Privileging Lumad Claims in the Bangsamoro Polemics: Imperatives for a Pluralist State Arbitration

Abstract

Oftentimes, scholars look at the issue of the Bangsamoro autonomy as a single-sided coin minoritization, where Muslim inhabitants struggle for self-rule within the ambit of their right to self-determination. Unknowingly and frequently unnoticed is another dimension in a disaggregated diverse society, that is, the minorities can also have their own minorities. In this case, the indigenous peoples, collectively called the ‘lumad,’ are treated as second-order minorities within the core and adjacent territories of the anticipated Bangsamoro homeland. The contestations involving identities and territories in the light of fully emancipating the Muslim Filipinos of Mindanao, reveal an array of legal, political, cultural and ethical polemics exposing the serial disenfranchisement of the ‘lumad’ in the past Autonomous Region of Muslim Mindanao (ARMM) and potentially in the future given the current articulations of the proposed Bangsamoro Basic Law (BBL). In order to secure their future, the ‘lumad’ of Mindanao and their supporters readily postured themselves to engage in a dialogue for inclusive peace consequently producing a compounded and multi-layered interests for consideration in the ongoing peace deal. Here, the role of the state is necessitated in balancing these pluralist interests embedded in the competing narratives viz the Bangsamoro problem. The resulting circumstances require a normative arbitration from the State. This paper shall therefore attempt to advance a ‘neutral’ Philippine state framed from the lens of social justice and the tri-people notion of a nation in the hope of avoiding the perils of second-ordering the ‘lumad’ in the powers of the Bangsamoro or ultimately, of the state.

Keywords: Lumad, Bangsamoro, Pluralism, Neutral State, Second-order Minorities

Introduction: Aspiring for a Win-Win Solution

Mindanao is an island to many different populations but more aptly referred to as home of the ‘tri-people,’ a kibbutz-like ideation devised by peace advocates to send a strong message of harmony and a stirring guide to peaceful coexistence amidst the island’s long history of colonization and tumultuous years of post-colonial armed conflicts. As an ethos, ‘tri-people’ (Paredes, 2015:167) refers to the recognition of a collective destiny made by the Muslims, ‘Lumad’ and Christian settlers equally sharing a common homeland in diplomatic simultaneity.

This shared fate has been challenged by legal, political, cultural and ethical cleavages on account of competing claims over territory and identity narratives. The most recent of which are the assertions and counter-assertions ensuing from the debates on the proposed BBL which grants autonomy to the Bangsamoro people. For the Muslims represented in the peace negotiations by the Moro Islamic Liberation Front (MILF), the BBL is understood to be an instrument to end the decades-long Moro resistance supplanting the secessionist approach they used in the past. This trajectory towards autonomy is anchored fully well on their right to self-determination aiming to correct social injustices that were etched in the annals of Muslim Mindanao history.

The Christian settlers on the other hand, who were herded from Luzon and Visayas by virtue of executive fiats in the post-American rule to occupy vast lands in Mindanao and neutralize Moro resistance, fear of losing these accumulations amassed over the past years to a legislation empowering the Bangsamoro to expand its territories under the BBL. Their equally formidable assertion of having vested entitlements to their landholdings and a birthright to their Mindanaon identity deserve a space in the BBL discourse.

However, the most robust challenge to the vision of a Bangsamoro entity comes from the non-Moro indigenous peoples of Mindanao especially those who are found within the core and adjacent territories of the proposed Bangsamoro homeland like the Teduray, Lambangian, and Dulangan-Manobo in the province of Maguindanao and the Erumanen ne Menuvu of North Cotabato. With some doubts still unresolved, they see the planned legislation as an infringement to their ancestral domains and ultimately to their unique identity as ‘lumad,’ a term embraced by the indigenous peoples’ representatives during the IP Cotabato Congress in 1986 (Ulindang, 2015), referring to the collective of non-Moro indigenous peoples who distinguish themselves from the other inhabitants of the island like the Muslims and the Christians.

In the unfolding of different persuasions towards the realization of the BBL, the ‘lumad’ slowly manifest an emerging nested identity which Shane Barter (2015:128) referred to as the “second-order minority,” albeit explained more in secessionist contexts but is equally applicable in demands for autonomous governments like the Bangsamoro. According to him, a “second-order minority,”

“is a community which forms a self-identified ethnic or religious minority within a region dominated by an ethnic group which represents a national or first-order minority.” (2015:128)

This definition places the Bangsamoro as the dominant regional ethnic group, though a minority of the first-order in reference to the national State. Conversely, this makes the ‘lumad’ the “second-order minority” in the light of the Bangsamoro consolidation of power through a legislative decree. Oona Paredes (2015:167) also calls this situation faced by the ‘lumad’ as a case of “double marginalization,” having to suffer marginalization from both the national and regional powers as the Bangsamoro aspiration draws to a close.

The second-ordering of the ‘lumad’ as a minority finds resonance in the neglect they have suffered during the implementation of Republic Act 6734, otherwise known as “An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao” (ARMM, 1989) as expanded by Republic Act 9054, or the “Expanded Organic Act for the Autonomous Region in Muslim Mindanao.” With not even one Certificate of Ancestral Domain Title (CADT) issued in the years of ARMM operations, the disenfranchised ‘lumad’ fear that the same predicament will be repeated in the BBL, unless their assertions for inclusion be accepted.

Sadly, the ‘lumad’ of Mindanao have the double disadvantage of asserting themselves from the standpoint of a minority within a minority to obtain an autonomy within an autonomy. Over the years of ARMM implementation, the Muslims have fortified their power and dominance making them the superior majority in the eyes of the ‘lumad’ within the bounds of the Bangsamoro homeland.

This whole exposition intends to highlight the contending fables of two of the tri-peoples of Mindanao. Both are victims of historical injustice yearning to correct the mistakes of the past through a legislative measure. Both are claiming to exercise their demand for a recognized autonomy within the ambit of their right to self determination as a people. Both have subscribed to their Filipino identity amidst the diversity of identities they espouse, with constitutionally guaranteed rights to their culture and traditions. Both are steadfastly defending their people and protecting their territories, albeit through different modalities. One has already won their cause in 1997 through Republic Act 8371 or the Indigenous Peoples Rights Act (IPRA). The other is correcting a poorly governed entity called ARMM. But in the course of the latter’s assertion for a more genuine autonomy through BBL, the former’s identities and territories are threatened reducing them to a “second-order minority,” and thereby creating a deep seated cleavage in what was originally conceived as a peacefully coexisting tri-people. Unless the interests of the ‘lumad’ are sincerely heard, accounted for and integrated, the BBL might yet be another ARMM – a failed experiment.

Hence, the role of the State becomes imperative in the above contestations. From the lens of classical pluralists Dunleavy and O’Leary (1987), a neutral state must step in as an impartial arbiter who is the representation of the interest of the public. This arbiter state must exact “compromises between the demands of different pressure groups” (1987:382) like the Bangsamoro and the ‘lumad’ along with their support groups and make sure that the calls even of the weakest assemblies reach the attention of the State. The common good must be the basis of the State in evaluating these competing claims.

The Philippine State is expected to take an active role, now that the fate of the BBL is already in the hands of the Philippine Congress who will decide to adopt the Bangsamoro Transition Commission’s proposal in toto and finally grant the Bangsamoro their desired autonomy conditioned upon the complete abandonment of the armed struggle or heed the calls of the ‘lumad’ for an inclusive BBL by assuring them of their fundamental rights to their ancestral domains and those secured under the IPRA.

Some questions find relevance in this light. Will Congress only consider the interests of the Bangsamoro and take the risk of giving birth to a new social movement coming from the ‘second-order minority’ who will equally assert for autonomy in the same tenets espoused by the Bangsamoro? Will they listen to the ‘lumad’ and secure their hard-won liberties in IPRA by integrating these within the BBL and gamble the possibility of sending the Bangsamoro back to the battlefield to fight for separation? Or will there be a middle ground where these competing interests end in a win-win solution? In which way ever, the State must actively listen to a spectrum of opinions and make choices formed by the public’s interest on social justice and Mindanao’s hopes for a peaceful tri-people coexistence.

Theoretical Framework: The Pluralist ‘Neutral-State’ Imperative

Mindanao’s ‘lumad’ population profess a position based on legitimate contentions of nativity, territoriality and identity just as logical as their Moro brothers’ claims. The parallel plots of wanting to break free from the bondage of an unjust past and move towards a self-governing nation all rooted on the same homeland drawn from the blood of their forebears makes balancing of interests even more critical on the part of the state given the plurality of voices advancing equally compelling causes from the two rightful claimants.

The Pluralist Theory of the State shall be the frame of analysis in this essay in order to understand the multiple interests set in the intricate context of the Bangsamoro struggle for autonomy. Particularly, the ‘neutral model’ of the state of Dunleavy and O’Leary (1987) shall be advanced in pushing for the normative role of the state as an arbiter to ensure that the plurality of interests are carefully managed and addressed.

Classically, the Pluralist Theory of the State posits that political choices ultimately rest in the hands of the State but these processes are heavily influenced by powerful interest groups advancing their legitimate agenda. When groups wish to optimize power structures to push their interests, the relationship established becomes rivalrous and the State becomes an arena where these competing issues are negotiated, assessed and resolved (Smith citing Dahl, 2005:26). Critically, the interest groups outside the state arrangements become key in influencing political choices. As Smith (2005:22) pointed out, pluralists gravitate towards the “notion that diversity is a social good that prevents the dominance of one particular idea.” Equally, Hirst (1989:3) observed that pluralism sees the state as an “intermediary networks” where the different interests assert influence over policy-makers who will eventually articulate the objectives of the most persuasive interest group or groups. In the words of Robert Dahl (1956), this is a form of government where power is invested in manifold groups of people. He calls this ‘polyarchy.’ It shows that there is a clear diversity and plurality of ideas, which are expressed through a variety of channels. As such, politics is seen as a process of choice and competition between a variety of pressure groups.

Instructive to our search for state role in the light of the contestations over the territories and identities in the Bangsamoro is the idea of a ‘neutral state’ as against the weathervane and broker-state models, all propounded by Dunleavy and O’Leary (1987:41-90). While many neo-pluralists believe that pluralism is anti statist in its basic principles (Hirst, 1989:2; Smith 2005:22) because of the respect given to the democratization of power among free-forming organizations that limit the state authority, still, Dunleavy and O’Leary’s (1987) classical take on pluralism puts premium on the role of the state as the ultimate arbiter through its decision-making apparatuses, in the case of the BBL, the Philippine Congress.

The ‘weathervane model’ proposes that the “state’s direction reflects the public opinion and the demands of the pressure groups. This means that the policies are based on the concerns and interests of the [strongest in] society,” (McAuley, 2003:33). Here, the state is passive, and is merely a weathervane of public opinion. The position of the state on specific issues is determined by the strength of public opinion. Most likely, the state structures will be responsive to the strongest and most organized interest group leaving the weakest and most dispersed at the tail-end.

Meanwhile, the ‘neutral state model’ sees the state as an independent referee whose role is to reconcile and accommodate the conflicting interests of the different interest groups. This neutrality however is informed by a sense of interventionism (2003:34) in the hope of promoting fairness by protecting those which are weakest among the competing social groups in the name of public interest. Here, the state is expected to represent all interests without being linked or perceived to be linked with any interests. This can sometimes lead to what McAuley (2003:33) called as social-democratic or reformist reading of pluralism where liberal-democracies are not structured by a dominant ideology.

Finally, the ‘broker-state model’ reflects neither the interests of pressure groups nor the pursuit of public interest (2003:34). Instead, choices are made based on the interests of the state apparatus itself, say the officials of the state. Here, the state behaves like an intermediary for the different social groups but eventually retain their own interests.

While there are varying models to manage the competing interests of the ‘lumad,’ the Bangsamoro, the Christian settlers and the civil society organizations influencing the key stakeholders, this author sees the neutral state response as essential in the debate by exemplifying the drawbacks of the weathervane and broker models. Given the weaknesses intrinsic to the approaches and resources of the ‘lumad’, a more sophisticated and coordinative role of the state is needed in order to institutionalize the pluralist interests over the Bangsamoro question and privilege the disadvantaged group. But to be able to establish this further, a prudent review of the competing interests is in order.

Historical Polemics in a Contested Territory

The early roots of lumad-Moro relationship shared by the Tedurays and Maguindanaos can be described as one of peaceful coexistence despite the dichotomy resulting from the religious delineation of the legendary brothers Mamalu and Tabunaway (Bandara, 2014). This story established that all peoples of Mindanao were originally indigenous until the coming of Islam in Mindanao roughly five and a half centuries ago. According to this legend as narrated by Timuey Alim Bandara (2014), Shariff Kabunsuan came to teach Islam in Mindanao and Tabunaway decided to embrace Islam while Mamalu remained an indigenous with animist beliefs. From Tabunaway came the Maguindanaos (herein referred to as the Moro) and from Mamalu came the Teduray and Dulangan Manobo (herein referred to as the ‘lumad’). Even with the change in their faiths, there existed a genial trade interaction among these peoples for centuries borne of the pact between the brothers – a pact of peaceful coexistence which was re-affirmed by their modern day leaders.

However, the colonial years have inflicted deep seated wounds in the relationship among the peoples of Mindanao, both coming from the bloodlines of Mamalu and Tabunaway. In post-American colonial years, several programs transplanting people from the north to Mindanao in the mid-20th century exacerbated land dispossession (Bangsamoro Development Plan, 2016-2022) both for the ‘lumad’ and the Moro in favor of the settlers from Luzon and Visayas. This was the beginning of the rift between the ‘lumad’ and the Moro in Mindanao.

Prior to the schism, the ‘lumad’ and Moro combined forces fighting against the colonizers. In order to supplant the Moro and ‘lumad’ resistance, the Spaniards and later the Americans sent missionaries to the area and converted many of them to Christianity through the use of schools and the church. Since then, settlers from Luzon and Visayas have rushed pushing the Tedurays and Muslims away from their homeland.

This fate of the Teduray and the Maguindanao are now shared by many other ethnic peoples in Mindanao. The threat to their territories and identities continue to exist until today and for this reason the ‘lumad’ and the Moro endure to stand their ground in defense of the heritage they obtained from their ancestors. These territories are not only pieces of land Buendia (2015) said but are human constructs that define ethnic and social relations. The land gives its inhabitants a sense of security as it ensures the stability of a culture and the perpetuation of the collective memories of its people. This justifies both the ‘lumad’ and the Moro ‘s tenacity to repel any form of threat to their territory, identity and shared remembrance. While the ‘lumad’ and Moro continue to resist encroachments, settlers from Luzon and Visayas are gaining almost complete control of the indigenous homelands.

Unfortunately, the Moro attempts for secession proceeded years earlier than their lumad counterparts making the Bangsamoro separatist movement the longest in Southeast Asia and perceived to be the most serious threat to Philippine security and stability. The Moro have become more organized and skilled than their lumad counterparts in publicly declaring the historical injustice that rendered them invisible in the vicissitudes of history. The stark prominence of the Bangsamoro struggle brought the lumad into further oblivion.

The Muslims through the Moro National Liberation Front (MNLF) and the Moro Islamic Liberation Front (MILF) froze the armed struggle to negotiate peace with the Philippine government to integrate the Bangsamoro, instead of seceding, into the state through the creation of an autonomous region under the 1987 Philippine Constitution (Article 10, Section 18). This has evolved from the historic signing of the 1976 Tripoli Agreement to the 1996 Final Peace Agreement with the MNLF leading to the enactment of the ARMM Law.

The same is true with the pursuit of MILF to negotiate real autonomy for the Muslims through the sealing of the Framework Agreement on the Bangsamoro (FAB, 2012) and the eventual signing of the Comprehensive Agreement of the Bangsamoro (CAB, 2014), the letter and spirit of which are yet to find fruition through the enactment of the BBL by the current Philippine congress.

In contrast, the lumad also wrestled to salvage what they lost in history only to find affirmation in the passage of RA, 8371 or the Indigenous Peoples Rights Act (IPRA), in 1997 which sought to “recognize, protect and promote the rights of indigenous cultural communities.” To the Jesuit priest, Fr. Albert Alejo, SJ (2014a), IPRA is the lumad’s peace pact with the government and as such must also be accorded the same respect given to the Bangsamoro since IPRA was also a political settlement to centuries of historical injustice and marginalization, achieved through peaceful means. Hence, it must not be sacrificed just to sign a peace pact won through war (Alejo, 2014b).

Comparing this to the lead of their Moro brothers, the lumad are not as organized with the absence of any revolutionary front or negotiating panel advancing the lumad agenda, albeit considered as consultants in the negotiation process. That notwithstanding, they are indiscernible in the peace talks. Perhaps, steadfast defense of their ancestral domains took much of their focus, being attacked not only by State-initiated development programs but also by non-state development aggression such as mining, logging and large-scale monocrop plantations that displace thousands of lumad.

For instance, Ulindang (2015) accounted that Dole pineapple plantations dislodged B’laans in South Cotabato. The same can be said for the Higaonons and Talaandigs in Bukidnon who were supplanted by del Monte farmsteads. Monocrop plantations like oil palm encroached upon lumad territories in Sultan Kudarat while mining tenements plundered the ancestral domains in Davao and CARAGA Regions.

The concern of the lumad in Mindanao today centers on the activities that threaten to displace them from their homeland. Also, the innumerable hostilities between the government troops and the New Peoples Army (NPA), the MILF, the MNLF and recently the Bangsamoro Islamic Freedom Fighters (BIFF), often staged in lumad territories, resulted to their deaths. The ‘lumad’ are dying from wars not of their own making (Mansayagan, 2016). Most recently, the lumad sees another looming threat both to their identities and territories in the form of the BBL, which to their perspective, is non-inclusive of their aspirations.

We have established thus far, that while the lumad and the Moro re-assert their territorial claims with the government through two separate streams of interest persuasion, yielding to two different state-generated policies reflecting their aspirations, both are actually a re-affirmation of their shared heritage and homeland tracing its roots to the Mamalu-Tabunaway narrative. It is by all means the same symbolic homeland they are contesting for. However, the gains of the lumad through IPRA is rendered vulnerable by the ambiguities in the BBL proposal. Interestingly, their concerns on territory and identity are treated with inferiority and their calls seemingly fall on deaf ears both on the side of the State and the Bangsamoro.

The lumad-Moro polemics are clearly rooted on the same historical context and collective aspiration. But the way it evolves alongside the legislative process of enacting the BBL, more and more the ethnic and social divides become perceptible with the Bangsamoro, while being a minority in reference to the state, is slowly becoming or has become a powerful majority in reference to another national minority – the lumad, making the lumad a “second-order minority.” From here, an antagonism arises between the two minorities who are historically unified in their recognized legends but now divided in the contestation for territorial claims. Understanding the second-ordering of the lumad now becomes essential in framing the normative instruction towards state-arbitration to settle these seemingly opposing interests resulting from a socially created cleavage.

Lumad as “Second-order Minorities” through Legal Disenfranchisement

While both lumad and the Moro are considered indigenous to Mindanao and treated as minorities in relation to the national Christian majority, the lumad are further segmented as a second-order minority (Barter, 2015) in relation to the regional Muslim majority. This second ordering is seen in areas of governance, education and economy as lumad communities register the most deplorable situations according to many national surveys compared to the Bangsamoro. Dubbed as poorest in terms of health and nutrition, employment opportunities, access to public social services, literacy rates, and livelihood skills, the lumad often suffer from compounded marginalization both on a national and a regional scale.

Since the debate on the BBL began with the historic signing of the FAB in 2012, the Bangsamoro has become more deliberate in negotiating with the government an autonomy that will recognize their unique identities and territories. And because of the second-order minority status of the lumad, they are doubly marginalized (Paredes, 20015:167) with their equally legitimate claims on identities and territories slowly fading away.

The Moro dominance in the contested territories gave them the competitive advantage as they have a voice loud and dense to merit the State’s attention in contrast to the lumad’s frail and barely noticeable assertions. The fear in this kind of state-society relations is the inclination of the state to turn its eyes and ears only towards the loudest and strongest of opinions, furthering the marginalization of the weakest as argued by McAuley’s (2003:33) interpretation of Dunleavy and O’Leary’s weathervane model of the state.

Observably, the Philippine government’s position as regards the assurance of IP rights in the BBL can be described as tactically dismissive of the lumad by avoiding to provide clear-cut answers to lumad protection issues in the BBL during the many consultative forums done as part of the BBL process. Barter (2015:130) explains this posturing of the government towards second-order minorities on account of the lumad being a territorially dispersed national minority indigenous to the area. The lumad are not perceived by the state and the Bangsamoro as a threat who can mount an uprising due to their very spread geographic distribution. Being national minorities as well, they may easily be ignored by the state for being negligible in size. And as indigenous to the area, they only represent ideational threat for their affinity to the land but never a security threat.

With a second-order minority like the lumad who are dispersed and indigenous, State structures logically behave like a paternalistic weathervane, responding only to the strongest and most organized Bangsamoro. Despite the assurances from the state negotiators of honoring the ancestral domains and the four bundles of IPRA rights, the lumad remain to be suspicious because of the absence of any explicit provision to that effect in the proposed BBL. Interestingly, parties to the negotiation seem to skirt topics pertaining to lumad land rights whenever raised. To say the least, the lumad claims to ancestral domains are treated with minority tokenism by the State.

Power-sharing agreements are also usually uncertain in transitioning to autonomous governments (2015:126). Once the new political order is instituted within the Bangsamoro region, the Moro expectedly will hold central powers that can affect the ancestral domains of the lumad. A fresh elite will be born and with this new arrangement, a different struggle may be evinced, this time, the lumad rising up against the Bangsamoro.

These reservations coming from the lumad emanate from their legal disenfranchisement both in the ARMM in the past and now in the BBL. These doubts are further blurred by historical state neglect, land dispossession, misplaced supremacy and now with legal ambiguities in the BBL. The disenfranchisement of the lumad institutionalizes in effect their status as a second-order minority in the Bangsamoro territories.

Missed Opportunities in the ARMM Implementation. The establishment of the ARMM signaled a victory for the Moro resistance having been able to carve their territory under an autonomous set-up. However, while it empowered the Moro, the lumad became more disenfranchised because of the dominance of Islamized ethnic groups in the area such as Maguindanaon, Maranao, Tausug, and Yakan. These groups belong to the powerful and economically rich elites placing the lumad in a position of comparative disadvantage. Also, the political boundaries in ARMM were redrawn or rearranged in a way that will accommodate powerful clans such as the Sinsuats and Ampatuans (Damaso, 2011) re-arranging the geographic boundaries of the lumad’s ancestral domains.

Damaso (2011) further alludes that this reorganization of political boundaries led the areas of Lumad to be under the control of prominent clans. Thus, some of their ancestral domains, through various Muslim Mindanao Acts were made municipalities named after prominent Muslim figures such as Datu Unsay, Datu Saudi, Guindulugan, Sharif Aguak, and Talayan. These municipalities, although some parts are ancestral domains of lumad, were inevitably ruled by Maguindanaon mayors further establishing the dominance of Moro over the lumad and the latter slowly losing their lands.

Since the Moros have established their dominance over the lumad, so too with their ancestral domains. Hence, it is harder to claim right over their territories because there are no enabling laws specifically securing their rights over these territories.

The lumad further felt this dominance because of ‘tokenism.’ While there was a Deputy Governor representing the lumad in ARMM, the post is merely symbolic or ceremonial. Instead of being the representative of his people, the deputy governor caused further division in the tribes for not relaying the real aspirations of the lumad. This observation was made by a leading member of the Indigenous Civil Society, Froilyn Mendoza (cited in Damaso, 2011) who revealed that the deputy governor was never able to articulate the IP issues because the appointment was vitiated on account of his/her affinity with the appointing authority. She alleged that competence was lacking to carry the voice of the lumad.

The four bundles of rights, namely: 1] right to ancestral domains, 2] right to culture, 3] right to self governance and 4] social justice and human rights, as promised in the IPRA were not fully enjoyed by the lumad in ARMM. Alejo (2014), contends that both the regional government and the national government failed the IPs in ARMM through the lack of an enabling law that would lead to the recognition, inclusion and implementation IPRA in the ARMM. This is manifested by the non-devolution of an National Commisison on the Indigenous Peoples office in the region, the office responsible for implementing the salient provisions of IPRA like the issuance of the CADT. In the entire history of ARMM, the lumad in the region was never issued a CADT (Ng, Pe Benito and Reyes, 2017). The absence of CADT, therefore contributed to the second ordering of the lumad since there is no formal recognition of their ancestral domains.

Given the misfortunes that beset the lumad in the years of ARMM implementation, the anxiety that the same fate awaits them in the BBL is mounting especially that the proposed BBL is allegedly devoid of any indication recognizing and including the four bundles of IP rights enshrined in the IPRA, except for some sections devoted to IP rights (Art. IX, Section 4, Draft BBL, 2017).

If the Bangsamoro was sincere in reconciling the broken bond with their history brothers, at least the ARMM would have been an opportunity to share the homeland with them by making sure the ancestral domains of the lumad are carved out. Regrettably, the opportunity was missed out and what resulted from it is a skeptical second-order minority.

Lumad Tokenism in the BBL. On one hand, the framers of the proposed BBL contended that the draft is inclusive of the lumad assertions and argued in fact that a whole section in the proposal is dedicated to IP rights. Meanwhile, the lumad leaders from the affected communities believed otherwise. To them, while the bill is littered with provisions pertinent to the IPs, they do not assure that the mistakes in the ARMM will not be repeated in the BBL simply because the most fundamental and minimum demand is not expressly provided in the BBL – that the rights already enjoyed by the IPs under RA 8371 will not be derogated in the BBL at the very least.

A cursory review of the proposed BBL, as enhanced, shows that the words indigenous peoples, are repeated at least 35 times covering sections on identity (Art. II), exclusive powers (Art. V), parliament (Art. VII), basic rights (Art. IX), economy and patrimony (Art. XIII) and transition authority (Art. XVI). These however remain vague if they refer to the Moro indigenous peoples or the non-Moro indigenous peoples which are the lumad. Meanwhile, the words lumad and IPRA were never mentioned and ancestral domain was written only once as one of those that fall within the exclusive powers of the Bangsamoro. The potential circumvention to favor Bangsamoro’s overreach to lumad ancestral domains is high given the ambiguous articulations in the proopsoal.

Art. II of the draft BBL, defines the Bangsamoro identity as “those who, at the advent of the Spaniards, were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants, whether of mixed or of full blood” (Draft BBL, 2017). The non-islamized lumad resist this because it reclassifies their identities by operation of law. The definition denies the lumad of their identities for being subsumed in the Bangsamoro identity. While there is an option for the lumad to exercise freedom of choice, whether to ascribe or not to the Bangsamoro identity, the resistance is reinforced by the “othering process” clearly second-minoritizing the lumad and conversely strengthening the dominance of the Bangsamoro operating as a “general rule-exception” relationship, with lumad being the exception to the Bangsamoro general rule.

According to Buendia (2015:8), this is similar to a “downward exertion of state nationalism where the trajectory is towards the integration of multiple ethnic identities into a single identity.” Expectedly, this will face resistance from the lumad who do not identify themselves as Bangsamoro and will choose to struggle in order to safeguard their identities from political transgressions and oftentimes undue centralist policies (2015:8). These diametrically opposed standpoints seem irreconcilable and forcing it raises the possibility of violence ensuing from the affected lumad communities as the assimilationist leanings will threaten the collective survival of the indigenous peoples. This exactly is the foundation of a people asserting self-determination – that they are a separate people with their own unique history, culture, traditions and way of life. The state should not give an imprimatur to this top-down assimilationist identity formation.

The threat to lumad’s indigenous political structure and governance is exacerbated because the protection of the rights of indigenous peoples is subjected to the reserved powers (Art. V, Sec. 3, BBL) of the Bangsamoro government. It must be recalled that in 1997, exactly the same year when the GPH started negotiating peace with the MILF, the indigenous peoples have victoriously obtained their rightful recognition, faithful to the constitutional mandate to ensure protection of the indigenous peoples’ rights, with the legislation of RA 8371 (IPRA) assuring them of the four (4) bundles of IP rights. It was also enacted to address historical injustice committed against the lumad not through a united armed confrontation but in the battlegrounds of congress (Acuña-Gulo, 2014). Entrusting to the Bangsamoro government the rights already won by the lumad through RA 8371, will in effect, be a derogation if not an abrogation of the lumad’s own version of a well-entrenched and highly-honored peace agreement with the GPH – the IPRA.

The Congress must learn from the Memorandum of Agreement – Ancestral Domain (MOA-AD) case which was declared by the Supreme Court as unconstitutional. Justice Carpio (Supreme Court, 2008) said that the “incorporation of the lumad as Bangsamoro in the MOA-AD, and the transfer of their ancestral domains to the then Bangsamoro Juridical Entity (BJE), without the lumad’s knowledge and consent,” violate the constitutional guarantee that the “State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development” (cited by La Viña, 2014). This is framed within the IPs right to a free-prior-informed consent protected under the IPRA.

The draft BBL further proposes that “Subject to the criteria provided in said law, the Bangsamoro Parliament may likewise create appropriate local government units in the areas inhabited predominantly by indigenous peoples.” [Art. V, Section 3 (57)] This endangers the right of the lumad to their ancestral domains.

A territory is not simply a piece of land. To the Bangsamoro as it is to the lumad, their territory is a spatial expression of their ‘being’ as a people. Buendia (2015:21) asserts that a territory is the lifeline of a culture and the repository of a people’s memories. This makes the territory of extreme significance in the survival of the community especially that control over a territory reifies power and the larger space one has, the more power one can wield. Corollary to that, the smaller territory, the weaker power. Hence, the second-ordering of the lumad.

Therefore, the contestations over the territories in lumad ancestral domains through a legislative fiat is a manifestation of the competing powers between two historically disenfranchised peoples, the lumad and the Bangsamoro. But with the legislation granting the latter power over the contested territories, it renders the former vulnerable to an institutional disenfranchisement.

One of the main provisions advancing the rights of the IPs in the Bangsamoro is found in Section 4, Article IX of the proposed BBL. It recognizes in general terms, the rights of the IPs and commits to further adopt measures to promote IP rights. It also acknowledges their rights to native titles, to their justice system, political structure, share in revenues from natural resources, to free prior informed consent, political participation with reserved seats in the Bangsamoro Parliament and to identity consistent with the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) among others. One may wonder, given the litany of rights afforded to the IPs in BBL, why can’t a single mention of IPRA and right to their ancestral domains be so difficult for the drafters? Towards this, the lumad say that the section was all but tokenism.

If the ARMM experience will be the yardstick for recognizing IP rights within the Bangsamoro territory, there is so much the lumad are fearful about. ARMM, as described by former President Benigno Aquino III, was a failed experiment. It was a failure not only because of bad governance but because both the ARMM government and the central government failed in addressing the legitimate grievances of the IPs in their struggle for self-determination (Alejo, 2014b) particularly in securing their ancestral domains which is the source of their identity, culture and life. For 17 years of ARMM, it has failed to implement IPRA nor pass an equivalent legislation to ensure the recognition of the 4 bundles of rights of the lumad. Not a single CADT was issued in favor of an IP community primarily because the NCIP, the only authority in issuing CADTs, was never devolved to the ARMM.

The constitutionality and legitimacy of IPRA has already withstood the test of times. The Supreme Court (2000), has already ruled in the case of Cruz v. Secretary in favor of the constitutionality of RA 8371 after it was assailed on grounds that it is an unlawful deprivation of the State’s ownership over lands of public domain. This was a solidification of an earlier case of Cariño v. Insular Government (1909) where the Supreme Court already laid down that “long occupancy of land by an indigenous member of the cultural communities as one private ownership, which, in legal concept, is termed “native title.” This ruling has never been overturned and in fact it was reaffirmed in subsequent cases.

Arbitration of a ‘Neutral State’: Social Justice and Tri-People Imperatives

The Bangsamoro through the constitutional track, is fighting a regional hegemon that minoritized them over the years. In the course of their struggle, they must avoid the trap of becoming a hegemon themselves to their lumad brothers. Otherwise, the cause that they are advancing will lose intrinsic legitimacy for befalling the evil they are trying to avoid. The Moro constituents have dominated the lumad in Mindanao over the years evolving a semblance of elitism in the face of the second ordering of the lumad. This is evident when lumad assertions are derided as spoilers to the peace process. This dismissive posturing of the Moro is explained by Barter (2015:127) as logical because regional majorities resist the second-order minorities for the same reasons that they resist the state in their capacity as a national minority of the first order.

When two national minorities seek recognition, the critical role of the State is called upon to ensure all interests are symmetrically treated giving them them reasonable chances of succeeding in advancing their agenda (Hirst, 1989:3; Smith,2005:24). For the Bangsamoro, passing the BBL is desirable to end all hostilities that plagued their homeland for decades. For the lumad, the homecoming of IPRA in the Bangsamoro would mean that indeed, they are truly sons and daughters of the same forebears united by common roots and bound by the same aspiration. The role of the state through the Congress, can never be underscored enough at this stage of change.

In a society where power is disaggregated, the competition of interests becomes asymmetrical (McAuley, 2003:31-32). The power of the Bangsamoro and the lumad is far from equal. The Bangsamoro has greater economic and political influence over Congress compared to the lumad as we have established earlier. Unlike the Bangsamoro, the lumad are not sophisticatedly organized, lacking in resources, and inadequate with outstanding leaders who can solidify their voices from various fronts of lobbying. In the end, the natural tendency of the state is to be more responsive to the more powerful voices. Even with the help of some non-government support groups, the lumad do not have the same negotiating power like the Moro, risking further marginalization. These insufficiencies in economic and political power is also a result of years of marginalization now crystalized as a social norm of second ordering to some extent.

When Congress is gradually transforming as a space for negotiating interests, just as the state juggles a range of pressure groups with each trying to persuade the central power towards their agenda, legislating the BBL may therefore require a consensus, involving small incremental adjustments by the decision-makers to preserve the equilibrium (McAuley,2003:33; Smith, 2005:27) between the Bangsamoro and the lumad. This consensus may be difficult to achieve especially when utility-driven stakes are quite high – land rights which may equate to political power over people, resources and institutions. Evidence suggests that both parties are in a deadlock when it comes to the issue of ancestral domains. Despite this, the lumad opted to continue negotiating for better terms even if Rutten (2016,18) postulated that when ancestral lands are threatened, the indigenous peoples could either resist, withdraw or accommodate.

Since the power between the two competing interests is lopsided favoring heavily the Bangsamoro, Congress must create spaces where the lumad can articulate their demands. The Committee tasked to review the BBL draft must invite different support groups especially championing the lumad to avoid the concentration of power with the Bangsamoro. The state must be able to divide the negotiating power equitably among interest groups in order the prevent the strongest from seizing the state to press forward their specific interests (Schaeffer, 2014:228). The Congress as representative of public interest, must do so by ensuring that this collective interest is protected with special privileges accorded to the second-order minorities.

Therefore, the greater challenge now is for Congress to behave as a neutral arbiter of interests whose role is to reconcile and accommodate the competing interests involved in the BBL. While neutral arbitration is arduous especially that Congress has a long history of using its powers to favor certain groups, it is not problematic if it is able to faithfully comply with the social justice clauses in the 1987 Philippine Constitution and sincerely internalize the ethos of Mindanao’s tri-people coexistence. The typical ruses in a democratic-pluralist society is the propensity of the powerful interest groups to co-opt the state (Dikshit, 2000:97), which will be pressured to decide in their favor. But when neutrality in arbitration is preserved, the weakest may still have a chance at being heard.

Social Justice Imperative. The cause of the Bangsamoro is argued form the standpoint of social justice. The same can be said for the lumad who are also seeking to rectify historical injustices committed against its people. Congress acting as an impartial referee of interests, must not be swayed by social pressures other than the gravity of social justice as reflective of public interest. Article XIII of the 1987 Philippine Constitution mandates Congress uner the pain of Social Justice, thus:

“The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.” (Section 1, emphasis supplied)

Social Justice was defined in more operational details in an earlier case of Calalang vs. Williams (Supreme Court, 1940) as:

“xxx neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. xxx means the promotion of the welfare of all the people. xxx must be founded on the recognition of the necessity of interdependence among diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting health, comfort and quiet of all persons, and of bringing about the greatest good to the greatest number.” (emphasis supplied)

Without a doubt, the Constitution mandates the Philippine Congress to enact measures like the BBL with paramount sensitivity to equity so that those who have less in life will have more in law. While both the Bangsamoro and the lumad must be protected by the social justice principle in the light of their being national minorities, the lumad deserve the application of the principle twice in the light of their being second-order minority to the Moro. In short, the Philippine Congress while acting as a neutral state representing solely the public interest, it is equally compelling that this collective interest must presuppose equity in favor of the more disadvantaged lumad to be genuinely collective in spirit.

As asserted by the five Ateneo Universities in a joint statement published last October 5, 2015, the BBL is not an ordinary legislation but an expression of social justice emerging from years of peaceful negotiations with the Moro groups. It is not only intended to grant autonomy but more importantly to rectify injustices prejudicial to the peoples of Mindanao. In this grand design, Congress ceases to be legislators as they become peace-weavers who shall build the future of a peaceful Mindanao. It is incumbent upon them to make public choices with the end view of protecting all groups equally and evenly.

Neglecting the lumad in this grand project, Congress would be wasting a huge opportunity to bring to life the quintessential embodiment of social justice in the constitution and therefore fails in its role as a neutral arbiter.

Tri-people notion of a nation. Another facet that Congress must turn to is the tri-people ethos of Mindanaons. This frame of thinking recognizes the peaceful coexistence of three distinct groups of peoples who equally share Mindanao as a homeland – the Moro, lumad and the settlers. The past and ongoing peace efforts rely heavily on this principle in the hope of realizing the Bangsamoro dream. These three peoples are expected to accept that they are co-equal stakeholders of Mindanao. To this end, Congress must strengthen rather than weaken this notion of a nation where peaceful coexistence can thrive amidst cultural, religious and ethnic differences. Paredes (2015:168) warns of legal and constitutional challenges to the Bangsamoro if this inimitable tri-people stakeholdership is jeopardized.

Public interest would dictate that safeguarding the tri-people approach would translate to the sustainability of the Bangsamoro in the future. Congress is also expected to be responsible in ensuring a defensible autonomous Bangsamoro government by not further marginalizing the lumad who constitute a third of the tri-people nation. If disregarded, this may just be the flint needed to spark some wildfire across the island of Mindanao.

Ethically, Congress must decide the fate of the BBL with the recognition that the State has also caused the oppression of the lumad and therefore it is just and right that recognizing IPRA within the BBL as a pragmatic way to redress these state-caused injuries can lead to healing of the divided tri-people nation and absolve the state of its blunders. This ethos simply appreciates that all the three peoples have equally carried the burden of prejudice by society, and therefore they shall also bear together the struggle for its rectification. Congress in weighing the plurality of interests involved in the BBL must be guided by this tri-people peaceful coexistence.

This state duty does not mean however, that the Congress is more superior than the interests of the groups, who are the sovereigns in a pluralist society (Hirst, 2989:13; Smith, 2005:23). But collective as it is, this duty is equally shared by the lumad, the Moro and the Congress. After all, the state is not the only source of political power, this being diffused among interest groups (Smith, 2005:22,36), according to pluralism.

The restoration of the old order inspired by the Mamalu-Tabunaway brothers must find its space in the whole BBL discourse as a first step to realizing the core of tri-people ethos. While it may not be appropriate for a legal exercise, the narrative is nonetheless essential in reminding the negotiators and the legislators that they are not only enacting a law, they are actually weaving peace for the tri-peoples of Mindanao.

Conclusion

What I have presented is a gripping story of two peoples so alike both in their sufferings and in their longings. Beleaguered by social prejudice and state-inflicted oppression, the Moro and the lumad continue to fight for their self-determination by optimizing state apparatuses so that their pleas for autonomy are recognized. However, one of the two is further marginalized as second-order minorities in the course of defending their territories and identities. The lumad have the extra burden of ridding regional marginalization on top of eradicating national ostracism. They are yet to convince not only the Bangsamoro but also the Congress that they are entitled to the ancestral lands bequeathed upon them since time immemorial.

The State, through the Congress must fulfill its role of a neutral arbiter of interests informed and inspired only by the fundamental tenets of social justice and the tri-people notion of a nation. It has now the delicate role of choosing the high moral ground of correcting the mistakes of the past and charting a democratically acceptable future of a pluralist Mindanao.

It must also be emphasized that there is no war being incited between the lumad and the Moro and that the lumad are not against the BBL. They are not asking for anything new under the current regime but are simply appealing the importation of a well-established law - IPRA’s letter and spirit - into the BBL. It needs stronger implementation and not a diminution of the IP rights that are already protected by national and international laws.

The Bangsamoro must equally realize that the way to freedom can be made a little easier by recognizing the lumad as their blood brothers in history with whom they share the land of promise. This must find life in the BBL by guaranteeing the lumad’s birthright to their ancestral domains. They cannot seek to correct the past by committing another mistake in the BBL. They cannot push for a law that will annihilate the original inhabitants of the island for this may just be a dreadful case of genocide by legislation.

References

1987 Philippine Constitution.

Acuña-Gulo, A. (2014). Indigenous Peoples in the ARMM in a Prism. Draft Bangsamoro Basic Law: Reviews, Commentaries, Recommendations. University Publication Office. Ateneo de Davao University. Davao City, Philippines. Pp. 57-64.

Alejo, A. (2014a). Peace talk: IPRA itself is a peace agreement. Retrieved from http://www.mindanews.com/mindaviews/2014/12/peacetalk-ipra-itself-is-a-peace- agreement/

________ (2014b). IPRA in the BBL. Draft Bangsamoro Basic Law: Reviews, Commentaries, Recommendations. University Publication Office. Ateneo de Davao University. Davao City, Philippines. Pp. 65-70.

Ateneo Presidents Speak Out for a Meaningful BBL: 10-point Agenda for a Bangsamoro Basic Law. (2015). Retrieved from http://www.addu.edu.ph/wp-content/uploads/2015/10/PDI-Half-Page-Ad-Ateneos-Statement-on-BBL.pdf

Bandara, Alim M. (2014). The Origin of the Tedurays. Published in Institute for Auronomy and Governance. http://www.iag.org.ph/index.php/blog/11-ipdevcontent/479-the-origin-of-the-tedurays

Bangsamoro Development Plan: Promoting Just, Honorable and Lasting Peace and Sustainable Development in the Bangsamoro, 2016-2022. Chapter 2, pp 5-10, Integrative Report.

Barter, Shane Joshua. (2015). ‘Second-order’ ethnic minorities in Asian secessionist conflicts: problems and prospects. Asian Ethnicity, Vol 16, No. 2. Routledge, Taylor and Francis Group. Pp 123-135

Buendia, Rizal G. (2015). The Politics of the Bangsamoro Basic Law. Yuchengco Center. De La Salle University. Manila, Philippines. Pp 1-25.

Comprehensive Agreement on the Bangsamoro. (March 27, 2014). Retrieved from http://www.officialgazette.gov.ph/2014/03/27/document-cab/

Dahl, Robert. (1956). A Preface to Democratic Theory. University of Chicago Press. Chicago. 1956.

Damaso, Elena Joaquin. (2011). Honoring Mamalo: Turning A Paradox Into a Paradigm Shift. Institute for Autonomy and Governance. Upholding the indigenous peoples’ rights to self-determination. Autonomy and Peace Review, 7 (2) pp 11-38.

Dikshit, Ramesh Dutta. (2000). Political Geography: The Spatiality of Politics. Tata McGraw Hill Publishing. New Delhi India. 2000.

Draft Bangsamoro Basic Law. (2017). Office of the Presidential Assistant for the Peace Process. Retrieved from https://peace.gov.ph/2017/07/proposed-bangsamoro-basic-law-bbl/

Dunleavy, Patrick and O’Leary Brendan. (1987). Theories of the State: The Politics of Liberal Democracy. McMillan Publishing, 1987.

Framework Agreement on the Bangsamoro. (October 15, 2012). Retrieved from http://www.officialgazette.gov.ph/2014/10/15/the-framework-agreement-on-the-bangsamoro/

Hirst, Paul Q. (1989) “Introduction.” In The Pluralist Theory of the State: Selected Writings of G.D.H. Cole, J.N. Figgins, and H.J. Laski, edited by Paul Q. Hirst, 1-47. London, United Kingdom: Routledge.

La Viña, A. and Lee, J. (2014). The Draft Bangsamoro Basic Law: Overcoming Constitutional Challenges. Draft Bangsamoro Basic Law: Reviews, Commentaries, Recommendations. University Publication Office. Ateneo de Davao University. Davao City, Philippines. Pp. 103-142.

Mansayagan, Jimid. (June 8, 2016). When Blue Meets Red: A Conversation on the GRP-NDFP Peace Process. Ateneo de Davao University.

McAuley, James. (2003). An Introduction to Politics, State and Society. Sage Publications Ltd., London, England. 2003.

Ng, Lawrence, Pe Benito Joshua, Reyes, Desiree. 2017. IP in the Bangsamoro: A Case Study on the Lumad Assertions for Inclusion in the BBL. Undergraduate Thesis. Political Science Department. Ateneo de Davao University. Davao City, Philippines.

Paredes, Oona. (2015). Indigenous vs. native: negotiating the place of Lumads in the Bangsamoro homeland. Asian Ethnicity, Vo. 16, No. 2. Routledge, Taylor and Francis Group. Pp 166-185.

Republic Act 6734. “An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao of 1998”

Republic act 8371. “Indigenous Peoples Rights Act of 1997.”

Republic Act 9054. “Expanded Organic Act for the Autonomous Region in Muslim Mindanao of 2001”

Rutten, R. A. (2016). Indigenous People and Contested Access to Land in the Philippines and Indonesia: Guest Editor's Introduction. Kasarinlan, 31(1), pp. 1-29.

Schaeffer, Robert. (2014). Social Movements and Global Social Change: The Rising Tide. Rowman and Littlefield. Maryland, USA. 2014.

Smith, Martin. (2006) “Pluralism.” In The State: Theories and Issues, edited by Colin Hay, Michael Lister and David Marsh, 21-38. Basingstoke, United Kingdom: Palgrave Macmillan, 2006.

Supreme Court. (1909). Cariño v. Insular Government. 41 Philippine Reports 935. Supreme Court of the Republic of the Philippines. Retrieved from supremecourt.gov.ph

Supreme Court. (1940). Calalang v. Williams. G.R. No. 47800 December 2, 1940. Retrieved from http://www.chanrobles.com/cralaw/1940decemberdecisions.php?id=237

Supreme Court. (2000). Cruz v. Secretary. GR NO. 135385. Retrieved from supremecourt.gov.ph

Supreme Court. (2008). Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, et.al. GR No. 183591. Supreme Court of the Philippines.

Ulindang, Failina. (April 16, 2015) . Lumad in Mindanao. National Commission for the Culture and the Arts. http://ncca.gov.ph/subcommissions/subcommission-on-cultural-heritagesch/historical-research/lumad-in-mindanao/