—Armi Beatriz E. Bayot, University of Oxford Faculty of Law
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
In February 2021, multiple media outlets broke the news that the Philippine National Police (PNP) had “rescued” a group of young indigenous Lumad students from the clutches of alleged communist operatives. The government rhetoric surrounding the incident was thick with paternalism – eerily calling to mind the paternalism with which colonisers spoke of “natives” in the Philippines in the first half of the 20th century.
The PNP claimed that they took the Lumad students from a prominent Catholic university to “save them” from “communist operatives” who had allegedly kidnapped and “brainwashed” them. Several teachers were arrested and linked to the communist insurgency. The Lumad students and their teachers, however, have countered this, saying that the students were taking shelter at the university to escape armed conflict in their home island of Mindanao. A spokesperson for the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) has said that the task force will be exploring the possibility of using the Indigenous Peoples’ Rights Act (IPRA) to file cases against the teachers for committing “cultural violation” against the Lumad students, among others.
The persistent idea that indigenous persons must be “saved” and are susceptible to “brainwashing” sustains notions of their backwardness and ignorance that have been invoked and perpetuated by both colonial and post-colonial governments to justify “civilising missions” and exploitative projects. In the Philippines, this idea is linked to the legal constitution of difference among Filipinos that was established during the American colonial administration. The constitution of difference has resulted in the deep-rooted marginalisation of indigenous peoples, which has outlasted the American colonial project.
Like the Spanish colonisers before them, the Americans regarded the persons they encountered in the Philippines as backwards and inferior in culture, morals, and industry, among others. American Protestant missionaries expressed the belief that Filipinos are like children in need of guidance. The American colonial period in the Philippines coincided with the rise of social evolutionary theories, including social Darwinism, that placed white people at the “apex of human evolutionary development.” American soldiers referred to Filipinos by using racial slurs such as “gugu” and “monkey men” while Bernard Moses, a member of the Philippine Commission, described Filipinos as being at “a state of civilisation distinctly lower than that of the civilised peoples of the West.”
Lynch notes that the local elites, the Hispanicised ilustrados, styled themselves as the logical and rightful leaders of the Filipinos, and that they chafed at being treated with the same prejudice. To obtain elite cooperation in the colonial project, the Americans treated the ilustrados publicly as their social equals and granted them opportunities to benefit from American enterprise both economically and politically. Eventually, all Hispanicised Filipinos were granted the same legal rights as the Americans residing in the colony. In return, elites openly expressed their support of the American colonial administration.
The colonial project cannot succeed without the institution of difference. The conquest and colonisation of peoples is grounded in discourses of difference. Anghie has written that the distinction between the civilised and the uncivilised is the animating distinction of imperialism. The distinction gives rise to what he calls the “dynamic of difference,” where the civilised are compelled to bring the uncivilised into the realm of civilisation, while at the same time instituting a strict hierarchy between them. There is, however, an underlying tension in the employment of discourses of difference in colonial projects. Colonialism is justified on the ground that it will eventually eradicate difference between the coloniser and the colonised. At the same time, however, colonial projects rely on the subordinate position of the colonised. The entrenchment of difference is crucial to sustaining domination, and, consequently, colonisers constantly found ways to create conditions of subordination. This often included stratifying the colonised among themselves.
If Hispanicised Filipinos are legally equal to the American colonial administrators, why couldn’t they be left alone to run their own government? Lynch says that the existence of non-Hispanicised populations, generically labelled as non-Christian tribes, provided Americans with a justification for continued colonial administration of the islands. The Americans argued that non-Christian members of the native population must be guided by them towards Christianity and civilisation. The Americans also weaponised the ilustrados’ open hostility against these so-called non-Christian tribes, saying the elites could not be trusted to treat non-Christians in a “humane and principled way.”
The legal constitution of difference between Christians and non-Christians began with the establishment of the Bureau of Non-Christian Tribes in 1901, which was tasked to determine “the most practicable means for bringing about their advancement in civilization and material prosperity.” Two Supreme Court cases are illustrative of the consequences of legally entrenching this difference. In the 1919 case of Rubi et al. (Manguianes) v. The Provincial Board of Mindoro, the Supreme Court upheld the constitutionality of the confinement of Manguianes at a reservation against their will and asserted that there is reasonable basis to restrain their liberties because of their low degree of civilisation. Later, in the 1939 case of People v. Cayat, the Supreme Court upheld the conviction of a Benguet native for the violation of a law that prohibited non-Christians from imbibing non-indigenous alcohol, saying that the free use of highly intoxicating liquor by non-Christian tribes has resulted in crime and lawlessness – impeding state efforts at their civilisation.
The legal constitution of difference reified distinctions among Filipinos, instituting a dichotomy between civilised Christians and uncivilised non-Christians, later referred to as national cultural minorities, national cultural communities, national minorities, and eventually indigenous peoples. Post-independence Philippine governments continued to pursue the assimilation and integration of indigenous peoples into the “civilised” Filipino mainstream and a succession of government institutions were established to manage them and to promote their social and economic development.
There is, however, much for the government and for private business to gain in perpetuating and capitalising on the marginalisation of indigenous peoples. Indigenous peoples suffered rampant poverty and illiteracy, and many did not have paper titles to their ancestral lands. As a result, many communities of indigenous peoples have been displaced and dispossessed of their lands – allowing for logging, mining, agribusiness, and infrastructure projects to be done on their lands without their consent. The language of development legitimised these activities, with one logging concessionaire speaking of the “responsibility in helping government speed up the industrialisation and development of the economy in God-forsaken places.”
Despite the enactment of the IPRA in 1997, paternalistic and exploitative attitudes towards indigenous peoples endure, and indigenous peoples continue to suffer displacement and dispossession of their ancestral lands due to the large-scale activities of extractive industries. For many years, indigenous peoples have also been in the crossfire between the government and communist rebels, as seen in the government’s efforts to instrumentalise indigenous peoples in its campaign against the communist insurgency. President Rodrigo Duterte has openly threatened to bomb Lumad schools in connection with curbing communist presence in certain provinces, and various indigenous peoples’ groups have been labelled as communist terrorist groups.
Even indigenous peoples’ freedom to choose a name to identify themselves has been diminished by the National Commission on Indigenous Peoples (NCIP) itself. The NCIP issued a resolution in March 2021 enjoining the use of the term Lumad, asserting that the term is a communist invention and is not in keeping with indigenous peoples’ traditional names. The term Lumad, however, is a Cebuano term (meaning “native”) that various non-Muslim indigenous peoples in Mindanao have used to identify themselves for purposes of self-advocacy since the late 1970s – a fact of which the NCIP ought to be aware.
The perceived difference of indigenous peoples from the rest of Filipinos, i.e., their presumed backwardness, helplessness, and ignorance, is an artefact of colonial era laws and policies. The classification of peoples as a method of governing has become deeply entrenched in Philippine post-colonial governments, and state organs continue to engage in the kinds of discourses of difference that result in the continued marginalisation of indigenous peoples.
Considering that colonisers manufactured and employed a twisted taxonomy of humans to justify their imperial projects, we must critically interrogate the ways in which the classifications of persons in our legal order still perpetuate political, economic, and social exclusions. When we deny the agency of indigenous peoples and exploit them for whatever end, we reproduce the cruel logics of colonialism. We must confront how the subordination of indigenous peoples has underpinned prevailing narratives of modernity, development, and order, and we must reimagine difference in terms of inclusive plurality and true equality.
Suggested citation: Armi Beatriz E. Bayot, Rethinking the Legal Constitution of Difference in the Philippines, Int’l J. Const. L. Blog, Dec. 19, 2021, at: http://www.iconnectblog.com/2021/12/rethinking-the-legal-constitution-of-difference-in-the-philippines/
 Dale G Israel, ‘Police “Rescue” Lumad Kids from Priests, Educators in Top Cebu University’ Philippine Daily Inquirer (15 February 2021) https://newsinfo.inquirer.net/1396109/police-rescue-lumad-kids-from-priests-educators-in-top-cebu-university; ‘Philippines Police Raid Targets Displaced Indigenous Students’ Al Jazeera (16 February 2021) https://www.aljazeera.com/news/2021/2/16/philippines-police-raid-targets-displaced-indigenous-students; Dexter Cabalza and Julie M Aurelio, ‘PNP Disputes CHR Findings “Lumad” Kids Weren’t Brainwashed’ Philippine Daily Inquirer (20 February 2021) https://newsinfo.inquirer.net/1397906/pnp-disputes-chr-findings-lumad-kids-werent-brainwashed accessed 10 December 2021.
 Republic Act No. 8371
 Lian Buan, ‘NTF-ELCAC “Explores” IP Law to Sue More Progressives’ Rappler (28 May 2021). https://www.rappler.com/nation/ntf-elcac-explores-indigenous-people-rights-act-sue-more-progressives/ accessed 10 December 2021.
 When mainstream, lowland Christian students of the same age, for instance, are not generally thought to be similarly vulnerable
 As well as of the Muslim ethnolinguistic groups in the South.
 Owen J Lynch, Colonial Legacies in a Fragile Republic: A History of Philippine Land Law and State Formation with Emphasis on the Early U.S. Regime, 1898-1913 (University of the Philppines College of Law 2011), 217-246.
 ibid 223.
 Ibid 221.
 Daniel Immerwahr, How to Hide an Empire: A Short History of the Greater United States (2020) 96. Lynch (n 6) 222.
 Referring here to the Taft Commission, headed by William Howard Taft, which exercised legislative (and limited executive) powers over the Philippines
 Lynch (n 6) 228
 The so-called Filipino educated class that emerged in the waning days of the Spanish colonial era in the late 19th century, many of whom were educated in Spain
 Though privately, among the Americans, they were still regarded with the same scorn Lynch (n 6) 221-231.
 Lynch (n 6) 228-240.
 Antony Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’ (2006) 27 Third World Quarterly 739; See also: Liliana Obregón Tarazona, ‘The Civilized and the Uncivilized’ in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press 2012).
 Kristin Ciupa, ‘The Promise of Rights: International Indigenous Rights in the Neoliberal Era’ in Honor Brabazon (ed), Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project (Routledge 2021), 142.
 Referring broadly to both non-Hispanicised communities in the northern mountains, the Islamicised communities in the south, and all other communities that remain unconquered and beyond colonial control at the end of Spanish colonisation
 Lynch (n 6) 242-246.
 Estimated to be ten to twenty percent of the native population at the end of the Spanish colonial period see Lynch (n 6) 243.
 Long-serving member of the Philippine Commission Dean Worcester insisted that “(Hispanicised) Filipinos are absolutely without sympathy for the non-Christian peoples and have never done anything voluntarily for them but on the contrary have shameless exploited them whenever opportunity has offered.” See Lynch (n 6) 244.
 Philippine Commission, Act No. 253, An Act Creating a Bureau of Non- Christian Tribes for the Philippine Islands (2 October 1901).
 G.R. No. L-14078, March 7, 1919.
 G.R. No. L-45987, May 5, 1939.
 For a discussion on the evolution of national policies on indigenous peoples, see for instance P Bion Griffin, ‘National Policy on Minority Cultural Communities: The Philippine Case’ (1988) 16 Southeast Asian Journal of Social Science 5.
 Mary Kristerie A Baleva, ‘Chapter 3 Indigenous Filipinos: The Regalian Doctrine and Indigenous Rights Prior to the 1987 Constitution’ (Brill | Nijhoff 2018); ibid 6-9.
 See for instance Griffin (n 24) 9-15.
 Statement attributed to owner of Cellophil Resources Corporation (which operated logging concessions); ibid 12.
 See for instance Sarah Bestang K Dekdeken, ‘Indigenous World 2020: Philippines’ (International Work Group for Indigenous Affairs, 11 May 2020) https://www.iwgia.org/en/philippines/3608-iw-2020-philippines.html accessed 10 December 2021.
 See for instance Rina Chandran, ‘Driven from Home, Philippine Indigenous People Long for Their Land’ Reuters (19 April 2018) https://www.reuters.com/article/us-philippines-landrights-crime-idUSKBN1HQ034 accessed 10 December 2021.
 Philippines: Duterte Threatens to Bomb Indigenous Schools’ The Guardian https://www.theguardian.com/world/2017/jul/26/philippines-duterte-threatens-to-bomb-indigenous-schools accessed 12 December 2021.
 Dekdeken (n 28)
 NCIP Resolution 08-009-2021 dated 2 March 2021
 Carolyn O Arguillas, ‘The IP Struggle Continues as NCIP Red-Tags and Bans Use of “Lumad,” the Collective Word for Mindanao IPs since the Late 1970s’ Mindanews (20 March 2021) https://www.mindanews.com/top-stories/2021/03/the-ip-struggle-continues-as-ncip-red-tags-and-bans-use-of-lumad-the-collective-word-for-mindanao-ips-since-the-late-1970s/; Gus Gatmaytan, ‘ANALYSIS: Notes on the NCIP Resolution on “Lumad”’ Mindanews (25 March 2021) https://www.mindanews.com/mindaviews/2021/03/analysis-notes-on-the-ncip-resolution-on-lumad/ accessed 10 December 2021.