Civil Society and the Making of the Indigenous Peoples' Rights Act ...

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 Agenda1 (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

1 The Social Reform Agenda (SRA) is a package of interventions that seeks to alleviate poverty and improve the welfare of the marginalized sectors of Philippine society. Its key areas of concern are: (1) access to quality basic services; (2) asset reform and sustainable development of productive resources and access to economic opportunities; and (3) institution-building and effective participation in governance. The indigenous peoples form one of the basic sectors that is targeted by the SRA.

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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

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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

2 1987 Constitution of the Republic of the Philippines, Article VI (The Legislature), Sections 26-27. The Philippine Congress is bicameral with the Senate as the upper house and the House of Representatives as the lower house. Senators are elected for a six-year term while Representatives have a three-year term. The former can be elected for two consecutive terms and the latter for three (i.e., with possibility for further re-election after a break of one term). There are 24 senators who are elected at-large while the lower house is composed of not more than 250 members elected on a legislative district basis (but 20% of this total is to be elected through the party-list system). The Senate is headed by the Senate President while the Speaker of the House leads the House of Representatives.3 1987 Constitution of the Republic of the Philippines, Article XIII (Social Justice and Human Rights), Section 16.4 Third World Studies Center, State-Civil Society Relations in the Policy-Making Process (Quezon City: University of the Philippines Press, 1994).

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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

5 Marlon A. Wui and Ma. Glenda S. Lopez, “Synthesis: State-Civil Society Relations in Policy-Making,” in Marlon A. Wui and Ma. Glenda S. Lopez (eds.), State-Civil Society Relations in Policy-Making (Quezon City: Third World Studies Center, 1997), pp. 7-8.

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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

6 Patricia Ann V. Paez, “State-Civil Society Relations in Policy-Making: Focus on the Legislative,” in Wui and Lopez (eds.), State-Civil Society Relations ..., p. 42.7 Data from 1997 estimates that there are about 12 million indigenous peoples in the country that are divided into 110 ethnic groups. Coalition for Indigenous Peoples’ Rights and Ancestral Domains, Guide to R.A. 8371: Indigenous Peoples’ Rights Act of 1997 (Quezon City: CIPRAD, 1999), pp. 3-4.

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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.

8 Interviews with lawyer Evelyn Dunuan, College of Law, University of the Philippines, Quezon City, 9 November 1999 and lawyer Ma. Vicenta de Guzman, Brotherhood of Asian Trade Unionists Office, Manila, 22 October 1999.

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(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 9 Florence Umaming, “A Closer Look at the IPRA of 1997,” Intersect 13(7)(July 1998):8-9. The author is a member of an indigenous cultural community and was one of the most active lobbyists for the IPRA.

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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

10 Coalition for Indigenous Peoples’ Rights and Ancestral Domains, Guide to R.A. 8371 ..., pp. 22-23.

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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.

On the whole, it can be observed that the process by which the IPRA was formulated and

its IRR drafted was participatory in nature. Several civil society organizations concerned

with indigenous peoples’ issues and concerns were at the forefront of the struggle for the

enactment of a law protecting the rights of this sector that has been marginalized from the

mainstream of society for the longest time. More notable. perhaps, was the fact that the

indigenous peoples themselves, through their community leaders, were part of the

decision-making process. The regional consultations and workshops conducted in

various provinces around the country allowed the indigenous peoples living in far-flung

areas a chance to articulate their sentiments and interact with their brothers and sisters

from other communities, with people from the government, and with NGOs working for

indigenous peoples’ rights.

One may argue that the participatory nature of the legislative process behind the making

of the IPRA can be attributed to a confluence of factors that fell into place at the right

time. First, there has been the long-articulated desire of the indigenous peoples for

legislation recognizing and protecting their rights. Thus, when there was an opening

brought about in part by the appointment of sectoral representatives for indigenous

peoples in the House of Representatives, they did not think twice about grabbing this

opportunity. Second, the sectoral representatives, particularly Atty. Dunuan, touched

base with their constituencies and solicited their inputs in the formulation of a legislative 11 Quoted from the statement of former President Ramos during the signing of R.A. 8371, Malacañang, 29 October 1997.

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agenda for indigenous peoples. A key component of that agenda was the making of a

law that will secure the indigenous peoples’ rights to their ancestral domain. Third, the

support and resources provided by different NGOs and POs made it possible to undertake

consultations that served as a venue for all stakeholders to discuss the pertinent issues.

These consultations served as a mechanism where the indigenous peoples articulated

their position, the stakeholders forged a consolidated stand, and consensus and

compromise was forged. And fourth, an important factor that should not be forgotten is

the openness showed by certain legislators and their respective offices. If the legislators

did not respond favorably to the efforts of the NGOs, POs, and indigenous peoples, the

process may have become more tedious and difficult or it may not have taken off at all.

Credit should also be given to the efforts of the Office of Senator Juan Flavier to invite

the participation not only of representatives from government agencies and departments,

which is the traditional strategy, during committee hearings and floor deliberations.

Didith Tayawa, legislative staff officer of Flavier, said that the Office of Flavier really

made it a point to bring into the process those groups that will be directly or indirectly

affected by the bill. This approach is based on the view that “legislation should not be

the sole responsibility of the legislator and the legislative staff and should not be done

simply by reading books and [soliciting] position papers”.12 Moreover, legislators should

not only approach government officials and agencies but must also consult the

communities to better understand the peoples’ sentiments and opinions. In the final

analysis, all these factors brought about the participatory process that led to the enactment

of the IPRA.

On Civil Society Participation in the Making of the IPRA

Even before the proposed bill was filed in the Senate, civil society organizations and

indigenous cultural communities were already actively involved in the various

consultations that were held nationwide from 1995 to 1997. The provisions that

12 Interview with Didith Tayawa, Office of Senator Juan M. Flavier, Pasay City, 26 November 1999. Tayawa is a legislative staff officer with Sen. Flavier’s office and she was the one assigned to handle the IPRA.

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eventually became part of the IPRA were formulated based on the outcomes of several

consultations with indigenous peoples’ groups from around the country. Among these

consultations were those conducted with the following groups: (1) indigenous peoples

of Eastern and Southern Mindanao, held in Kidapawan, North Cotabato on 11-12

November 1995; (2) Cordillera indigenous peoples, held in Baguio City on 14-15

November 1995; (3) indigenous peoples of Central and Southern Luzon, held in

Cabanatuan City on 16-17 November 1995; (4) indigenous peoples of Northern Luzon,

held in Bayombong, Nueva Vizcaya on 19-20 November 1995; (5) indigenous peoples

from Mindoro, Palawan, and Panay, held in Puerto Princesa City on 2-3 December 1995;

and (6) indigenous peoples of Western and Northern Mindanao, held in Cagayan de Oro

City on 9-10 December 1995. A national consultation was conducted in Pagsanjan,

Laguna, on 15-17 December 1995 to consolidate all the outputs from the different

regional consultations.13 These consultations were conducted under the auspices of,

among others, the NUC, which later became the OPAPP, the ECIP-CBCP, several NGOs

(e.g., NPC and PANLIPI), and the offices of the sectoral representatives of the

indigenous peoples in the House, particularly the office of Atty. Dunuan. In these

consultations, national and local government officials, NGOs, POs, and indigenous

peoples attempted to identify the basic elements that a law on indigenous peoples’ rights

must possess. The consultations provided an arena wherein differences in viewpoints

between the “lowlanders” and “uplanders” were to be reconciled. Due to constraints of

time, distance, and funding, not all indigenous cultural communities were able to

participate in the consultations. Nevertheless, there is a perception that the consultation

process was fairly representative and participatory. Out of these consultations evolved

the draft bill that was submitted by civil society to the Offices of Senators Flavier and

Francisco Tatad.14

Once the proposed bill was already submitted, civil society organizations and indigenous

peoples’ groups continued to be involved in the legislative process. During the various

hearings conducted by the Senate Committee on Cultural Communities and the meetings 13 Tenth Congress of the Philippines, First Regular Session, “Senate Bill No. 1476: Explanatory Note by Senator Juan M. Flavier,” March 1996, pp. 1-2.14 Interviews with Atty. Dunuan, 9 November 1999 and Ms. Didith Tayawa, Office of Senator Juan M. Flavier, Pasay City, 26 November 1999.

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of the Senate Technical Working Group, representatives from government and civil

society deliberated on several proposed bills dealing with indigenous peoples’ rights.

Among those who participated in these hearings and meetings were representatives from

the Office of Southern Cultural Communities (OSCC), Office of Northern Cultural

Communities (ONCC), DENR, Department of Agrarian Reform (DAR), Commission on

Human Rights (CHR), OPAPP, Presidential Legislative Liaison Office (PLLO), ECIP-

CBCP, PANLIPI, GZO Peace Institute, Cordillera Peoples’ Forum, Federation of

Matigsalug Manobo Tribal Councils, Tribal Communities Association of the Philippines,

and Coalition for Indigenous Peoples’ Rights and Ancestral Domains (CIPRAD). There

were also indigenous peoples’ leaders who attended these activities on behalf of their

respective communities.15 These groups and offices were invited to comment on the

proposed bill. Position papers from both government and non-government institutions

also started trickling into the Office of Senator Flavier and the Senate and House

Committees on Cultural Communities. During the committee hearings, civil society and

government representatives participated by sharing their views on the proposed bill.

Because of the participatory nature of the decision-making process involved, there was a

sense on the part of some observers that this approach helped in convincing the

legislators that the indigenous peoples were truly interested in seeing the bill through the

entire legislative process.16 Direct contact between the indigenous peoples and legislators

also gave each side the chance to interact with and better understand each other.

On the whole, the NGO-PO coalition that actively lobbied for the passage of the IPRA

pursued legislative action through a strategy that focused on several key steps. Here,

particular reference is made to the work done by the CIPRAD. This coalition was created

with the primary objective of pursuing advocacy for the rights of indigenous communities

through the Philippines.17 The initial step was for all those who participated in the

15 Information culled from transcripts of meetings and hearings conducted during the period October 1995 to July 1996, Senate, Tenth Regular Congress of the Philippines.16 Interview with Dunuan, 9 November 1999.17 CIPRAD is composed of indigenous peoples’ organizations and NGOs. Among these are the Sagada Women’s Group, Bamban Aeta Tribal Association, Bukidnon United Tribal Association, Dumagat Communities of Gen. Tinio and Gabaldon in Nueva Ecija, HAGURA Tribal Association, Kiangan Ancestral Domain Council, Katilingban nga Asosasyon sang mga Tumandok sa Isla sang Panay, Kalinga Mission for Children and Youth Development Inc., LAKAS Zambales, Manobo Lumadnong Panaghiusa ng Arakan Valley, Nagpana Minorities Association, Nagkakaisang Tribo ng Palawan, National Indigenous

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regional consultations and were supportive of a law on indigenous peoples’ rights to

build a consensus on the action to be pursued. After conducting the consultations,

synthesizing the outputs from these consultations, reconciling diverse views, and

formulating a draft bill, the next step was to identify a sponsor from the legislature who

will serve as the main spokesperson and salesperson for the bill. The NGO-PO coalition

wanted to make sure that the draft bill will be sponsored by a legislator who has the

political will to see the bill through the entire process until it becomes a law. Once a

legislative sponsor was identified, which in this case was Senator Flavier in the Senate

and Congressman Gregorio Andolana in the House of Representatives, civil society had

to prepare to negotiate and bargain with the legislators. This meant harnessing the

lobbying and negotiating skills of the NGOs and POs. At this point, the NGOs, POs, and

indigenous communities reiterated for inclusion in the draft bill seven non-negotiable

points: (1) recognition of native title and indigenous peoples’ right to ancestral domain;

(2) respect for the right to cultural integrity; (3) recognition of indigenous peoples’

political structures and governance; (4) delivery of basic services to indigenous peoples;

(5) respect for human rights; (6) elimination of discrimination against indigenous

peoples; and (7) creation of an office that would cater to the needs of indigenous

peoples.18 To maximize their influence on the legislative process, the coalition also

worked closely with the staff of Senator Flavier and the staff of the Committee on

Cultural Communities of both Houses of Congress.19 The good working relations

between the NGOs, POs, and indigenous peoples on the one hand and the legislators and

their staff on the other is one of the factors that contributed to the hastening of the

passage of the law. The regional consultations also helped because by the time the bill

was filed in Congress, the major conflicts among the parties concerned had already been

resolved to a certain extent.20

Peoples’ Council, Pambansang Lupon ng Nakakatanda sa Tribu, Samahan ng Nagkakaisang Tribong Hanunoo, Center for Living Heritage Inc., ECIP, Indigenous Peoples’ Apostolates Nationwide, National Peace Conference, and PANLIPI.18 According to Tayawa, these seven non-negotiable points came out of the regional consultations and were consolidated during the national conference conducted in Pagsanjan, Laguna in December 1995. Interview with Tayawa, 26 November 1999.19 Ma. Vicenta P. de Guzman, “Working with Congress for the Enactment of IPRA: The NGO-PO Experience,” in CIPRAD, Guide to R.A. 8371 ..., pp. 60-61.20 Interview with Tayawa, 26 November 1999.

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The formulation and approval of the implementing rules and regulations (IRR) for the

IPRA was likewise participatory and pro-active in nature. One observer notes that the

making of the IPRA IRR involved “several consultations, focused group discussions,

deliberations, and meetings ... participated in by hundreds, even thousands of indigenous

peoples, indigenous peoples’ rights advocates, consultants, government representatives,

NGOs, and other private sectors organizations, and individuals”.21 From the initial pre-

drafting stage to the validation process, the widest number of participants from

government, non-government, and indigenous peoples’ sectors were involved in the

decision-making. During the initial stages, those involved included representatives from

the ECIP-CBCP, PANLIPI, Center for Living Heritage, DENR’s Indigenous

Communities and Ancestral Domain Division, ONCC and OSCC, Congressional

Committees on Indigenous Communities, and NGOs advocating indigenous peoples’

rights. Once the drafting of the IRR began, CIPRAD, specifically through the efforts of

the ECIP-CBCP and PANLIPI, undertook several consultations with indigenous peoples,

during which time the significant items that should be incorporated in the IRR were

discussed, deliberated, and agreed upon. A national consultation was held in Quezon

City in December 1997 and during the period December 1997 to March 1998, various

area consultations among indigenous peoples were conducted in Oriental and Occidental

Mindoro, Palawan, Panay, Cordillera, Northern Luzon, North Cotabato, and Cagayan de

Oro. Consultations were also undertaken by the NCIP and CIPRAD in all regions

covered by the ONCC and OSCC. All these consultations culminated in an IPRA-IRR

Consultative Assembly held on 16-19 April 1998 in Angeles City, Pampanga and it was

during this even that the first draft of the IRR was formulated. Afterwards, the initial

draft was subjected to deliberation and validation through regional consultations by the

indigenous peoples themselves. These consultations were held in Kidapawan City,

Cagayan de Oro, Davao City, Pampanga, Baguio City, Quezon City, and Santiago City.

The draft was likewise submitted to government agencies (e.g., DENR, DAR,

Department of Agriculture, National Power Corporation), private business groups (e.g.,

mining companies), the academe (e.g., University of the Philippines’ Law Center), and

other NGOs. The outputs from these validation exercises were consolidated and 21 Ma. Vicenta P. de Guzman, “The Implementing Rules and Regulations (IRR) of the Indigenous Peoples’ Rights Act (IPRA) or R.A. 8371: Notes and Reflections,” Tribal Forum (May-June 1998):5.

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incorporated into a second draft. Again, this draft was subjected to further corrections

and amendments by the NCIP Technical Working Group for the IPRA IRR during a

workshop held in Tagaytay City in June 1998. It was the NCIP TWG that produced the

third and final draft of the IRR, which was eventually approved by the NCIP en banc and

took effect on 27 June 1998.22 Hence, in keeping with the precedent which the making of

R.A. 8371 had set, the process by which the IRR was drafted was also participatory as it

involved a myriad of government and non-government actors and organizations

interested in securing indigenous peoples’ rights.

After the law was finally approved and a case regarding the constitutionality of IPRA was

filed by former Supreme Court Justice Isagani Cruz and Atty. Cesar Europa on 28

September 1998, these same civil society actors continued to be involved in the struggle

to see their law finally implemented by attending hearings to show support for the law.

The petitioners in this case based their argument on the Regalian Doctrine, which

provides for state ownership of public lands and natural resources. On the other hand, the

main defenders of IPRA, who happen to be lawyers from the non-government sector

(e.g., Ateneo Human Rights Center, Legal Rights and Natural Resources Center, and

PANLIPI), are disputing this view by saying that the Regalian Doctrine is a legal myth.

In particular, the intervenors23 in the case are pointing to the doctrine as a historical

fallacy by referring to the 1909 Cariño vs. Insular Government decisions which “upheld

indigenous inhabitant’s time immemorial occupation of lands and natural resources, thus

rendering indigenous domains as private property that never have been part of the public

22 Ibid., pp. 5-6.23 In response to the agreement of Office of the Solicitor General (acting as counsel for the Secretaries of the DENR and DBM, two of the respondents in the case, the NCIP being the third one and represented by the Ateneo Human Rights Center) with the petitioners that certain provisions of the IPRA are indeed unconstitutional, some 109 individuals from indigenous communities throughout the country lodged an intervention with the Supreme Court on 10 November 1998. Representatives from indigenous communities like the Kalinga, Ibaloi, Kankanaey, Agta, Aeta, Tagbanua, Subanon, B’laan, and Manobo, together with Flavier, Dunuan, former Constitutional Commissioner Ponciano Bennagen, and groups such as Pula Bato B’Laan Tribal Farmers’ Association, Inter-People’s Exchange Inc., and Green Forum-Western Visayas, were signatories to this intervention. In the comment-in-intervention, the intervenors said: “The Regalian Doctrine is a legal fiction. It was created for the purpose of ensuring Filipino control over our resources. It is on the basis of this doctrine that petitioners say that they are less Filipinos, with lesser privileges than the lowlander that have mastered alien legalese. Undaunted by the stature of the petitioners, intervenors have come to rest our state’s ability to recognize our cultural plurality.” “Chronicles of a Protest,” Tan-awan 1(2)(December 1998-January 1999):8.

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domain, and hence not within the jurisdiction of state ownership”.24 Despite the

controversies that have arisen in relation to this legal development, if there is one good

thing that came out of the case filed against the IPRA, it was that it forced the NGOs and

POs which earlier worked for the passage of the law to regroup in order to defend the

law. And though the NCIP has already been set up and its commissioners appointed by

the President, nothing substantial has been accomplished thus far because of this case

which threatens to set back the indigenous peoples’ struggles for their rights. On a more

positive note, however, the indigenous peoples’ community has expressed determination

to pursue the recognition, promotion, and protection of their rights with or without the

IPRA.25

The Impact of Civil Society Participation

For the most part, the impact of civil society participation on the making of the IPRA was

quite substantial and positive. For one, most of the key provisions that were included in

the draft bill that resulted from the various regional consultations were incorporated into

the final version of the law. It is estimated that about 70% to 80% of the contents of the

draft bill still found their way into the final law.26 What is noteworthy about this is that

the contents of the draft bill were ideas and views by the indigenous peoples themselves.

These were the very ideas and views which they articulated during the consultations.

While the wording may have changed in the writing of the draft bill and in the final

version of the law, the essence remained the same. In particular, what the lawyers from

PANLIPI did was simply to reformat and structure these ideas and views into a legal

24 Rina Angela Corpus, “One Hundred Years of Servitude,” Tan-awan 1(2)(December 1998-January 1999):3. As of the time of writing of this case study, the Supreme Court has not yet issued a decision regarding the petition.25 Remarks from the floor during a conference on “Alternative Lawyering,” College of Law, University of the Philippines, 9 November 1999, and interview with Atty. Dunuan, 9 November 1999. 26 Interview with Dunuan, 9 November 1999.

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document.27 Hence, in terms of the substance of the law, the impact of civil society

participation was fairly extensive.

The active involvement of representatives from indigenous cultural communities also

proved positive in terms of making the legislators in particular and the “lowlanders” in

general more aware of their plight, way of life, and aspirations. Moreover, their presence

during the committee hearings and the formal sessions helped convinced the legislators of

their seriousness in pursuing the law. While some legislators were unconvinced about the

need for a law on ancestral domain rights, because of their interaction with the

indigenous peoples, the views of the legislators began to shift, albeit gradually.28 In part,

this may have contributed to the relatively short time that it took the bill to pass during

the 10th Congress (i.e., compared to the fate that it faced during the 8th and 9th

Congresses).

In relation to the impact of civil society participation on the pace of the legislative

process, it appears that participation hastened, and not prolonged, the process of making

the law. This was probably because the active and dynamic involvement of civil society

actors was taken as a sign that the bill was important to them and that they were serious

about seeing the bill through to its completion. Moreover, because the indigenous

peoples, NGOs, and POs were involved since the beginning of the process, there were

less conflicts during the formal legislative process and a consensus was reached by these

groups. Because of this consensus, the legislators saw that the proposed bill was the law

that the indigenous peoples wanted. Also, the level of preparation shown by civil society

organizations may have helped convince the legislators that civil society was dead-set on

defending the law.29 Thus, that there was the semblance of a consensus among civil

society organizations and indigenous cultural communities that articulated their views on

27 Interview with De Guzman, 22 October 1999.28 Despite such interaction, there were still legislators who continued to have reservations about the law. Among those who opposed the bill were the so-called constitutionalists who were staunch advocates of the Regalian Doctrine and insisted that lands and the state’s right to these cannot just be given away. In addition, there were also some legislators (especially in the House of Representatives) who were more interested in what benefits they will get from the law rather than the more substantive aspects of the IPRA. Interview with Dunuan, 9 November 1999. 29 Interview with Tayawa, 26 November 1999.

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the bill was a contributory factor to the relatively short time that it took for the bill to

become a law.

From a more long-term perspective, an important outcome of civil society participation in

the making of the law is the increasing recognition within Congress, at least in the

Senate, of the value of a participatory legislative process. Traditionally, the practice has

been to invite only affected departments and other government agencies to comment on

proposed bills. In recent years, however, more legislators are adopting a more

participatory stance by inviting more civil society representatives during committee

hearings and asking them for their positions and reactions to particular bills. NGOs and

POs are also being asked to submit draft bills, or submit proposed bills on their own

initiative, that the legislators can sponsor on the floor. Nevertheless, legislators who

adopt a more participatory approach to legislation are still the exception rather than the

rule. In the Senate, for example, the participatory process is not yet widely used either

because the legislators and their staff may not be familiar with how to go about reaching

out to the various groups or because they may not be interested in such an approach. To

a large extent, the nature of the legislative process involved in the making of a particular

law is still dependent on the mindset of the legislator and the members of the legislative

staff.30 While it might take more time before this participatory approach becomes

mainstream practice, the gradual opening up of the legislative process to actors other than

the legislators themselves and other government officials is a welcome development

indeed.

Lessons From the Experience of Civil Society

Civil society’s involvement in the making of the IPRA has revealed the following lessons

that may be relevant to other cases where civil society seeks to influence the outcome of

government policies (i.e., not necessarily limited to legislation). These are the following:

30 Ibid.

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(1) Civil society participation in the legislative process can be initiated by

civil society itself. There is the traditional notion that an individual or a

group can participate in the legislative process if and when an invitation to

participate is extended by the Senate or House. However, as the IPRA

experience shows, participation can also take place through the efforts of

NGOs, POs, and indigenous peoples themselves. Even before any

proposed bill was relayed to Congress, indigenous peoples in the

Philippines were already involved in various consultations as part of the

peace process and here, they were already articulating the need for a law

for indigenous peoples’ rights. They made legislators aware of their desire

for such a law without having to wait for Congress to ask them whether

they want it.

(2) Preparation is the key. Civil society actors must be ready to negotiate and

bargain with legislators and other decision-makers. They must identify

the areas which are non-negotiable and those on which they are willing to

compromise. While they must show their seriousness in pursuing their

chosen course of action, they must also be open to inputs from the party

across the negotiating table.

(3) Consensus-building among civil society organizations is important and

necessary, to enable them to present a united stand vis-a-vis the other

party. If civil society actors are able to act as one body, they may be better

able to convince the decision-makers that there is agreement among

themselves as to the importance and relevance of the law.

(4) Consistency is also vital. Civil society organizations must prove their

seriousness by being consistent in their actions. After submitting their

draft bill, they must monitor the progress of the bill. Showing up for

committee hearings and attending formal sessions even when they are not

invited can contribute to creating the image that civil society is firm in its

stance.

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(5) As civil society lobbies for the right to participate in the decision-making

process, it must also practice participatory decision-making within its own

ranks. In other words, it must also give life to the very principle of

participatory and democratic decision-making which it expects of the

government. In the making of the IPRA, the process by which the draft

bill was arrived at was consultative and participatory in the sense that

inputs were obtained from various indigenous cultural communities,

NGOs and POs working for indigenous peoples’ rights, academe and

research institutions, and government officials. A law that is arrived at

through a consultative, democratic, and participatory manner is more

likely to be perceived as representative of many interests and as legitimate

than one which is imposed by government on civil society.

(6) Civil society actors must be more open to engaging government. Some

groups were critical of those who opted to cooperate with government in

the making of the IPRA, saying that those who work with government

have been co-opted. However, there is a difference between co-optation

and critical collaboration. IPRA advocates said that they worked with the

legislators not because they have been “converted” but because they saw

the legislature as another arena where they can bring their struggle for

indigenous peoples’ rights. Here is where “strategic partnership” with

government can be pursued by civil society. What is important, according

to these groups, is that civil society continues to maintain its identity as

civil society even as it continues to collaborate with government on

worthwhile initiatives.

(7) Various challenges or problems that arise as a consequence of civil society

participation must be recognized and addressed. These include the

following:

a. Getting civil society to be more familiar with the formal legislative

process and the informal dynamics in Congress;

b. Reconciling diverse and sometimes conflicting views within civil

society, between civil society organizations working on indigenous

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peoples’ rights and indigenous peoples themselves, and between

civil society and government;31

c. Identifying which groups to invite to participate in the legislative

process;

d. Improving the technical capacity and skills of civil society groups

to enable them to better participate in the legislative process;

e. Improving networking within civil society itself and between

Congress and civil society;32 and

f. Increasing civil society’s capacity for conscious and sustained

collective action to ensure the law’s effective and efficient

implementation.

To reiterate, for the most part, the impact of civil society participation in the drafting of

the IPRA was positive and beneficial. Civil society was able to contribute to the

substance of the law and to the hastening of the legislative process. As to whether this

experience is replicable, one can answer in the affirmative but with certain reservations.

This is because certain factors that were present in this case are peculiar to the IPRA

experience --- the groups and the legislators involved, the level of organization among

NGOs and POs that was achieved through the years, the nature of the issue discussed, the

31 In the case of the IPRA, the conflicting views basically revolved around the concepts of land ownership. The constitutionality case filed by former Justice Isagani Cruz and lawyer Cesar Europa illustrates how different the views of the “lowlanders” are from that of indigenous peoples. Within the NGO community working with indigenous peoples, there were also varying views regarding the law itself. For instance, while the groups that actively worked for the passage of IPRA see the law as a landmark legislation benefiting the different indigenous communities in the Philippines, so-called “green lawyers” were claiming that instead of helping the indigenous peoples, what the IPRA does is to burden them because of the responsibilities that the law gives to the indigenous peoples with respect to the maintenance of ecological balance in their ancestral domains, the restoration of denuded areas, and the observance of environment laws. De Guzman, “The Implementing Rules and Regulations ...,” p. 9. 32 Networking among civil society organizations is a source of strength for them as it allows them to, among other things, pool their resources together towards a common goal. However, in the case of the IPRA, while a significant number of groups working in the area of indigenous peoples’ rights got involved in the process, there were others who came in only after the law had been enacted or who chose not to participate at all. In fact, there were some allegations coming from certain sectors that the IPRA is nothing but a law that gives false hopes to the indigenous peoples and those who worked for it in collaboration with Congress are nothing but a group of people who have been co-opted by the government. This division within the NGO-PO community working with indigenous peoples created some confusion among the indigenous peoples themselves as they no longer knew which side to believe and which group was actually representing their interests. Interview with De Guzman, 22 October 1999.

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nature of the proposed bill itself,33 the good working relations between the legislative

branch and civil society, and the general political environment, among others. Perhaps

another factor that contributed to the overall process was the international environment.34

It was the convergence of all these factors that created an environment that was

conducive to the passage of the law --- an environment that was either completely absent

or just evolving during the 8th and 9th Congresses when the first proposed bills on

indigenous peoples’ rights were submitted for deliberation. Therefore, the passage of the

IPRA cannot be attributed to a single factor for that would be a deterministic conclusion.

To say that it is civil society’s efforts which led to the successful passage of the law is to

fail to give credit where credit is due. The IPRA is the work not of a single actor or

organization but of a multi-stakeholder community composed of NGOs, POs, concerned

government officials and legislators, and indigenous peoples.

Civil Society, Legislation, and Governance: The Legislative Experience

Based on civil society’s experience in the context of the making of the IPRA, it can be

argued that civil society can, and does, contribute positively to legislation. Such

contributions can be substantive and/or procedural in nature. Indeed, civil society brings

with it a different viewpoint, expertise, strategy, and culture to the formal legislative

process. As such, civil society participation “enriches the legislative process”.35 While

the differences between government and civil society may result in conflict, it is fortunate

that in the case of the IPRA, the beneficial consequences far outweigh the negative

33 This is an important element to consider given that fact that the initial bills that were proposed during the earlier Congresses focused more on organizational aspects (i.e., the creation of a body that will deal with issues concerning indigenous peoples) than with the more substantive concerns. Due to this misplaced focus, the indigenous peoples expressed dissatisfaction with the earlier proposed bills and articulated the specific provisions that they would like to see in a law for indigenous peoples. Interview with Ms. Tayawa, 26 November 1999. 34 The 10th Congress coincided with the United Nation’s (UN) observance of the Decade of Indigenous Peoples and given that the IPRA had the makings of a landmark legislation, not only in the Philippines but in the world, there was international interest in the fate of the proposed bill. According to Ms. Tayawa, some international organizations like the UN and the International Labor Organization (ILO) and countries which were signatories to the ILO Convention 169 or Indigenous and Tribal Peoples’ Convention of 1989 exerted pressure to have the law passed. Interview with Tayawa, 29 November 1999.35 Interview with Tayawa, 26 November 1999.

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effects. In fact, the interface between government and civil society revealed the

complementary nature of the capacities of government and of civil society.

Perhaps it is in the complementarity between the capacities of government and civil

society where civil society’s contribution to good governance can be located. The tasks

that civil society can perform better than government should be left to civil society. For

instance, civil society can serve as the link between government and people at the

grassroots level. Since NGOs and POs already have extensive networks among the

masses which translates to a fairly considerable constituency, they can serve as a

mechanism by which participatory decision-making at the local levels can be promoted

and operationalized. In the case of the IPRA, the NGOs and POs linked the indigenous

cultural communities with the legislators. It brought to the latter’s attention the concerns

and interests of the indigenous peoples.

Civil society can also perform an oversight function whereby it monitors the

government’s performance of its functions and checks the excesses of the government’s

exercise of its powers. This is being done by the NGOs and POs now, particularly in

reference to the constitutionality case against the IPRA. Thus far, they have expressed

frustration and dissatisfaction with the slow pace of developments in the NCIP. From the

very start, the body was rocked by controversy surrounding the selection and

appointment of its commissioners. There are allegations that some commissioners are

not even members of indigenous cultural communities. As such, the legitimacy of these

commissioners, and of the NCIP as an institution, has been questioned. Related to this

aspect is civil society’s responsibility to exact accountability on the part of the

government and its officials. Some NGOs and POs are already questioning the lack of

interest that has so far characterized government’s defense of the IPRA in the Supreme

Court. They are also raising the issue of the accountability of the NCIP commissioners

who do not come from indigenous cultural communities. It is in all these respects that

civil society can perform its oversight function.

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Interest articulation and information gathering and dissemination can also be carried out

by civil society organizations. Again, in relation to the making of the IPRA, civil society

organizations enabled government and legislators to become aware of the ideas and

interests of the indigenous peoples. Under ordinary circumstances, the indigenous

peoples may never get a chance to interact with legislators and consequently, may never

get their day in court. However, because civil society organizations acted as channels

through which the indigenous peoples’ clamor for recognition of their right to their

ancestral domains, the legislators heard and acted upon the information that they

received.

The bottomline is that legislation, while formally the sole purview of Congress, is not the

legislators’ responsibility alone. Civil society also has a responsibility to ensure that the

laws passed by Congress address the needs and promote the interests of the citizens,

particularly the marginalized sectors. It also has a role to perform in the making of laws,

acting either as the initiator or active participant in the legislative process. Based on civil

society’s involvement in the passage of the IPRA, it can be argued that government and

civil society can be partners in the making of laws that promote and protect the rights of

the marginalized and disadvantaged sectors in the Philippines.

References

“Chronicles of a Protest.” Tan-awan 1(2)(December 1998-January 1999):5-8.

Coalition for Indigenous Peoples’ Rights and Ancestral Domains. Guide to R.A. 8371: Indigenous Peoples’ Rights Act of 1997. Quezon City: CIPRAD, 1999.

1987 Constitution of the Republic of the Philippines. Article VI (The Legislature), Sections 26-27 and Article XIII (Social Justice and Human Rights), Section 16.

Corpus, Rina Angela. “One Hundred Years of Servitude.” Tan-awan 1(2)(December 1998-January 1999):1-4.

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De Guzman, Atty. Ma. Vicenta P. “The Implementing Rules and Regulations (IRR) of the Indigenous Peoples’ Rights Act (IPRA) or R.A. 8371: Notes and Reflections.” Tribal Forum (May-June 1998):5-11.

__________. “Working with Congress for the Enactment of IPRA: The NGO-PO Experience.” In Coalition for Indigenous Peoples’ Rights and Ancestral Domains. Guide to R.A. 8371: Indigenous Peoples’ Rights Act of 1997. Quezon City: CIPRAD, 1999. Pp. 59-63.

Paez, Patricia Ann V. “State-Civil Society Relations in Policy-Making: Focus on the Legislative.” In Wui, Marlon A. and Lopez, Ma. Glenda S., eds. State-Civil Society Relations in Policy-Making. Quezon City: Third World Studies Center, 1997. Pp. 33-80.

Tenth Congress of the Philippines, First Regular Session. “Senate Bill No. 1476: Explanatory Note by Senator Juan M. Flavier.” March 1996.

Third World Studies Center. State-Civil Society Relations in the Policy-Making Process. Quezon City: University of the Philippines Press, 1994.

Umaming, Florence. “A Closer Look at the IPRA of 1997.” Intersect 13(7)(July 1998):6-11.

Wui, Marlon A. and Lopez, Ma. Glenda S. “Synthesis: State-Civil Society Relations in Policy-Making.” In Wui, Marlon A. and Lopez, Ma. Glenda S., eds. State-Civil Society Relations in Policy-Making. Quezon City: Third World Studies Center, 1997. Pp. 1-20.

Interviews

Interview with lawyer Ma. Vicenta de Guzman, Brotherhood of Asian Trade Unionists, Manila, 22 October 1999.

Interview with lawyer Evelyn Dunuan, College of Law, University of the Philippines, Quezon City, 9 November 1999.

Interview with Didith Tayawa, Office of Senator Juan M. Flavier, Pasay City, 26 November 1999.

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