Posts Tagged ‘property rights in the Philippines’


 

 

 

 

 

 

The problems that plagued the earlier agrarian reform program (Comprehensive Agrarian Reform Program or CARP) which started in 1988 also adversely affected IPRA’s implementation including identification of beneficiaries, inadequate budgets, agency capture, and the opposition of affected parties including settlers, corporate interests and armed anti-state groups.  If identification of agrarian reform beneficiaries in the lowlands proved to be difficult, the problems multiplied with respect to ancestral domains in the frontiers[1]

 

A clear understanding as to who the indigenous peoples are and where they can be found (and what lands constitute their ancestral domains) is both a technical and administrative matter.  Apart from being hobbled by meager funds, the NCIP also lacks adequate technical knowledge and skilled personnel. Padilla (2007) also relates how settlers and corporate interests together with conniving national and local officials subvert IPRA and operate business ventures within ancestral domains.  The usual device is for officials to certify that a certain area is not populated by IPs or is not part of a claimed ancestral domain.  Divide and rule tactics are also resorted to wherein scab IP leaders and communities show compliance with the ‘free and prior informed consent’ (FPIC) provision of the law. 

 

The FPIC provision of the IPRA presents good opportunities for strengthening the bargaining position of indigenous communities vis-à-vis external interests such as corporations who wish to utilize the resources within ancestral domains.  As provided for by the law, FPIC means the ‘consensus of all members of the ICCs/IPs to be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community” (IPRA Sec. 3).  The consensus proviso is a strong measure since the consensus of everybody in the community is required to allow the entry of external interests into the ancestral domain for extractive activities.  It also enables the indigenous community to forge the best terms with external parties.  It may also be used against the misrepresentation of scab leaders and community factions.  For the full benefit of FPIC to be realized, however, the IP community must be united and organized and indeed informed of the pros and cons of a proposed project.  This is a necessity since the FPIC consensus proviso also has a downside: a single person within the community can veto a project even if it was deemed beneficial and equitable by the rest of the community.  The assent of the veto player may have to be obtained through side-payments.[2] 

 

The opposition of armed anti-state groups like the New People’s Army and the Bangsa Moro movement to the IPRA must be explained.  Padilla (2007) avers that for the NPA, IPRA puts its natural constituency, the poor or landless peasantry, at a disadvantage in the competition of land on the frontier.  Furthermore, the titling of ancestral domains threatens to remove large areas theoretically available from the NPA’s own revolutionary land reform program.  On the ground, NPA fighters had continuously cautioned IP communities against engaging in the ancestral domain titling process.  In Mindanao, NCIP surveyors and community volunteers are warned and harassed, and their mapping equipment was confiscated.  Affiliated legal organizations have also consistently rejected and opposed ancestral domain delineation and the IPRA. To them, the only legitimate issues to be raised with respect to the frontier lands were the Philippine military’s human rights violations during anti-insurgency operations.   Consequently, they demanded the scrapping of IPRA.

 

Another political force, the Bangsa Moro armed movement for self-determination fears that indigenous land claims in Mindanao might jeopardize its own aspirations for their own ‘ancestral territory’.  One must note that indigenous minorities in Mindanao are generally composed into two groups—the Islamized peoples who call themselves Bangsa Moro and the non-Islamized IPs known collectively as the lumads.  As things currently stand, only the lumads have expressed interest in pursuing ancestral domain titling.  The Bangsa Moro groups—the Moro Islamic Liberation Front (MILF) and the Moro National Liberation Front (MNLF)—have resorted to peace negotiations with the government in pursuit of their aims.  The MNLF signed an agreement with the government in 1996 while the MILF’s negotiations with the government are currently at an impasse precisely on the question of ancestral territory. 

 

Cordillera Administrative Region

 

 

Other unintended developments stemmed from IPRA’s enactment.  It has engendered disunities among the indigenous peoples.  One source of dispute is how to view IPRA.  The Cordillera Peoples’ Alliance (CPA) for instance considers IPRA as a ‘master act’ of deception given the persistence of the Regalian doctrine.  On the other hand, IP organizations and supporting non-government organizations (NGOs) support IPRA while recognizing its imperfections. They see IPRA as a legal stepping stone towards further progress.  The negative effects of IPRA are felt most at the community level.  In the Cordillera, for example, there had been an increase in boundary disputes and conflicts over resources (e.g., water for irrigation). 

 

Cordillera Peoples Alliance (CPA) logo

 

 

The IPRA also ‘inspired’ non-IP communities such as the Bantoanons in Romblon (migrants from Batangas) to claim imagined ethnic identities as a means to claim control over valuable land.  There is also the view that these conflicts come from the adoption of a generalizing concept of ancestral domain, that is, the notion that ancestral domain is a static or fixed concept of a communal territory, with persistence of indigenous socio-political institutions.  The concept ignores the diversity and dynamism within many indigenous communities.  It fails to recognize that many indigenous peoples have already adopted western property regimes and do not care much about domains.  Still, some experts fear the IPRA could possibly lead to the privatization of the commons.  These different views suggest that while progress had been achieved with the passage of IPRA, much needs to be done.  There is apparently a need to adopt an area- and culture-specific ancestral land and domain policy that takes local nuances, processes and tenurial systems into consideration (ADB 2002).

 


[1] The then NCIP executive director reported that the initial problem of beneficiary identification has since been resolved.  The greater problem, she intimates, is the lack of coordination between different government agencies issuing administrative titles to land.  For this reason, competing tenure and/or ownership instruments were issued over the same land area and have led to disputes between IPs and agrarian reform beneficiaries.

[2] This discussion on the implications of the FPIC provision of IPRA was suggested by Dr. Antonio de la Vina, dean of the Ateneo School of Government and member of the Empowerment of the Poor Project advisory panel.


Philippine population growth, 1961-2003

More recent developments shaped the terrain for the poor’s struggle for property rights in two major ways.  Population growth, increased economic activity, continuing internal warfare, and worsening environmental degradation combined to make the struggle for poor people’s rights a more difficult one.  The need to ensure

Philippine GDP growth, 1960-2009

economic growth in response particularly to population growth and the opportunities offered by globalization (which includes the whole-scale revitalization of the mining and other extractive industries) increases demand for resources and pressure on the property rights of the marginalized.  This increased demand has specifically led to (settler and corporate) encroachments on the land and resources of indigenous peoples.  Environmental degradation effectively decreases the supply of valuable resources, increases the value of ‘untainted’ assets, and intensifies the contest for control over these same assets.  Together with environmental problems, internal warfare has effected a significant movement of poor people from war-torn areas into more ‘peaceful’ jurisdictions and the nation’s urban centers (swelling the urban poor population in the process).   Anecdotal information suggests that the disorder spawned by internal wars have been used by powerful interests to claim ownership over assets in war-torn areas.  In the international arena, the growing need of industrializing China (and possibly India?) for raw material inputs is a special factor in this over-all growth of demand for resources in the country.

Degradation due to mine tailings

On the other side of the balance, the end of authoritarianism in 1986 through a ‘people power revolution’ offered and continues to offer novel opportunities for popular empowerment.  The 1987 Constitution institutionalized

EDSA 1986

popular empowerment as a fundamental state principle.  While at times a shibboleth, the imperative for popular empowerment animates post-authoritarian practice and discourse.  After 1986, the broad anti-dictatorship movement has morphed into a vibrant and more diverse mix of new social movements (including geographically dispersed and grassroots-based environmental movements across the archipelago).  On the policy front, the devolution of central governmental powers and functions to the local governments (through the Local Government Code of 1991) is another important development.  All of these factors combined to widen and enhance the possibilities of ordinary people to have greater control over the lives and their communities, including making their property rights sturdier.


First Certificate of Land Title issued in the Philippines

 

 

 

 

While property rights are exclusive, they are not absolute.  Property rights could be limited in consideration of societal goals and the welfare of the greater numbers in society.  The context within which property rights are recognized, enforced, and protected therefore matters.

 

 

Benguet natives with American colonial soldiers behind them

 

 

The property rights system of the country is a product both of its colonial history and developments over the past few decades.  The Spanish colonial state sought to impose property rights regimes that were alien to those previously instituted by the indigenous peoples of the archipelago, which included stewardship, usufruct, and communal ownership.  In the process, massive asset theft typical of all colonial ventures occurred in the country.  The main object of theft and ownership then was arable land.  The American colonial state introduced the distinction between public and inalienable land and privately-owned and alienable real estate.  In the process, several indigenous peoples in the highlands were disenfranchised of their so-called ancestral domains.  The 1946-1972 post-colonial state continued these Western-originated property regimes even as the asset structure diversified over time.  In general, access to political power guaranteed security of property rights and elites at various levels consolidated their political and economic positions.

Indigenous people in front of the world-famous Banaue rice terraces

 

 

 

 

 

 

 

Up to the eve of the declaration of martial law in September 1972, the property rights of rival elite factions were generally secure regardless of the political cycle’s outcome.  Ownership rights were not extinguished by an electoral loss.  The elites were organized into two political parties that alternated in power at the national level.  The ability of an elite faction to regain power in the next election deterred the faction in power from erasing the property rights of the ‘outs.’  Elite factions, therefore, were prevented by the possibility of electoral defeat from disrespecting the property rights of their rivals.  The default behavior was for the ‘ins’ to plunder the state treasury instead of confiscating the property of the ‘outs.’  Notwithstanding a constitutional provision for two presidential terms, no president has been able to win re-election until 1969 when Ferdinand Marcos won an unprecedented second term.

 

 

 

The seals of the parties–Liberal and Nacionalista–that represent the contending elite factions in the Philippines up to 1972

Ferdinand Marcos declares martial law in 1972

 

 

 

The balance of power between the rival elite factions shifted decisively in favor of his faction after Marcos’ unprecedented re-election in 1969.  He monopolized political power through the declaration of martial law in September 1972 and proceeded to violate the property rights of his political opponents (Kushida 2003).  The demise of the dictatorship in February 1986 saw the post-Marcos elites attempting a restoration of pre-martial arrangements with respect to property rights and access to political power.

EDSA 1986: The placard reads “Surrender! You have lost! Marcos, scram!

 

 

 

The properties of the anti-Marcos elites (such as the Lopez, Lopa, and Jacinto families) were returned to their former owners while a new constitution adopted in 1987 provided the ground rules for political contestation and all but forestalled the possibility of new dictatorships.  After an initial lockout period, even the Marcoses were allowed back into the country and managed to win electoral posts or stand for elections.  Despite the formation of a presidential commission mandated to recover the so-called ill-gotten wealth of the Marcoses and their cronies, these properties got entangled in a quagmire of unresolved lawsuits filed within and without the country.

Eduardo “Danding” Cojuangco Jr.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The violation of elite property rights by Marcos during the dictatorship’s heyday is like a genie let out of the bottle.  Despite all efforts to date, the mess created by the initial massive cancellation of property rights has not been sorted out to everyone’s satisfaction.  The ownership of substantial portions of the equities of major Philippine corporations (including the top-ranked San Miguel Corporation and the Philippine Long Distance Telephone Company) remains contested.  The fall of the dictatorship also led to the recognition of new asset claimants—the thousands of human rights victims who were tortured or murdered by Marcos’ security forces and the coconut farmers disenfranchised by the so-called coconut levy.  The claims of the human rights victims against the Marcos estate had been repeatedly recognized by US courts while the Philippine Supreme Court had repeatedly ruled that the coconut levy was a public fund and must be taken from the control of businessman Eduardo Cojuangco, who used the money to wrest control of the country’s premier business firm—the San Miguel Corporation (SMC).  Recently, however, court decisions favored Conjuangco.

 

 

 

 

The fundamental point to be made with the above digression is the fragility of property rights in the Philippines.  If the properties of elites are not even sacrosanct, could we expect the assets of the non-elites and less-powerful to be more secure?