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Wednesday, 12 April 2000
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Surprise revelations at the committee hearing in Congress

The continuing saga of
the commission that still can’t

By Gina Mission

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At the National Commission on Indigenous Peoples (NCIP), the hits just keep on coming, as the Estrada administration continues to apply the legal equivalents of headlocks and body slams on the NCIP board and the Indigenous Peoples’ Rights Act (IPRA) that created it.

.....A full year after its original deadline, the Department of Justice finally released a report of its investigation into administrative and criminal charges against five NCIP commissioners.

.....And even the circumstances of the report’s release were mysterious, as it took a congressional hearing last week, on April 5, to bring it out, even as the DOJ investigating commission had previously claimed that they submitted their report within the original three-month deadline.

.....It was to look into the functions of the newly created Presidential Task Force on Indigenous Peoples that Ifugao Rep. Benjamin Cappleman, chair of the House committee on cultural communities, called a hearing last April 5. Critics of the task force, he said, are complaining that it only "duplicates" the functions and duties of the National Commission and Indigenous Peoples, the agency created by law to carry out the Indigenous Peoples Rights Act, or IPRA.

Revelations

.....But in examining the task force’s role in implementing the IPRA, the hearing triggered two revelations that were surprises to the NCIP, NGOs advocating indigenous rights and even the committee members themselves.

.....Revelation number one was then-Justice Secretary Serafin Cuevas’ decision not to render a judgment on his department’s investigation of five NCIP commissioners. According to Donna Gasgonia, presidential assistant for poverty alleviation and chair of the presidential task force, Cuevas said he would wait for the Supreme Court’s decision on the petition of former Supreme Court Justice Isagani Cruz challenging the IPRA’s constitutionality.

.....The second revelation was that because of the NCIP’s inability to perform its functions, according to Gasgonia, the Office of the President had to intervene in order to obtain United Nations Development Program (UNDP) funding for indigenous peoples.

.....The fund, she said, consists of a $75,000 "preparatory fund," to be used in organizing and getting the consensus of indigenous communities on what projects to propose for a bigger fund of $1 million.

A little history

.....The investigation by the justice department had stemmed from the recommendations of an ad hoc committee, created through Memorandum 21 issued by Executive Secretary Ronaldo Zamora on September 21, 1998. It was tasked to "study the issues relative to the constitution, administrative setup and operations of the NCIP." Gasgonia, in her capacity as the person appointed by the President to "coordinate with the NCIP," was selected committee chair.

.....In its report on Nov. 10, 1998, the committee recommended that the DOJ investigate Commissioners David Dao-as (NCIP chair), Castillo Tidang, Jr., Erlinda Dolandolan, Mai Tuan and Cesar Sulong.

.....Through Administrative Order 42 issued on Dec. 11, 1998 and signed by Zamora, the Office of the President created the DOJ investigating committee, appointing Justice Assistant Secretary Benjamin Paras as chair. The committee was given 90 days to submit its decision.

NCIP funds frozen

.....Memorandum 21 also ordered the Department of Budget and Management to stop the release of NCIP funds until after the commission’s problems were resolved. The DBM then stopped releasing the funds. Official records show that the DBM withheld some P39 million of the agency’s total funds for 1998.

.....It got worse in 1999. Of the P57.99 million set aside as the commission’s regular funds, it received only P17 million from the DBM. This money went to office rentals (P10 million) and other regular expenses such as water, power, communication, supplies, travels and repairs. Of its P86.6 million in project funds, the NCIP received only P65 million, the amount allotted for its scholarship program.

.....Because of its resulting financial and operating constraints, the NCIP was not able to carry out its programs in the different indigenous communities. Atty. Marvic Leonen of the Legal Rights Resource Center criticized the commission for "not being aggressive enough in doing its job."

.....Since the NCIP’s creation, he said, the body’s only concrete "accomplishment" was the issuance of more than 100 certifications on the "free and prior informed consent" of indigenous communities to mining applications in their areas, an "accomplishment" which he dismissed as "pro-mining."

.....NCIP Chair David Dao-as said the NCIP managed to issue that large number of certifications only because the expenses of NCIP personnel in field visits to the mining application sites were shouldered by the company-applicants, as called for in the IPRA. Had the law required the NCIP to spend its own money, Dao-as said his office would not have been able to issue all those certifications. "How can we function when our funds are frozen?" he asked.

.....Lack of funds had indeed crippled the agency. For instance, in July 1999, when indigenous people's groups in the Caraga region were fighting for recognition as the legal occupants of gold-rich ancestral lands set to be explored by Canadian firm Mindoro Resources Limited, the NCIP couldn't send its own personnel to investigate the dispute for lack of money to finance their trip.

Discontent

.....The NCIP’s supposed inaction created discontent among indigenous communities. Concerned groups and individuals began to doubt the sincerity of the administration in implementing the IPRA. Many IPs expressed disgust over the commission’s "failure" to deliver the services promised in the law.

.....Until Gasgonia’s April 5 revelation, nothing was heard of the DOJ investigation. Or at least, none that anybody would speak of officially. However, at the Senate Committee on National Cultural Affairs hearing on the implementation of IPRA held on March 15, this year, Paras disclosed that his committee had submitted its findings to Cuevas for decision, "within the deadline."

.....This was confirmed by NCIP personnel. As early as February 1999, said an NCIP staff who requested anonymity, the findings of the Paras committee were already with the office of the former justice secretary.

.....Surprised at hearing Cuevas’ failure to make a decision, as revealed by Gasgonia, Rep. Ruy Elias Lopez of the second district of Davao City exclaimed: "I think it’s a lame excuse for him not to render a decision on the case."

.....Trying to read the probable implication of Cuevas’ indecision on the DOJ investigation, Lopez said there was no longer any reason for the DBM to withhold the NCIP funds, since the funds were suspended precisely because of the inquiry. "Besides, our legal jurisprudence tells us that a law is considered constitutional and therefore enforceable, unless declared otherwise by the Supreme Court," he added.

.....Gasgonia said that because of what was happening at the NCIP, the Office of the President had to create task forces "because we cannot sacrifice the IPs."

A tale of two task forces

.....On February 15, 1999, Zamora issued Memorandum 52 creating the Presidential Task Force on Ancestral Domains, to "assist the Office of the President, through the Presidential Assistant for Poverty Alleviation, NGO and PO [who was Donna Gasgonia] in monitoring compliance with existing laws regarding the rights and welfare of Indigenous Peoples in their ancestral domains."

.....Gasgonia, in a May 1999 interview with PNI, had explained two possible scenarios that could occur with the release of the DOJ decision. "If the DOJ says that the charges are baseless, then we will be working with the NCIP. What happens is that the task force turns over all ancestral domains it processed to the NCIP and then we will expect them to tell us which ones should be implemented."

.....But if the DOJ found the commissioners guilty of the administrative charges they were investigated on, then, the task force "will fill in the gap," Gasgonia said. The DOJ decision wasn't promulgated on the expected date and the task force was quietly dissolved after six months. This, however, didn't spell the end of the NCIP problems.

.....On February 10, 2000, Zamora issued Administrative Order No. 108, creating another task force, the Presidential Task Force on Indigenous Peoples, "to ensure the immediate implementation of the Indigenous Peoples’ Rights Act." It provided that the task force would have a budget of P6 million, and would exist until the Supreme Court decided on the Cruz petition.

Not impressed

.....But many are not impressed by its creation, or its reason for being. For instance, a good part of Administrative Order 108 tells how, because of the Supreme Court case questioning the IPRA’s constitutionality, the NCIP has failed to perform as mandated by law. Because of such "legal impediment," it said the task force should be created to take over the duties of the commission.

....."The pendency of the case has resulted in the delay of basic services delivered to the IPs, and created an ambiguity regarding the protection and recognition of their ancestral domain rights," the administrative order said.

.....But, as Lopez asked, "Is it good governance to put the NCIP in the background when it’s the agency mandated by law to implement IPRA?"

.....And is it really the pending Supreme Court case that's delaying the services to the IPs? Commissioner Tidang doesn't think so. The delay of services, he said, is caused by the freezing of NCIP funds, which in turn was caused by the pending DOJ investigation.

.....Tidang said the Court's refusal to issue a temporary restraining order of the IPRA's implementation, as prayed for in the Cruz petition, was a clear indication that the High Tribunal didn't want to stop the law's implementation.

Complicating matters

.....Rep. Gerry Salapuddin of the lone district of Basilan remarked: "Our main concern as committee members is the NCIP’s ability to fully exercise its power. While in some instances the creation of the new task force supplements the NCIP’s job, in most instances it just complicates things."

.....If the government’s main concern is a more focused administration of services to indigenous communities, he asked, "why not concentrate on one body instead of creating one task force after another?"

....."Our concern is the objectivity of the creation of the task force. Meaning, which office should we go to if we need support? IPs have always been misrepresented since time immemorial. History tells us that they’ve always been on the losing end. When will the services reach the beneficiaries?" he asked.

‘What are the violations?’

.....Not seeing any impediment for NCIP to function, Rep. Grace Singson of the second district of Ilocos Sur asked: "How come, if there were violations, nobody was charged or removed from office?"

.....Cappleman agreed, saying: "If Dao-as is the problem or obstacle in the NCIP, then why isn’t he removed? Nobody is indispensable."

.....If Dao-as cannot be removed legally, Lopez said, "Why don’t we give him the support he needs to enable the NCIP to function and deliver services to the IPs?"

Justification for Palace intervention?

.....In reply, Gasgonia narrated how the Office of the President had to "intervene" because the NCIP was not doing its job. As an example, she cited the case of the implementing rules and regulations adopted by the NCIP, which she said were not valid because the agency drew them up without first consulting the Senate and House committees on national cultural affairs.

.....Official records, however, show that both Sen. Juan Flavier and then-Rep. Jeremias Zapata of the lone district of Abra, who chaired the committees in both houses, had confirmed that they were consulted before the rules and regulations were finalized.

.....What about Gasgonia’s claim that the Office of the President had to intervene so as to get the $75,000 UNDP "preparatory fund’’ for projects for indigenous peoples? A reliable source from the NCIP, who asked not to be named, denied that claim, saying that the $75,000 had already been released in 1997 to the Department of Environment and Natural Resources, the agency then assigned to take care of ancestral domain claims.

.....With the bigger UNDP fund of $1 million still to be released, Singson asked, "Is it because of the UNDP fund that the task force was created?"