COMMENTARY | The canal cannot rise above the septic tank; EO 30 versus RA 8371

By ROCKY NGALOB
www.nordis.net

For the past day I’m at a quandary constantly asking myself can an Executive Order rise above a Republic Act? The answer, basing on past lessons during my freshman under statutory construction, is a resounding ‘No’. This is because the Doctrine of Separation of Powers prohibits the Executive to usurp legislative powers lodged to the Legislative branch wherein, if allowed, it would create a hierarchy placing the former above its co-equal branch. Thus, eroding democracy itself while bringing us closer and closer to authoritarian rule.

I have no credible footing to be giving opinions regarding our laws. More so that I am not a lawyer and even close to being one. I believe however that no one holds the monopoly of knowledge wherein comments and observations of our laws are limited only to lawyers or to those who can comprehend to the complexities of the legal language. Such norm on the monopoly of knowledge is the very reason why most legal minds tend to exploit the vulnerability of the citizenry to their comprehension to the legal narratives in order to benefit the former’s interest. That being said, allow me to present my take on the current de facto authoritarian rule causing arbitrary surrender of natural resources within ancestral domains to big corporate companies at the expense of IPs rights to Free Prior and Informed Consent (FPIC) and Self Determination.

On June 2017, President Duterte signed and issued Executive Order No. 30 creating the Energy Investment Coordination Council (EICC) and granting the same the power to streamline regulatory procedures affecting energy projects. Said EICC was also tasked spearhead and coordinate national government efforts to harmonize, integrate and streamline regulatory processes, requirements and forms relevant to the development of energy investments in the country, primarily with regard to Energy Project of National Significance (EPNS). Said EPNS are to be issued by the EICC to those energy companies/agencies who are lucky enough to have satisfied the requirements of former.

Here, it gave the EICC the authority and discretion to give certifications in favor of energy companies/agencies as significant projects. In effect, are called Certificate of Energy Project of National Significance (CENPS). A company who has this CENPS enjoys, among others, the following rights, to wit:

  1. action on the application within 30 days;
  2. presumption of prior approval; and
  3. deemed approval if no action is made five (5) days after the lapse of thirty (30) working day period for processing the application.

With that in mind, what are the possible effects of EO 30 to IPs rights to FPIC and Self Determination? One is very obvious; it seems that it’s the national government who will be deciding in behalf of the IP/ICCs as to the management over their water resources. A far cry not only to the spirit but to the mere text of RA 8371 [IPRA] stating that IPs has the, “right to determine and decide priorities for development affecting their lives, beliefs, institutions, spiritual well-being, and the lands they own, occupy or use”. IPs have the right “to participate in the formulation, implementation and evaluation of policies, plans and programs for national, regional and local development which may directly affect them.”

The mechanism to protect these rights of the IPs to their ancestral domain is the Free and Prior Informed Consent (FPIC) Process which, if consent to the proposed project is given, leads to a negotiation on the term and conditions of the project, as well as the benefits to the ICCs/IPs, and which culminates with the signing of an agreement.

Sure some might argue that the Department of Energy, the National Water Resources Board and other national government agencies as the case may be, are just regulating agencies issuances allowed to issue endorsements, permits, service contracts and other types of permits involving the use and development of the natural resources within the Ancestral Domains.

But isn’t it that, this is precisely the reason why the IPs of Kalinga and some of the Bontoc tribes resisted the then World Bank funded Chico Dams? Isn’t that during these dire times in the Cordillera, it’s the Government who moved to subject the resources found within the IPs Ancestral lands as ingredients to their “so-called” development projects at the expense of the IPs dwelling therein. Isn’t that this is one of many reasons why we are chasing that ever-elusive quest for Regional Autonomy?

Years have passed, bloods were spilt, tears were shed, and laws have been enacted to suppose cure our centuries-old historical injustice but seems we never moved forward at all. The mere issuance of Executive Order No. 30 entails a lot. One so glaring is that; it is still the government and not the IPs who are calling the shots.

What would make the IPs dwelling within the Ancestral lands whose water resources applied by Hydro Company/ies for hydro projects, was given the CENPS? Just mere witnesses and not owners of the Domain? If they resisted and expressed their rejection to the Hydro project that was grated CENPS, will they be branded as anti-development? Is development as seen through the eyes of the government the same as how IPs perceive it?

One thing is for sure and was proven in history, we cannot impose projects to IPs and claim it as a development project if commencement of such projects involves the displacement of IPs away from their ancestral lands. To IPs, Ancestral Land is their life. Their ancestral lands, for centuries, is the IPs’ food provider, medicine supplier and resting place. Take this all away from the IPs, without the due FPIC process, would cause friction that will only fan the embers of the IP struggle.

As for EO 30, while it is recognized that its legislative intent is to harmonize, integrate and streamline regulatory processes, requirements and forms relevant to the development of energy investments in the country, it should not, and in no means necessary compromise or shun FPIC. This because, FPIC is not just a mere checklist requiring compliance. It is a due right given primarily to the IPs that needs respect and recognition.

It should be borne in mind that the same is just a directive of the executive through the President and should not rise above the Republic Act 8371 giving due rights to IPs to FPIC. The latter being an act of congress should not bow down to the whims of the former. Our constitution separated the three branches of government and made each to exercise co-equal powers for a reason. The time of authoritarian rule wherein powers of government is lodge solely to the executive is now a thing of the past. # nordis.net

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