Constitutional Rights Relevant for Indigenous Peoples in the Philippines
The Constitution
The 1987 Constitution has several provisions of relevance to indigenous peoples, which it calls "indigenous cultural communities" (ICC).
- In the Declaration of Principles and State Policies (Art. II Sec. 22), the state recognizes and promotes the rights of ICC "within the framework of national unity and development".
- In Autonomous Regions (Art. X), autonomy is granted to "provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics". This provision is not clearly focused on indigenous peoples, although it explicitly applies to the two regions with the largest concentration of indigenous peoples (Cordillera and Muslim Mindanao).
- In National Economy and Patrimony (Art. XII Sec. 5), the state commits to protecting the rights of ICC to their ancestral land, "subject to the provisions of this Constitution and national development policies and programs". This provision gave Congress the task of defining "the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain".
- In Education, Science and Technology, Arts, Culture and Sports (Art. XIV Sec. 17), the state recognizes and guarantees the rights of ICC "to preserve and develop their cultures, traditions, and institutions".
- General Provisions (Art. XVI Sec. 12) allows Congress to create a consultative body to advise the President on policies affecting ICC. The members of such bodies shall mainly come from ICC.
Indigenous Peoples Rights Act (IPRA)
Regional autonomy, IPRA
In response to strong lobbying efforts by indigenous peoples, the framers of the 1987 Constitution included several provisions that, taken together, could serve as a basic framework for recognizing and promoting indigenous peoples' rights. Enabling laws for regional autonomy in Mindanao and the Cordillera were passed by Congress, and subjected to ratification through plebiscites. This was followed by the 1997 Indigenous Peoples Right Act (IPRA, or R.A. 8371), which created the National Commission on Indigenous Peoples (NCIP) and the mechanisms of free, prior and informed consent (FPIC) and indigenous peoples' Consultative Bodies which, according to IPRA, shall be convened by the NCIP. A Consultative Body consists of traditional leaders, elders and representatives from the women and youth sectors of the indigenous peoples that must be consulted regularly to advise the NCIP on matters relating to problems, aspirations and interests of the indigenous peoples of the Philippines. At the same time, the Consultative Body, being present at provincial, regional and national level, is supposed to monitor the implementation of IPRA by the NCIP.
In the Cordillera, two Organic Acts for an autonomous region were successively rejected by voters in 1989 and 1998, due to doubts that traditional politicians would still predominate. Instead, the President, through Executive Order 220, created a special structure called the Cordillera Administrative Region. As a whole, the regional governance structure in Cordillera is merely a faint ghost of the original vision of regional autonomy.
Other pro-indigenous constitutional provisions were elaborated by IPRA, which thus serves as a legal framework for indigenous peoples' rights that was absent in earlier legislation. It was however received with mixed reactions – with strong objection from powerful corporate lobbies, to full support from the churches, academe and some rights advocacy groups, to guarded optimism and even rejection by many grassroots indigenous organizations. Pro-mining groups challenged IPRA's constitutionality twice before the Supreme Court, invoking the Regalian Doctrine (a principle in law which means that all natural wealth - agricultural, forest or timber, and mineral lands of the public domain and all other natural resources belong to the state). Both instances produced a deadlock. Hence, key legal questions persist even as the law remains in effect.
Aside from legal inconsistencies and ambiguities in IPRA itself, there are political factors that weaken the law and hamper its full implementation. As a President-appointed implementing body, the NCIP is crippled by the lack of electoral mandate from indigenous constituencies, on the one hand, and a lack of political support from the Chief Executive on the other. Meanwhile, other executive departments have been more aggressive in implementing laws with contrary provisions, such as the Revised Forestry Code and the 1995 Mining Act.
Download the Indigenous Peoples Rights Act as a PDF file by clicking here.
Other institutional mechanisms
IPRA and environmental laws contain legal safeguards, such as the mechanisms for "free, prior and informed consent" (FPIC) and environmental impact and assessment studies. But, increasingly, big business and political interests find ways to shortcut these mechanisms and override the concerns of indigenous peoples.
From the start, FPIC was an imperfect mechanism that indigenous people could invoke to protect their rights, especially in the face of destructive projects. In practice, many indigenous communities could not use it to their advantage because of many technicalities in the implementing guidelines. In 2005, the NCIP proposed changes to the said guidelines that would further weaken the mechanism by allowing more shortcuts and exceptions in the process, to the advantage of big companies with interests in indigenous lands and resources.
Through a more pro-active stance in electoral, lobbying, and advocacy work, indigenous organizations have made some headway in exerting influence on party-list groups and local government units in indigenous areas. This has resulted in a stronger and more unified community stand on issues that affect indigenous peoples. There are also big efforts to form and maintain official Consultative Bodies representing indigenous organizations from national to local level, as mandated by IPRA. But so far, these Consultative Bodies have not had a substantial influence on the government's indigenous-related policies and decisions.
In 2001, President Macapagal-Arroyo formed and chaired Task Force 63, supposedly to deal with emergency situations involving indigenous peoples. So far, however, TF-63 has not acted on the various complaints of human rights violations involving indigenous peoples.
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 Photo: Christian Erni
 Photo: Christian Erni
 Photo: Christian Erni
 Photo: Christian Erni
 Photo: Christian Erni
 Photo: Christian Erni
 Photo: Christian Erni
 Photo: Christian Erni
 Photo: Christian Erni |
