Joint Submission for the Second Universal Periodic Review on Indigenous Peoples in the Philippines

Source: 
PIPLinks & various groups

Joint Submission on the Human Rights Situation of Indigenous Peoples (IPs) in the Philippines

Submitted to the United Nations Office of the High Commissioner for Human Rights

For the Universal Periodic Review of the Philippines
(2nd Cycle, 13th Session, 2012)

Submitted by:

ALTERNATIVE LAW GROUPS, INC. (ALG)

ATENEO HUMAN RIGHTS CENTER (AHRC)

ENVIRONMENTAL LEGAL ASSISTANCE CENTER, INC. (ELAC)

INDIGENOUS PEOPLES RIGHTS MONITOR (IPRMon)
composed of:
Kalipunan ng mga Katutubong Mamayan ng Pilipinas (KAMP)
Koalisyon ng Katutubong Samahan ng Pilipinas (KASAPI)
Kusog sa Katawhang Lumad sa Mindanao (KALUMARAN)
Cordillera Peoples Alliance (CPA)
Anthropology Watch (AnthroWatch)
Cordillera Indigenous Peoples Legal Center – DINTEG
Philippine Association for Intercultural Development (PAFID)
Philippine Task Force Indigenous Peoples Rights (TFIP)
Tebtebba Foundation (Indigenous Peoples’ International Centre for Policy)
KATRIBU Partylist

MIDDLESEX UNIVERSITY (UK) DEPARTMENT OF LAW

TANGGAPANG PANLIGAL NG KATUTUBONG PILIPINO (PANLIPI)
(Legal Assistance Center for Indigenous Filipinos)

PHILIPPINE INDIGENOUS PEOPLES LINKS (PIPLinks)

Contact Organizations:
Ateneo Human Rights Center
G/F Ateneo Professional Schools Bldg.,
20 Rockwell Drive, Rockwell Center,
Makati City 1200, Philippines
http://www.ahrc.org.ph
info [at] ahrc [dot] og [dot] ph / rquan [at] ahrc [dot] org [dot] ph

Alternative Law Groups, Inc.
Rm. 216, Institute of Social Order, Social Development Complex, Ateneo de Manila University, Loyola Heights, Quezon City, Philippines
http://www.alternativelawgroups.org
secretariat [at] alternativelawgroups [dot] org / icc.ip.cluster [at] gmail [dot] com
Indigenous Peoples Rights Monitor
c/o Cordillera Indigenous Peoples Legal Center – DINTEG:
55 Ferguson Road, Baguio City, Philippines
dinterg.cordillera [at] gmail [dot] com / rdalang [at] yahoo [dot] com

Philippine Indigenous Peoples Link
225-229 Seven Sisters Road, London
http://www.piplinks.org
geoff [at] piplinks [dot] org

JOINT SUBMISSION ON THE HUMAN RIGHTS SITUATION OF INDIGENOUS PEOPLES (IPs) IN THE PHILIPPINES

I. Introduction

1. This is a joint submission from various indigenous peoples organizations and support NGOs, namely the Alternative Law Groups, Inc. (ALG),1 the Ateneo Human Rights Center (AHRC),2 the Environmental Legal Assistance Center, Inc. (ELAC),3 the Indigenous Peoples Rights Monitor (IPRMon),4 Middlesex University (UK) Department of Law,5 the Tanggapang Panligal ng Katutubong Pilipino / Legal Assistance Center for Indigenous Filipinos (PANLIPI),6 and the Philippine Indigenous Peoples Links (PIPLinks).7

2. This submission provides information, burning issues and corresponding recommendations regarding the compliance of the Philippine Government with its international human rights obligations, in particular those affirmed under the International Convention on the Elimination of Racial Discrimiantion (ICERD).   The report is primarily organized based on the list of Universal Periodic Review (UPR) recomendations, specifically, paragraph 58 (1), (6), (12) and (14) in 2008 and identical recommendations by the Committee on the Elimination of Racial Discrimiantion (CERD) in 2009.

3. The joint submission emphazises that the IP stuggle for the defense of their ancestral homelands, their right to self-governance and right to self-determination can never be captured in words nor reduced to a ten page report. This report however picks up from where the UPR recommendations to and commitments on the part of the Philippine Government left off, regarding compliance, non-compliance and instances perhaps even gross violations thereof. In the process it addresses issues such as,  the free, prior and informed consent (FPIC) of indigenous peoples, ancestral land issues, mining related human rights violations, data disaggregation, civil and political rights related to extrajudicial killings, and human rights violations in the context of militarization and counter-insurgency, especially those relating to children and women.

4. Jointly, we submit that the Philippine Government, despite its expression of support to various UPR recommendations in 2008, has not adequately taken decisive steps to address the recommendations set forth in that UPR and by the CERD.

II. Existing Institutional and Legal Framework for the Promotion and Protection of Human Rights

5. The Philippines has been a forerunner in establishing institutional and legal framework for human rights. The Philippines adopts generally accepted principles of international law as part of the law of the land. It is a signatory to many international instruments, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), and the ICERD.

6. Accordingly, the Philippine Constitution mandates the state to value the dignity of every human person and to accord full respect for human rights. More specifically, it directs the state to guarantee the protection of the rights of IPs to their ancestral land to ensure their economic, social, and cultural well-being. It also ensures the applicability of customary laws in determining the ownership and extent of ancestral domain.

7. Moreover, the Philippine Government has enacted several laws that recognize and protect the rights of IPs. Foremost is the Indigenous People’s Rights Act of 1997 (IPRA),8 which mandates the recognition of ancestral domains and the right to self-determination and the associated requirement to consult and obtain FPIC, and provides for the creation of the National Commission on Indigenous Peoples (NCIP). The Philippine Mining Act of 19959 continues to be operative and recently, the Anti-Torture Act of 200910 was enacted to law.

8. The current administration of the Philippines has notably taken cautious steps towards promising directions by appointing progressive IP women leaders at the helm of National Commission on Indigenous Peoples. The report also appreciates the vigor and commitment of the National Cultural Communities Committee of the House of Representatives.

In the interest of calling on the Philippine Government to comply with its obligation to protect, promote, and fulfill the human rights of IPs, we respectfully hereby present this joint submission for the council’s consideration.

III. Issues and Concerns in Relation to UPR (A/HRC/8/28) Conclusion and Recommendations Affecting IPs

58(1) To continue to develop a gender-responsive approach to issues of violence against
women and continue to build supportive environment for women and children within the judicial system; this environment should take into account the special needs for rehabilitation and post-conflict care of women and children in vulnerable situations and conflict areas (New Zealand);

9. We submit that the state party expressed its support on the matter. It is submitted however that experiences about to be cited marginalize the situation of IP women and children further.

10. Two schools especially built for the Manobo tribe in Mindanao – the Alternative Learning Center for Agriculture and Livelihood Development and the Tribal Filipino Program of Surigao del Sur were branded by the military as “communist fronts,” consequently the children are regarded as members of the communist New People’s Army (NPA). These schools are intermittently used by the Armed Forces of the Philippines as military camps.

11. In the Cordillera, a team from UNICEF has verified two schools which were turned into barracks by the Armed Forces of the Philippines (AFP) for more than a year.11 Despite submission of official report of the UNICEF to the AFP, the two schools still remain as AFP barracks.

12. In the B’laan Literacy School and Learning Center (BLSLC), seven teachers and their five colleagues were forced to leave the school due to fear from persistent ‘red-baiting’ and threats from the AFP. BLSLC is catering to 205 Indigenous B’laan children.12

13. In Compostella Valley in Mindanao, several indigenous children are required to report to the “Barangay Defense System,” a civilian network of the AFP tasked to spy on the NPAs.13 A similar case was monitored in the Cordillera where the AFP required children aged 14-16 to attend a seminar after which they were compelled to report the names of leaders in their communities.

14. In the course of leading a campaign for the right to education of indigenous children, Mildred Salang-ey,14 an indigenous youth leader, is now evading arrest for complaints filed in court for murder, frustrated and attempted murder related with a rebel attack against AFP troops. In Compostella Valley in Mindanao, several indigenous children are required to report to the “Barangay Defense System” a civilian network of the AFP tasked to spy on the NPA.15

15. The cases cited illustrate the continued relevance of the observation made in the report of the Secretary General to the Security Council that (A/65/820-S/2011/250) the soldiers that use school facilities for military purposes, unlike other countries where insurgents are the one using children and children facilities. The report further stated that “counter-insurgency strategy, ‘Oplan Bantay Laya’ (Operation Freedom Watch), permits and encourages soldiers to engage civilians, including children, for military purposes, using them as informants, guides and porters.”16

16. Sexual violence and sexual exploitation likewise persist amidst state sanctioned counter insurgency campaigns. Wooing women and girls, has become a macho soldier subculture and sly strategy to build and maintain rapport with the community. In the Cordillera alone, there were seven unplanned pregnancies involving soldiers in 2010. Of the seven, one case of which was rape.

58(2) To ensure that members of the security forces are trained on human rights and on their responsibility to protect human rights and human rights defenders (Canada);

17. This joint submission notes the initiatives undertaken by the state party to address the issue. The security forces through their respective human rights affairs offices17 embarked on regional community based human rights dialogues as part of their trust building efforts.18 The state party in this regard is likely to point out the adoption of an internal security plan that opens up spaces for the involvement of the Filipino people.19

18. CSOs working on this joint submission have had concrete experiences with extreme cases of failure to protect human rights and human rights defenders. Other CSOs are cautiously optimistic about taking part in the dialogues. But many have grounded and concrete reasons to be wary. IPs fighting for their collective right to ancestral land and self-determination are unfairly type casted as members of the NPA, if not NPA supporters.

19. This submission can readily point out five indigenous civilians incarcerated for charges associated with NPA activities, among many other similar cases. Eddie Cruz, a Dumagat, has been detained for more than a year for charges linked with NPA attacks. In October 2011, four20 civilians in the Cordillera were imprisoned for charges of rebellion in the aftermath of a confrontation between the AFP and the NPA. In May 2011, Anelfa Gimelo, a 50-year-old B’laan woman leader was charged with collection of revolutionary taxes. She is out on bail after three months in detention. An IP in Nueva Viscaya was detained for five months on charges of illegal possession of firearms. He was accused by the AFP as an NPA supporter.

20. In Esperanza, Agusan del Sur, Mindanao, the paramilitary group, Wild Dogs, resumed their threats against the Literacy and Numeracy School under the Rural Missionaries of the Philippines, which reopened after it closed down due to heightened militarization. The school was accused as teaching songs of the NPA. The Higaonons were tagged as a community of NPA supporters because of their strong opposition to mining interests in their territory. They likewise refuse to acknowledge the Certificate of Ancestral Domain Claim issued to Manpatilan, the leader of the Wild Dogs paramilitary group and self-proclaimed leader of the Higaonons.21

58 (6) To completely eliminate torture and extrajudicial killings (Holy See), to intensify its efforts to carry out investigations and prosecutions on extrajudicial killings and punish those responsible (Switzerland) as well as to provide a follow-up report on efforts and measures to address extrajudicial killings and enforced disappearances, taking into account the recommendations of the Special Rapporteur on extrajudicial, summary or arbitrary executions (The Netherlands);

21. The Special Rapportuer recommended to immediately direct military officers to cease from making public statements linking political or other civil society groups to those engaged in armed insurgencies. The report urged the state party to implement transparency in the “order of battle” and “watch list” of the state security forces. According to the report, vilification is being used by state security forces to legitimize the commission of human rights violations against those they tag as “terrorists” or “enemies of the state.”22

22. James Balao23 of the Cordillera Peoples Alliance was abducted in September 19, 2008, allegedly by the AFP. In a petition for a Writ of Amparo, the Regional Trial Court rendered an order to the AFP to surface Balao. Despite the Writ of Amparo, Balao remains missing until today.

23. In the aftermath of NPA attacks on mining areas in Mindanao, the Chamber of Mines released a statement implicating anti-mining movements in Palawan as having “apparently emboldened the NPA to believe that protection of the environment can justify their attacks on mining companies.”24

24. All 15 documented cases of victims of extrajudicial killings from 2008 to the present were tagged as NPA supporters. Those killed since 2008 include three25 Dumagats in Rizal, one26 Agta, one27 Palaw’an, and ten28 Lumads. Two were women. Moreover, of the 15, eight victims29 were active leaders of KATRIBU party list.

25. Fr. Faustino Tentorio, an Italian priest, was killed in Mindanao in October 2011. He was a prominent environmentalist and advocate of IP rights. He had been actively supporting the local communities in their opposition to mining operations in their territory.

The subsequent issues report on select CERD recommendations, which the state party was required to address by January 2012 (CERD/C/PHL/CO/20).

Recommendation (Par) 17: Provision of disaggregated data and use of the census in 2010 to include indicators disaggregated by ethnicity and gender on the basis of voluntary self-identification, and to provide the data obtained in its next periodic report.

26. IPs, IP organizations and support groups await the release of the latest census with anticipation. For the first time, the National Statistics Office, in coordination with the NCIP, included an ethnicity variable in 2010 Census of Population and Housing (CPH). CSOs who were able to witness the process note issues on the preparations, data collection, identification and survey proper.

27. Despite the reservations and issues, especially the NCIP formula on the ethnicity of children from inter-marriages. The figures when released, will be the first disaggregated data on IP population in the Philippines. The accuracy of the estimate, which is often pegged from 15% – 17%, may not be resolved. The results of the 2010 CPH will, however, officially surface the statistically invisible IP population.

Recommendation (par) 23: The Committee seeks further clarification on the time frames for obtaining Ancestral Domains/Lands certificates and the number of applications filed and certificates issued for claiming collective land titles. The Committee recommends that the State party streamline the process for obtaining land rights certificates and take effective measures to protect communities from retaliations and violations when attempting to exercise their rights.

28. The Philippine Government has yet to concretely act on CERD recommendation (23). State recognition of time immemorial ownership of ancestral domains and lands is key to uplifting the economic, social, and cultural well being of IPs. Such ownership will further enhance IP rights to self-determination and self-governance as enshrined in the IPRA and the UNDRIP. The existing guidelines and processes for the issuance of a Certificate of Ancestral Domain Title (CADT) and a Certificate of Ancestral Land Title (CALT) have not undergone any review for the purpose of streamlining the process and making it less burdensome for IPs to obtain a CADT and/or CALT for their lands. As it stands, while IPs find it hard to prove their ownership of their land since time immemorial, land grabbers who illegally obtain titles to the same lands enjoy the protection of the law given the presumption of validity of the title that they hold. This definitely places IPs at a disadvantage.

29. Similar cases highlighted in the Philippine ICERD Shadow report30 on the formal process for claiming collective land titles remain unduly burdensome. The indigenous communities continue bear the burden of proof when submitting applications.

30. The joint submission reiterates that the occurrences of extrajudicial killings, enforced disappearances, and “red-labeling” of IPs and advocates who work to promote their rights to collective land titles are pieces of evidence that show the failure of the Philippines to put in place effective measures to protect communities from retaliations and violations in relation to the exercise of their land rights.

Recommendation 24: Verify that the current structures and guidelines/procedures established to conduct FPIC are in accordance with the spirit and letter of the IPRA and set realistic time frames for consultation processes with indigenous peoples & verify that the apparent lack of formal protests regarding FPIC processes.

31. The ongoing review of the existing FPIC guidelines is a welcome exercise to IPOs, support groups and CSOs in general. The review being undertaken by the NCIP and National Cultural Communities Committee (NCC) of the House of Representatives is generally appreciated.

32. The Philippine Mining Act of 1995 Section 16 states that “[n]o ancestral land shall be opened for mining-operations without prior consent [FPIC] of the indigenous cultural community concerned.” The common scheme employed by the FPIC applicant to circumvent the consultation and consent provisions of the Mining Act is by fraudulently acquiring the FPIC. Moreover, since the FPIC process is managed and interpreted by government agencies, there is no way that adequate checks and balances may be made, as noted by UN CERD in its 2009 recommendations (par 24. CERD/C/PHL/CO/20).

33. One of the most controversial conflict-generating projects was that of TVI Pacific, a Canadian mining firm, at Canatuan, Siocon, Zamboanga del Norte.

34. In 2007, three Subanon organizations and support organizations lodged an Urgent Action Early Warning appeal to CERD. They raised a number of concerns; the most pressing was the failure to obtain the required FPIC prior to approving the project. A Subanon recognized sacred mountain – Mt. Canatuan – was reduced to an open pit mine despite local opposition and without due regard for cultural values, damage, and the spiritual threats to health and well-being. Further, there were extended delays in the legal recognition of Canatuan Subanon’s ancestral domain title. They also made a call for the restoration of the mountain, recognition of their customary laws and institutions, and appeasing of the spiritual pollution.31

35. The Canatuan Subanon have been subjected to repeated pressure to withdraw their appeal, but they have consistently refused, due to the serious and now long unresolved problems. However, through engagement with CERD, the Certificate of Ancestral Domain Title covering Mt. Canatuan was finally issued.

36. In 2009, in their report to CERD, paragraph 25 (CERD/C/PHL/CO), the NCIP falsely reported that matters with the Canatuan people were resolved. This was refuted by the tribal elders. There has been no restoration or commitment to restore the mountain in order to address the physical or spiritual impacts. The Philippine Government still fails to publicly acknowledge the violation of its own laws, especially the Mining Act and IPRA that led to the operation of the mine without the required FPIC and against the wishes of the community. Justice or redress for the victims of human rights violations is still unaddressed by the government agencies.

37. The same company is currently seeking to expand into other ancestral land areas of the Subanon, such as those of the Subanen in the Municipality of Midsalip.32 Despite its now proven bad track record, TVI is not being opposed by the MGB or NCIP. The use of violence, intimidation, and misrepresentation had been proven successful. In the Municipality of Bayog, another Subanen community, a mining company has secured the services of a security agency owned by former Gen. Palparan.33 The employment of the security agency has generated fear and intimidation in the residents of Bayog. This was principally caused by the armed skirmishes between the security agency and another claimant company.34 In Midsalip, civil and criminal actions have been taken by a mining company against the Subanen who, following seriously flawed FPIC processes, were using peaceful means to protest the entry of mining operations into their ancestral domains.

38. We thank the Philippine government for recognizing the economic, environmental and social concerns raised by its citizens with regard to the mining industry. Particularly, recognizing albeit reluctantly that mining has often resulted in the displacement of IPs and other rural communities and caused the depletion of natural resources upon which they depend for their livelihoods. There are pending bills in the Philippine Congress that seek to amend the current Philippine Mining Act and address these deficiencies which allow such situations to arise.

39. The Alternative Mining Bill, Mineral Management Bill and Peoples Mining Bill are examples of such existing draft bills in the House of Representatives legislative mill. These bills seek to address the need for an alternative framework for the mining industry. The Indigenous Peoples Rights Acts was blocked time and again in the legislative mills, having had to go through a decade or three congresses before enactment. Game changing bills, which seek to uphold human rights, such as the proposed Philippine Mineral Resources Act – which consolidates the Alternative Mining Bill, Mineral Management Bill, and Peoples Mining Bill, are hardly prioritized and suffer extreme pressure from corporate lobby against their passage.

Recommendations

Through this joint submission, it is respectfully submitted that the following recommendations be referred by the body to the state party for its consideration, support and implementation:

40. To effect stronger protective complaints mechanisms on violation of human rights of women and children in the context of armed conflict. Ensure effective and speedy investigation, prosecution and conviction to deter further commission of such violations.

41. To further its efforts in professionalizing its security forces by taking measures to address the practice of criminalizing and branding social activists and the use of school facilities, day care centers for military use, in light of the Children and Armed Conflict report of the Secretary General to the Security Council (A/65/820–S/2011/250) and the continuing issues of abuses by the security forces.

42. To enact a law on mineral management adopting a human rights-compliant framework that: (a) guarantees that the exploration, development, and utilization of mineral resources, while contributing to nation building, does not undermine the rights of IPs to their land and to self-determination; (b) prioritizes livable conditions for the communities, and in particular the physical and cultural well-being and survival of indigenous communities; and© ensures that the gains from the mining industry would be maximized while preventing or mitigating its adverse effects.

43. To further recognize the complexity and importance of drafting rights-compliant FPIC guidelines and to further support the review process initiated by NCIP and the NCC of the House of Representatives through a state-funded process that would review and revise the current guidelines on FPIC, ensuring wider participation of IPs in the process.

44. To order an extended moratorium on all FPIC processes while the review of the guidelines is ongoing.

45. To take effective measures holding to account all government officials involved in manipulating FPIC processes by filing the appropriate criminal and administrative cases, following the emphasis placed on good governance by the state party..

46. To initiate, as recommended by UN CERD, a state-funded, independent, and credible review enjoying broad confidence of affected peoples of the process and guidelines to obtain CADTs and CALTs, taking into account customary law and wider participation of IPs in the review process, mindful of the ongoing development of new FPIC guidelines and of the resources needed to fully realize meaningful participation in the consultation process.

Date of publication: 
1 November, 2011
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