The Indigenous Peoples’ Rights Act
Pia C. Bennagen
Introduction
The Indigenous Peoples’ Rights Act (IPRA) was passed during the 10th Congress, signed into law by former President Fidel Ramos on 29 October 1997, and took effect on 22 November 1997. One of the priority bills under the Ramos administration’s Social Reform Agenda[1] (SRA), it is considered a landmark legislation in the area of social justice and human rights. What is interesting about the law is that it brought the government, non-government organizations (NGOs), peoples’ organizations (POs) and indigenous peoples together in creating a law that finally gives proper recognition to the indigenous peoples' rights to self-governance and to their ancestral domains. This case study focuses on the participation of various civil society actors in the passage of the law.
The key questions this case study attempts to answer include the following:
(1) What is the Indigenous Peoples’ Rights Act of 1997?
(2) What is the nature and extent of civil society participation in the passage of this law?
(3) What was the impact of civil society participation on the substance of the law and on the legislative process?
(4) What lessons can be generated from civil society’s experience that may be applicable to other cases of civil society intervention in the legislative process?
This case study is not an assessment of the technical aspects of the law. Neither does it look into the constitutionality issue from a legal standpoint. What this study does is to examine the legislative process in the Senate because this was the main arena where the battle took place. Developments in the House of Representatives will be discussed whenever appropriate. Moreover, emphasis is given to events that transpired during the 10th Congress, when the bill was actually passed and signed into law.
Primary and secondary sources of information and data were used for this case study. Published documents from both government and non-government offices were examined. In particular, the transcripts of Senate committee hearings and technical working group meetings proved useful in the process of identifying key actors involved in the formal legislative process. More importantly, interviews with some key actors who played significant roles in the making of the law were conducted.
The IPRA case appears to be a favorable exercise in civil society participation in the legislative process. To a certain extent, the indigenous peoples and the groups working for their rights were able to contribute substantially to the provisions of the law. They were also able to see the law through to its enactment. Civil society participation was also vital in the sense that it contributed to the hastening of the legislative process. Nevertheless, the indigenous peoples’ experience in engaging the legislators revealed the need to make indigenous peoples more familiar with the working of government and to make government more aware of the plight and interests of indigenous peoples. This study also points to an old, albeit important, lesson when it comes to the legislative process. The signing into law of the IPRA is only half the battle. The more significant half of that battle is to ensure the effective and efficient implementation of the law. However, even before this, the civil society actors that lobbied for the passage of the law have to focus their energies on defending the law before the Supreme Court, where the constitutionality of the law has been questioned. For them, the struggle is not yet over.
An Overview of the Philippine Legislative Process
The 1987 Constitution of the Republic of the Philippines provides that before a bill can become a law, it must pass through three readings in each of the two houses of Congress. A bill becomes a law once it is signed by the President. Even if a bill is vetoed by the President, this veto can still be overturned by the legislative body.[2] But while the 1987 Constitution vests legislative power upon Congress, it also recognizes the rights of citizens and civil society organizations to participate in the policy-making process as it declares that:
The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall by law facilitate the establishment of adequate consultation mechanisms.[3]
Hence, within the formal legislative process, there are three avenues for intervention that civil society may make use of. The first is the personal level of intervention wherein civil society organizations or private individuals may approach a legislator directly to propose a bill or to demand other things. The second level is the stage before the first and second readings or the committee work phase. At this stage, civil society organizations may be invited by the legislative body to give their inputs on a proposed bill. If they are not invited, these organizations can still influence the future of a bill by submitting position papers, attending committee hearings that are open to the public, approaching legislators personally to lobby, or holding rallies and demonstrations in support of or against a proposed bill. The third is the bicameral conference stage. When the House and Senate version of a proposed bill need to be reconciled, a bicameral conference committee is created. At this stage, no final decision has been arrived at yet and thus, civil society can still influence the outcome.[4] The ability of civil society actors to influence the legislative process depends, among others, on the level of intervention which they opt to use. In general, it is easier to influence legislators at the earlier stages of the process than at the later phase, when the bill is more or less in its final form.
To make use of these avenues for intervention in the formal legislative process, civil society uses various means of intervention. These means allow civil society to gain access to the state’s policy-making processes:
(1) Membership and/or participation in consultative or technical bodies and councils;
(2) Participation in elections, recall, initiative, and referendum;
(3) Lobbying by petition-signing, signature campaigns, and submission of position papers;
(4) Forums, dialogues, and consultations with individual officials and/or candidates;
(5) Bill drafting and sponsorship;
(6) Filing, prosecution, and monitoring of complaints and cases in redress of grievances before appropriate bodies;
(7) Presidential certification of bills and directives;
(8) Coordination and partnership with stage agencies in particular projects and programs;
(9) Rallies, strikes, demonstrations, and other mass actions;
(10) Networking with the state and other civil society organizations;
(11) Articulating interests through multimedia sources; and
(12) Endorsement of or support for elective and appointive officials.[5]
While the choice of means of intervention is important, equally vital is the determination of the pressure point which refers to the actor, official, agency, or unit which will be the target of the intervention. Knowing whom to pressure is a vital part of the struggle to influence policy-making in government. However, before one can identify the pressure point, one must also know the dynamics that take place in the decision-making processes and among the decision-makers. For instance, knowing the balance of power between the executive and legislative branches or between the Senate and the House of Representatives will help civil society lobbyists in deciding which body they should approach. As one observer of the Philippine legislature wrote: “Apart from familiarity with both the key players and the formal structures of Congress, civil society actors must also be knowledgeable about the processes and mechanisms of lawmaking. If they know which buttons to press and which levers to pull, they can themselves become dynamic players in Congressional decision-making.”[6] Thus, before civil society actors can use the avenues for intervention in the policy-making process that the Constitution provides, they must be well and properly acquainted with the process itself and the actors that make the decisions. On the whole, civil society must not only be familiar with how policies are made and who makes them, but they must also know how and when best to intervene to make the most of their participation.
An Overview of the Indigenous Peoples’ Rights Act of 1997
Entitled “An Act to Recognize, Protect, and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and For Other Purposes," Republic Act 8371 is a comprehensive law that finally recognizes what indigenous peoples in the Philippines have long been fighting for — official recognition of their right to their ancestral domain, self-governance, social justice and human rights, and cultural integrity. The law, which took 10 years and three Congresses to pass, has been hailed by the indigenous peoples and advocates of indigenous peoples’ rights as a landmark legislation that will give the indigenous peoples what has long been due them.[7]
According to one of the former sectoral representatives for indigenous peoples, although indigenous peoples have articulated the need for the state to recognize and protect their rights to their ancestral domains, the struggle for a law that will protect their rights has been a protracted process. During consultations and discussions with the Cordillera Peoples’ Forum and other Cordillera-based groups held in the 1980s, for instance, it often came out that there was this strong aspiration for the enactment of a law recognizing and protecting the indigenous peoples’ rights to their ancestral lands and ancestral domains. Even during the peace consultations in Ifugao conducted by the defunct National Unification Commission (NUC), the same concerns were raised — land security, cultural integrity, and political empowerment. When lawyer Evelyn Dunuan was appointed as sectoral representative during the 10th Congress, she decided to conduct consultations with different indigenous peoples’ groups not only to solidify her mandate but, and more importantly, to discuss the legislative agenda which the indigenous peoples wanted to pursue in Congress. The main collaborators for these consultations were the Office of the Presidential Adviser on the Peace Process (OPAPP), Episcopal Commission on Indigenous Peoples of the Catholic Bishops’ Conference of the Philippines (ECIP-CBCP), National Peace Conference (NPC), and PANLIPI Legal Assistance Center for Indigenous Peoples Inc. (PANLIPI).[8]
Prior to the IPRA, there were previous attempts by government to recognize the rights of indigenous peoples to their ancestral domain. An example is an administrative order issued by the Department of Environment and Natural Resources (DENR) that provides for the issuance of Certificates of Ancestral Domain claims (CADC) or Certificates of Ancestral Land Claims (CALC) to indigenous cultural communities that have petitioned the government to recognize their right over lands under their care since time immemorial. But the IPRA is distinguished from other previous efforts to recognize indigenous peoples’ rights by certain features:
(1) It grants total recognition of the rights of indigenous peoples to own ancestral domains and ancestral lands.
(2) It repeals all laws prejudicial to the recognition of the right to ownership of ancestral domains and ancestral lands.
(3) It respects and recognizes political structures and systems, culture, resource management practices, and conflict resolution mechanisms that are indigenous.
(4) It provides for the issuance of tenure instruments which are equivalent to Torrens Titles.
(5) It recognizes socio-cultural differences among the various indigenous peoples’ groups.
(6) It provides for the establishment of an office with clearly defined functions and adequate funding, and where indigenous peoples are adequately represented.
(7) It mandates the delivery of basic services to indigenous communities and provides for their holistic and integrated development.
(8) It simplifies the requirement for the recognition of ancestral domain ownership and provides for the conversion of ancestral domain claims to complete ownership.
(9) It recognizes the right of indigenous peoples to genuine self-determination and autonomy.
(10) It provides for the indigenous peoples’ self-delineation of ancestral domains and ancestral lands.[9]
For these features to work for the benefit of the indigenous peoples themselves, a National Commission on Indigenous Peoples (NCIP) was set up to formulate and implement policies, plans, and programs that will operationalize the provisions of the IPRA. The key concern of the NCIP is the protection and promotion of indigenous peoples’ rights and welfare. In terms of its structure and organization, the NCIP is composed of seven commissioners who should each be a member of an indigenous cultural community. The commissioners are presidential appointees chosen from a list of nominees recommended by indigenous peoples themselves and are to be chosen from the different ethnographic areas in the Philippines were indigenous peoples reside. For the NCIP to carry out its mandate, it has been granted various powers and given several responsibilities, including the following:
(1) Serve as the primary government agency through which indigenous peoples can seek government assistance;
(2) Review and assess the conditions of indigenous peoples, including existing laws and policies regarding their situation, and propose relevant laws and policies to address their role in national development;
(3) Formulate and implement policies, plans, programs, and projects for the economic, social, and cultural development of the indigenous peoples, and monitor the implementation of these initiatives;
(4) Issue certificates of ancestral land and ancestral domain title;
(5) Enter into contracts, agreements, or arrangements with government or private agencies or entities as may be necessary to attain the objectives of R.A. 8371;
(6) Coordinate development programs and projects for the advancement of the indigenous peoples and oversee the proper implementation of these initiatives;
(7) Convene periodic conventions assemblies of indigenous peoples and review, assess, and propose policies or plans; and
(8) Issue appropriate certification as a precondition to the grant of a permit, lease, grant, or any other similar authority for the disposition, use, management, and appropriation by any private individual, corporate entity, or any government agency, corporation, and subdivision on any part of the ancestral domain, taking into consideration the consensus approval of the indigenous peoples concerned.[10]
The Implementing Rules and Regulations (IRR) for the IPRA were promulgated by the NCIP on 9 June 1998 and was published in accordance with law on 14 June 1998. According to former President Ramos: “It took courage to have this law passed in the midst of opposition from many influential groups whose interests would be diminished by returning ancestral rights to the indigenous communities ... Although it took many years to have it passed, given its complexity, it is done. R.A. 8371 is a triumph of the executive’s and the legislative’s political will. For only a law of such breadth, depth, and scope as R.A. 8371 can provide the indigenous peoples with the seeds of their empowerment and social equity.”[11] While the signing of R.A. 8371 can be considered a victory for the indigenous peoples of the Philippines, the recent turn of events do not seem to bode well for the effective and efficient enforcement of the law for which indigenous peoples have struggled for generations.