Indigenous peoples: Discrimination within and without

Last Saturday (which providentially was also World Indigenous People’s Day), an interesting round table discussion was held at the University of Asia and the Pacific on indigenous people’s rights. It was led by Ambassador Jose Romero, and done under the auspices of the Center for Research and Communication and UA&P’s School of Law and Governance. I was a speaker in that event and here are some of my notes on the matter, which focused on the need for a consistent legal framework in addressing the issues surrounding tribal people’s rights:

THE FIRST THING to be noted is the incompleteness of data regarding the population of indigenous peoples. While government numbers peg 14 million, a variety of figures abound, ranging all the way to 17 million. This is unfortunate. The gap in knowledge makes it difficult then to seriously provide services if the scale for its demand can’t even be determined.

In any event, the numbers, whatever they may be, gives us a bit of insight into the nature of indigenous peoples’ issues. At around 14-17% of the Philippine population, they constitute a far bigger group than the Muslims (around a mere 5%). Although the latter is indeed more concentrated in the South, nevertheless, again in scope of territory claimed (by way of ancestral domain or ancestral lands), indigenous peoples would account for around 20% of the total land area of the Philippines.

And land is where a lot of the issues arise. Here, the need for a consistent framework is palpable, with a seeming disconnect from the land rights of the indigenous peoples as previously understood…

While gratifyingly, indigenous people’s rights in the international sphere have moved conceptually from natural law to positivist and back once more to natural law understandings of human dignity (as can be seen in the 2007 UN Declaration on the Rights of Indigenous Peoples), nevertheless, there is again a Filipino misreading of how international law works.

For one, what works at the policy or conceptual level does not necessarily mean the same can be applied at the implementation level. And, yes, relativism to a certain extent is not necessarily a bad thing (witness international trade policy, for example). Furthermore, at the implementation level, we seemed to have moved from the natural law understanding to positivist but ignoring the differences that a Western or European understanding of indigenous people’s issues might bring to the Asian context.

Furthermore, we also seem to have fallen into the trap of considering any international law document as apt for legislation. In the same manner that we took the World Trade Organization agreements on anti-dumping or safeguards and transported them cut-and-paste style into Republic Acts, so the same impression can be had in relation to RA 8371 (or the Indigenous People’s Rights Acts)

Another problem area in terms of consistency is on the common ownership of lands. Ironically, while looking at Western models, we seem to have disregarded its appalling results. Indigenous peoples in the United States, Australia or Canada live in dire poverty and the same is said to be traceable to what economists call the “tragedy of the commons.” Put bluntly, nobody would bother improving land (or any property) and expend effort to utilize the same productively if it’s owned in common. In short: if everybody owns it then effectively nobody owns it.

Then there’s the consistency issue vis-à-vis the Muslims. Inasmuch as indigenous peoples have a far larger population, claim a bigger land area, have consistently proclaimed their being of the Philippines and that they are proudly Filipinos, and — most importantly — have been quite peaceful in their advocacy for better rights and contented themselves with resorting to our legal system, then the indigenous peoples have been given short shrift indeed.

Finally, there is the matter of discrimination against women. As Froilyn Mendoza wrote (in an article for Thomson Reuters, “End The Silence On Rape In Southern Philippines Indigenous Communities”): “Rape is considered an ordinary case that is confined to the expertise of the tribal leaders and settled amicably. Even worse, rape victims are sometimes forced to marry the perpetrator because in our culture, rape is a form of marriage. Cases of incest rape are common. With the prominence of alcoholism among indigenous peoples, physical and sexual abuse is increasing. These cases are settled amicably as part of our customary law, and are not known publicly. The tribal structure is the biggest stumbling block to indigenous women’s empowerment.”

Hence, while indeed balance must be achieved by giving respect to peoples’ cultural identities, nevertheless, political will must be applied in ensuring that our central, most fundamental, Filipino values are respected and followed. –Businessworld

Jemy Gatdula specializes in international economic law (WTO and ASEAN), and teaches international law and legal philosophy at the UA&P School of Law and Governance.