Ambassador Jaime S. Bautista, Doctor of Laws

jaime@jaimesbautista.com

On Education and the Exclusive Powers of the Bangsamoro

The Philippine Ambassadors’ Foundation Inc.  (PAFI) supports the objectives of the draft Bangsamoro Basic Law (BBL) of promoting peace and development in Southern Philippines.  These goals cannot be achieved without national reconciliation and evidently, a key to achieving harmony and unity is education.

The heart of the draft BBL is found in its Article V on Powers of Government (including Education) which treats them under  three categories.  The first category refers to the Reserved Powers, which the BBL defines as those matters over which jurisdiction is retained by the National Government and which the BBL then proceeds to list as nine Powers.  This formulation provokes the question whether this list is exhaustive.  Such

provides that the National Government retains all the powers not devolved to the local governments.  Congress should therefore insert a statement that this list is not exhaustive, also because the concept of Reserved Powers envisions an indefinite list.

The other Powers of Government are divided into 2) Concurrent powers defined as those shared between the Central government and the Bangsamoro government; and 3) Exclusive Powers or matters over which jurisdiction shall pertain to the Bangsamoro government, including Education.

The Exclusive Powers given to the Bangsamoro also provokes controversy.  Under the Constitution, Education is one of the nine legislative powers to be devolved to the autonomous regions by their organic act.  But it is doubtful that the Bangsmoro can have exclusive legislative powers on these matters, particularly with respect to Education. The Constitution expressly provides in its Article X that the devolution of these legislative powers to the autonomous regions is subject to the provisions of the Constitution and national laws. 

Accordingly, the Constitution has vested the legislative powers in the Congress of the Philippines and has given Congress the responsibility of giving life to certain provisions of the Constitution.  Among them is Article XIV of the Constitution on Education, Etc. which provides, inter alia, the following:

“Section 3:  (1) All educational institutions shall include the study of the Constitution as part of the Curricula;

(2)  They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship …”

Enacting the laws to activate these provisions of the Constitution on education should go a long way to achieving national reconciliation and unity.  On the other hand, it may be noted that the Bangsamoro Basic Law (Article IX on the Right to Education) is silent on the ideals of nationalism and expresses only the needs, ideals and aspirations of the Bangsamoro as may be seen below:

Article IX of Section 13.  Integrated System of Quality Education:  The Bangsamoro Government shall establish, maintain, and support, as a top priority, a complete and integrated system of quality education and adopt an educational framework that is relevant, and responsive to the needs, ideals, and aspirations of the Bangsamoro.   

The experience of Catalonia, whose government leaders now seek independence from Spain, should be instructive on the importance of education on nation building.  Over the past forty years, the youths of Catalonia were instructed in the Catalan language and the glory of Catalonia, prompting the Spanish President, Mariano Rajoy, to remark that the Catalans need to be taught to be not only good Catalans but also good Spaniards.    

The Bangsamoro may exercise exclusive executive powers with respect to many of the laws covered under this category.  In examining the draft BBL bill before passing it to Congress, the Office of the President made sure that the BBL contains the provision that “The President shall exercise general supervision over the Bangsamoro government to ensure laws are faithfully executed. “  The BBL also creates a “Central Government – Bangsamoro Government Intergovernmental Relations Body” to resolve issues on intergovernmental relations.  Unresolved issues shall be elevated to the President through the Chief Minister of the Bangsamoro government.

In contrast, although the BBL provides for the creation of the Philippine Congress – Bangsamoro Parliament Forum, this is only “for the purposes of cooperation and coordination of legislative initiatives.”  There is no corresponding provision in the BBL akin to the President’s that safeguards the supremacy of Congress as the constitutional body vested with legislative power under Article VI although Congress’ legislative powers over the autonomous region is subject to the principle of subsidiarity.  The provisions of BBL on Exclusive Powers have placed Congress in a very awkward and inferior situation vis-a- vis the President’s. 

The task before Congress now is to ensure that it is not seen to abdicate its power, as it cannot, and to ensure that the BBL it passes is rid of constitutional infirmities.  The amendments should include a provision that the exercise of certain legislative powers by the Bangsamoro is subject to the Constitution and national laws as stated in the Constitution.  Moreover, Congress should note that the BBL also suffers from projecting a negative imagery of grievances combined with a total silence for national reconciliation and unity.  The BBL sounds like a call to its inhabitants to be good Bangsamoro and nothing more.  Congress should encourage the two panels defending the draft BBL to include provisions in the BBL that will dispel this impression.

Ambassador Jaime S. Bautista is Secretary General of Philippine Ambassadors” Foundation Inc (PAFI) and Professor of Law at Ateneo de Manila Law School and Philippine Christian University. The views expressed are his and not necessarily PAFI’s.)

Ambassador Jaime S. Bautista, Doctor of Laws

jaime@jaimesbautista.com

OF SCOTS, CATALANS AND BANGSAMORO

The Philippine Ambassadors’ Association Inc. (PAFI) has been consistent in supporting the peace process in Mindanao within the framework of the Philippine Constitution. Accordingly, the peace process should respect the parameters provided by the fundamental law of the land. I also share the view that the peace process should involve consultation on a nation-wide basis because the proposed Bangsamoro Basic Law will affect the lives of all Filipinos. Additionally, the peace process must not contain the seeds of conflict and the destruction of the Philippine Republic but should promote peace, national unity and reconciliation.

Within this context, the national consultation should take into account the historic national setting as well as developments in the international horizon. The Philippine Constitution mandated the creation of an autonomous region in Muslim Mindanao, recognizing the rights of “cultural minorities” within the framework of national unity and development. It does not recognize the creation of another state within the Philippine Republic, which is a unitary state with a presidential form of government. The Constitution provides that “The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.” 

This peace process was preceded by the 1996 Peace Agreement between the Philippine Government and the MNLF, then the main rebel group, leaving out of the negotiations the MILF, a splintered group advocating secession from the Philippines. The Agreement culminated in the passage of Republic Act 9054 also referred to as the ARMM Expanded Organic Law.

A key provision of this law is Section 3 under Article X entitled: “Ancestral Domain, Ancestral Lands, and Agrarian Reform.”  Section 3 provides:

“As used in this Organic Act, the phrase ‘indigenous cultural community’ refers to FILIPINO CITIZENS residing in the autonomous region who are:

a)Tribal peoples.  These are CITIZENS whose social, cultural, and economic conditions distinguish them from other sectors of the NATIONAL community;

and b) Bangsa Moro people.  These are CITIZENS who are believers in Islam and who have retained some or all of their own social, economic, cultural and political institutions.” (Emphasis mine)  

The proposed Bangsamoro Basic Law (BBL) now seeks to change the concept of “Bangsamoro people” from a “cultural community” to providing the Bangsamoro with a separate political identity divorced from their Filipino identity.  This would be the interpretation derived by the deletion in the BBL of the phrase safeguarding that the Bangsamoro people are Filipino citizens. The proposed BBL also widens the political base of the Bangsamoro by absorbing the tribal peoples as Bangsamoro, thereby depriving the tribal peoples of express protection of their separate cultural identities.

During the peace negotiations, the MILF, in support of their objectives, argued that they could be described both as Filipino citizens and as Bangsamoro, pointing to the Statute of Catalonia describing the regional population as both Spaniards and Catalans. 

The example of Catalonia, however, is a disturbing reference because of the Catalan separatist movement holding that the Catalans are not Spaniards and because the Catalonian Parlement has voted to authorize the holding of a regional referendum in November 2014 on two questions: 1) Do you want Catalonia to be a state? 2) Do you want Catalonia to be independent? President Artur Mas has signed this Act into law.

The Spanish Government has petitioned the Spanish Constitutional Court to annul the Catalan law as unlawful, on the ground that the Spanish Constitution dictates that the matter of independence is a question for all Spaniards to decide.  The Court has issued a Suspension Order similar to a TRO (Temporary Restraining Order).

The Catalan Government argues that the Catalans have a right to be consulted on the referendum issues pointing to the example of Scotland which recently voted on independence. (The vote was against.) The separatist movements in Catalonia and Scotland are motivated by the notion of nationalism. However, Catalonia has a different status from Scotland because Catalonia is not a state but only an autonomous region of Spain. Scotland has a different status and was a different state from England until the Act of Union of 1707 enacted by the Scottish and English Parliaments, which established the United Kingdom of Great Britain.

The question of the legal status of the Bangasamoro people is of fundamental importance because it also affects the question of whether the so-called Bangsamoro political entity to be created has all the elements of a state or sub-state. One of the elements of a State is “people”. The fact that they are Filipinos should, therefore, not be left ambiguous. The definition of the Bangsamoro people in the Organic law as being Filipino citizens would allay doubts on the sincerity of the MILF in renouncing their struggle for secession and achieving lasting peace and genuine reconciliation. The peace process should forge national unity and not lay the seeds of secession and strife.

Ambassador Jaime S. Bautista, Doctor of Laws

jaime@jaimesbautista.com

On the Rights of the Original Indigenous People to Their Ancestral Domain in Bangsamoro

The International Day of the World’s Indigenous People (IP), August 9, was celebrated at the University of Asia and the Pacific with a roundtable discussion on “Empowering our Tribal Communities and Indigenous People in the Philippines.” I represented the Philippine Ambassadors’ Foundation at this forum.

The Ateneo de Manila Law School also held a symposium with the theme: “Breaking free: Situating Indigenous Peoples Rights in the Bangsamoro Basic Law (BBL). “  The Speakers at this forum included leaders of two groups of Lumads: those already covered by the ARMM and those who may be covered by the proposed Bangsamoro.

The sensitive issue raised in the forums is the right of the Lumad to their ancestral domain.   They are the original Indigenous People (IP) in Mindanao as indicated by the rivers and landmarks which have retained their original Lumad names. The right to ancestral domain is central to the Lumad identity, according to the Mindanao Elder’s testimony: 

            “We, Lumad, believe that land is the beginning and the end of our life and our race. Magbavaya created land for our race to live on.   No one can accept it except D”Wata who guards our land for us. Our race owns the land as proven by our ancestors who from birth till death cultivated it. They are now buried in this land of their birth. To us, it is a concrete proof of our ownership of the land, in much the same way as we are now nourishing and living on it.”  (Dyandi Peace Pact Declaration of Principles, Lumad Datus in defense of Mt. Apo from the PNOC Geothermal Project, 1989)

The United Nations General Assembly approved the Declaration on the Rights of Indigenous Peoples on 13 September 2007.  While this Declaration is not yet part of customary international law, they contain the norms which States have committed themselves to implement.  Among the rights recognized is the right to ancestral domain.

Long before this UN Declaration, the Philippines had passed laws under four of our presidents to recognize the interests and protect the rights of our cultural communities. The 1973 Constitution provided that “The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in the formulation and implementation of State policies.”

The 1987 Constitution went further and contained six provisions on State policies relating to protect their rights, among them the Article which provides:  “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.  The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.”

Republic Act 8371 (The Indigenous Peoples’ Rights Act of 1997 or IPRA) has implemented the aforesaid State Policies, including the right of our IPs to their ancestral domain and ancestral lands.  IPRA recognizes the indigenous concept of ownership which sustains the view that “the ancestral domain and all resources found therein shall serve as the material bases of their cultural integrity.”

This concept includes both the ancestral domain and ancestral lands.  Ancestral domains are the ICCs/IP’s private but community property which belongs to all generations and therefore cannot be sold, disposed or destroyed.  Ancestral lands refer to lands occupied, possessed and utilized since time immemorial by   individuals, families and clans who are members of ICCs/IPs.  The rights to these lands may be transferred only to members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned.

Republic Act No. 9054 (The ARMM Expanded Organic Law of 2001) also contains provisions protecting the “indigenous cultural community.”  Under this basic law, the ICC includes both (a) the Tribal peoples defined as those citizens whose social, cultural and economic conditions distinguish them from other sectors of the national community and (b) Bangsa Moro people or those citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural and political institutions.

With this definition, the ARMM law treats the Lumads and the Bangsa Moro on an equal basis.  It provides for example, for the establishment of both the Shariah Courts and the Tribal Courts and recognizes the rights of both communities to their ancestral domain, although there has been no implementation thereof.  The ARRM has been a failure in this regard.

In contrast, the Framework Agreement on the Bangsamoro (FAB) has removed the concept of the Lumad’s rights to their ancestral domain.  Part III on Powers, Par. 6 provides only that “The customary rights and traditions of indigenous peoples shall be taken into consideration in the formation of the Bangsamoro’s Justice system.  This may include the recognition of indigenous processes as alternative modes of dispute resolution.”

The Lumad leaders have noted that their rights have been placed under the exclusive powers of the Bangsamoro.  Although they are not “Moro”, the FAB has included them in the new definition of the Bangsamoro Identity, which now includes the “original inhabitants “ of Mindanao and the Sulu Archipelago and its adjacent islands including Palawan, and their descendants who shall have the right to identify themselves as Bangasmoro by ascription or self-ascription.

The Lumads emphasized at the forums that they want peace in Mindanao and that they are not “spoilers” or “latecomers” in the peace process although their long struggle for recognition has not been an armed struggle but a peaceful one.  They assert that they have always considered themselves to be Filipinos and that their separate cultural identity be expressly recognized as is provided for in the ARMM law.  They maintain that they have vested rights to their ancestral domain as recognized by Philippine jurisprudence in the case of Chico v. Insular Government.  They, therefore, seek implementation of their vested rights to their ancestral domain.  Indeed, the theme of the 2014 International Day of the Worlds’ Indigenous Peoples is timely: “Bridging the Gap: Implementing the Rights of Indigenous Peoples.”  

Two decades ago, the Philippines took a leadership role in this endeavor, hosting an international conference during the First Decade of the World’s Indigenous Peoples (1995-2004).  The meeting gathered together leaders of IP’s from all the continents, among them Nobel Prize Laureates Wole Soyinka of Nigeria and Rigoberta Menchu of Guatemala, to draft a charter on IP rights.  This was an NGO conference directed by Cecile Guidote, and supported by the Department of Foreign Affairs.  The Philippines’ IPs took an active part and shared indigenous knowledge and cultural traditions. 

 It is time again to look at our indigenous cultural communities’ unnoticed contributions to our nation building and give them their due.  The proposed Bangsamoro should not take a step backwards.

Ambassador Bautista is Professor of Law at the Ateneo de Manila University and Philippine Christian University.

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