrada, Madrigal, Villar at Biazon… MGA WALANG SILBIIIII ….
No amount of negotiation can end the war in Mindanao… Except running after those armed groups without cease.
If the government has recognized MNLF and will recognized MILF, there’s no reason why the government will not recognize Christian armed groups like ILAGA, TADTAD, SAGRADA CORAZON, etc…
Sultan Kudarat story is a myth. He is not a warrior. No evidence that would collaborate that Spahish has reach in that place…. Kudarat is a pirate leader with numerous wives kidnapped from Visayas.
The area that was colonized by Ilonggos is from Polomolok to Tacurong…from Tacurong to Kabakan was colonized by Ilocanos including Kiamba and Maitum. Gensan is colonized by people from tagalog regions.