First published in the author's column in The Standard

Mindanews asked me to share my expectations of the Bangsamoro Basic Law that would be voted on this week by the House of Representatives Special Ad Hoc Committee. My message to legislators: ‘‘This is a critical decision you are about to make. Mindanao is so ready to move forward, to fulfill its promise, to fly like the Philippine Eagle it is home to. Please make that happen. The wrong vote that leads to the wrong BBL will stop that and ground us again in war conflict and despair.’’

I also said: “I would like an improved BBL that preserves most of the ideas in the draft and that complies substantially with the Comprehensive Agreement on the Bangsamoro. I do expect changes, even deletions, but hopefully not too many and especially not the provisions on power and revenue sharing if lowered, form of governance and fiscal autonomy.”

These are my four tests of a good BBL (all equally important): (1) It complies substantially with the CAB, although I acknowledge that for sure, some matters will have to be politically renegotiated (easier to do than amend the Constitution); (2) It does not violate any provision of the Constitution which means it must be consistent with both spirit and letter of the 1987 Constitution on autonomous regions and is guided by Supreme Court jurisprudence, which means many terms have to be redefined and some provisions deleted or modified substantially; (3) It does not create an entity that is weaker than the current Autonomous Region of Muslim Mindanao; if this happens, and the Bangsamoro has diminished powers, the Moro Islamic Liberation Front will be repudiated by its mass base and we are better off just keeping the ARMM law and amending it piece meal; (4)  Indigenous peoples rights must be assured legally and particularly and not just by general principles.

In this column, I will address the last test, as it is probably the easiest to address. Indigenous peoples (IP) have been advocating their positions to the negotiating panels for years now and during the drafting stage but feel that they have not been heard. I really hope Congress would listen to them and revise the relevant provisions in the draft so that their concerns are met. I will wait for the draft approved by the Committee before suggesting further improvements based on the other tests.

Under the 1987 Constitution, the State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. Further, the State, subject to the provisions of the 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. In 1997, the Philippine Congress enacted Republic Act No. 8371, or the Indigenous Peoples Rights Act (IPRA). The IPRA recognizes the four (4) bundles of IPs’ rights, namely: a) Right to Ancestral Domains and Lands; b) Right to Self-Governance and Empowerment; c) Social Justice and Human Rights; and d) Cultural Integrity.

Section 3(g) of IPRA also requires that there be a “free and informed prior consent” by the indigenous peoples concerned to be exercised through consultations before any decision relating to their ancestral domain is made. This rule not only guarantees the right to information of the people in these areas, but also the right of the indigenous peoples to “free and informed prior consent” as an element of due process. In this case, in order to comply with the provisions of IPRA, consultations with the IPs concerned in the proposed Bangsamoro territory must be shown to have been made.

All these provisions and those of the United Nations Declaration on the Rights of Indigenous Peoples must be included in the BBL.

The Preamble to the draft BBL does speak of the “Bangsamoro people and other inhabitants of the Bangsamoro”, which presumably, would be comprised of non-Muslims such as IPs, Christians, and other persons living in the Bangsamoro territory, all of whom “[affirm] the distinct historical identity and birthright of the Bangsamoro people to their ancestral homeland and their right to self-determination”.

I know for a fact that many Lumads (as IPs in Mindanao collectively call themselves) assert their identity as non-Moro indigenous peoples and that this should be explicitly recognized in the BBL. In fairness, some IPs self-ascribe themselves as Bangsamoro. I have always assumed that the late Antonio Kinoc, a giant of a leader and who represented IPs within the MILF panel, was one of these.

One way of assuring IP rights in the BBL is by revising Section 5, Article IX of the draft BBL should as follows: “The Bangsamoro Government recognizes the rights of the indigenous peoples, and shall adopt measures for the promotion and protection of their rights, the right to their native titles and/or domains, indigenous customs and traditions, justice systems and indigenous political structures, the right to an equitable share in revenues from the utilization of resources in their ancestral lands, the right to free and prior informed consent, right to political participation in the Bangsamoro Government including reserved seats for the indigenous peoples in the Bangsamoro Parliament, the right to basic services and the right to freedom of choice as to their identity. The Bangsamoro shall further ensure that all rights of indigenous peoples, including the rights guaranteed under the 1987 Constitution, the United Nations Declaration of the Rights of Indigenous Peoples, and Republic Act No. 8371, or the Indigenous Peoples Rights Act, shall be fully and completely respected and shall not, in any way, diminished or derogated by any act of the Bangsamoro Parliament and Executive.”

The suggested amendment would ensure that the Bangsamoro Parliament may not enact any laws that will deviate from the provisions of IPRA. While the Parliament may enhance or augment the rights already granted to the IPs, it may not diminish these. This places the IPRA in a separate plane of laws, together with the Bill of Rights and human rights provisions in the 1987 Constitution that the Bangsamoro Parliament from which may not derogate.

As I have written before, the creation of the Bangsamoro is a response to a historical injustice committed to the Bangsamoro people. It would be perverse and distorted to correct that injustice by doing another injustice to the Lumad peoples of Mindanao.

Follow Dean Tony La Viña on Twitter @tonylavs. Visit him on Facebook.