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13 May 1999
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Showdown at the IP corral
By Gina Mission
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They were five people appointed in February 1998 by then-President Fidel Ramos to fill up the seven-member National Commission for Indigenous Peoples (NCIP), the implementing body of the Indigenous Peoples’ Rights Act (IPRA), otherwise known as RA 8371.

___Appointed were David Daoas (Kankaney, Mt. Province) as chair, and Castillo Tidang, Jr. (Ibaloi, Nueva Vizcaya), Erlinda Dolandolan (Aeta, Zambales), Victorino Saway (Talaandig, Bukidnon), and Mai Tuan (T’boli, South Cotabato) as members.

___The IPRA is the landmark law that recognizes and promotes the rights of indigenous cultural communities (ICCs), signed into law by Ramos on October 29, 1997, as part of his administration's Social Reform Agenda. It enumerates the civil and political, as well as the social and cultural rights of indigenous peoples in the Philippines, estimated to number between seven to twelve million.

___The IPRA also provides for the conversion of certificates of ancestral domain claims (CADCs) held by IPs into certificates of ancestral domain titles (CADTs). More importantly, it requires the "free and informed consent" of ICCs, before outsiders within ancestral lands can undertake any projects.

___The passage of IPRA brought a newfound freedom to the IPs. "It’s like we were the masters of our lives again," related Likid Atong of the Mandaya tribe of Davao Oriental.

___Commissioner Mai Tuan has good memoirs of the early days of the NCIP: "It was the height of victory for IPs. Wherever I went, IPs in the Cotabato area were in a jubilant mood."

___For ten years, the indigenous peoples, as well as non-IPs sympathetic to their plight, had lobbied for the passage of IPRA. So when the IPRA was finally signed into law in 1997, there was a justified feeling of accomplishment. With the NCIP and the commissioners to represent them in the implementation of IPRA, as well as to look after their needs, IPs, continued Atong, were sure their time had come.

___Barely five months later, however, the NCIP fell into a pit from which it has yet to emerge.

___In July 1998, President Joseph Estrada, through the recommendation of Environment Secretary Antonio Cerilles, appointed Cesar Sulong as NCIP chair, Juris Rita Dueñas as executive director, and Nerto Colili as commissioner. In the same month, Presidential Assistant (PA) for poverty alleviation, NGO & PO Donna Gasgonia, was also appointed by the President, through Memorandum 5, as the PA in charge of matters concerning the IPs and the urban poor.

___IPs and other concerned NGOs reacted to these new Estrada appointees with staunch criticism. It was from this time onwards that the NCIP’s troubles began.

___On September 21, 1998, Executive Secretary Ronaldo Zamora issued Memorandum 21, creating an ad hoc committee to study the issues relative to the constitution, administrative setup and operations of the NCIP. Gasgonia was appointed chair of the committee.

___The same order directed the Department of Budget and Management (DBM) to withhold the release of funds to the NCIP, except for operational expenses like salaries and rent, until after the final resolution of the issues surrounding the commission.

___Per Gasgonia’s recommendation as the ad hoc committee chair, the Department of Justice (DOJ) investigated all commissioners, except Saway, who was cleared of any charges, and Colili, whose only problem was in the misspelling of his name in his original appointment papers. To this date, the DBM has withheld the NCIP funds.

___On February 15, 1999, Zamora issued Memorandum 52 creating the Presidential Task Force on Ancestral Domains to assist the Office of the President, through Gasgonia, in monitoring compliance with existing laws regarding the rights and welfare of IPs in their ancestral domains.

___On March 9, Nueva Vizcaya Rep. Carlos Padilla, one of the strong supporters of IPRA, filed House Resolution 818 directing the House Committee on Cultural Communities to conduct an investigation, in aid of legislation, on the alleged irregularities in the NCIP.

___Two sub-committee hearings were conducted on May 5 and 12, respectively, for this purpose.

___In his remarks, Padilla reminded those present that the IPRA was enacted for the sole purpose of advancing the welfare of IPs. Since this has not been carried out as result of the charges against the commissioners and the freezing of NCIP funds, there is a need to settle the issue. Hence, the investigation.

___Davao City Rep. Ruy Elias Lopez, reminded the body that the problem is not with the NCIP but rather with Malacañang. "The intention of Congress when it passed IPRA is to look after the IPs through the NCIP, and not through a PA. What’s happening now is that the PA is the one doing things and not the commission. And there’s not even one provision of the law that provides for the existence, much less the power of a PA," Lopez said at the hearing.

___Gasgonia anchored her defense on the alleged violation of certain provisions of IPRA by the commissioners.

___Both Daoas and Dolandolan, according to her, violated Sec. 75 of IPRA by not completing the winding up and final audit of the former Office of Northern Cultural Communities (ONCCs). In addition, Daoas allegedly violated Sec. 77 relative to Sec. 50 of IPRA when he appointed officials of phased-out positions and creating new offices to form a "skeletal force" in the commission.

___Tidang’s position as mayor of Kayapa, Nueva Vizcaya during his appointment, according to Gasgonia, violated Sec. 94 of the Local Government Code. Tuan was accused of duplicating Saway’s area (Central Mindanao) and of having "questionable integrity" because of his alleged involvement with the Tasaday scam - again, in violation of the law.

___Estrada appointee Sulong, on the other hand, was found guilty of dishonesty, falsification of public documents, malversation of public funds, and violation of the Anti-Graft and Corruption Practices Act in 1996, in his capacity as mayor of Pagadian, Zamboanga del Sur.

___In addition, Gasgonia alleged that while IPRA provides for two female members in the commission, only Dolandolan is the female appointee; and that the ethnographic area of Southern and Eastern Mindanao is not represented.

___All these legal questions, said Gasgonia, void the constitution of the NCIP. For one, Ramos only appointed five members of the commission, allegedly violating Sec. 40 of IPRA, which requires that there should be seven members. "Since there were only five members, the commission therefore, is not duly constituted as the law says there should be seven, hence the Implementing Rules and Regulations (IRR) of IPRA, which was promulgated by the five Ramos-appointed commissioners, is also defective and therefore unenforceable," she said at the hearing.

___Daoas countered Gasgonia’s claim, saying that the law requires for an IRR to be promulgated within six months after IPRA took effect in November 1997. "Had we waited for the appointment of Sulong and Colili in July, RA 8371 would have been rendered useless by now, unenforceable because its IRR didn’t make it to the deadline," Daoas said.

___Granting arguendo, that the IRR was really defective, Lopez does not believe it’s "such a substantial question that the NCIP should be hampered in its operation."

___"Very convenient," was how Lopez described Gasgonia’s flow of thought. "To say that there should be seven members of the NCIP for it to officially function, means that the present commissioners are legally crippled, and so only the task force is recognized," he explained.

___Gasgonia defended that the task force is not intended to supercede the NCIP, and that it can only act on matters concerning CADCs and CADTs. Lopez, however insisted that still, IPRA does not allow anybody or any group to process the same except the NCIP itself.

___"The point is that there is a law, so let’s implement it," Lopez said. Not following the law, i.e., letting the task force do what is supposed to be the exclusive function of the NCIP, Lopez added, would mean the act is illegal.

___Both Padilla and Lopez disagreed with Gasgonia’s interpretation of a duly-constituted NCIP, and stressed that in all government bodies, a complete membership is not required before a body can officially function. Only a working quorum is required, according to them.

___The alleged legal impediment of the IRR, Lopez pointed out, should be resolved immediately so the law can be finally implemented, and the IPs can already enjoy what’s legally theirs.

___On Tuan’s alleged duplication of Saway’s area of assignment, tribal leaders from Mindanao asked how that could be when, in the first place, the two commissioners come from different places. Saway is from Bukidnon, which falls under the Northern and Western Mindanao ethnographic region and not Central Mindanao, as Gasgonia has claimed. Tuan on the other hand, is from South Cotabato and therefore represents the ethnographic region of Southern and Eastern Mindanao.

___Contrary to Gasgonia’s contentions, not only does Central Mindanao not have two redundant commisioners, Central Mindanao has no commissioner representing it at all.

___Sulong, however, comes from Zamboanga del Sur which belongs to Western Mindanao, and is the one duplicating Saway’s territory. But, as the Mindanao tribal leaders lamented, Gasgonia doesn’t think so.

___Perhaps seeing the power that Gasgonia has as PA, tribal leaders begged for her help, saying: "Please, Ma’am, you have the hand and the power to talk to the President, please help us."

___Mt. Province Rep. Josephine Dominguez, however, remained blunt. "There’s a conflict between the NCIP and the PA. Perhaps it’s because the NCIP commissioners are mostly Ramos appointees. Perhaps they failed to seek Gasgonia’s blessing when the new administration came into power," she said.

___Commenting on the freezing of the NCIP funds, Padilla said that he would look into the legality of such action, taking into consideration the presumption of innocence of the accused. Besides, except for Sulong and Colili, the commissioners who are under the DOJ investigation face only administrative charges, not criminal ones.

___Daoas expressed his intention to submit a position paper in response to Gasgonia’s allegations, although, as he admitted to CyberDyaryo, it would be essentially the same reply sent previously to the ad hoc committee. The same reply gives a detailed account on how he made it to the ONCC audit, contrary to Gasgonia’s charges.

___Tuan refused to comment on Gasgonia’s allegation that he was involved in the Tasaday scam, saying that during President Corazon Aquino’s time, there was a Congressional inquiry conducted on the issue and that he wasn’t even implicated, nor made to appear before the hearing, a clear manifestation that he was not involved with it.

___At present, the DOJ has yet to submit its findings. Gasgonia earlier revealed to CyberDyaryo that they "had hoped that by the end of February, the DOJ would have made a final decision on the investigation." DOJ records show that Assistant Secretary Ricardo Paras, who was assigned to investigate the commissioners, already submitted his findings to Secretary Serafin Cuevas last March 12. The matter is still awaiting Secretary Cuevas’ evaluation and recommendations.

___Meanwhile, Padilla invited all interested parties to submit a position paper that his committee can incorporate in its investigation. He did not, however, set a deadline for the submission of position papers, nor did he set a timetable within which the committee will submit its findings to Congress.

___In the meantime, Lopez is a bit edgy. "Section 64 of the IPRA provides a two-year prescription period for the NCIP [only] to correct illegally-issued CADCs. And this is where the mining sector can come in. If, for any reason the task force will issue CADCs to questionable parties, and the NCIP issue is still not resolved, there’s the risk that these questionable CADCs will result in questionable titles," he said.

___"This problem with the commissioners has been here since last year. For how long will we wait before we start suspecting that there’s something sinister with all these delays?" asked Lopez.