MINING-RELATED MURDERS IN TAMPAKAN : Reining in Military Operations Mixed up in Mining Activities

Elpidio V. Peria
21 October 2012

While the Philippine delegation to the 11th Conference of the Parties of the United Nations Convention on Biological Diversity in Hyderabad, India have been working hard from 8 to 19 October to make global and national biodiversity policies, among others, explore new ways of doing protected areas conservation work, make them more protective of threats such as those coming from new and emerging technologies and securing greater levels of funding by making developed countries pony up new and additional resources which is what they have agreed to do back in 1992, here comes news that on the ground, particularly in areas where indigenous peoples communities are asserting control over their ancestral domains, lives are again unnecessarily lost because of unresolved issues on who will get to have a final say on what to do with these resources and those resources underneath the land.

Last October 18, as reports from social media and press releases show, Juvy Capion and her two young children, aged 13 and 8, were killed in a raid in Tampakan, South Cotabato. They are all members of the B’laan indigenous peoples community situated in Bong Mal, a sitio in the town of Tampakan, who are opposing the operations of SMI Xstrata in their area.

There have been many reports like this in many parts of the Philippines and always the military will say that they are collateral damage in a bigger effort to wipe out insurgency in their areas.

But with the Muslim insurgency about to wind down with the recently signed GPH-MILF Framework Agreement except perhaps for Nur Misuari and his cohorts who were unhappy with it, and the CPP-NPA-NDF leadership in limbo and the Philippine Army in a recent briefing held in Notre Dame of Dadiangas University in General Santos City indicating they are now in a process of rethinking their over-all strategy and reason for being as they are now supposed to pay greater attention to Philippine maritime concerns and change their focus so they can protect areas like those that are in dispute with China, such as the West Philippine Sea, will the Philippine military leadership still allow itself to be used by vested and moneyed interests to resolve resource conflicts among indigenous communities who are merely asserting their rights provided them by the over-a-decade old Indigenous Peoples’ Rights Act and justify these efforts as part of counter-insurgency operations?

These killings in Tampakan are not mere collateral damage in an effort of the state to curb lawless elements or those who foment disorder on sites which have been granted rights by the state to extract natural resources, in this case, mining. From the way the facts would eventually indicate, these are murders, yes, in plural, because not just one person died in this incident, but three – a young mother with her two young children.

At the outset, if the Civil Code is to be examined, art. 32 states that any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages, including the right against deprivation of property without due process of law.

Those who are protecting the rights of these communities may well lament their inability to bring the perpetrators of these murders to court and bring this simple case for damages under the Civil Code because of the justification that this is a military operation and no one in his or her right mind will be brave enough to start suing the military for this kind of crime, or serious operational lapse, if military jargon might be used to characterize these acts.

But there appears to be a law that may be applied in these cases, Republic Act 7055, passed in 1991, which is entitled “An Act Strengthening Civilian Supremacy Over the Military by Returning to Civil Courts the Jurisdiction Over Certain Offenses Involving Members of the Armed Forces of the Philippines, Other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing for the Purpose Certain Presidential Decrees.”

In spite of its kilometric title, this law states that members of the AFP and other persons subject to military law, including members of the CAFGU, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected, in which case the case shall be tried by court-martial; Provided, that the President of the Philippines, may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts.

What this means is that advocates and supporters of the B’laan community can call upon the President, Pnoy, to order that these killings be tried by the proper civil courts. This should obviate debates on whether these acts are service-connected, which will have another set of debates on whether they are supposed to be covered by this law, or the Articles of War, which is covered by an old pre-World War II law, the Quezon-era Commonwealth Act 408, amended several times including by President Marcos himself during Martial Law.

The recently-approved Executive Order on mining, EO 79, appears to be silent on these military operations in mining areas. Perhaps another Executive Order need to be issued by Pnoy, to put into effect what is called for by RA 7055, and also to prevent scarce public resources, the taxpayer money being used to buy the boots and bullets of the military, from being misused, to commit crimes. This should also make it easier for advocates to bring the military to court each time these non-insurgency related crimes are committed.


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