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INDIGENOUS PEOPLES AND THE PEACE PROCESS IN MINDANAO: THE CASE OF THE TEDURAYS OF MAGUINDANAO

by

Liway Czarina S. Ruizo

in partial fulfillment of the requirements for the degree of Juris Doctor

at

The College of Law University of the Philippines Diliman Quezon City March 2013 Liway Czarina S. Ruizo 2013 U.P. COLLEGE OF LAWi

COPYRIGHT PERMISSIONSDATE AUTHOR TITLE : : : [Date of Submission] Liway Czarina S. Ruizo Indigenous Peoples and the Peace Process in Mindanao: The Case of the Tedurays of Maguindanao

The U.P. College of Law is hereby granted permission to circulate and have copied for non-commercial purposes, at its discretion, the above title upon the request of individuals or institutions. I understand that my thesis may be archived electronically by the U.P. Law Library and made available to the public. The author reserves other publication rights, and neither the paper nor extensive extracts thereof may be printed or otherwise reproduced without the author's written permission. The author attests that permission has been obtained for the use of any copyrighted material appearing in the paper (other than brief excerpts requiring only proper acknowledgment in scholarly writing), and that all such use of clearly acknowledged. The author understands that failure to abide by the rules and practices against plagiarism and academic dishonesty, whether or not amounting to copyright infringement, creates liability for administrative disciplinary proceedings and penalties under existing University rules and regulations. [Student's Signature] Liway Czarina S. Ruizo

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TABLE OF CONTENTS

Statutes Cited..................................................................................................................................iv Cases Cited.....................................................................................................................................iv Table of Authorities........................................................................................................................iv List of Tables (Optional)..................................................................................................................v List of Figures (Optional)................................................................................................................v Abstract...........................................................................................................................................vi List of Abbreviations Used............................................................................................................vii Acknowledgments........................................................................................................................viii I. Introduction.................................................................................................................................1 II. How to Use this Template...........................................................................................................3 A. Editing the Document Directly..............................................................................................3 B. Importing Paragraph Styles...................................................................................................4 C. Associated Software Settings................................................................................................4 III. Font Selection and Structure.....................................................................................................5 IV. Inserting Tables..........................................................................................................................6 V. Inserting Figures.........................................................................................................................7 A. Section Level 1......................................................................................................................7 1.Sub-section (Section Level 2).............................................................................................7 2. Sub-section (Section Level 2)...........................................................................................8 3. Third Sub-section...............................................................................................................8 VI. Creating Tables of Contents and Lists of Tables and Figures...................................................9 VII. Creating Tables of Statutes, Cases and Authorities...............................................................10 VIII. Conclusion............................................................................................................................12 A. Main Conclusion 1..............................................................................................................12 1. Conclusion general findings 1.........................................................................................12 2. Conclusion findings 2 .....................................................................................................12 B. Main Conclusion 2..............................................................................................................12 Bibliography..................................................................................................................................13

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STATUTES CITED (OPTIONAL)

Republic Act No. 8550, s. 2...........................................................................................................11 1987 Const., Art. 12, s. 2................................................................................................................11

CASES CITED (OPTIONAL)

Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128..................................10 Carino v. Insular Government, 41 Phil 935...................................................................................11 Atok Big Wedge Mining Co. v. IAC, 261 SCRA 526....................................................................11

TABLE OF AUTHORITIES (OPTIONAL)

IV Tolentino, Commentaries on the Civil Code, 39.......................................................................11 Hohfeld, W.S. (1917) Fundamental Legal Conceptions as Applied to Judicial Reasoning. 26 Yale L. J. 710..........................................................................................................................................11 III Manresa 698..............................................................................................................................13

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LIST OF TABLES (OPTIONAL)

Table 4.1: This table means absolutely nothing...............................................................................6 Table 4.2: This also means nothing, and demonstrates the automatic table numbering options.....6

LIST OF FIGURES (OPTIONAL)

Figure 3.1. This figure means nothing............................................................................................7 Figure 3.2. This figure is repeated to demonstrate the auto-numbering.........................................8 Figure 5.1. This figure is repeated again to show how the the figure numbers restart at each chapter. ..........................................................................................................................................10

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ABSTRACTThis paper is a modest attempt at studying and looking more closely into the concept of meaningful participation, its legal loots, implications, and the proposed concrete process through which it can be fleshed out in the context of the accord-forging development between the Philippine Government and the MILF, with the forging of the Bangsamoro Framework Agreement. Looking with specificity into the case of the Teduray communities of Upi and South Upi, Maguindanao, this paper considers the Transition Committee as the ideal milieu for genuine participation of indigenous peoples. With an extensive discussion of the assertions of the Timuay Justice and Governance, the paper weaves together the aspirations of the Tedurays and the transparent and inclusive function of the Transition Committee to come up with a proposal on steps to be taken in order to craft the Basic Law that is hoped to usher comprehensive and resilient peace in Mindanao.

KEYWORDS: indigenous peoples, peace process, Mindanao, Teduray, Bangsamoro, Framework Agreement, Transition Committee, Bangsamoro Basic Law

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LIST OF ABBREVIATIONS USEDARMM GPH GRP IP IPRA MILF NCIP TJG TransCom UNDRIP Autonomous Region of Muslim Mindanao Government of the Philippines Government of the Republic of the Philippines Indigenous Peoples Indigenous Peoples Rights Act Moro Islamic Liberation Front National Commission for Indigenous Peoples Timuay Justice and Governance Transition Committee United Nations Declaration on the Rights of Indigenous Peoples

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ACKNOWLEDGMENTSThis supervised legal research could not have been sustained and completed without the help of many people and institutions, and I am grateful to them all. I am indebted to our research adviser, Prof. Jay Batongbacal, for the critical instructions that he began our research semester with, all his efforts at making our research process as smooth as possible, for the very advantageous software and research tools that he lent me and my classmates, and most importantly, for the advice and criticisms and evaluations of our initial drafts, without which this paper would not have been distilled, polished and worthy of delivery. I am grateful for the insights, questions, guide points and constructive criticisms of Atty. Armi Beatrice Bayot of the Office of the Presidential Adviser on the Peace Process (OPAPP), without whose support and invaluable advice, this research would not have had a focus and a mode by which to go about exploring possible answers to its inquiries. My gratitude also goes out to Atty Armi for giving me the contacts of the persons in the community and in the peace panels - without whose inputs the data in this research would have been featherweight. I am also indebted to the personal and educational assistance of Atty. Augusto Gatmaytan, whose early appraisal of the thesis of this research, as well as his important body of works on the Teduray and their perspectives on the peace process, the data of which became my take-off point in my own data-gathering. Thank you to Ms. Dana Batnag, who was my sounding board since the inception of the idea for this study, for all the many insights, instructions, tips and directions. I am also deeply grateful for all the assistance that NCIP Commissioner Timuei Santos Unsad lent to this project. His sincere desire for genuine representation of the indigenous peoples is an inspiration for my own. Thank you also to the TJG officers, led by Timuay Sannie Bello, for the meaningful afternoon/evening discussion on the hopeful things that can be done for a more inclusive peace process. For Father Ben Suenan who warmly received my father and I in his home, and recalled for our benefit the Teduray's history of struggle for genuine recognition. I cannot thank my father, Walter L. Ruizo enough, for all his efforts to help this research, from the assistance in sourcing materials to the great extent of driving with me up to the beautiful highlands of Upi, so that I could go to the communities themselves. Thank you Tatay for all the love and support. Thank you to my family, to my mother, Dr. Fe Dorcas Ruizo, my sister Amihan, my brother-in-law, Kuya Benz, our little brother Aaron Paulviii

and our beautiful niece Aolani Bly, and Micheas, for all the encouragement and comfort and faith without which I cannot feel big enough to desire great things and dream big dreams for my homeland of Mindanao. Above all, I thank the God of peace and justice, for all the energy and wisdom that He lent me so that this paper became possible. His grace and overcoming love carry me through, and I offer all of these works to Him, foremost. Maraming salamat po!

Liway Czarina Ruizo

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RUIZO INDIGENOUS PEOPLE AND THE PEACE PROCESS

[T]he right of self-determination may be satisfied where a people enjoys an effective voice, through its own representatives, in the governing of a democratic State, and suffers no disadvantage or discrimination.(UN ECOSOC, 1996.)1

I.

GENERAL HISTORICAL CONTEXT

The 4-decade old Moro secessionist war in Mindanao is a conflict in the Southern part of the Philippine archipelago, which to date has laid claim to more than 100,000 lives through the years of hostilities and failed peace talks. The main paradigm of the conflict has often been seen as an issue between the Islamic Moro people, on the one hand, and the descendants of Christian migrant Settlers on the other. The costs of the war, although impossible to quantify with cold precision, may be easily held as substantial, with the direct costs at the local level being estimated at the range of 2-3$ billion2. The costs rise much higher, although even more difficult to measure, when added into the equation are the human and social costs (e.g. deaths and injuries; poverty and criminality increased by displacement), indirect economic costs (e.g., decreased agricultural productivity, deterioration in the investment climate), and governance and social costs (weakening in security and the rule of law, disruptions to social services).

A MOST HOPEFUL DEVELOPMENT: THE FRAMEWORK AGREEMENTThe recent development in the Mindanao peace process is the signing of the GRP and the1 2

UN EcoSoc 1996. Salvatore Schiavo-Campo, and Mary Judd, "The Mindanao Conflict in the Philippines: Roots, Costs and Potential Peace Dividend," Social Development Papers: Conflict Prevention and Reconstruction, no. 24 (2005).Page 1 of 46


MILF of the Framework Agreement for the creation of the Bangsamoro territory. This progress has been hailed by many quarters as a breath of hope for a lasting peace in Muslim Mindanao, notwithstanding a history of failed experiments in forging peace accords. For instance, the MILF was born amidst the MNLFs attempts of peaceful settlements with the government. Now, at a time when the MILF has come to the negotiating table, there rose the BIFF or the Bangsamoro Islamic Freedom Fighters. The present Framework Agreement, however, promises to cover the bases that its predecessors have not taken into account, and will not commit the same mistakes and oversights of the previous panels and agreements. At the heart of the accord is the issue of territorial coverage of the Bangsamoro. The geographical coverage shall be determined through the plebiscite that will be held after Congress passes the Basic Law. The people will decide whether they will join the Bangsamoro or not. According to the Framework Agreement on the Bangsamoro, the core territory of the proposed Bangsamoro homeland will consist of: (1) the five ARMM provinces of Basilan, Sulu, Tawi-tawi, Maguindanao and Lanao del Sur and the cities of Marawi and Lamitan; (2) the six towns of Lanao del Norte that voted for inclusion in the ARMM during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal; (3) the barangays in the municipalities of Aleosan, Carmen, Kabacan, Midsayap, Pigcawayan and Pikit, North Cotabato that voted for their inclusion in the ARMM during the 2001 plebiscite; (4) the cities of Cotabato and Isabela in Basilan; and, (5) all other contiguous areas where there is a resolution of the local government unit or a petition of at least 10% of the qualified voters in the area asking for inclusion at least two months prior to the ratification of the Bangsamoro Basic Law3. Professor Rudy Rodil, a historian and former government peace panel member in the negotiations with the MNLF and MILF, counted 39 barangays that voted for inclusion in the ARMM in 2001, among the 208 barangays in six towns with significant Moro population in North Cotabato, per Commission on Election records4. The barangays to be included are the following: from Pigkawayan, 8 (Lower Baguer, Balacayon, Buricain, Datu Bimasing,3

Framework Agreement on the Bangsamoro, signed 15th October, 2012.Page 2 of 46


Kadingilan, Matilac and Patot) out of 40 barangays; from Kabacan, 3 (Nanga-an, Simbuhay and Sanggadong) out of 24 barangays; from Carmen, 2 (Manarahan and Nasapian) out of 28 barangays; from the town of Midsayap, 12 (Damatulan, Kadigasan, Kadingilan, Kapinpilan, Kudarangan, Central labas, Malingao, Mudseng, Nabalawag, Olandang, Sambulawan and Tugal) out of 57 barangays; from Aleosan, 3 (Dunguan, L. Mingading and Tapodoc) out of 19 barangays; and finally, from the municipality of Pikit, 11 (Bagoenged, Balatican, S. Balong, S. Balongis, Batulawan, Buliok, Gokoton, Kabasalan, Lagunde, Macabaul and Macasendeg) out of 42 barangays4. After the signing of the Bangsamoro Framework Agreement, the President issued an Executive Order5 creating a 15-member, all Bangsamoro Transition Commission, which was likewise supported by Congressional resolutions. Executive Order 120, creating the Transition Commission provides that the composition of the Commission shall be 15 (fifteen) members as appointed by the President in accordance with the 2012 Framework Agreement on the Bangsamoro. The TransCom is likewise mandated to fulfill the following functions: a. To draft the proposed Bangsamoro Basic Law with provisions consistent with the 2012 Framework Agreement on the Bangsamoro; b. Whenever necessary, to recommend to Congress or the people proposed amendments to the 1987 Philippine Constitution; c. Whenever necessary, to assist in identifying and coordinating development programs in the proposed Bangsamoro in conjunction with the MILF Bangsamoro Development Agency (BDA), and the Bangsamoro Leadership and Management Institute (BLMI). For this purpose, the Commission may likewise coordinate with such other relevant government agencies and/or non-government organizations;4

Carolyn Arguilla, "From RAG to ARMM to Bangsamoro: Salamat Hashim would have approved of Bangsamoro's proposed territory." MindaNews, sec. Headline, October 11, 2012. Executive Order 120, Constituting the Transition Commission and for other purposes, 17th December, 2012.Page 3 of 46

5


d.

To coordinate and conduct dialogues and consultations with the National Government and various stakeholders in furtherance of its functions; and

e.

To perform such other relevant functions as the President may hereinafter direct.6

With the Transition Commission created, it is set to work on the drafting of the Basic Law, and whenever necessary, work on proposals to amend the Philippine Constitution. The draft Basic Law will be submitted by the TransCom to and it shall be certified as an urgent bill by the President, after which it will be passed by Congress. The passed Basic Law will finally be ratified by the people in the affected areas.7

THE PROCESSES OF CONSULTATIONWith regard to the consultation, more specifically with regard to the IP communities, the GPH issued an official statement through the new GPH Panel Chief Prof. Miriam CoronelFerrer, stating that the peace deal between GPH-MILF will guarantee Mindanao IP rights. During a briefing with regional directors and other Mindanao officials of the National Commission on Indigenous Peoples in Davao City, Coronel-Ferrer said that the FAB provides explicitly that the IP rights and freedom of choice shall be respected8. She added that customary laws and indigenous dispute resolution mechanisms shall be recognized in the administration of justice in the Bangsamoro.

6 7

EO 120, Section 3

OPAPP Press Release peace deal guarantees Mindanao IP rights says GPH panel chief." Updates on MILF Peace Table, December 28, 2012. http://www.opapp.gov.ph/milf/news/gph-milf-peace-dealguarantees-mindanao-ip-rights-says-gph-panel-chief (accessed January 1, 2012).8"GPH-MILF

Page 4 of 46


II. THE AFFECTED THIRD PARTYThe Philippines is a culturally diverse country with an estimated 14 to 17 million Indigenous Peoples (IPs)9. The Philippine Constitution, in recognition of this diversity and under the framework of national unity and development, mandates state recognition, protection, promotion, and fulfillment of the rights of Indigenous Peoples10, as embodied in Republic Act 8371, also known as the Indigenous Peoples Rights Act (1997, IPRA), which likewise recognized the right of IPs to manage their ancestral domains and has become the cornerstone of current national policy on IPs. The Indigenous Cultural Communities/ Indigenous Peoples (ICCs/IPs) refer to Filipinos who have continuously lived as organized communities in defined territories (ancestral domains) since time immemorial, and they have retained some or all of their own social, economic, cultural and political institutions that have, by virtue of resistance to cultural inroads of colonization, non-indigenous religions and culture, become historically differentiated from the majority of Filipinos.; this definition likewise includes those who may have been displaced from their domains or may have resettled outside their ancestral domains11. IPRA further outlines the four basic rights of ICCs/IPs, namely: (1) rights to ancestral domains and lands; (2) rights to self-governance and empowerment; (3) rights to social justice and human rights, and; (4) rights to cultural integrity[2]. The provision of a concrete process by which the ICCs/IPs within the proposed territory of the Bangsamoro homeland can participate in the peace negotiations between the GPH and the MILF will be but a9

"Indigenous Voices in the Philippines:Communication for Empowerment Assessment Report" United Nations Development Program, no. May (2011).

10

Article 2, Section 22, The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.; Article 12, Section 5, 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.11

Section 3 (h)Page 5 of 46


fulfillment and a realization of the States statutory assurance to these communities that they core rights will be upheld and secured. Yet even in the face of guarantees contained in the Constitution and IPRA, the fact remains that the IPs are still among the poorest and most disadvantaged peoples. The first-ever Report on the State of the World of Indigenous Peoples, issued by the United Nations Permanent Forum on Indigenous Issues in January 201012, revealed that IPs make up fully one-third of the worlds poorest peoples, suffer disproportionately in areas like health, education, and human rights, and regularly face systemic discrimination and exclusion. This exclusion and continuing marginalization of IPs is evidenced by the often glossing-over of the fact that the long-drawn war in Mindanao has also caught the indigenous communities in the crossfire. The urgent need to deliver on recognition of IP rights cannot be more crucial than in Mindanao, which is called home by more than half of the national population of the ICCs/IPs. Of the total IP population with 110 different tribes and ethnographic groups, 61% are Mindanaons13. Lumad is a Bisayan term meaning native or indigenous, and is adopted by 15 out of about 18 Mindanao ethnic groups in their Cotabato Congress in June of 1986. The adoption of the term Lumad was in order for a distinction to be made between the indigenous groups and the other Mindanaons, whether Moro or Christian14. This usage was likewise accepted by the Cory Administration when in the drafting of RA 673415, the word Lumad was used to12

United Nations Department of Economic and Social Affairs (DESA), State of the World's Indigenous Peoples, ST/ESA/328, United Nations, New York, 2009. Rico Ancog, and Arnold Salvacion, "GIS-Mapping of Indigenous Peoples' Vulnerability to Climate Change," School of Environmental Science and Management (SESAM), University of the Philippines, Los Banos (UPLB). Faina Ulindang, National Commission for Culture and the Arts, "Subcommission on Cultural Heritage." Last modified 2012. Accessed January 3, 2013. Article XIII, Section 8, The Regional Government shall actively and immediately pursue reforestation measures to ensure that at least fifty (50%) of the land surface of the Autonomous Region shall be covered with trees, giving priority to land strips along eighteen percent (18%) in slope or over by providing infrastructure, financial and technical support to upland communities especially the Lumads or tribal peoples.Page 6 of 46

13

14

15


distinguish these ethnic communities from the Bangsa Moro. The 15 various tribes who adopted the Lumad title during the Cotabato Congress are the Subanen, Blaan, Mandaya, Higaonon, Banwaon, Talaandig, Ubo, Manobo, Tboli, Tiruray/Teduray, Bagobo, Tagakaolo, Dibabawon, Manguangan and the Mansaka. They are found in the following towns and cities: Cotabato, Tagum, Tandag, Dipolog, Kidapawan, Marbel. Cagayan de Oro, Davao, Malaybalay in Bukidnon, Pagadian, Butuan, Surigao, Ozamis, Ipil, Digos and Mati16. More particularly, in the proposed territory of the Bangsamoro homeland are situated several indigenous tribes such as the Blaan communities of Colombio, Sultan Kudarat and the Teduray communities of Upi and South Upi in the heart of the Maguindanao Province, who are, out of all the indigenous tribes within the proposed territory, the largest in number. Some 200 indigenous peoples (IPs) from 56 ethno-linguistic groups from all over the country have urged the government to support their policy agenda and action plan, which includes the recognition of the IPs role in the peace process. In the 2011 National Indigenous Peoples Summit held recently at the Seameo Innotech in Commonwealth, Quezon City, participants came up with a resolution declaring recommendations on five issues, the fifth of which is the governments recognition of the role of IPs in the peace process. The resolution said that as the ongoing peace negotiations of the government with the National Democratic Front (NDF) and with the Moro Islamic Liberation Front (MILF) develop, the IPs should assert on all parties their collective rights and aspirations.

A. CASEOF

IN

CLOSER POINT: THE CASE

OF THE

TEDURAYS

UPI AND SOUTH UPI, MAGUINDANAO

The riverine, coastal and mountain Tedurays are one of the ethnic groups that live in the southwestern Mindanao highlands, live in the territory bounded by the Tamontaca River to the north, the Tran River to the south, the coast to the west and the Cotabato Valley on the16

Ibid.Page 7 of 46


east. The population ranges nationally to about 73,000, with about 30,000 residing in Maguindanao alone. There are about 12,000 in Sultan Kudarat, and 695 in North Cotabato. They are in constant interaction with the neighboring Magindanao17. The traditional economy is based on dry cultivation of glutinous rice and corn as staple produce, and food gathering, hunting and fishing. The agriculture of the Tedurays, the seasons of which are determined by the lunar calendar as well as a star-based calendar, also include corn, sweet potatoes, sugar cane, cassava, taro and tobacco as regularly grown crops. Their physical communities are arranged in such a way that the houses are situated near the upland fields, grouped in the vicinity of the house of the group leader, forming an inged. The Teduray groups are also well-known for their basketry, the weaving technique of which hailed as one of the most intricate in the country. Their distinct arts and crafts also include different horse-hair-made ornaments such as earrings, neck pieces and pendants. They have retained much of their own religion in spite of their proximity to the Magindanao of the Cotabato Valley18. The direct political, socio-cultural legal interest of the Tedurays in the creation of the Bangsamoro cannot be further emphasized. Accounting for the majority of the populations of two municipalities19 in Maguindanao, and standing as the largest non-Moro ethnic group in the proposed core territory, their rights cannot be overlooked if both panels ultimately aspire to bring comprehensive and lasting peace in the country. The process of negotiation cannot be overly focused on the two principal parties, the MILF and the Philippine government, such that other legitimate stakeholders like the Teduray are not brought and represented in the negotiations, and more importantly in the drafting of the17

Faina Ulindang. National Commission for Culture and the Arts (NCCA) , "Sub-Commission on Cultural Heritage." Last modified 2012. Accessed January 2, 2013. Ibid. Upi and South Upi, Maguindanao; The local government of South Upi, reports that the Teduray are the largest ethnic group in the municipality, with 22,862 individuals or 62.30 % of the total municipal population. It is also noted that of all indigenous groups in Mindanao, only the Teduray have been so identified with their territory as to lend their name to the mountainous area, The Tiruray Highlands south-east of Cotabato City.Page 8 of 46

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Bangsamoro Basic Law. This underscores the risks for the Teduray, whose aspirations for self-governance and control of their ancestral territory are consequently at risk of being subsumed under governance by the MILF and its Moro constituency. Today, the risk of permanently losing tenurial security over their landholdings are more real than ever, with the many land disputes that the Teduray communities face, along with the aggravating circumstance of the non-implementation of the IPRA within the area of jurisdiction of the ARMM. Lumad leaders say that the Bangsamoro are not the only group in Mindanao with claims to self-determination. They are frustrated with the flawed implementation of the 1997 Indigenous Peoples Rights Act (IPRA), which in any case does not apply in the existing Autonomous Region of Muslim Mindanao (ARMM).

B. THE TABUNAWAY AND MAMALU ORIGIN

There is ample literature about the Tedurays and the Maguindanao which identify as the origin of the relation the account of the historical brothers, Mamalu and Tabunaway. Mamalu, from which the Teduray trace their descent, is the older brother, who was in the highlands when Shariff Kabungsuwan arrived in Maguindanao to introduce Islam. According to the story, as he was in the highlands, he was not highly influenced by the arrival of Islam, and upon departure of the Shariff, chose to retain his tribal and traditional beliefs. His younger brother, Tabunaway (also known as Tabuwanay in other literature), who stayed in the coastlands, was the one who was heavily influenced by Islam, eventually converting to the Islamic faith, from whom the Maguindanao believe to have originated 20. In the last few parts of the story, it is believed that the two brothers delineated their territories, agreed to respect20

Benjamin Suenan , (former director of LDCI, a retired priest of the Episcopalian Church of Upi, and an incumbent councilor of the same municipality, in Maguindanao), interview by Liway Ruizo, Personal meeting, in his home in municipal poblacion, Upi, MaguindanaoRecord, December 29, 2012.Page 9 of 46


each others ways and provided for conduct of trade between their respective followings. This agreement was held by a caution that a great curse will befall one who violates the agreements.21 Although other later scholars have analyzed the story and concluded that it might not be a literal brotherhood by sanguinity, but more symbolic of trade relations 22, this truth is still widely believed as true by both the Teduray as well as the Maguindanao communities. In history however, Teduray representatives have related that many injustices have been caused against them by the Moros, either indeliberately and by reason of the former's minority, spanning from land disputes to conflicts on governance. (where is the or?) This was said to be in reference to the fact that indigenous people within the ARMM area were not allowed to have their ancestral territories titled in accordance with the provisions of the IPRA, as proven by the fact that per revelation by Commissioner Timuei Santos Unsad, of the NCIP Central Mindanao, no CADT to even just a single hectare was granted in Maguindanao since the institution of the ARMM in 200123. Still, to quote from on the of the Teduray tribal leaders, as quoted in the study on the Teduray perspectives on the peace process by Augusto Gatmaytan and Kenette Jean Millondaga:The [Moro] are not the only people here [in Mindanao], there are [other] tribes but they cannot be seen] what with the MILF out in front, making its claims. The [peace talks] are exclusively theirs, but if [a treaty is signed], our question is what about our share? It is like hunting for a wild-pig; if they catch something now, will we receive a share? That is our only question. We have no assurance that we will gain anything from the MILFs negotiation for their sub-state. So, if they get [their sub-state], we will naturally be under this sub-state, right? The problem there is, though we are the first people [here], and though our ancestors21

Augusto Gatmaytan, and Kenette Jean Millondaga, "Mahabang Usapin; Teduray Perspectives on the Peace Process," Research to Establish the Partnership between Practice and Education/Research in Peacebuilding and Capacity Development, Hiroshima University Discussion Paper Series, 16 (2012), Ibid. Timuei Santos Unsad, (NCIP Central Mindanao Commissioner, member of the Teduray community), interview by Liway Ruizo, Personal meeting in his NCIP main office at dela Merced building, Quezon Avenue corner West Avenue, Quezon City. Record, December 15, 2012.Page 10 of 46

22 23


were born here, our rights [as indigenous people] will have been ignored24.

C. A TEDURAY VOICE: THE PERSPECTIVE OF FATHER BEN SUENAN

The researcher went to interview the Father Benjamin D. Suenan25, in order to supplement the triangularization, more particularly to explore how the actual Teduray communities in Upi and South Upi, Maguindanao perceive and feel about the issue. Father Ben, as recommended by the community contacts, is a former director of LDCI, a retired priest of the Episcopalian Church of Upi, and an incumbent councilor of the same municipality, in Maguindanao, and was therefore considered as a good source of the pulse of the communitys considered opinion on the peace process. Father Ben Suenan began by describing that throughout history, the Tedurays have been best characterized by their peace-loving nature, and the communities' tendency to avoid conflicts and dangerous confrontations at all costs, adding that in the past, the Tedurays have been known to recede to the highlands in order to avoid discord or tension with people from other communities. This is portrayed best in what is called the Teduray trail or the mountain trekking trail that is steep and goes straight up to the peaks. He expounded that based on this peace-nurturing trait of their people, it cannot be said enough that they are all for peace, and they would be the last to oppose any genuine and holistic initiative to achieve peace for the region.24

"Mahabang Usapin; Teduray Perspectives on the Peace Process," Research to Establish the Partnership between Practice and Education/Research in Peace-Building and Capacity Development, Hiroshima University Discussion Paper Series, 16 (2012), Benjamin Suenan , (former director of LDCI, a retired priest of the Episcopalian Church of Upi, and an incumbent councilor of the same municipality, in Maguindanao), interview by Liway Ruizo, Personal meeting, in his home in municipal poblacion, Upi, Maguindanao Record,? December 29, 2012.Page 11 of 46

25


He said that based on the many studies, intra-community dialogues and studies and informal investigations that he has had, the Teduray community agrees with the peace process, but this support for the ongoing peace process is critically with their utmost desire that they be represented in all the levels of the peace negotiations and discussions. To quote Father Ben, he says of the overall sentiment of the Tedurays, Totoo. Hindi kami against dyan. Pero isali nyo kami. Makikiupo kami. He also mentioned that it has been an early desire for them to be involved in the process of peace negotiations between the GPH and the MILF, not only as observers but as active participants. Theyve operationalized this aspiration by submitting several concept and position papers in order to exercise their involvement. This desire, however, was said to have been defeated because the GPH said that the Tedurays, and the IP communities in general, are not proper the proper parties to the discussion, and that the GPH is talking with the MILF, and that the points they raised in their position papers were not to carry heavy sway as it is not them but the MILF whom the GPH is sitting on the negotiation table with. Father Ben further explains that the Tedurays stand consist of the general aspiration that as the Moros are claiming their ancestral domain through the proposed Bangsamoro homeland, they, as communities comprising a minority of the total population of the people who call Maguindanao their home, would also like to be claim their ancestral domain within the ancestral domain. This sentiment is reflected in what is later on to be called in the official statement of the Timuei Justice and Governance, as the Bangsa-Mamalu, or the autonomy of the Tedurays and other indigenous peoples within the autonomy of the Islamic community. It is at once worthy to note that it is a unique proposal that the Tedurays are putting forward, but in the same wise, an understandable one. The MILF, in behalf of the Muslim communities in Maguindanao, have cried political disenfranchisement and a long and painful experience of injustice and socio-economic displacement in the hands of the Philippine government, and is now at the door of sealing a peace negotiation that aims to remedy all the historical injustices through the Bangsamoro Framework Agreement and the foreseenPage 12 of 46


Bangsamoro Basic Law. Given this unique situation, isnt it also they who must be at the position of understanding what it has felt like to be a suffering minority, and thereby be at a most compassionate and fair disposition, now in regarding a recognized minority within them, the indigenous peoples? How will a minority seek to assert its right to selfdetermination, while ensuring that it doesnt stifle or oppress the right to identity of another minority? Father Ben echoes the numerous studies that have been made about the historical origin of the relations between the Maguindanao and the Tedurays: the story of the brothers Mamalu and Tabunaway. His discussion, though, slightly deviates from the versions in other literature. According to the story, Shariff Kabungsuwan arrived in what is presently known as Maguindanao in the 14th century, and upon arrival first met the younger brother Tabuwanay, while the older Mamalu was in the mountains. He narrates that in the story of the two brothers, the delineation and the variation of the peoples came about when Shariff Kabungsuwan was about to leave to go back to the Middle East, and prior to his departure, he facilitated the delineation of territory, there in Talimbao, by the Quirino Bridge. In the narration, it is said that Shariff Kabungsuwan divided the lands by saying that the lands from the Rio Grande up to the coasts are Tabunaways , while the hills and the mountains are Mamalus. Father Ben said that such demarcation was had in order to keep the harmonious relations between the two. This historical delineation is what is now harked back to by the Tedurays in their desire to have their ancestral domains respected and recognized. As a matter of personal experience, he cites the challenges that he, as a locally elected official, encountered in advocating for the rights of the IPs in the ARMM. He recalls that he first sat in the municipal council in 2004, when the then (?) Mayor of the municipality of Upi invited him to run for the formers party. One of the most important resolutions he sought to author upon sitting in the council position was the implementation of the Indgineous Peoples Rights Act (IPRA) in Upi and in the adjacent barangays with a prominent percentage of Teduray communities in them. His proposed resolution was denied in the council upon deliberation for according to the ARMM, its autonomous character effectivelyPage 13 of 46


brought it out of the ambit of IPRAs application. When asked what the national government did after being presented with the issue of the IPRAs effective suspension within ARMM, he said that NCIP Commissioner Pawids response was for the Tedurays to talk to ARMM, to ask for permission, and that if ARMM does not agree to the application of IPRA in ARMM, that the IPs should just settle with that, as to persist would incite conflict between the IP communities and the NCIP on the one hand, and the ARMM on the other. Another experience that Father Ben shared is ARMMs persistent failure to comply with the LG Memorandum issued by the DILG providing for the mandatory representation of the IPs in the Sanggunians. He says that in ARMM, this mandate is complied with by the mayors handpicking of IP members for the representation, without going through the guidelines in the manner of choosing the representative, thereby making the representative effectively a political appointee, and likewise defeating the very purpose of the same. In the cabinet secretaries of ARMM, for instance, with a membership of 6 and a mandated one seat for the IP, there is no IP representative who is an actual member, not even as cabinet assistant secretaries. The arising apprehension from these experiences of conflict is that the ARMM, which was a product of a peace agreement, albeit later on labeled failed by Malacanang. The situation presented by ARMM left the IPs to negotiate for the recognition of their rights with the government of the autonomous region. With the birth of this new peace agreement, which hopes to rectify the damages and avoid the pitfalls of previously unsuccessful agreements, how are we to ensure that this agreement doesnt only become the soil for yet another situation of conflict and injustice? The solution that he found is in the fleshing out of Part VII, Transition and Implementation (3) which provided that Indigenous peoples rights shall be respected. He reiterates that it is imperative that now, as we are in the process of crafting the Organic Law, that the IP rights should already be included and fleshed out in operational detail. He proposes that the following details should be worked into the basic law:Page 14 of 46


1. That the territorial claims of the Tedurays be established and respected, and that IPRA be finally given full effect; 2. That their system of government will be practiced in their territory, in accordance with their right to self-governance. If possible, that certain positions in the governmental system in the proposed Bangsamoro homeland also be given to IPs. 3. That their language be respected.

D. THE STATEMENT OF THE TIMUAY JUSTICE AND GOVERNANCEThe Timuay Justice and Governance (TJG) is the structure of authority and collective leadership among the Teduray and Lambangian tribes in the Province of Maguindanao, Autonomous Region of Muslim Mindanao, as recognized in the Muslim Mindanao Autonomy Act No. 241 entitled Tribal Peoples Rights Act 26. This structure of governance comes from a tradition of collective leadership that promotes a free, peaceful and progressive community, with the authority of the Tribal Title Holders emanating from the constituency through the latters free and voluntary participation in the Village Assembly, Cluster of Villages Leaders Conference and the Tribal Congress. The representatives composing the Tribal Congress are those community members who have been risen from the ranks, and whose task primarily involves the consulting of the community members with regard to the issues that need addressing by the tribe. The TJG also recognizes the long experience of the26

Muslim Autonomy Act No. 241, An Act to Recognize, Respect, Protect and Promote the Rights, Governance and Justice Systems and Customary Laws of the Indigenous /Tribal Peoples of the Autonomous Region of Muslim Mindanao, Section 5 Sec. 5. Self-Governance. - The Regional Government shall recognize, respect and support the indigenous systems of leadership and governance, in all levels, of the ICCs/IPs/TPs in pursuance of the latters right to selfdetermination. Existing systems of governance include, but are not limited to, the following: the Timuay Justice and Governance [TJG] of the Teduray and Lambangian peoples with the Ukit and Tegudon or customary law as their governing laws; the Guyudan among the Dulungan Manobo and other types of tribal based self-governance.Page 15 of 46


tribe in terms of communal ownership especially with regard to land and other basic sources of livelihood. Finally, the TJG believes in the core value of progressive pluralism, which is characterized by openness and respect for individuals of other groups or origins. The current TJG is composed of the different Baglalan (title holders), and is headed by the Timuay Labi, Timuay Sannie S. Bello. With the assistance of the Central Mindanao NCIP Commissioner Timuei Santos Unsad, the researcher met with Timuay Bello and several other Baglalans in a 3-hour focused group discussion27 in the TJGs main office at the heart of Awang, Maguindanao. The Timuay, speaking not only on his behalf but those of his constituency, was more than willing to generously impart the very sentiments of the Teduray people. Based on the focused group discussion with TJG representatives, the consultations held by the Office of the Presidential Adviser on the Peace Process (OPAPP) appeared to be mere information dissemination, and that if the members of the community would raise a point or offer suggestion, that the panel was reported to only note them, without bringing the points into a discussion. The panel likewise clarified that they were not even expecting automatic acceptance of their suggestions, but that the concerns they raised would have at least been discussed. After their submissions of position papers and concept papers which began as early as 2005, members of the GPH panel informed them that the points they raised were not included in the consensus points agenda, and were therefore to be considered informal documents. Even after their May 3, 2012 meeting with Prof. Ferrer where the 10-point agenda was discussed, there was no mention in the provisions of the recognition of IP rights. The focused group also recalled experiences in the ARMM, when they were placed at a great disadvantage after the ARMM was put in place, and to think the ARMM was a result of peace talks as well. Theyve also reiterated the need for the DILG rule on mandatory representation to be complied with after careful application of the guidelines (both national27

Timuay Justice and Governance, interview by Liway Ruizo, Personal meeting, with other members of the Timuay Justice and Governance, at the Lumad Development Center, Inc. office, in Sitio Tenorio, Awang, DOS, Maguindanao. December 29, 2012.Page 16 of 46


and local) pertaining to the choosing of the representative, because as of the moment, the selection seems to be more political handpicking than proper selection. At one point, Timuay Sannie Bello even described the predicament by saying Kung pwede lang ba naming lukutin na parang banig ang aming domains e, di sana wala nang problema. With regard to their dialogue with MILF, the group related that what it looks to be now is that their struggle for self-determination is related to the IPs struggle for self-determination, when their main desire is for both the GPH and the MILF to recognize the distinct rights of the IPs, as condition sine qua non for their acquisition of a position from which to join and participate in the discussion. They assert that they cannot be heard out if their rights are too intimately interwoven with those being asserted by the MILF. The group suggested that if the panel will choose an IP representative, the recommendation must come from the community, to ensure proper representation. These official assertions echo the sentiment that their forebears already had, as cited in a 1982 research of the Diocese of Southern Philippines, where the representative of the Tirurays was quoted in saying:Years ago, our ancestors inhabited the land, now called Awang, a few kilometers away from Cotabato City. Settlers came waving in front of them a piece of paper they called land title. They (our ancestors) did not understand it.... But they did not want trouble and the mountains were still vast and unoccupied. And so they fled up, bringing their families along and leaving the precious and scared roots behind.... Now, we have nowhere else to go. The time has come for us to stop running and assert our right to the land left by our ancestors.... No more running away. If anybody insists on encroaching on our land, we will fight them. We are at the end of our endurance. Besides, we have nowhere else to go. We are prepared to die for it, for land is life.28

28

The Tiruray Tribe and their aspirations, (Cotabato City: Diocese of Southern Philippines, 1982), 69.Page 17 of 46


III. IN PRAISE OF COMPLICATION29: EXPLORING THE DIFFICULT QUESTIONS AND THEIR ANSWERSIn all the negotiations, we may ask, how far has been the voices of the indigenous peoples been listened to? It is important to note that if and when a settlement is reached, thorny questions about protecting their distinct identity and land will have to be addressed. Many of the tribes fear that because they lack titles for their traditional territory, they will be unable to claim the resources (e.g. ancestral domains) and exercise their right to self-governance after a deal is signed. What can be done now to reassure them that they will retain control of their land? While the peace process with the Moro Islamic Liberation Front (MILF) may be illsuited to advancing indigenous rights because its structure and content do not prioritize these issues, the government and the MILF should take steps both within and outside the parameters of formal negotiations to respond more concretely to the concerns of the Lumad. To simplistically defer the sensitive and equally delicate discussion of the issues concerning the IPs, and to consider this negotiation as one primarily between the GPH and the MILF, is to completely ignore the undisputed fact of Mindanaos innate diversity in terms of tribes and cultures and peoples. Any sincere effort to peace must take into actual account the interests of all. For if this is not done, then one is only buying peace for one at the cost of peace for another, which is no peace at all, but a dangerously fertile ground for new hostilities.

A. THE LEGAL MOVEMENT IN SUPPORT OF INDIGENOUS PEOPLES RIGHTS TO POLITICAL PARTICIPATIONInternational Affirmation It is imperative at this crucial point that from a legal dimension, we study the basis in law of this demand, more so a right, for a genuinely participative process. The laws positive progress towards securing the rights and mechanisms that will allow29

Augusto Gatmaytan and Kenette Jean Millondaga... Mahabang Usapin...Page 18 of 46


indigenous communities to have access to their rights to participation and self-determination are protected by a large body of laws and pronouncements, led by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the international platform. The UNDRIP declares the indigenous people rights to be free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination especially in the exercise of the rights pertaining to their indigenous origin or identity30. The indigenous peoples are also declared to enjoy the rights to self-determination, in pursuit of which they shall freely determine their political status31 and autonomy/self-government32. Their communities shall also be afforded the right to reinforce their distinct political, legal, economic, social and cultural institutions, while at the same time have the freedom of the option to join in the economic-political and socio-cultural life of the State to which they belong.33 Article 8 of the same likewise gives the States the positive duty to provide effective mechanisms for the prevention of or redress for, among enumerated reasons, the aim of effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities34 or those which have the effect of dispossessing them of their lands, territories or resources. Other international instruments providing for protection for the indigenous peoples include30

Article 2, Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

31

Article 3, Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 32 Article 4, Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.33

Article 5, Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. paragraph (a), Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;Page 19 of 46

34


the Universal Declaration of Human Rights (1948)35, Convention on the Prevention and Punishment of the Crime of Genocide (1951)36, International Covenant on Civil and Political Rights (1966)37, International Covenant on Economic, Social and Cultural Rights (1966)38, Convention on the Elimination of All Forms of Racial Discrimination (1966) 39 and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992).4035

The Universal Declaration of Human Rights is the first international document that states that all human beings are equal in dignity and rights. (Article 1) Everybody is entitled to the rights in the Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (Article 2) Genocide means any of the following acts which have the intention of destroying, in whole or in part, a national, ethnical, racial or religious group: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent birth within the group; forcibly transferring children of the group to another group. (Article 2) This Covenant outlines the basic civil and political rights of individuals. There are also provisions for collective rights. In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. (Article 27) This Covenant describes the basic economic, social, and cultural rights of individuals. It also has provisions for collective rights. Racial discrimination is defined as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. (Article 1) This Declaration deals with all minorities, which includes many of the worlds Indigenous Peoples. It only concerns individual rights, although collective rights might be derived from those individual rights. The Declaration deals both with states obligations towards minorities as well as the rights of minority people. Topics that are dealt with include the national or ethnic, cultural, religious or linguistic identity of minorities (Article 1); the free expression and development of culture; association of minorities amongst themselves; participation in decisions regarding the minority (Article 2); the exercise of minority rights, both individual and in groups (Article 3); and education of and about minorities. (Article 4)Page 20 of 46

36

37

38

39

40


It is worth noting here that the duty of States to protect the interests of the indigenous peoples is not only reactive, in the sense that the duty to protect on the part of the State arises only after a violation of the indigenous rights has been committed. To the contrary, the obligation is more proactive, imposing on the State the responsibility to promote at all times the indigenous communities rights. Such proactive responsibility must be seen as imperative, given the fact that the indigenous communities need support due to the fact that they are already marginalized, and affirmative action is needed if they are to be given equal protection alongside other citizens of the state. UNDRIP also declares in Article 26 thereof that the indigenous peoples shall have the right to be maintained in the lands, territories and resources which they have traditionally owned41, with the accompanying right to use and develop the same42. Pursuant to this, the State shall afford legal recognition and protection to these lands43, in upholding the communities rights over them. Finally, the ultimate paragraph of the 2007 Declaration states that interpretation of its provisions shall be guided by principles of justice, human rights, equality and good governance44. These acknowledged right of the indigenous peoples to their own territory and the preservation and protection of their socio-cultural integrity goes into the very right to genuinely self-determine. The right to self-determination is commonly known as that determination which establishes or affirms the statehood, geographical territories of a people. What seems to slip from the41

first paragraph, Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. second paragraph, Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. third paragraph, States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. Article 46, third paragraph The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, nondiscrimination, good governance and good faith.Page 21 of 46

42

43

44


spotlight, however, basic as it may seem, is that the right to self-determination goes into the very heart of the rights that attach to us by virtue of our being human beings. To be able to assert ones own identity and ethnicity, even in the context of a bigger self-determined state, is an issue that must be addressed by the TransCom. In fact, in the drafting of the UNDRIP, one of the concerns and issues raised by parties who were not entirely keen on acceding to the declaration is the sensitive dilemma of the application of the concept of selfdetermination to indigenous peoples who are minorities of their states45. Indeed, in this present case of the Tedurays and other minority indigenous groups within the Bangsamoro, the TransCom is presented with the challenge of finding out how the dynamics would be if a minority is going to seek self-determination in the process of another minoritys self-determination (underline for emphasis?). In this case, the indigenous peoples effort to self-determine within the process of self-determination of another larger, albeit still, a minority. This challenges what Onyango calls, still an overtly statist dimension and hence more of a state-determination than a self-determination. With the nature of self-determination still a subject of contentions as to the degree, it may well be considered that the degree to which it culminated in 1993, established the extent of self-determinative right as that which may be asserted against a government that is unrepresentative of people who are defined by characteristics not limited to race, creed or color. This possible need of the indigenous peoples to feel that they may self-determine in the alleged under-representation of the Philippine Government of their interests can be adequately dispelled if, in the face of the most promising peace agreement in the countrys history, the Government, through the representation of the GPH panel, can bring into the peace discussion the constitutionally safeguarded rights of the indigenous peoples. Addressing this is imperative, and must be made at the grassroots-level, if the measures are to stay true to the final hope of bringing peace that encompasses and endures in Mindanao.

45

J.Oloka Onyangco, "Heretical Reflections on the Right to Self-Determination: Prospects and Problems for a Democratice Global Future in the New Millenium," American University International Law Review, 15, no. 1 (1999).Page 22 of 46


In internationally decided cases, the rights of the indigenous communities to participate and politically involve themselves in the creation of policies that involve them has been repeatedly upheld by the international courts. In the case of YATAMA v. Nicaragua46, the Inter-American Court of Human Rights held that the indigenous peoples right to political participation gives rise to a duty of the states to implement special measures to facilitate such indigenous participation, creating a landmark legal precedent for guaranteeing indigenous peoples the right to political participation. The court here held that indigenous peoples have the right to participate in national political structures in accordance with their own customary political organization and practices. In this case, YATAMA is a political party composed primarily of the Miskito Indians, an indigenous group found in the Atlantic Coast of Nicaragua, where 30% of the population belongs to indigenous tribes. Similar to the Tedurays who live in the center of the ARMM, the Miskito Indians were also found in the Atlantic Coast which was under a special regime of autonomy granted under Nicaraguan laws. Although the Nicaraguan laws also have a similar pronouncement of the States duty to afford the indigenous communities of the Atlantic coast the right to preserve and develop their cultural identity within the national unity; have their own forms of social organization and administer their local affairs in accordance with their traditions, these acknowledgments paled when the Nicaraguan government denied YATAMA, which seeks to promote indigenous self-government and seeks to protect indigenous ancestral territories, the opportunity to participate in the already established bipartisan political system of the country. The Inter-American Court upheld the right of YATAMA candidates to participate in the elections, holding that the State was under the duty to adopt all the necessary measures to guarantee that members of indigenous and ethnic communities of the Atlantic Coast of Nicaragua can participate, under conditions of equality, in the development policies that influence, or could influence, their rights and the development of their communities.46

YATAMA vs. Nicaragua, Judgement of the Inter-American Court of Human Rights, Judgment of June 23, 2005, (Preliminary Objections, Merits, Reparations and Costs).Page 23 of 46


In another internationally decided case upholding the indigenous communities right to participation and engagement in policy-making processes that are relevant to them, the InterAmerican Court of Human Rights held in the case of Awas Tingni vs. Nicaragua 47 that the collective rights of the Sumu Indians in Awas Tingni over their resources and environment was blatantly violated when the government awarded a logging concession over their traditional lands to a Korean company without first consulting the community nor obtaining its consent. It can be said that if the communities have a right to be consulted in the policies or measures that will affect their collective right over their territory, how much more right could the indigenous communities have to be consulted in the creation of special sociopolitical regime that seeks to govern them as well? How more grave a violation would it entail to close a political agreement over a finite territory that has also always been theirs, as well? Finally, in the case of Alexkor Ltd vs. Richtersveld Commnunity48 3,000 Nama people took the government to court after their eviction from their diamond-rich land, and were upheld by the South African High Court in its definitive pronouncement that the Nama people had both communal land ownership and mineral rights over their territory. The High Court further declared that the effective failure to respect indigenous peoples land ownership under their own traditional law, albeit unwritten, is tantamount to racial discrimination, which international and domestic laws strongly decree against. The journey towards the creation of the Bangsamoro, therefore, must be carefully taken, ensuring that if the peace pact is to last, all stakeholders who stand to be affected (either with loss or gain) must be heard and given the ample opportunity to be engaged in the making of the law that seeks to govern them, otherwise genuine recognition and liberation will be at risk of degenerating farther into a microscopic duplication of the initial oppression, in which case the corrected injustice which was committed against the Muslim communities, will only47

The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, InterAm. Ct. H.R., (Ser. C) No. 79 (2001).

48 Alexkor Ltd and Another v Richtersveld Community and Others (CCT19/03) [2003] ZACC 18;

2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003).Page 24 of 46


be repeated, only this time, against the indigenous communities, who will by then be a twotiered minority. Philippine Initiatives Let us begin with the mother of all laws, our 1987 Constitution49, which states in its very preamble:We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure ourselves and our posterity the blessings of independence and democracy under the rule of law, and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution (emphasis supplied). (where is the line emphasized?)

As discussed by Prof. Alberto Muyot in his work Legal Dimensions of the Peace Process50, our preamble proceeds from three basic theoretical assumptions, and they are as follows: (1) That a just comprehensive and lasting peace is best achieved under the rule of law in accordance with constitutional processes and not through a contest of arms; (2) That a holistic approach is necessary for the attainment of peace, and;(3) That in achieving a just, comprehensive and lasting peace, the active participation of all sectors of society, and not just the contending factions, is necessary. Pursuant to this constitutional commitment to an inclusive peace process, Executive Order 125, dated September 15, 1993 entitled Defining the Approach and Administrative Structure for Governments Comprehensive Peace Efforts was issued, providing more particularly in Section 2 thereof:Section 2. Principles Underlying the Comprehensive Peace Process: The comprehensive peace process shall be governed by the following underlying principles:49 50

1987 Philippine Constitution, 1987. Alberto Muyot."The Legal Dimensions of the Peace Process."Peace, Conflict Resolution & Human Rights. 96-7. (1996): 1-45.Page 25 of 46


A comprehensive peace process should be community based, reflecting the sentiments, values and principles important to all Filipinos. Thus, it shall be defined not by government alone, nor by the different contending groups only, but by all Filipinos as one community.

A comprehensive peace process therefore, demands a holistic approach that will require the cooperative efforts of all sectors of society. It needs to be inclusive and must take account of the complex relations between the parties to the negotiations and other actors or groups, and how these will be affected by their agreement. The uncertainty or anxiety, the fear or threat of conflicts that have surfaced from actual interviews and researches suggest that more can be done to include the Teduray - their ideas and sentiments, in the ongoing talks. A closer look into the more specific right to participation of the indigenous peoples in the peace process finds one of its roots firmly anchored on the promulgation of RA 8371 or the Indigenous Peoples Rights Act (IPRA) of 1997, which embodied in the black letter of the law the mandate for recognition, promotion and protection of the rights of the indigenous peoples. Section 2 thereof declares the national thrust towards adherence to the international declarations and positive affirmation of indigenous peoples rights not only in the pages of the law, but on the ground, in the communities, where such support matters and spells the difference between political integration and isolation.

IV. THE DELICATE BALANCING ACT: PROPOSED MEASURES FOR A MORE INCLUSIVE PEACE PROCESSIt is crucial to begin with the clarification that the Tedurays are not, in any means or manner, opposing the Bangsamoro Framework Agreement. In fact, as early as 2005, when they first responded to the call of the GPH peace panel that they submit position papers on the matter, they have, through the representation of TJG, expressed and consistently affirmed theirPage 26 of 46


support in favor of the current Mindanao peace process, saying that as a minority, they, perhaps more than others, would understand the travails and the hardships that is undergone in order to self-determine. In addition, according to Timuay Bello, they also fully advocate for the success of the Islamic communitys journey towards genuine recognition and protection. However, by virtue of the fact that they too, as the Teduray and Lambangian tribes within the ARMM, are a minority in need of that same recognition and protection, they are forwarding and also strongly asserting six (6) conditions51 based on traditional pacts between their tribes and the Maguindanao which they propose will govern the nature of their identity within the Bangsamoro homeland, as well as their rights within it. The six assertions are as follows:That we accept and recognize the Bangsamoro as the new political entity in place of the ARMM; That if the Bangsamoro is the collective identity of the constituents of the Bangsamoro Government, then we shall be known as the Bangsa-Mamalu to distinguish our distinct identity within the Bangsamoro entity; That our domains shall also be accepted as distinct in accord with the ancient pacts between our ancestors; That there will be sharing of powers and control and supervision in the management and development of resources within the Bangsa-Mamalu territorial domains; That the political relationship be akin to autonomy within an autonomy where we can freely exercise self-governance in accordance with the customary practices; Finally, those available laws for the Indigenous Peoples in the Philippines shall be the legal basis in formulating provisions of laws for the Bangsa-Mamalu in the Bangsamoro entity, including the United Nations Declaration on the Rights of Indigenous Peoples and other UN Charters and conventions. (Italics supplied)51

Asserting the Indigenous Peoples (IP) Self-determination in the Context of the Framework Agreement on Bangsamoro (FAB), Official Statement of the Timuay Justice and Governance (TJG), November 4, 2012.Page 27 of 46


The Tedurays calls are clearly rooted in their rights, as constitutionally enshrined and statutorily affirmed, even as they echo the international call for stronger and more positive efforts towards protection and promotion of indigenous peoples rights. With the assertions forwarded by the TJG in behalf of the Teduray and Lambangian communities, the challenge now is the manner and process by which these aspirations are to be voiced out in the Transition Commission and, ultimately, articulated in the Bangsamoro Basic Law which will govern the entire Bangsamoro homeland. This researcher believes that our country is at the forefront of this advocacy, being presented now with a legal situation that can definitively carve the national efforts in affirming the rights of the indigenous communities by allowing more than half of the total population of indigenous peoples in the country to meaningfully participate in the realization of the peace pact that promises to unite the country by institutionalizing struggles towards peace in the islands of Mindanao. It is crucial, however, as this study endeavors to produce, that the catch phrase meaningful participation be fleshed out in concrete and operational steps. To fail at it would mean keeping the phrase a beautiful rhetoric, devoid of visible meaning. The proposal below was formulated based on the jurisprudential definition of participation. The researcher, however, cautions that the proposed steps have not remained contained to analogous variations of existing participation policies, but have likewise ventured out into suggestions of decidedly novel measures in breathing life to the true import of genuine participation in the context of a more inclusive process towards enduring peace. The proposals of Timuei Justice and Governance as well as the suggestions from members of the Teduray communities, have been primarily taken into consideration, and have been woven into a workable proposed solution that likewise passes the test of reasonableness and pragmatism. This, after taking into account the general pronouncements and steps taken by the MILF and the OPAPP, as well as those guarantees provided by the Philippine Government.Page 28 of 46


The first concrete way to achieve this inclusion is to give the Tedurays and the other IPs actual representation in the Transition Commission. The endorsement of the representative must come from the community alone - with the candidate rising from among the ranks of the tribes to be represented. The representation may come in the form of allocation of a seat or two for representatives of the IPs, who will actively participate in the drafting of the Bangsamoro Basic Law. If the allocation of seats in the TransCom for the IP representatives will no longer be workable as perhaps as of this writing, all fifteen (15) members of the Commission have already been assigned, the next best representation measure is to have the members of the TransCom actively consult the representatives of the TJG, so that although the IP representatives do not have a seat in the Commission, they will be nonetheless heard, especially on matters that require their intelligent participation. The conducting of major consultative measures is provided for in the functions of the TransCom as stated in Executive Order 120 Constituting the Commission, involving the task of coordinating and conducting dialogues with the National Government and various stakeholders, in furtherance of its duties52. More importantly, Section 7 of EO 120 also mandates that the TransCom ensure transparency and inclusivity of all stakeholders in the performance of its functions53, including the provision of effective consultation mechanisms. This assertion for representation is the answer to the challenge that the Chief Negotiator of the GPH Peace Panel, Professor Miriam Coronel-Ferrer, posed to the indigenous communities, when she said during the briefing with regional directors and other Mindanao officials of the National Commission on Indigenous Peoples in Davao City, that for IPs to secure representation in the Bangsamoro Assembly through the Transition Commission and the Bangsamoro Basic Law. She likewise added that future Bangsamoro Assembly can have reserved seats for IPs and other sectors54.52Section53

3, paragraph d

Section 7, The Commission shall ensure transparency and inclusivity and utmost professionalism in the performance of its mandate, and shall provide for appropriate and effective mechanisms for consultation with all stakeholders, as may be warranted. 54"GPH-MILF peace deal guarantees Mindanao IP rights says GPH panel chief." Updates on MILFPage 29 of 46


The Tedurays must also be granted what they have officially expressed as their main aspiration: the creation of the Bangsa-Mamalu, or their autonomy within the autonomy of the Bangsamoro55. This position is said to be the TJG's response to the call for them to submit position papers relating to peaceful co-existence, pluralism and reaffirmation of the MamaluTabunaway relations over issues of territory, ancestral domains, governeance and leadership structures, which were submitted to GPH and MILF through Hon. Silvestre C. Afable, Jr. of the GPH and Hon. Mohaqer Iqbal of the MILF.56 The definition of the GPH and the MILF, providing that the Bangsamoro are those who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands, must be amended to reflect a more accurate definition of the word, that is, representative of the Muslim communities in the Bangsamoro, as distinguished from the Lumad communities of the region. This is because as explained in the interviews and as described from studies, the Teduray communities do not acknowledge themselves as Moro, saying that without suggesting any negative connotation to the word, it simply is not an identity that is theirs, and the important nuance and distinction must be acknowledged and reflected in the discourse of the law. One concrete measure by which the meaningful consultation can be achieved, is my making a similar encouragement to the tribes and indigenous clans of the south to share and submit their inputs on the existing structures and modes of leadership in the indigenous communities. This would be similar to what the GPH Chief Negotiator Prof. Coronel-Ferrer sent out to the traditional leaders of the south, particularly the leaders of a royal clan in Maguindanao called the Maharadjah Tabunaway Descendants Council of the Philippines deal55

Peace Table, December 28, 2012. http://www.opapp.gov.ph/milf/news/gph-milf-peaceguarantees-mindanao-ip-rights-says-gph-panel-chief (accessed January 1, 2012).

The word bangsa means territory in English. The proposed recognition of the BangsaMamaluwill uphold the space and legal context within which the non-Moro Indigneous peoples within the proposed Bangsamoro territory will be able to exercise their distinct rights to their own structures of governance. As per the document entitled Ang Bangsa-Mamalu: Paliwanag sa TJG Statement Patungkol sa FAB which was first discussed and adopted at the inter-clan meeting last November 8-9 at Ranao, Pilayanm Upi Maguindanao, attended by 172 participants from 49 Teduray and Lambangian clans.Page 30 of 46

56


(MTDCP), included the Royal Houses of Rajah Buayan; Maguindanao; Dungun in TawiTawi; Sibugay in Zamboanga del Sur; Kapatagan Valley in Lanao del Norte; and Kabuntalan, during an organized a peace forum on the Framework Agreement on the Bangsamoro (FAB) held February 9 in Cotabato City57. With the main rationale of the consultation being to highlight the importance of preserving customary laws and enhancing its usage as a source or reference to the administration of justice and promotion of peace and order in the Bangsamoro, the efforts of the panel at achieving inclusivity in its processes will be better concretized if it, in the method of consulting the stakeholders who have already-established leadership and governance structures in the Bangsamoro proposed territory, include the consultation of the tribal leaders of the Lumad tribes whose very communities are situated within the proposed core territory, but whose traditions and customary laws are different from those of the Muslim royal houses. With regard to the request for power and wealth-sharing, this is likewise rooted on the principle that self-determination is not only political. Even if political self-determination is assured, the absence of economic self-determination creates the possibility of its eventual defeat, for to assure that a group is self-determined, without giving them enough power and fuel to sustain that determination, is to cripple them and deprive them of enjoyment of such. The historical non-application of the IPRA in the jurisdiction of the ARMM must also be revisited and evaluated as to its legal bases. The TransCom, pursuant to its mandate of drafting the Bangsamoro Basic Law, can definitively codify the reconciliation of the said law with IPRA, so that within the territory, the indigenous communities are afforded the legal machinery with which they can ensure the protection of their rights. Finally, the TransCom must proceed into the consultation process and the drafting stage with the constant reminder that all who will be affected by the law they are drafting must be57

"Govt chief negotiator urges traditional leaders in south to enhance their role in peace process." Updates on MILF Peace Table, February 21, 2013. http://www.opapp.gov.ph/milf/news/govt-chief-negotiator-urges-traditional-leaders-south-enhancetheir-role-peace-process (accessed February 23, 2013).Page 31 of 46


included, heard and justly taken into account.

VII. CONCLUSIONThe central question of this essay seeks to look into the concrete ways in which the peace process can involve and more feasibly protect the legitimate interests of the indigenous peoples in the context of the anticipated drafting of the Bangsamoro Basic Law. This question goes into the very query of what the process of consultation from here on out should look like, in order to achieve the above said end. The proposals and suggestions cited above, from reserved seat-representation to on-theground consultations, illustrate how any given process of consultation is really more substantive than procedural. This, in the sense that the steps to be taken in the method of consultation must be dictated by the kind of information and input that the consulting body desires to obtain at the end of the process. It may be said that by this very substantive nature of the process of consultation, and more peculiarly in the context of the indigenous peoples and the peace-building, there may be no formulaic operations, only community-based, transparent and all-inclusive efforts at giving all who have a stake in the situation to be heard and engaged. Finally, a concrete road map to a more genuinely participative process towards peace is crucial and most useful, lest we again face the prospect of another equally destructive war involving not just two but three protagonists - the third being the indigenous peoples. History should have already taught us painfully and well that a settlement that ignores overlapping claims to land and resources will be a shaky foundation for peace and could well give rise to further claims of injustice.

Page 32 of 46


BIBLIOGRAPHYAlexkor Ltd and Another v Richtersveld Community and Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003).Page 33 of 46


Ancog, Rico, and Arnold Salvacion. "GIS-Mapping of Indigenous Peoples' Vulnerability to Climate Change." School of Environmental Science and Management (SESAM), University of the Philippines, Los Banos (UPLB). Arguillas, Carolyn. "From RAG to ARMM to Bangsamoro: Salamat Hashim would have approved of Bangsamoro's proposed territory." MindaNews, , sec. Headline, October 11, 2012. http://www.mindanews.com/peace-process/2012/10/11/from-rag-to-armmto-bangsamoro-salamat-hashim-would-have-approved-of-bangsamoros-proposedterritory/ (accessed October 20, 2012). Asserting the Indigenous Peoples (IP) Self-determination in the Context of the Framework Agreement on Bangsamoro (FAB), Official Statement of the Timuay Justice and Governance (TJG), November 4, 2012. Convention on the Elimination of All Forms of Racial Discrimination, 1966. Convention on the Prevention and Punishment of the Crime of Genocide, 1951. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992. Executive Order 120, Constituting the Transition Commission and for other purposes, December, 17, 2012. Executive Order 125, dated entitled Defining the Approach and Administratve Structure for Governments Comprehensive Peace Efforts, September 15, 1993. Framework Agreement on the Bangsamoro, signed 15th October, 2012. Gatmaytan, Augusto, and Kenette Jean Millondaga. "Mahabang Usapin; Teduray Perspectives on the Peace Process." Research to Establish the Partnership between Practice and Education/Research in Peacebuilding and Capacity Development, Hiroshima University Discussion Paper Series. 16. (2012). "Govt chief negotiator urges traditional leaders in south to enhance their role in peace process." Updates on MILF Peace Table, February 21, 2013. http://www.opapp.gov.ph/milf/news/govt-chief-negotiator-urges-traditional-leaderssouth-enhance-their-role-peace-process (accessed February 23, 2013).Page 34 of 46


"GPH-MILF peace deal guarantees Mindanao IP rights says GPH panel chief." Updates on MILF Peace Table, December 28, 2012. http://www.opapp.gov.ph/milf/news/gphmilf-peace-dealguar

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