Republic of the Philippines Department of Environment and Natural

SUPREME COURT Resources, and THE HONORABLE ERIBERTO

Manila U. ROSARIO, Presiding Judge of the RTC,
Makati, Branch 66, respondents.
EN BANC
Oposa Law Office for petitioners.
 
The Solicitor General for respondents.
G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE

ALFONSO, all surnamed OPOSA, minors, and DAVIDE, JR., J.:
represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, In a broader sense, this petition bears upon the
minor, represented by her parents CALVIN and right of Filipinos to a balanced and healthful ecology
ROBERTA SADIUA, CARLO, AMANDA SALUD which the petitioners dramatically associate with the
and PATRISHA, all surnamed FLORES, minors twin concepts of "inter-generational responsibility"
and represented by their parents ENRICO and and "inter-generational justice." Specifically, it
NIDA FLORES, GIANINA DITA R. FORTUN, touches on the issue of whether the said petitioners
minor, represented by her parents SIGRID and have a cause of action to "prevent the
DOLORES FORTUN, GEORGE II and MA. misappropriation or impairment" of Philippine
CONCEPCION, all surnamed MISA, minors and rainforests and "arrest the unabated hemorrhage of
represented by their parents GEORGE and the country's vital life support systems and
MYRA MISA, BENJAMIN ALAN V. PESIGAN, continued rape of Mother Earth."
minor, represented by his parents ANTONIO and
ALICE PESIGAN, JOVIE MARIE ALFARO, minor,
represented by her parents JOSE and MARIA The controversy has its genesis in Civil Case No.
VIOLETA ALFARO, MARIA CONCEPCION T. 90-77 which was filed before Branch 66 (Makati,
CASTRO, minor, represented by her parents Metro Manila) of the Regional Trial Court (RTC),
FREDENIL and JANE CASTRO, JOHANNA National Capital Judicial Region. The principal
DESAMPARADO,  plaintiffs therein, now the principal petitioners, are
minor, represented by her parents JOSE and all minors duly represented and joined by their
ANGELA DESAMPRADO, CARLO JOAQUIN T. respective parents. Impleaded as an additional
NARVASA, minor, represented by his parents plaintiff is the Philippine Ecological Network, Inc.
GREGORIO II and CRISTINE CHARITY (PENI), a domestic, non-stock and non-profit
NARVASA, MA. MARGARITA, JESUS IGNACIO, corporation organized for the purpose of, inter alia,
MA. ANGELA and MARIE GABRIELLE, all engaging in concerted action geared for the
surnamed SAENZ, minors, represented by their protection of our environment and natural
parents ROBERTO and AURORA SAENZ, resources. The original defendant was the
KRISTINE, MARY ELLEN, MAY, GOLDA Honorable Fulgencio S. Factoran, Jr., then
MARTHE and DAVID IAN, all surnamed KING, Secretary of the Department of Environment and
minors, represented by their parents MARIO and Natural Resources (DENR). His substitution in this
HAYDEE KING, DAVID, FRANCISCO and petition by the new Secretary, the Honorable Angel
THERESE VICTORIA, all surnamed ENDRIGA, C. Alcala, was subsequently ordered upon proper
minors, represented by their parents motion by the petitioners.1 The complaint2 was
BALTAZAR and TERESITA ENDRIGA, JOSE MA. instituted as a taxpayers' class suit3 and alleges that
and REGINA MA., all surnamed ABAYA, minors, the plaintiffs "are all citizens of the Republic of the
represented by their parents ANTONIO and Philippines, taxpayers, and entitled to the full
MARICA ABAYA, MARILIN, MARIO, JR. and benefit, use and enjoyment of the natural resource
MARIETTE, all surnamed CARDAMA, minors, treasure that is the country's virgin tropical forests."
represented by their parents MARIO and LINA The same was filed for themselves and others who
CARDAMA, CLARISSA, ANN MARIE, NAGEL, are equally concerned about the preservation of
and IMEE LYN, all surnamed OPOSA, minors said resource but are "so numerous that it is
and represented by their parents RICARDO and impracticable to bring them all before the Court."
MARISSA OPOSA, PHILIP JOSEPH, STEPHEN The minors further asseverate that they "represent
JOHN and ISAIAH JAMES, all surnamed QUIPIT, their generation as well as generations yet
minors, represented by their parents JOSE MAX unborn."4 Consequently, it is prayed for that
and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, judgment be rendered:
ANNA, DANIEL and FRANCISCO, all surnamed
BIBAL, minors, represented by their parents . . . ordering defendant, his
FRANCISCO, JR. and MILAGROS BIBAL, and agents, representatives and other
THE PHILIPPINE ECOLOGICAL NETWORK, persons acting in his behalf to —
INC., petitioners, 
vs.
THE HONORABLE FULGENCIO S. FACTORAN,
JR., in his capacity as the Secretary of the
 (1) Cancel all existing timber Plaintiffs further assert that the adverse and
license agreements in the detrimental consequences of continued and
country; deforestation are so capable of unquestionable
demonstration that the same may be submitted as a
(2) Cease and desist from receiving, matter of judicial notice. This notwithstanding, they
accepting, processing, renewing or expressed their intention to present expert
approving new timber license agreements. witnesses as well as documentary, photographic
and film evidence in the course of the trial.
and granting the plaintiffs ". . . such other reliefs just
and equitable under the premises."5 As their cause of action, they specifically allege
that:
The complaint starts off with the general averments
that the Philippine archipelago of 7,100 islands has CAUSE OF ACTION
a land area of thirty million (30,000,000) hectares
and is endowed with rich, lush and verdant 7. Plaintiffs replead by reference the
rainforests in which varied, rare and unique species foregoing allegations.
of flora and fauna may be found; these rainforests
contain a genetic, biological and chemical pool 8. Twenty-five (25) years ago, the
which is irreplaceable; they are also the habitat of Philippines had some sixteen (16) million
indigenous Philippine cultures which have existed, hectares of rainforests constituting roughly
endured and flourished since time immemorial; 53% of the country's land mass.
scientific evidence reveals that in order to maintain
a balanced and healthful ecology, the country's land
area should be utilized on the basis of a ratio of 9. Satellite images taken in 1987 reveal that
fifty-four per cent (54%) for forest cover and forty- there remained no more than 1.2 million
six per cent (46%) for agricultural, residential, hectares of said rainforests or four per cent
industrial, commercial and other uses; the distortion (4.0%) of the country's land area.
and disturbance of this balance as a consequence
of deforestation have resulted in a host of 10. More recent surveys reveal that a mere
environmental tragedies, such as (a) water 850,000 hectares of virgin old-growth
shortages resulting from drying up of the water rainforests are left, barely 2.8% of the entire
table, otherwise known as the "aquifer," as well as land mass of the Philippine archipelago and
of rivers, brooks and streams, (b) salinization of the about 3.0 million hectares of immature and
water table as a result of the intrusion therein of salt uneconomical secondary growth forests.
water, incontrovertible examples of which may be
found in the island of Cebu and the Municipality of 11. Public records reveal that the
Bacoor, Cavite, (c) massive erosion and the defendant's, predecessors have granted
consequential loss of soil fertility and agricultural timber license agreements ('TLA's') to
productivity, with the volume of soil eroded various corporations to cut the aggregate
estimated at one billion (1,000,000,000) cubic area of 3.89 million hectares for commercial
meters per annum — approximately the size of the logging purposes.
entire island of Catanduanes, (d) the endangering
and extinction of the country's unique, rare and
varied flora and fauna, (e) the disturbance and A copy of the TLA holders and the
dislocation of cultural communities, including the corresponding areas covered is hereto
disappearance of the Filipino's indigenous cultures, attached as Annex "A".
(f) the siltation of rivers and seabeds and
consequential destruction of corals and other 12. At the present rate of
aquatic life leading to a critical reduction in marine deforestation, i.e. about 200,000 hectares
resource productivity, (g) recurrent spells of drought per annum or 25 hectares per hour —
as is presently experienced by the entire country, nighttime, Saturdays, Sundays and holidays
(h) increasing velocity of typhoon winds which result included — the Philippines will be bereft of
from the absence of windbreakers, (i) the floodings forest resources after the end of this
of lowlands and agricultural plains arising from the ensuing decade, if not earlier.
absence of the absorbent mechanism of forests, (j)
the siltation and shortening of the lifespan of multi-
13. The adverse effects, disastrous
billion peso dams constructed and operated for the
consequences, serious injury and
purpose of supplying water for domestic uses,
irreparable damage of this continued trend
irrigation and the generation of electric power, and
of deforestation to the plaintiff minor's
(k) the reduction of the earth's capacity to process
generation and to generations yet unborn
carbon dioxide gases which has led to perplexing
are evident and incontrovertible. As a
and catastrophic climatic changes such as the
matter of fact, the environmental damages
phenomenon of global warming, otherwise known
enumerated in paragraph 6 hereof are
as the "greenhouse effect."
already being felt, experienced and suffered
by the generation of plaintiff adults.
14. The continued allowance by defendant life of dignity and well-being. (P.D. 1151, 6
of TLA holders to cut and deforest the June 1977)
remaining forest stands will work great
damage and irreparable injury to plaintiffs 20. Furthermore, defendant's continued
— especially plaintiff minors and their refusal to cancel the aforementioned TLA's
successors — who may never see, use, is contradictory to the Constitutional policy
benefit from and enjoy this rare and unique of the State to —
natural resource treasure.
a. effect "a more equitable distribution of
This act of defendant constitutes a opportunities, income and wealth" and
misappropriation and/or impairment of the "make full and efficient use of natural
natural resource property he holds in trust resources (sic)." (Section 1, Article XII of
for the benefit of plaintiff minors and the Constitution);
succeeding generations.
b. "protect the nation's marine wealth."
15. Plaintiffs have a clear and constitutional (Section 2, ibid);
right to a balanced and healthful ecology
and are entitled to protection by the State in
its capacity as the parens patriae. c. "conserve and promote the nation's
cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);
16. Plaintiff have exhausted all
administrative remedies with the
defendant's office. On March 2, 1990, d. "protect and advance the right of the
plaintiffs served upon defendant a final people to a balanced and healthful ecology
demand to cancel all logging permits in the in accord with the rhythm and harmony of
country. nature." (Section 16, Article II, id.)

A copy of the plaintiffs' letter dated March 1, 21. Finally, defendant's act is contrary to the
1990 is hereto attached as Annex "B". highest law of humankind — the natural law
— and violative of plaintiffs' right to self-
preservation and perpetuation.
17. Defendant, however, fails and refuses
to cancel the existing TLA's to the
continuing serious damage and extreme 22. There is no other plain, speedy and
prejudice of plaintiffs. adequate remedy in law other than the
instant action to arrest the unabated
hemorrhage of the country's vital life
18. The continued failure and refusal by support systems and continued rape of
defendant to cancel the TLA's is an act Mother Earth. 6
violative of the rights of plaintiffs, especially
plaintiff minors who may be left with a
country that is desertified (sic), bare, barren On 22 June 1990, the original defendant, Secretary
and devoid of the wonderful flora, fauna and Factoran, Jr., filed a Motion to Dismiss the
indigenous cultures which the Philippines complaint based on two (2) grounds, namely: (1)
had been abundantly blessed with. the plaintiffs have no cause of action against him
and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or
19. Defendant's refusal to cancel the executive branches of Government. In their 12 July
aforementioned TLA's is manifestly contrary 1990 Opposition to the Motion, the petitioners
to the public policy enunciated in the maintain that (1) the complaint shows a clear and
Philippine Environmental Policy which, in unmistakable cause of action, (2) the motion is
pertinent part, states that it is the policy of dilatory and (3) the action presents a justiciable
the State — question as it involves the defendant's abuse of
discretion.
(a) to create, develop, maintain and
improve conditions under which man and On 18 July 1991, respondent Judge issued an order
nature can thrive in productive and granting the aforementioned motion to dismiss. 7 In
enjoyable harmony with each other; the said order, not only was the defendant's claim
— that the complaint states no cause of action
(b) to fulfill the social, economic and other against him and that it raises a political question —
requirements of present and future sustained, the respondent Judge further ruled that
generations of Filipinos and; the granting of the relief prayed for would result in
the impairment of contracts which is prohibited by
(c) to ensure the attainment of an the fundamental law of the land.
environmental quality that is conductive to a
Plaintiffs thus filed the instant special civil action but to lobby before Congress for the passage of a
for certiorari under Rule 65 of the Revised Rules of bill that would ban logging totally.
Court and ask this Court to rescind and set aside
the dismissal order on the ground that the As to the matter of the cancellation of the TLAs,
respondent Judge gravely abused his discretion in respondents submit that the same cannot be done
dismissing the action. Again, the parents of the by the State without due process of law. Once
plaintiffs-minors not only represent their children, issued, a TLA remains effective for a certain period
but have also joined the latter in this case.8 of time — usually for twenty-five (25) years. During
its effectivity, the same can neither be revised nor
On 14 May 1992, We resolved to give due course cancelled unless the holder has been found, after
to the petition and required the parties to submit due notice and hearing, to have violated the terms
their respective Memoranda after the Office of the of the agreement or other forestry laws and
Solicitor General (OSG) filed a Comment in behalf regulations. Petitioners' proposition to have all the
of the respondents and the petitioners filed a reply TLAs indiscriminately cancelled without the
thereto. requisite hearing would be violative of the
requirements of due process.
Petitioners contend that the complaint clearly and
unmistakably states a cause of action as it contains Before going any further, We must first focus on
sufficient allegations concerning their right to a some procedural matters. Petitioners instituted Civil
sound environment based on Articles 19, 20 and 21 Case No. 90-777 as a class suit. The original
of the Civil Code (Human Relations), Section 4 of defendant and the present respondents did not take
Executive Order (E.O.) No. 192 creating the DENR, issue with this matter. Nevertheless, We hereby rule
Section 3 of Presidential Decree (P.D.) No. 1151 that the said civil case is indeed a class suit. The
(Philippine Environmental Policy), Section 16, subject matter of the complaint is of common and
Article II of the 1987 Constitution recognizing the general interest not just to several, but to all citizens
right of the people to a balanced and healthful of the Philippines. Consequently, since the parties
ecology, the concept of generational genocide in are so numerous, it, becomes impracticable, if not
Criminal Law and the concept of man's inalienable totally impossible, to bring all of them before the
right to self-preservation and self-perpetuation court. We likewise declare that the plaintiffs therein
embodied in natural law. Petitioners likewise rely on are numerous and representative enough to ensure
the respondent's correlative obligation per Section 4 the full protection of all concerned interests. Hence,
of E.O. No. 192, to safeguard the people's right to a all the requisites for the filing of a valid class suit
healthful environment. under Section 12, Rule 3 of the Revised Rules of
Court are present both in the said civil case and in
It is further claimed that the issue of the respondent the instant petition, the latter being but an incident
Secretary's alleged grave abuse of discretion in to the former.
granting Timber License Agreements (TLAs) to
cover more areas for logging than what is available This case, however, has a special and novel
involves a judicial question. element. Petitioners minors assert that they
represent their generation as well as generations
Anent the invocation by the respondent Judge of yet unborn. We find no difficulty in ruling that they
the Constitution's non-impairment clause, can, for themselves, for others of their generation
petitioners maintain that the same does not apply in and for the succeeding generations, file a class suit.
this case because TLAs are not contracts. They Their personality to sue in behalf of the succeeding
likewise submit that even if TLAs may be generations can only be based on the concept of
considered protected by the said clause, it is well intergenerational responsibility insofar as the right
settled that they may still be revoked by the State to a balanced and healthful ecology is concerned.
when the public interest so requires. Such a right, as hereinafter expounded, considers 
the "rhythm and harmony of nature." Nature means
the created world in its entirety.9 Such rhythm and
On the other hand, the respondents aver that the harmony indispensably include, inter alia, the
petitioners failed to allege in their complaint a judicious disposition, utilization, management,
specific legal right violated by the respondent renewal and conservation of the country's forest,
Secretary for which any relief is provided by law. mineral, land, waters, fisheries, wildlife, off-shore
They see nothing in the complaint but vague and areas and other natural resources to the end that
nebulous allegations concerning an "environmental their exploration, development and utilization be
right" which supposedly entitles the petitioners to equitably accessible to the present as well as future
the "protection by the state in its capacity as parens generations. 10Needless to say, every generation
patriae." Such allegations, according to them, do has a responsibility to the next to preserve that
not reveal a valid cause of action. They then rhythm and harmony for the full enjoyment of a
reiterate the theory that the question of whether balanced and healthful ecology. Put a little
logging should be permitted in the country is a differently, the minors' assertion of their right to a
political question which should be properly sound environment constitutes, at the same time,
addressed to the executive or legislative branches the performance of their obligation to ensure the
of Government. They therefore assert that the protection of that right for the generations to come.
petitioners' resources is not to file an action to court,
The locus standi of the petitioners having thus been the fundamental law. Section 16, Article II of the
addressed, We shall now proceed to the merits of 1987 Constitution explicitly provides:
the petition.
Sec. 16. The State shall protect and
After a careful perusal of the complaint in question advance the right of the people to a
and a meticulous consideration and evaluation of balanced and healthful ecology in accord
the issues raised and arguments adduced by the with the rhythm and harmony of nature.
parties, We do not hesitate to find for the petitioners
and rule against the respondent Judge's challenged This right unites with the right to health
order for having been issued with grave abuse of which is provided for in the preceding
discretion amounting to lack of jurisdiction. The section of the same article:
pertinent portions of the said order reads as follows:
Sec. 15. The State shall protect and
xxx xxx xxx promote the right to health of the people
and instill health consciousness among
After a careful and circumspect evaluation them.
of the Complaint, the Court cannot help but
agree with the defendant. For although we While the right to a balanced and healthful ecology
believe that plaintiffs have but the noblest of is to be found under the Declaration of Principles
all intentions, it (sic) fell short of alleging, and State Policies and not under the Bill of Rights, it
with sufficient definiteness, a specific legal does not follow that it is less important than any of
right they are seeking to enforce and the civil and political rights enumerated in the latter.
protect, or a specific legal wrong they are Such a right belongs to a different category of rights
seeking to prevent and redress (Sec. 1, altogether for it concerns nothing less than self-
Rule 2, RRC). Furthermore, the Court notes preservation and self-perpetuation — aptly and
that the Complaint is replete with vague fittingly stressed by the petitioners — the
assumptions and vague conclusions based advancement of which may even be said to predate
on unverified data. In fine, plaintiffs fail to all governments and constitutions. As a matter of
state a cause of action in its Complaint fact, these basic rights need not even be written in
against the herein defendant. the Constitution for they are assumed to exist from
the inception of humankind. If they are now
Furthermore, the Court firmly believes that explicitly mentioned in the fundamental charter, it is
the matter before it, being impressed with because of the well-founded fear of its framers that
political color and involving a matter of unless the rights to a balanced and healthful
public policy, may not be taken cognizance ecology and to health are mandated as state
of by this Court without doing violence to policies by the Constitution itself, thereby
the sacred principle of "Separation of highlighting their continuing importance and
Powers" of the three (3) co-equal branches imposing upon the state a solemn obligation to
of the Government. preserve the first and protect and advance the
second, the day would not be too far when all else
The Court is likewise of the impression that would be lost not only for the present generation,
it cannot, no matter how we stretch our but also for those to come — generations which
jurisdiction, grant the reliefs prayed for by stand to inherit nothing but parched earth incapable
the plaintiffs,  i.e., to cancel all existing of sustaining life.
timber license agreements in the country
and to cease and desist from receiving, The right to a balanced and healthful ecology
accepting, processing, renewing or carries with it the correlative duty to refrain from
approving new timber license agreements. impairing the environment. During the debates on
For to do otherwise would amount to this right in one of the plenary sessions of the 1986
"impairment of contracts" abhored (sic) by Constitutional Commission, the following exchange
the fundamental law. 11 transpired between Commissioner Wilfrido
Villacorta and Commissioner Adolfo Azcuna who
We do not agree with the trial court's conclusions sponsored the section in question:
that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a MR. VILLACORTA:
specific legal wrong committed, and that the
complaint is replete with vague assumptions and Does this section mandate the State to
conclusions based on unverified data. A reading of provide sanctions against all forms of
the complaint itself belies these conclusions. pollution — air, water and noise pollution?

The complaint focuses on one specific fundamental MR. AZCUNA:

legal right — the right to a balanced and healthful
ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in Yes, Madam President. The right to
healthful (sic) environment necessarily
 carries with it the correlative duty of not natural resources, consistent with the
impairing the same and, therefore, necessity of maintaining a sound ecological
sanctions may be provided for impairment balance and protecting and enhancing the
of environmental balance. 12 quality of the environment and the objective of
making the exploration, development and
The said right implies, among many other things, utilization of such natural resources equitably
the judicious management and conservation of the accessible to the different segments of the
country's forests. present as well as future generations.

Without such forests, the ecological or (2) The State shall likewise recognize and
environmental balance would be apply a true value system that takes into
irreversiby disrupted. account social and environmental cost
implications relative to the utilization,
development and conservation of our natural
Conformably with the enunciated right to a resources.
balanced and healthful ecology and the right to
health, as well as the other related provisions of the
Constitution concerning the conservation, The above provision stresses "the necessity of
development and utilization of the country's natural maintaining a sound ecological balance and
resources, 13 then President Corazon C. Aquino protecting and enhancing the quality of the
promulgated on 10 June 1987 E.O. No. environment." Section 2 of the same Title, on the
192, 14 Section 4 of which expressly mandates that other hand, specifically speaks of the mandate of
the Department of Environment and Natural the DENR; however, it makes particular reference
Resources "shall be the primary government to the fact of the agency's being subject to law and
agency responsible for the conservation, higher authority. Said section provides:
management, development and proper use of the
country's environment and natural resources, Sec. 2. Mandate. — (1) The Department of
specifically forest and grazing lands, mineral, Environment and Natural Resources shall be
resources, including those in reservation and primarily responsible for the implementation
watershed areas, and lands of the public domain, of the foregoing policy.
as well as the licensing and regulation of all natural
resources as may be provided for by law in order to (2) It shall, subject to law and higher
ensure equitable sharing of the benefits derived authority, be in charge of carrying out the
therefrom for the welfare of the present and future State's constitutional mandate to control and
generations of Filipinos." Section 3 thereof makes supervise the exploration, development,
the following statement of policy: utilization, and conservation of the country's
natural resources.
Sec. 3. Declaration of Policy. — It is hereby
declared the policy of the State to ensure the Both E.O. NO. 192 and the Administrative Code of
sustainable use, development, management, 1987 have set the objectives which will serve as the
renewal, and conservation of the country's bases for policy formulation, and have defined the
forest, mineral, land, off-shore areas and powers and functions of the DENR.
other natural resources, including the
protection and enhancement of the quality of
the environment, and equitable access of the It may, however, be recalled that even before the
different segments of the population to the ratification of the 1987 Constitution, specific
development and the use of the country's statutes already paid special attention to the
natural resources, not only for the present "environmental right" of the present and future
generation but for future generations as well. generations. On 6 June 1977, P.D. No. 1151
It is also the policy of the state to recognize (Philippine Environmental Policy) and P.D. No.
and apply a true value system including social 1152 (Philippine Environment Code) were issued.
and environmental cost implications relative to The former "declared a continuing policy of the
their utilization, development and State (a) to create, develop, maintain and improve
conservation of our natural resources. conditions under which man and nature can thrive
in productive and enjoyable harmony with each
other, (b) to fulfill the social, economic and other
This policy declaration is substantially re-stated it requirements of present and future generations of
Title XIV, Book IV of the Administrative Code of Filipinos, and (c) to insure the attainment of an
1987,15 specifically in Section 1 thereof which reads: environmental quality that is conducive to a life of
dignity and well-being." 16 As its goal, it speaks of
Sec. 1. Declaration of Policy. — (1) The State the "responsibilities of each generation as trustee
shall ensure, for the benefit of the Filipino and guardian of the environment for succeeding
people, the full exploration and development generations." 17 The latter statute, on the other
as well as the judicious disposition, utilization, hand, gave flesh to the said policy.
management, renewal and conservation of
the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other
Thus, the right of the petitioners (and all those they branches of Government is not squarely put in
represent) to a balanced and healthful ecology is as issue. What is principally involved is the
clear as the DENR's duty — under its mandate and enforcement of a right vis-a-vis policies already
by virtue of its powers and functions under E.O. No. formulated and expressed in legislation. It must,
192 and the Administrative Code of 1987 — to nonetheless, be emphasized that the political
protect and advance the said right. question doctrine is no longer, the insurmountable
obstacle to the exercise of judicial power or the
A denial or violation of that right by the other who impenetrable shield that protects executive and
has the corelative duty or obligation to respect or legislative actions from judicial inquiry or review.
protect the same gives rise to a cause of action. The second paragraph of section 1, Article VIII of
Petitioners maintain that the granting of the TLAs, the Constitution states that:
which they claim was done with grave abuse of
discretion, violated their right to a balanced and Judicial power includes the duty of the courts
healthful ecology; hence, the full protection thereof of justice to settle actual controversies
requires that no further TLAs should be renewed or involving rights which are legally
granted. demandable and enforceable, and to
determine whether or not there has been a
A cause of action is defined as: grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
. . . an act or omission of one party in violation
of the legal right or rights of the other; and its
essential elements are legal right of the Commenting on this provision in his
plaintiff, correlative obligation of the book, Philippine Political Law, 22 Mr. Justice Isagani
defendant, and act or omission of the A. Cruz, a distinguished member of this Court, says:
defendant in violation of said legal right. 18
The first part of the authority represents the
It is settled in this jurisdiction that in a motion to traditional concept of judicial power, involving
dismiss based on the ground that the complaint fails the settlement of conflicting rights as
to state a cause of action, 19 the question submitted conferred as law. The second part of the
to the court for resolution involves the sufficiency of authority represents a broadening of judicial
the facts alleged in the complaint itself. No other power to enable the courts of justice to
matter should be considered; furthermore, the truth review what was before forbidden territory, to
of falsity of the said allegations is beside the point wit, the discretion of the political departments
for the truth thereof is deemed hypothetically of the government.
admitted. The only issue to be resolved in such a
case is: admitting such alleged facts to be true, may As worded, the new provision vests in the
the court render a valid judgment in accordance judiciary, and particularly the Supreme Court,
with the prayer in the complaint? 20 In Militante vs. the power to rule upon even the wisdom of
Edrosolano, 21 this Court laid down the rule that the the decisions of the executive and the
judiciary should "exercise the utmost care and legislature and to declare their acts invalid
circumspection in passing upon a motion to dismiss for lack or excess of jurisdiction because
on the ground of the absence thereof [cause of tainted with grave abuse of discretion. The
action] lest, by its failure to manifest a correct catch, of course, is the meaning of "grave
appreciation of the facts alleged and deemed abuse of discretion," which is a very elastic
hypothetically admitted, what the law grants or phrase that can expand or contract
recognizes is effectively nullified. If that happens, according to the disposition of the judiciary.
there is a blot on the legal order. The law itself
stands in disrepute." In Daza vs. Singson, 23 Mr. Justice Cruz, now
speaking for this Court, noted:
After careful examination of the petitioners'
complaint, We find the statements under the In the case now before us, the jurisdictional
introductory affirmative allegations, as well as the objection becomes even less tenable and
specific averments under the sub-heading CAUSE decisive. The reason is that, even if we were
OF ACTION, to be adequate enough to to assume that the issue presented before us
show,  prima facie, the claimed violation of their was political in nature, we would still not be
rights. On the basis thereof, they may thus be precluded from revolving it under the
granted, wholly or partly, the reliefs prayed for. It expanded jurisdiction conferred upon us that
bears stressing, however, that insofar as the now covers, in proper cases, even the
cancellation of the TLAs is concerned, there is the political question. Article VII, Section 1, of the
need to implead, as party defendants, the grantees Constitution clearly provides: . . .
thereof for they are indispensable parties.
The last ground invoked by the trial court in
The foregoing considered, Civil Case No. 90-777 be dismissing the complaint is the non-impairment of
said to raise a political question. Policy formulation
or determination by the executive or legislative
contracts clause found in the Constitution. The C.J. 168). Thus, this Court held that the
court a quo declared that: granting of license does not create
irrevocable rights, neither is it property or
The Court is likewise of the impression that it property rights (People vs. Ong Tin, 54
cannot, no matter how we stretch our O.G. 7576).
jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber We reiterated this pronouncement in Felipe
license agreements in the country and to Ysmael, Jr. & Co., Inc. vs. Deputy Executive
cease and desist from receiving, accepting, Secretary: 26
processing, renewing or approving new
timber license agreements. For to do . . . Timber licenses, permits and license
otherwise would amount to "impairment of agreements are the principal instruments
contracts" abhored (sic) by the fundamental by which the State regulates the utilization
law. 24 and disposition of forest resources to the
end that public welfare is promoted. And it
We are not persuaded at all; on the contrary, We can hardly be gainsaid that they merely
are amazed, if not shocked, by such a sweeping evidence a privilege granted by the State
pronouncement. In the first place, the respondent to qualified entities, and do not vest in the
Secretary did not, for obvious reasons, even invoke latter a permanent or irrevocable right to
in his motion to dismiss the non-impairment clause. the particular concession area and the
If he had done so, he would have acted with utmost forest products therein. They may be
infidelity to the Government by providing undue and validly amended, modified, replaced or
unwarranted benefits and advantages to the timber rescinded by the Chief Executive when
license holders because he would have forever national interests so require. Thus, they
bound the Government to strictly respect the said are not deemed contracts within the
licenses according to their terms and conditions purview of the due process of law clause
regardless of changes in policy and the demands of [See Sections 3(ee) and 20 of Pres.
public interest and welfare. He was aware that as Decree No. 705, as amended. Also, Tan v.
correctly pointed out by the petitioners, into every Director of Forestry, G.R. No. L-24548,
timber license must be read Section 20 of the October 27, 1983, 125 SCRA 302].
Forestry Reform Code (P.D. No. 705) which
provides: Since timber licenses are not contracts, the non-
impairment clause, which reads:
. . . Provided, That when the national
interest so requires, the President may Sec. 10. No law impairing, the obligation of
amend, modify, replace or rescind any contracts shall be passed. 27
contract, concession, permit, licenses or
any other form of privilege granted herein .
.. cannot be invoked.

Needless to say, all licenses may thus be In the second place, even if it is to be assumed that
revoked or rescinded by executive action. It is the same are contracts, the instant case does not
not a contract, property or a property right involve a law or even an executive issuance
protested by the due process clause of the declaring the cancellation or modification of existing
Constitution. In Tan vs. Director of timber licenses. Hence, the non-impairment clause
Forestry, 25 this Court held: cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed
mandating cancellations or modifications, the same
. . . A timber license is an instrument by cannot still be stigmatized as a violation of the non-
which the State regulates the utilization impairment clause. This is because by its very
and disposition of forest resources to the nature and purpose, such as law could have only
end that public welfare is promoted. A been passed in the exercise of the police power of
timber license is not a contract within the the state for the purpose of advancing the right of
purview of the due process clause; it is the people to a balanced and healthful ecology,
only a license or privilege, which can be promoting their health and enhancing the general
validly withdrawn whenever dictated by welfare. In Abe vs. Foster Wheeler 
public interest or public welfare as in this Corp. 28 this Court stated:
case.
The freedom of contract, under our system
A license is merely a permit or privilege to of government, is not meant to be
do what otherwise would be unlawful, and absolute. The same is understood to be
is not a contract between the authority, subject to reasonable legislative regulation
federal, state, or municipal, granting it and aimed at the promotion of public health,
the person to whom it is granted; neither is moral, safety and welfare. In other words,
it property or a property right, nor does it the constitutional guaranty of non-
create a vested right; nor is it taxation (37
 impairment of obligations of contract is FELICIANO, J., concurring
limited by the exercise of the police power
of the State, in the interest of public health, I join in the result reached by my distinguished
safety, moral and general welfare. brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important
The reason for this is emphatically set forth cases decided by this Court in the last few years.
in Nebia vs. New York, 29 quoted in Philippine The seminal principles laid down in this decision are
American Life Insurance Co. vs. Auditor likely to influence profoundly the direction and
General,30 to wit: course of the protection and management of the
environment, which of course embraces the
Under our form of government the use of utilization of all the natural resources in the
property and the making of contracts are territorial base of our polity. I have therefore sought
normally matters of private and not of to clarify, basically to myself, what the Court
public concern. The general rule is that appears to be saying.
both shall be free of governmental
interference. But neither property rights The Court explicitly states that petitioners have
nor contract rights are absolute; for the locus standi necessary to sustain the bringing
government cannot exist if the citizen may and, maintenance of this suit (Decision, pp. 11-
at will use his property to the detriment of 12). Locus standi is not a function of petitioners'
his fellows, or exercise his freedom of claim that their suit is properly regarded as a class
contract to work them harm. Equally suit. I understand locus standi to refer to the legal
fundamental with the private right is that of interest which a plaintiff must have in the subject
the public to regulate it in the common matter of the suit. Because of the very broadness of
interest. the concept of "class" here involved — membership
in this "class" appears to embrace everyone living in
In short, the non-impairment clause must yield to the country whether now or in the 
the police power of the state. 31 future — it appears to me that everyone who may
be expected to benefit from the course of action
petitioners seek to require public respondents to
Finally, it is difficult to imagine, as the trial court did, take, is vested with the necessary locus standi. The
how the non-impairment clause could apply with Court may be seen therefore to be recognizing
respect to the prayer to enjoin the respondent a beneficiaries' right of action in the field of
Secretary from receiving, accepting, processing, environmental protection, as against both the public
renewing or approving new timber licenses for, administrative agency directly concerned and the
save in cases of renewal, no contract would have private persons or entities operating in the field or
as of yet existed in the other instances. Moreover, sector of activity involved. Whether such
with respect to renewal, the holder is not entitled to beneficiaries' right of action may be found under
it as a matter of right. any and all circumstances, or whether some failure
to act, in the first instance, on the part of the
WHEREFORE, being impressed with merit, the governmental agency concerned must be shown
instant Petition is hereby GRANTED, and the ("prior exhaustion of administrative remedies"), is
challenged Order of respondent Judge of 18 July not discussed in the decision and presumably is left
1991 dismissing Civil Case No. 90-777 is hereby for future determination in an appropriate case.
set aside. The petitioners may therefore amend
their complaint to implead as defendants the The Court has also declared that the complaint has
holders or grantees of the questioned timber license alleged and focused upon "one specific
agreements. fundamental legal right — the right to a balanced
and healthful ecology" (Decision, p. 14). There is no
No pronouncement as to costs. question that "the right to a balanced and healthful
ecology" is "fundamental" and that, accordingly, it
SO ORDERED. has been "constitutionalized." But although it is
fundamental in character, I suggest, with very great
respect, that it cannot be characterized as
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, "specific," without doing excessive violence to
Romero, Nocon, Bellosillo, Melo and Quiason, JJ., language. It is in fact very difficult to fashion
concur. language more comprehensive in scope and
generalized in character than a right to "a balanced
Narvasa, C.J., Puno and Vitug, JJ., took no part. and healthful ecology." The list of particular claims
which can be subsumed under this rubic appears to
be entirely open-ended: prevention and control of
 
emission of toxic fumes and smoke from factories
and motor vehicles; of discharge of oil, chemical
Separate Opinions effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs,
  factories, mines and whole communities; of
dumping of organic and inorganic wastes on open
land, streets and thoroughfares; failure to persons who are beneficiaries of implementation of
rehabilitate land after strip-mining or open-pit that Code.
mining; kaingin or slash-and-burn farming;
destruction of fisheries, coral reefs and other living As a matter of logic, by finding petitioners' cause of
sea resources through the use of dynamite or action as anchored on a legal right comprised in the
cyanide and other chemicals; contamination of constitutional statements above noted, the Court is
ground water resources; loss of certain species of in effect saying that Section 15 (and Section 16) of
fauna and flora; and so on. The other statements Article II of the Constitution are self-executing and
pointed out by the Court: Section 3, Executive judicially enforceable even in their present form.
Order No. 192 dated 10 June 1987; Section 1, Title The implications of this doctrine will have to be
XIV, Book IV of the 1987 Administrative Code; and explored in future cases; those implications are too
P.D. No. 1151, dated 6 June 1977 — all appear to large and far-reaching in nature even to be hinted at
be formulations of  policy, as general and abstract here.
as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and
healthful ecology") and 15 ("the right to health"). My suggestion is simply that petitioners must,
before the trial court, show a more specific legal
right — a right cast in language of a significantly
P.D. No. 1152, also dated 6 June 1977, entitled lower order of generality than Article II (15) of the
"The Philippine Environment Code," is, upon the Constitution — that is or may be violated by the
other hand, a compendious collection of more actions, or failures to act, imputed to the public
"specific environment management policies" and respondent by petitioners so that the trial court can
"environment quality standards" (fourth "Whereas" validly render judgment granting all or part of the
clause, Preamble) relating to an extremely wide relief prayed for. To my mind, the Court should be
range of topics: understood as simply saying that such a more
specific legal right or rights may  well exist in
(a) air quality management; our corpus of law, considering the general policy
principles found in the Constitution and the
(b) water quality management; existence of the Philippine Environment Code, and
that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of
(c) land use management; aborting the proceedings on a motion to dismiss.

(d) natural resources management and It seems to me important that the legal right which
conservation embracing: is an essential component of a cause of action be a
specific, operable legal right, rather than a
(i) fisheries and aquatic resources; constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed
(ii) wild life; to have been violated or disregarded is given
specification in operational terms, defendants may
well be unable to defend themselves intelligently
(iii) forestry and soil conservation; and effectively; in other words, there are due
process dimensions to this matter.
(iv) flood control and natural calamities;
The second is a broader-gauge consideration —
(v) energy development; where a specific violation of law or applicable
regulation is not alleged or proved, petitioners can
be expected to fall back on the expanded
(vi) conservation and utilization of surface
conception of judicial power in the second
and ground water
paragraph of Section 1 of Article VIII of the
Constitution which reads:
(vii) mineral resources
Section 1. . . .
Two (2) points are worth making in this connection.
Firstly, neither petitioners nor the Court has
Judicial power includes the duty of the courts
identified the particular provision or provisions (if
of justice to settle actual controversies
any) of the Philippine Environment Code which give
involving rights which are legally demandable
rise to a specific legal right which petitioners are
and enforceable, and to determine whether or
seeking to enforce. Secondly, the Philippine
not there has been a grave abuse of
Environment Code identifies with notable care the
discretion amounting to lack or excess of
particular government agency charged with the
jurisdiction on the part of any branch or
formulation and implementation of guidelines and
instrumentality of the Government. (Emphasis
programs dealing with each of the headings and
supplied)
sub-headings mentioned above. The Philippine
Environment Code does not, in other words, appear
to contemplate action on the part of  private
 When substantive standards as general as course of the protection and management of the
"the right to a balanced and healthy ecology" environment, which of course embraces the
and "the right to health" are combined with utilization of all the natural resources in the
remedial standards as broad ranging as "a territorial base of our polity. I have therefore sought
grave abuse of discretion amounting to lack or to clarify, basically to myself, what the Court
excess of jurisdiction," the result will be, it is appears to be saying.
respectfully submitted, to propel courts into
the uncharted ocean of social and economic The Court explicitly states that petitioners have
policy making. At least in respect of the vast the locus standi necessary to sustain the bringing
area of environmental protection and and, maintenance of this suit (Decision, pp. 11-
management, our courts have no claim to 12). Locus standi is not a function of petitioners'
special technical competence and experience claim that their suit is properly regarded as a class
and professional qualification. Where no suit. I understand locus standi to refer to the legal
specific, operable norms and standards are interest which a plaintiff must have in the subject
shown to exist, then the policy making matter of the suit. Because of the very broadness of
departments — the legislative and executive the concept of "class" here involved — membership
departments — must be given a real and in this "class" appears to embrace everyone living in
effective opportunity to fashion and the country whether now or in the 
promulgate those norms and standards, and future — it appears to me that everyone who may
to implement them before the courts should be expected to benefit from the course of action
intervene. petitioners seek to require public respondents to
take, is vested with the necessary locus standi. The
My learned brother Davide, Jr., J., rightly insists that Court may be seen therefore to be recognizing
the timber companies, whose concession a beneficiaries' right of action in the field of
agreements or TLA's petitioners demand public environmental protection, as against both the public
respondents should cancel, must be impleaded in administrative agency directly concerned and the
the proceedings below. It might be asked that, if private persons or entities operating in the field or
petitioners' entitlement to the relief demanded sector of activity involved. Whether such
is not  dependent upon proof of breach by the timber beneficiaries' right of action may be found under
companies of one or more of the specific terms and any and all circumstances, or whether some failure
conditions of their concession agreements (and to act, in the first instance, on the part of the
this, petitioners implicitly assume), what will those governmental agency concerned must be shown
companies litigate about? The answer I suggest is ("prior exhaustion of administrative remedies"), is
that they may seek to dispute the existence of the not discussed in the decision and presumably is left
specific legal right petitioners should allege, as well for future determination in an appropriate case.
as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed The Court has also declared that the complaint has
wrongful acts or failures to act of public respondent alleged and focused upon "one specific
administrative agency. They may also controvert fundamental legal right — the right to a balanced
the appropriateness of the remedy or remedies and healthful ecology" (Decision, p. 14). There is no
demanded by petitioners, under all the question that "the right to a balanced and healthful
circumstances which exist. ecology" is "fundamental" and that, accordingly, it
has been "constitutionalized." But although it is
I vote to grant the Petition for Certiorari because the fundamental in character, I suggest, with very great
protection of the environment, including the forest respect, that it cannot be characterized as
cover of our territory, is of extreme importance for "specific," without doing excessive violence to
the country. The doctrines set out in the Court's language. It is in fact very difficult to fashion
decision issued today should, however, be language more comprehensive in scope and
subjected to closer examination. generalized in character than a right to "a balanced
and healthful ecology." The list of particular claims
  which can be subsumed under this rubic appears to
be entirely open-ended: prevention and control of
emission of toxic fumes and smoke from factories
  and motor vehicles; of discharge of oil, chemical
effluents, garbage and raw sewage into rivers,
# Separate Opinions inland and coastal waters by vessels, oil rigs,
factories, mines and whole communities; of
FELICIANO, J.,  concurring dumping of organic and inorganic wastes on open
land, streets and thoroughfares; failure to
rehabilitate land after strip-mining or open-pit
I join in the result reached by my distinguished mining; kaingin or slash-and-burn farming;
brother in the Court, Davide, Jr., J., in this case destruction of fisheries, coral reefs and other living
which, to my mind, is one of the most important sea resources through the use of dynamite or
cases decided by this Court in the last few years. cyanide and other chemicals; contamination of
The seminal principles laid down in this decision are ground water resources; loss of certain species of
likely to influence profoundly the direction and fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive judicially enforceable even in their present form.
Order No. 192 dated 10 June 1987; Section 1, Title The implications of this doctrine will have to be
XIV, Book IV of the 1987 Administrative Code; and explored in future cases; those implications are too
P.D. No. 1151, dated 6 June 1977 — all appear to large and far-reaching in nature even to be hinted at
be formulations of  policy, as general and abstract here.
as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and My suggestion is simply that petitioners must,
healthful ecology") and 15 ("the right to health"). before the trial court, show a more specific legal
right — a right cast in language of a significantly
P.D. No. 1152, also dated 6 June 1977, entitled lower order of generality than Article II (15) of the
"The Philippine Environment Code," is, upon the Constitution — that is or may be violated by the
other hand, a compendious collection of more actions, or failures to act, imputed to the public
"specific environment management policies" and respondent by petitioners so that the trial court can
"environment quality standards" (fourth "Whereas" validly render judgment granting all or part of the
clause, Preamble) relating to an extremely wide relief prayed for. To my mind, the Court should be
range of topics: understood as simply saying that such a more
specific legal right or rights may  well exist in
(a) air quality management; our corpus of law, considering the general policy
principles found in the Constitution and the
existence of the Philippine Environment Code, and
(b) water quality management; that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of
(c) land use management; aborting the proceedings on a motion to dismiss.

(d) natural resources management and It seems to me important that the legal right which
conservation embracing: is an essential component of a cause of action be a
specific, operable legal right, rather than a
(i) fisheries and aquatic resources; constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed
to have been violated or disregarded is given
(ii) wild life; specification in operational terms, defendants may
well be unable to defend themselves intelligently
(iii) forestry and soil conservation; and effectively; in other words, there are due
process dimensions to this matter.
(iv) flood control and natural calamities;
The second is a broader-gauge consideration —
where a specific violation of law or applicable
(v) energy development;
regulation is not alleged or proved, petitioners can
be expected to fall back on the expanded
(vi) conservation and utilization of surface conception of judicial power in the second
and ground water paragraph of Section 1 of Article VIII of the
Constitution which reads:
(vii) mineral resources
Section 1. . . .
Two (2) points are worth making in this connection.
Firstly, neither petitioners nor the Court has Judicial power includes the duty of the
identified the particular provision or provisions (if courts of justice to settle actual
any) of the Philippine Environment Code which give controversies involving rights which are
rise to a specific legal right which petitioners are legally demandable and enforceable, and
seeking to enforce. Secondly, the Philippine to determine whether or not there has
Environment Code identifies with notable care the been a grave abuse of
particular government agency charged with the discretion amounting to lack or excess of
formulation and implementation of guidelines and jurisdiction on the part of any branch or
programs dealing with each of the headings and instrumentality of the Government.
sub-headings mentioned above. The Philippine (Emphasis supplied)
Environment Code does not, in other words, appear
to contemplate action on the part of  private
When substantive standards as general as "the
persons who are beneficiaries of implementation of
right to a balanced and healthy ecology" and
that Code.
"the right to health" are combined with remedial
standards as broad ranging as "a grave abuse
As a matter of logic, by finding petitioners' cause of of discretion amounting to lack or excess of
action as anchored on a legal right comprised in the jurisdiction," the result will be, it is respectfully
constitutional statements above noted, the Court is submitted, to propel courts into the uncharted
in effect saying that Section 15 (and Section 16) of ocean of social and economic policy making. At
Article II of the Constitution are self-executing and least in respect of the vast area of
 environmental protection and management, our vs.
courts have no claim to special technical CONCERNED RESIDENTS OF MANILA BAY,
competence and experience and professional represented and joined by DIVINA V. ILAS,
qualification. Where no specific, operable SABINIANO ALBARRACIN, MANUEL SANTOS,
norms and standards are shown to exist, then JR., DINAH DELA PEÑA, PAUL DENNIS
the policy making departments — the QUINTERO, MA. VICTORIA LLENOS, DONNA
legislative and executive departments — must CALOZA, FATIMA QUITAIN, VENICE SEGARRA,
be given a real and effective opportunity to FRITZIE TANGKIA, SARAH JOELLE LINTAG,
fashion and promulgate those norms and HANNIBAL AUGUSTUS BOBIS, FELIMON
standards, and to implement them before the SANTIAGUEL, and JAIME AGUSTIN R.
courts should intervene. OPOSA,Respondents.

My learned brother Davide, Jr., J., rightly insists that RESOLUTION

the timber companies, whose concession
agreements or TLA's petitioners demand public VELASCO, JR., J.:
respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if
petitioners' entitlement to the relief demanded On December 18, 2008, this Court rendered a
is not  dependent upon proof of breach by the timber Decision in G.R. Nos. 171947-48 ordering
companies of one or more of the specific terms and petitioners to clean up, rehabilitate and preserve
conditions of their concession agreements (and Manila Bay in their different capacities. The fallo
this, petitioners implicitly assume), what will those reads:
companies litigate about? The answer I suggest is
that they may seek to dispute the existence of the WHEREFORE, the petition is DENIED. The
specific legal right petitioners should allege, as well September 28, 2005 Decision of the CA in CA-G.R.
as the reality of the claimed factual nexus between CV No. 76528 and SP No. 74944 and the
petitioners' specific legal rights and the claimed September 13, 2002 Decision of the RTC in Civil
wrongful acts or failures to act of public respondent Case No. 1851-99 are AFFIRMED but with
administrative agency. They may also controvert MODIFICATIONS in view of subsequent
the appropriateness of the remedy or remedies developments or supervening events in the case.
demanded by petitioners, under all the The fallo of the RTC Decision shall now read:
circumstances which exist.
WHEREFORE, judgment is hereby rendered
I vote to grant the Petition for Certiorari because the ordering the abovenamed defendant-government
protection of the environment, including the forest agencies to clean up, rehabilitate, and preserve
cover of our territory, is of extreme importance for Manila Bay, and restore and maintain its waters to
the country. The doctrines set out in the Court's SB level (Class B sea waters per Water
decision issued today should, however, be Classification Tables under DENR Administrative
subjected to closer examination. Order No. 34 [1990]) to make them fit for swimming,
skin-diving, and other forms of contact recreation.

In particular:

(1) Pursuant to Sec. 4 of EO 192,

Republic of the Philippines assigning the DENR as the primary
SUPREME COURT agency responsible for the conservation,
Manila management, development, and proper
use of the country’s environment and
EN BANC natural resources, and Sec. 19 of RA
9275, designating the DENR as the
primary government agency responsible
G.R. Nos. 171947-48               February 15, 2011 for its enforcement and implementation,
the DENR is directed to fully implement its
METROPOLITAN MANILA DEVELOPMENT Operational Plan for the Manila Bay
AUTHORITY, DEPARTMENT OF ENVIRONMENT Coastal Strategy for the rehabilitation,
AND NATURAL RESOURCES, DEPARTMENT OF restoration, and conservation of the Manila
EDUCATION, CULTURE AND Bay at the earliest possible time. It is
SPORTS,1 DEPARTMENT OF HEALTH, ordered to call regular coordination
DEPARTMENT OF AGRICULTURE, meetings with concerned government
DEPARTMENT OF PUBLIC WORKS AND departments and agencies to ensure the
HIGHWAYS, DEPARTMENT OF BUDGET AND successful implementation of the aforesaid
MANAGEMENT, PHILIPPINE COAST GUARD, plan of action in accordance with its
PHILIPPINE NATIONAL POLICE MARITIME indicated completion schedules.
GROUP, and DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, Petitioners, 
(2) Pursuant to Title XII (Local the fisheries and aquatic resources in the
Government) of the Administrative Code of Manila Bay.
1987 and Sec. 25 of the Local
Government Code of 1991, the DILG, in (6) The PCG, pursuant to Secs. 4 and 6 of
exercising the President’s power of PD 979, and the PNP Maritime Group, in
general supervision and its duty to accordance with Sec. 124 of RA 8550, in
promulgate guidelines in establishing coordination with each other, shall
waste management programs under Sec. apprehend violators of PD 979, RA 8550,
43 of the Philippine Environment Code (PD and other existing laws and regulations
1152), shall direct all LGUs in Metro designed to prevent marine pollution in the
Manila, Rizal, Laguna, Cavite, Bulacan, Manila Bay.
Pampanga, and Bataan to inspect all
factories, commercial establishments, and
private homes along the banks of the (7) Pursuant to Secs. 2 and 6-c of EO 513
major river systems in their respective and the International Convention for the
areas of jurisdiction, such as but not Prevention of Pollution from Ships, the
limited to the Pasig-Marikina-San Juan PPA is ordered to immediately adopt such
Rivers, the NCR (Parañaque-Zapote, Las measures to prevent the discharge and
Piñas) Rivers, the Navotas-Malabon- dumping of solid and liquid wastes and
Tullahan-Tenejeros Rivers, the other ship-generated wastes into the
Meycauayan-Marilao-Obando (Bulacan) Manila Bay waters from vessels docked at
Rivers, the Talisay (Bataan) River, the ports and apprehend the violators.
Imus (Cavite) River, the Laguna De Bay,
and other minor rivers and waterways that (8) The MMDA, as the lead agency and
eventually discharge water into the Manila implementor of programs and projects for
Bay; and the lands abutting the bay, to flood control projects and drainage
determine whether they have wastewater services in Metro Manila, in coordination
treatment facilities or hygienic septic tanks with the DPWH, DILG, affected LGUs,
as prescribed by existing laws, ordinances, PNP Maritime Group, Housing and Urban
and rules and regulations. If none be Development Coordinating Council
found, these LGUs shall be ordered to (HUDCC), and other agencies, shall
require non-complying establishments and dismantle and remove all structures,
homes to set up said facilities or septic constructions, and other encroachments
tanks within a reasonable time to prevent established or built in violation of RA 7279,
industrial wastes, sewage water, and and other applicable laws along the Pasig-
human wastes from flowing into these Marikina-San Juan Rivers, the NCR
rivers, waterways, esteros, and the Manila (Parañaque-Zapote, Las Piñas) Rivers, the
Bay, under pain of closure or imposition of Navotas-Malabon-Tullahan-Tenejeros
fines and other sanctions. Rivers, and connecting waterways and
esteros in Metro Manila. The DPWH, as
(3) As mandated by Sec. 8 of RA 9275, the the principal implementor of programs and
MWSS is directed to provide, install, projects for flood control services in the
operate, and maintain the necessary rest of the country more particularly in
adequate waste water treatment facilities Bulacan, Bataan, Pampanga, Cavite, and
in Metro Manila, Rizal, and Cavite where Laguna, in coordination with the DILG,
needed at the earliest possible time. affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government
agencies, shall remove and demolish all
(4) Pursuant to RA 9275, the LWUA, structures, constructions, and other
through the local water districts and in encroachments built in breach of RA 7279
coordination with the DENR, is ordered to and other applicable laws along the
provide, install, operate, and maintain Meycauayan-Marilao-Obando (Bulacan)
sewerage and sanitation facilities and the Rivers, the Talisay (Bataan) River, the
efficient and safe collection, treatment, and Imus (Cavite) River, the Laguna De Bay,
disposal of sewage in the provinces of and other rivers, connecting waterways,
Laguna, Cavite, Bulacan, Pampanga, and and esteros that discharge wastewater into
Bataan where needed at the earliest the Manila Bay.
possible time.
In addition, the MMDA is ordered to
(5) Pursuant to Sec. 65 of RA 8550, the establish, operate, and maintain a sanitary
DA, through the BFAR, is ordered to landfill, as prescribed by RA 9003, within a
improve and restore the marine life of the period of one (1) year from finality of this
Manila Bay. It is also directed to assist the Decision. On matters within its territorial
LGUs in Metro Manila, Rizal, Cavite, jurisdiction and in connection with the
Laguna, Bulacan, Pampanga, and Bataan discharge of its duties on the maintenance
in developing, using recognized methods, of sanitary landfills and like undertakings, it
is also ordered to cause the apprehension
 and filing of the appropriate criminal cases Manila Bay Advisory Committee was created to
against violators of the respective penal receive and evaluate the quarterly progressive
provisions of RA 9003, Sec. 27 of RA 9275 reports on the activities undertaken by the agencies
(the Clean Water Act), and other existing in accordance with said decision and to monitor the
laws on pollution. execution phase.

(9) The DOH shall, as directed by Art. 76 In the absence of specific completion periods, the
of PD 1067 and Sec. 8 of RA 9275, within Committee recommended that time frames be set
one (1) year from finality of this Decision, for the agencies to perform their assigned tasks.
determine if all licensed septic and sludge This may be viewed as an encroachment over the
companies have the proper facilities for powers and functions of the Executive Branch
the treatment and disposal of fecal sludge headed by the President of the Philippines.
and sewage coming from septic tanks. The
DOH shall give the companies, if found to This view is misplaced.
be non-complying, a reasonable time
within which to set up the necessary
facilities under pain of cancellation of its The issuance of subsequent resolutions by the
environmental sanitation clearance. Court is simply an exercise of judicial power under
Art. VIII of the Constitution, because the execution
of the Decision is but an integral part of the
(10) Pursuant to Sec. 53 of PD 1152, Sec. adjudicative function of the Court. None of the
118 of RA 8550, and Sec. 56 of RA 9003, agencies ever questioned the power of the Court to
the DepEd shall integrate lessons on implement the December 18, 2008 Decision nor
pollution prevention, waste management, has any of them raised the alleged encroachment
environmental protection, and like subjects by the Court over executive functions.
in the school curricula of all levels to
inculcate in the minds and hearts of
students and, through them, their parents While additional activities are required of the
and friends, the importance of their duty agencies like submission of plans of action, data or
toward achieving and maintaining a status reports, these directives are but part and
balanced and healthful ecosystem in the parcel of the execution stage of a final decision
Manila Bay and the entire Philippine under Rule 39 of the Rules of Court. Section 47 of
archipelago. Rule 39 reads:

(11) The DBM shall consider incorporating Section 47. Effect of judgments or final orders.––
an adequate budget in the General The effect of a judgment or final order rendered by
Appropriations Act of 2010 and a court of the Philippines, having jurisdiction to
succeeding years to cover the expenses pronounce the judgment or final order, may be as
relating to the cleanup, restoration, and follows:
preservation of the water quality of the
Manila Bay, in line with the country’s xxxx
development objective to attain economic
growth in a manner consistent with the (c) In any other litigation between the same parties
protection, preservation, and revival of our of their successors in interest, that only is deemed
marine waters. to have been adjudged in a former judgment or final
order which appears upon its face to have been so
(12) The heads of petitioners-agencies adjudged, or which was actually and necessarily
MMDA, DENR, DepEd, DOH, DA, DPWH, included therein or necessary thereto. (Emphasis
DBM, PCG, PNP Maritime Group, DILG, supplied.)
and also of MWSS, LWUA, and PPA, in
line with the principle of "continuing It is clear that the final judgment includes not only
mandamus," shall, from finality of this what appears upon its face to have been so
Decision, each submit to the Court a adjudged but also those matters "actually and
quarterly progressive report of the necessarily included therein or necessary thereto."
activities undertaken in accordance with Certainly, any activity that is needed to fully
this Decision. implement a final judgment is necessarily
encompassed by said judgment.
SO ORDERED.
Moreover, the submission of periodic reports is
The government agencies did not file any motion for sanctioned by Secs. 7 and 8, Rule 8 of the Rules of
reconsideration and the Decision became final in Procedure for Environmental cases:
January 2009.
Sec. 7. Judgment.––If warranted, the court shall
The case is now in the execution phase of the final grant the privilege of the writ of continuing
and executory December 18, 2008 Decision. The mandamus requiring respondent to perform an act
or series of acts until the judgment is fully satisfied The DENR is ordered to submit summarized data
and to grant such other reliefs as may be warranted on the overall quality of Manila Bay waters for all
resulting from the wrongful or illegal acts of the four quarters of 2010 on or before June 30, 2011.
respondent. The court shall require the respondent
to submit periodic reports detailing the progress and The DENR is further ordered to submit the names
execution of the judgment, and the court may, by and addresses of persons and companies in Metro
itself or through a commissioner or the appropriate Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga
government agency, evaluate and monitor and Bataan that generate toxic and hazardous
compliance. The petitioner may submit its waste on or before September 30, 2011.
comments or observations on the execution of the
judgment.
(2) On or before June 30, 2011, the Department of
the Interior and Local Government (DILG) shall
Sec. 8. Return of the writ.––The periodic reports order the Mayors of all cities in Metro Manila; the
submitted by the respondent detailing compliance Governors of Rizal, Laguna, Cavite, Bulacan,
with the judgment shall be contained in partial Pampanga and Bataan; and the Mayors of all the
returns of the writ. Upon full satisfaction of the cities and towns in said provinces to inspect all
judgment, a final return of the writ shall be made to factories, commercial establishments and private
the court by the respondent. If the court finds that homes along the banks of the major river
the judgment has been fully implemented, the systems––such as but not limited to the Pasig-
satisfaction of judgment shall be entered in the Marikina-San Juan Rivers, the National Capital
court docket. (Emphasis supplied.) Region (Paranaque-Zapote, Las Pinas) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, the
With the final and executory judgment in MMDA, Meycauayan-Marilao-Obando (Bulacan) Rivers, the
the writ of continuing mandamus issued in MMDA Talisay (Bataan) River, the Imus (Cavite) River, and
means that until petitioner-agencies have shown full the Laguna De Bay––and other minor rivers and
compliance with the Court’s orders, the Court waterways within their jurisdiction that eventually
exercises continuing jurisdiction over them until full discharge water into the Manila Bay and the lands
execution of the judgment. abutting it, to determine if they have wastewater
treatment facilities and/or hygienic septic tanks, as
There being no encroachment over executive prescribed by existing laws, ordinances, rules and
functions to speak of, We shall now proceed to the regulations. Said local government unit (LGU)
recommendation of the Manila Bay Advisory officials are given up to September 30, 2011 to
Committee. finish the inspection of said establishments and
houses.
Several problems were encountered by the Manila
Bay Advisory Committee.2 An evaluation of the In case of non-compliance, the LGU officials shall
quarterly progressive reports has shown that (1) take appropriate action to ensure compliance by
there are voluminous quarterly progressive reports non-complying factories, commercial
that are being submitted; (2) petitioner-agencies do establishments and private homes with said law,
not have a uniform manner of reporting their rules and regulations requiring the construction or
cleanup, rehabilitation and preservation activities; installment of wastewater treatment facilities or
(3) as yet no definite deadlines have been set by hygienic septic tanks.
petitioner DENR as to petitioner-agencies’
timeframe for their respective duties; (4) as of June The aforementioned governors and mayors shall
2010 there has been a change in leadership in both submit to the DILG on or before December 31,
the national and local levels; and (5) some agencies 2011 their respective compliance reports which will
have encountered difficulties in complying with the contain the names and addresses or offices of the
Court’s directives. owners of all the non-complying factories,
commercial establishments and private homes,
In order to implement the afore-quoted Decision, copy furnished the concerned environmental
certain directives have to be issued by the Court to agency, be it the local DENR office or the Laguna
address the said concerns. Lake Development Authority.

Acting on the recommendation of the Manila Bay The DILG is required to submit a five-year plan of
Advisory Committee, the Court hereby resolves action that will contain measures intended to ensure
to ORDER the following: compliance of all non-complying factories,
commercial establishments, and private homes.
(1) The Department of Environment and Natural
Resources (DENR), as lead agency in the On or before June 30, 2011, the DILG and the
Philippine Clean Water Act of 2004, shall submit to mayors of all cities in Metro Manila shall consider
the Court on or before June 30, 2011 the updated providing land for the wastewater facilities of the
Operational Plan for the Manila Bay Coastal Metropolitan Waterworks and Sewerage System
Strategy. (MWSS) or its concessionaires (Maynilad and
Manila Water, Inc.) within their respective
jurisdictions.
(3) The MWSS shall submit to the Court on or was at sea with the corresponding number of
before June 30, 2011 the list of areas in Metro passengers and crew per trip, the volume of solid,
Manila, Rizal and Cavite that do not have the liquid and other wastes collected from said ships,
necessary wastewater treatment facilities. Within the treatment undertaken and the disposal site for
the same period, the concessionaires of the MWSS said wastes.
shall submit their plans and projects for the
construction of wastewater treatment facilities in all (7) The Philippine National Police (PNP) Maritime
the aforesaid areas and the completion period for Group shall submit on or before June 30, 2011 its
said facilities, which shall not go beyond 2037. five-year plan of action on the measures and
activities it intends to undertake to apprehend the
On or before June 30, 2011, the MWSS is further violators of Republic Act No. (RA) 8550 or the
required to have its two concessionaires submit a Philippine Fisheries Code of 1998 and other
report on the amount collected as sewerage fees in pertinent laws, ordinances and regulations to
their respective areas of operation as of December prevent marine pollution in Manila Bay and to
31, 2010. ensure the successful prosecution of violators.

(4) The Local Water Utilities Administration is The Philippine Coast Guard shall likewise submit on
ordered to submit on or before September 30, 2011 or before June 30, 2011 its five-year plan of action
its plan to provide, install, operate and maintain on the measures and activities they intend to
sewerage and sanitation facilities in said cities and undertake to apprehend the violators of Presidential
towns and the completion period for said works, Decree No. 979 or the Marine Pollution Decree of
which shall be fully implemented by December 31, 1976 and RA 9993 or the Philippine Coast Guard
2020. Law of 2009 and other pertinent laws and
regulations to prevent marine pollution in Manila
(5) The Department of Agriculture (DA), through the Bay and to ensure the successful prosecution of
Bureau of Fisheries and Aquatic Resources, shall violators.
submit to the Court on or before June 30, 2011 a
report on areas in Manila Bay where marine life has (8) The Metropolitan Manila Development Authority
to be restored or improved and the assistance it has (MMDA) shall submit to the Court on or before June
extended to the LGUs in Metro Manila, Rizal, 30, 2011 the names and addresses of the informal
Cavite, Laguna, Bulacan, Pampanga and Bataan in settlers in Metro Manila who, as of December 31,
developing the fisheries and aquatic resources in 2010, own and occupy houses, structures,
Manila Bay. The report shall contain monitoring constructions and other encroachments established
data on the marine life in said areas. Within the or built along the Pasig-Marikina-San Juan Rivers,
same period, it shall submit its five-year plan to the NCR (Parañaque-Zapote, Las Piñas) Rivers,
restore and improve the marine life in Manila Bay, the Navotas-Malabon-Tullahan-Tenejeros Rivers,
its future activities to assist the aforementioned and connecting waterways and esteros, in violation
LGUs for that purpose, and the completion period of RA 7279 and other applicable laws. On or before
for said undertakings. June 30, 2011, the MMDA shall submit its plan for
the removal of said informal settlers and the
The DA shall submit to the Court on or before demolition of the aforesaid houses, structures,
September 30, 2011 the baseline data as of constructions and encroachments, as well as the
September 30, 2010 on the pollution loading into completion dates for said activities, which shall be
the Manila Bay system from agricultural and fully implemented not later than December 31,
livestock sources. 2015.

(6) The Philippine Ports Authority (PPA) shall The MMDA is ordered to submit a status report,
incorporate in its quarterly reports the list of within thirty (30) days from receipt of this
violators it has apprehended and the status of their Resolution, on the establishment of a sanitary
cases. The PPA is further ordered to include in its landfill facility for Metro Manila in compliance with
report the names, make and capacity of the ships the standards under RA 9003 or the Ecological
that dock in PPA ports. The PPA shall submit to the Solid Waste Management Act.
Court on or before June 30, 2011 the measures it
intends to undertake to implement its compliance On or before June 30, 2011, the MMDA shall
with paragraph 7 of the dispositive portion of the submit a report of the location of open and
MMDA Decision and the completion dates of such controlled dumps in Metro Manila whose operations
measures. are illegal after February 21, 2006,3 pursuant to
Secs. 36 and 37 of RA 9003, and its plan for the
The PPA should include in its report the activities of closure of these open and controlled dumps to be
its concessionaire that collects and disposes of the accomplished not later than December 31, 2012.
solid and liquid wastes and other ship-generated Also, on or before June 30, 2011, the DENR
wastes, which shall state the names, make and Secretary, as Chairperson of the National Solid
capacity of the ships serviced by it since August Waste Management Commission (NSWMC), shall
2003 up to the present date, the dates the ships submit a report on the location of all open and
docked at PPA ports, the number of days the ship
controlled dumps in Rizal, Cavite, Laguna, Bulacan, apprehensions for violations of the penal provisions
Pampanga and Bataan. of RA 9003, RA 9275 and other laws on pollution
for the said period.
On or before June 30, 2011, the DENR Secretary,
in his capacity as NSWMC Chairperson, shall On or before June 30, 2011, the DPWH and the
submit a report on whether or not the following LGUs in Rizal, Laguna, Cavite, Bulacan,
landfills strictly comply with Secs. 41 and 42 of RA Pampanga, and Bataan shall submit the names and
9003 on the establishment and operation of sanitary addresses of the informal settlers in their respective
landfills, to wit: areas who, as of September 30, 2010, own or
occupy houses, structures, constructions, and other
National Capital Region encroachments built along the Meycauayan-
Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna
1. Navotas SLF (PhilEco), Brgy. Tanza de Bay, and other rivers, connecting waterways
(New Site), Navotas City and esteros that discharge wastewater into the
Manila Bay, in breach of RA 7279 and other
2. Payatas Controlled Dumpsite, Barangay applicable laws. On or before June 30, 2011, the
Payatas, Quezon City DPWH and the aforesaid LGUs shall jointly submit
their plan for the removal of said informal settlers
Region III and the demolition of the aforesaid structures,
constructions and encroachments, as well as the
completion dates for such activities which shall be
3. Sitio Coral, Brgy. Matictic, Norzagaray, implemented not later than December 31, 2012.
Bulacan
(9) The Department of Health (DOH) shall submit to
4. Sitio Tiakad, Brgy. San Mateo, the Court on or before June 30, 2011 the names
Norzagaray, Bulacan and addresses of the owners of septic and sludge
companies including those that do not have the
5. Brgy. Minuyan, San Jose del Monte proper facilities for the treatment and disposal of
City, Bulacan fecal sludge and sewage coming from septic tanks.

6. Brgy. Mapalad, Santa Rosa, Nueva The DOH shall implement rules and regulations on
Ecija Environmental Sanitation Clearances and shall
require companies to procure a license to operate
from the DOH.
7. Sub-zone Kalangitan, Clark Capas,
Tarlac Special Economic Zone
The DOH and DENR-Environmental Management
Bureau shall develop a toxic and hazardous waste
Region IV-A
management system by June 30, 2011 which will
implement segregation of hospital/toxic/hazardous
8. Kalayaan (Longos), Laguna wastes and prevent mixing with municipal solid
waste.
9. Brgy. Sto. Nino, San Pablo City, Laguna
On or before June 30, 2011, the DOH shall submit
10. Brgy. San Antonio (Pilotage SLF), San a plan of action to ensure that the said companies
Pedro, Laguna have proper disposal facilities and the completion
dates of compliance.1avvphi1
11. Morong, Rizal
(10) The Department of Education (DepEd) shall
submit to the Court on or before May 31, 2011 a
12. Sitio Lukutan, Brgy. San Isidro,
report on the specific subjects on pollution
Rodriguez (Montalban), Rizal (ISWIMS)
prevention, waste management, environmental
protection, environmental laws and the like that it
13. Brgy. Pintong Bukawe, San Mateo, has integrated into the school curricula in all levels
Rizal (SMSLFDC) for the school year 2011-2012.

On or before June 30, 2011, the MMDA and the On or before June 30, 2011, the DepEd shall also
seventeen (17) LGUs in Metro Manila are ordered submit its plan of action to ensure compliance of all
to jointly submit a report on the average amount of the schools under its supervision with respect to the
garbage collected monthly per district in all the integration of the aforementioned subjects in the
cities in Metro Manila from January 2009 up to school curricula which shall be fully implemented by
December 31, 2010 vis-à-vis the average amount of June 30, 2012.
garbage disposed monthly in landfills and
dumpsites. In its quarterly report for the last quarter
of 2010 and thereafter, MMDA shall report on the
(11) All the agencies are required to submit their marine life has to be restored or improved and the
quarterly reports electronically using the forms assistance it has extended to the LGUs in Metro
below. The agencies may add other key Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga
performance indicators that they have identified. and Bataan in developing the fisheries and aquatic
resources in Manila Bay. The report shall contain
SO ORDERED. monitoring data on the marine life in said
areas. Within the same period, it shall submit its
five-year plan to restore and improve the marine
life in Manila Bay, its future activities to assist
the aforementioned LGUs for that purpose, and
DISSENTING OPINION the completion period for said undertakings;6

CARPIO, J.: The Philippine Ports Authority (PPA) shall

incorporate in its quarterly reports the list of
violators it has apprehended and the status of their
The Resolution contains the proposed directives of
cases. The PPA is further ordered to include in its
the Manila Bay Advisory Committee to the
report the names, make and capacity of the ships
concerned agencies1and local government units
that dock in PPA ports. The PPA shall submit to
(LGUs) for the implementation of the 18 December
the Court on or before June 30, 2011 the
2008 Decision of the Court in this case.
measures it intends to undertake to implement
its compliance with paragraph 7 of the
Among the directives stated in the Resolution is for dispositive portion of the MMDA Decision and
the affected agencies to submit to the Court their the completion dates of such measures;7
plans of action and status reports, thus:
The Philippine National Police (PNP) – Maritime
The Department of Environment and Natural Group shall submit on or before June 30, 2011 its
Resources (DENR), as lead agency in five-year plan of action on the measures and
the Philippine Clean Water Act of 2004, shall submit activities they intend to undertake to apprehend
to the Court on or before June 30, 2011 the the violators of RA 8550 or the Philippine
updated Operational Plan for the Manila Bay Fisheries Code of 1998 and other pertinent laws,
Coastal Strategy (OPMBCS);2 ordinances and regulations to prevent marine
pollution in Manila Bay and to ensure the successful
The DILG is required to submit a five-year plan prosecution of violators;8
of action that will contain measures intended to
ensure compliance of all non-complying The Philippine Coast Guard (PCG) shall
factories, commercial establishments, and likewise submit on or before June 30, 2011 its
private homes;3 five-year plan of action on the measures and
activities they intend to undertake to apprehend
The MWSS shall submit to the Court on or before the violators of Presidential Decree (PD) 979 or
June 30, 2011 the list of areas in Metro Manila, the Marine Pollution Decree of 1976 and RA 9993
Rizal and Cavite that do not have the necessary or the Philippine Coast Guard Law of 2009 and
wastewater treatment facilities. Within the same other pertinent laws and regulations to prevent
period, the concessionaires of the MWSS shall marine pollution in Manila Bay and to ensure the
submit their plans and projects for the successful prosecution of violators;9
construction of wastewater treatment facilities
in all the aforesaid areas and the completion The Metropolitan Manila Development Authority
period for said facilities, which shall not go (MMDA) shall submit to the Court on or before
beyond 2020;4 June 30, 2011 the names and addresses of the
informal settlers in Metro Manila who own and
The Local Water Utilities Administration (LWUA) occupy houses, structures, constructions and
shall submit to the Court on or before June 30, other encroachments established or built in
2011 the list of cities and towns in Laguna, Cavite, violation of RA 7279 and other applicable
Bulacan, Pampanga, and Bataan that do not have laws along the Pasig-Marikina-San Juan Rivers,
sewerage and sanitation facilities. LWUA is further the NCR (Parañaque-Zapote, Las Piñas) Rivers,
ordered to submit on or before September 30, the Navotas-Malabon-Tullahan-Tenejeros Rivers,
2011 its plan to provide, install, operate and and connecting waterways and esteros as of
maintain sewerage and sanitation facilities in December 31, 2010. On or before the same
said cities and towns and the completion period date, the MMDA shall submit its plan for the
for said works which shall be fully implemented removal of said informal settlers and the
by December 31, 2020;5 demolition of the aforesaid houses, structures,
constructions and encroachments, as well as
the completion dates for said activities which
The Department of Agriculture (DA), through the shall be fully implemented not later than
Bureau of Fisheries and Aquatic Resources December 31, 2015;10
(BFAR), shall submit to the Court on or before June
30, 2011 a report on areas in Manila Bay where
[T]he DPWH and the aforesaid LGUs shall investigated by the Supreme Court, in view of the
jointly submit its plan for the removal of said conferment upon him by law (Republic Act No.
informal settlers and the demolition of the 1151) of the rank and privileges of a Judge of the
aforesaid structures, constructions and Court of First Instance. The Court, answering in the
encroachments, as well as the completion dates negative, stated:
for such activities which shall be implemented
not later than December 31, 2012;11 To adopt petitioner's theory, therefore, would mean
placing upon the Supreme Court the duty of
[T]he DOH shall submit a plan of action to ensure investigating and disciplining all these officials
that the said companies have proper disposal whose functions are plainly executive and the
facilities and the completion dates of consequent curtailment by mere implication from
compliance;12 the Legislative grant, of the President's power to
discipline and remove administrative officials who
On or before June 30, 2011, the DepEd shall are presidential appointees, and which the
also submit its plan of action to ensure Constitution expressly place under the President's
compliance of all the schools under its supervision and control.
supervision with respect to the integration of
the aforementioned subjects in the school xxx
curricula which shall be fully implemented by
June 30, 2012;13 (Emphasis supplied) But the more fundamental objection to the stand of
petitioner Noblejas is that, if the Legislature had
What is the purpose of requiring these agencies to really intended to include in the general grant of
submit to the Court their plans of action and status "privileges" or "rank and privileges of Judges of the
reports? Are these plans to be approved or Court of First Instance" the right to be investigated
disapproved by the Court? The Court does not have by the Supreme Court, and to be suspended or
the competence or even the jurisdiction to evaluate removed only upon recommendation of that Court,
these plans which involves technical matters14 best then such grant of privilege would be
left to the expertise of the concerned agencies. unconstitutional, since it would violate the
fundamental doctrine of separation of powers,
The Resolution also requires that the concerned by charging this court with the administrative
agencies shall "submit [to the Court] their function of supervisory control over executive
quarterly reports electronically x x x."15 Thus, the officials, and simultaneously reducing pro
directive for the concerned agencies to submit to tanto the control of the Chief Executive over
the Court their quarterly reports is a continuing such officials.20 (Boldfacing supplied)
obligation which extends even beyond the year
2011.16 Likewise, in this case, the directives in the
Resolution are administrative in nature and
The Court is now arrogating unto itself two circumvent the constitutional provision which
constitutional powers exclusively vested in the prohibits Supreme Court members from performing
President. First, the Constitution provides that quasi-judicial or administrative functions. Section
"executive power shall be vested in the 12, Article VIII of the 1987 Constitution provides:
President."17 This means that neither the Judiciary
nor the Legislature can exercise executive power SEC. 12. The members of the Supreme Court and
for executive power is the exclusive domain of the of other courts established by law shall not be
President. Second, the Constitution provides that designated to any agency performing quasi-judicial
the President shall "have control of all the or administrative functions.
executive departments, bureaus, and
offices."18 Neither the Judiciary nor the Legislature Thus, in the case of In Re: Designation of Judge
can exercise control or even supervision over Manzano as Member of the Ilocos Norte Provincial
executive departments, bureaus, and offices. Committee on Justice,21 the Court invalidated the
designation of a judge as member of the Ilocos
Clearly, the Resolution constitutes an intrusion of Norte Provincial Committee on Justice, which was
the Judiciary into the exclusive domain of the tasked to receive complaints and to make
Executive. In the guise of implementing the 18 recommendations for the speedy disposition of
December 2008 Decision through the Resolution, cases of detainees. The Court held that the
the Court is in effect supervising and directing the committee performs administrative functions22 which
different government agencies and LGUs are prohibited under Section 12, Article VIII of the
concerned. Constitution.

In Noblejas v. Teehankee,19 it was held that the As early as the 1932 case of Manila Electric Co. v.
Court cannot be required to exercise administrative Pasay Transportation Co.,23 this Court has already
functions such as supervision over executive emphasized that the Supreme Court should only
officials. The issue in that case was whether the exercise judicial power and should not assume any
Commissioner of Land Registration may only be duty which does not pertain to the administering of
judicial functions. In that case, a petition was filed hygienic septic tanks."25 The LGU officials are
requesting the members of the Supreme Court, also directed to "submit to the DILG on or before
sitting as a board of arbitrators, to fix the terms and December 31, 2011 their respective compliance
the compensation to be paid to Manila Electric reports which shall contain the names and
Company for the use of right of way. The Court held addresses or offices of the owners of all the non-
that it would be improper and illegal for the complying factories, commercial establishments
members of the Supreme Court, sitting as a board and private homes."26 Furthermore, the Resolution
of arbitrators, whose decision of a majority shall be mandates that on or before 30 June 2011, the DILG
final, to act on the petition of Manila Electric and the mayors of all cities in Metro Manila should
Company. The Court explained: "consider providing land for the wastewater facilities
of the Metropolitan Waterworks and Sewerage
We run counter to this dilemma. Either the System (MWSS) or its concessionaires (Maynilad
members of the Supreme Court, sitting as a board and Manila Water Inc.) within their respective
of arbitrators, exercise judicial functions, or as jurisdictions."27 The Court is in effect ordering
members of the Supreme Court, sitting as a board these LGU officials how to do their job and even
of arbitrators, exercise administrative gives a deadline for their compliance. Again, this
or quasi judicial functions. The first case would is a usurpation of the power of the President to
appear not to fall within the jurisdiction granted the supervise LGUs under the Constitution and existing
Supreme Court. Even conceding that it does, it laws.
would presuppose the right to bring the matter in
dispute before the courts, for any other construction Section 4, Article X of the 1987 Constitution
would tend to oust the courts of jurisdiction and provides that: "The President of the Philippines
render the award a nullity. But if this be the proper shall exercise general supervision over local
construction, we would then have the anomaly of a governments x x x."28 Under the Local Government
decision by the members of the Supreme Court, Code of 1991,29 the President exercises general
sitting as a board of arbitrators, taken therefrom to supervision over LGUs, thus:
the courts and eventually coming before the
Supreme Court, where the Supreme Court would SECTION 25. National Supervision over Local
review the decision of its members acting as Government Units. ‒ (a) Consistent with the basic
arbitrators. Or in the second case, if the functions policy on local autonomy, the President shall
performed by the members of the Supreme Court, exercise general supervision over local
sitting as a board of arbitrators, be considered as government units to ensure that their acts are
administrative or quasi judicial in nature, that would within the scope of their prescribed powers and
result in the performance of duties which the functions.
members of the Supreme Court could not lawfully
take it upon themselves to perform. The present
petition also furnishes an apt illustration of another The President shall exercise supervisory authority
anomaly, for we find the Supreme Court as a court directly over provinces, highly urbanized cities and
asked to determine if the members of the court may independent component cities; through the province
be constituted a board of arbitrators, which is not a with respect to component cities and municipalities;
court at all. and through the city and municipality with respect to
barangays. (Emphasis supplied)
The Supreme Court of the Philippine Islands
represents one of the three divisions of power in our The Resolution constitutes judicial overreach by
government. It is judicial power and judicial power usurping and performing executive functions.
only which is exercised by the Supreme Court. Just The Court must refrain from overstepping its
as the Supreme Court, as the guardian of boundaries by taking over the functions of an equal
constitutional rights, should not sanction branch of the government – the Executive. The
usurpations by any other department of the Court should abstain from exercising any function
government, so should it as strictly confine its own which is not strictly judicial in character and is not
sphere of influence to the powers expressly or by clearly conferred on it by the Constitution.30 Indeed,
implication conferred on it by the Organic Act. The as stated by Justice J.B.L. Reyes in Noblejas v.
Supreme Court and its members should not and Teehankee,31 "the Supreme Court of the Philippines
cannot be required to exercise any power or to and its members should not and can not be
perform any trust or to assume any duty not required to exercise any power or to perform any
pertaining to or connected with the administering of trust or to assume any duty not pertaining to or
judicial functions.24 connected with the administration of judicial
functions."32
Furthermore, the Resolution orders some LGU
officials to inspect the establishments and houses The directives in the Resolution constitute a judicial
along major river banks and to "take appropriate encroachment of an executive function which
action to ensure compliance by non-complying clearly violates the system of separation of powers
factories, commercial establishments and that inheres in our democratic republican
private homes with said law, rules and government. The principle of separation of powers
regulations requiring the construction or between the Executive, Legislative, and Judicial
installment of wastewater treatment facilities or branches of government is part of the basic
structure of the Philippine Constitution. Thus, the separation of powers contemplates the division
1987 Constitution provides that: (a) the legislative of the functions of government into its three (3)
power shall be vested in the Congress of the branches: the legislative which is empowered to
Philippines;33 (b) the executive power shall be make laws; the executive which is required to
vested in the President of the Philippines; 34 and (c) carry out the law; and the judiciary which is
the judicial power shall be vested in one Supreme charged with interpreting the law. Consequent
Court and in such lower courts as may be to actual delineation of power, each branch of
established.35 government is entitled to be left alone to
discharge its duties as it sees fit. Being one
Since the Supreme Court is only granted judicial such branch, the judiciary, as Justice Laurel
power, it should not attempt to assume or be asserted in Planas v. Gil, "will neither direct nor
compelled to perform non-judicial restrain executive [or legislative action]."
functions.36 Judicial power is defined under Section Expressed in another perspective, the system of
1, Article VIII of the 1987 Constitution as that which separated powers is designed to restrain one
"includes the duty of the courts of justice to settle branch from inappropriate interference in the
actual controversies involving rights which are business, or intruding upon the central
legally demandable and enforceable, and to prerogatives, of another branch; it is a blend of
determine whether or not there has been a grave courtesy and caution, "a self-executing
abuse of discretion amounting to lack or excess of safeguard against the encroachment or
jurisdiction on the part of any branch or aggrandizement of one branch at the expense of
instrumentality of the government." The Resolution the other." x x x
contains directives which are outside the ambit of
the Court's judicial functions. Under our constitutional set up, there cannot be any
serious dispute that the maintenance of the peace,
The principle of separation of powers is explained insuring domestic tranquility and the suppression of
by the Court in the leading case of Angara v. violence are the domain and responsibility of the
Electoral Commission:37 executive. Now then, if it be important to restrict
the great departments of government to the
exercise of their appointed powers, it follows, as
The separation of powers is a fundamental principle a logical corollary, equally important, that one
in our system of government. It obtains not through branch should be left completely independent of
express provision but by actual division in our the others, independent not in the sense that
Constitution. Each department of the government the three shall not cooperate in the common
has exclusive cognizance of matters within its end of carrying into effect the purposes of the
jurisdiction, and is supreme within its own sphere. constitution, but in the sense that the acts of
But it does not follow from the fact that the three each shall never be controlled by or subjected
powers are to be kept separate and distinct that the to the influence of either of the
Constitution intended them to be absolutely branches.40 (Emphasis supplied)
unrestrained and independent of each other. The
Constitution has provided for an elaborate system
of checks and balances to secure coordination in Indeed, adherence to the principle of separation of
the workings of the various departments of the powers which is enshrined in our Constitution is
government. x x x And the judiciary in turn, with the essential to prevent tyranny by prohibiting the
Supreme Court as the final arbiter, effectively concentration of the sovereign powers of state in
checks the other department in its exercise of its one body.41 Considering that executive power
power to determine the law, and hence to declare is exclusively vested in the President of the
executive and legislative acts void if violative of the Philippines, the Judiciary should neither undermine
Constitution.38 such exercise of executive power by the President
nor arrogate executive power unto itself. The
Judiciary must confine itself to the exercise of
Even the ponente is passionate about according judicial functions and not encroach upon the
respect to the system of separation of powers functions of the other branches of the government.
between the three equal branches of the
government. In his dissenting opinion in the 2008
case of Province of North Cotabato v. Government ACCORDINGLY, I vote against the approval of the
of the Republic of the Philippines Peace Panel on Resolution.
Ancestral Domain (GRP),39 Justice Velasco
emphatically stated: ANTONIO T. CARPIO
Associate Justice
Separation of Powers to be Guarded

Over and above the foregoing considerations,

however, is the matter of separation of powers DISSENTING OPINION
which would likely be disturbed should the Court
meander into alien territory of the executive and
SERENO, J.:
dictate how the final shape of the peace agreement
with the MILF should look like. The system of
"The judicial whistle needs to be blown for a Executive Department and violated the doctrine of
purpose and with caution. It needs to be Separation of Powers
remembered that the Court cannot run the
government. The Court has the duty of The Resolution assigned the Department of Natural
implementing constitutional safeguards that protect Resources as the primary agency for environment
individual rights but they cannot push back the protection and required the implementation of its
limits of the Constitution to accommodate the Operational Plan for the Manila Bay Coastal
challenged violation."1 Strategy. It ordered the DENR to submit the
updated operational plan directly to the Court; to
These are the words of Justice Anand of the summarize data on the quality of Manila Bay
Supreme Court of India, from which court the idea waters; and to "submit the names and addresses of
of a continuing mandatory injunction for persons and companies…that generate toxic or
environmental cases was drawn by the Philippine hazardous waste on or before September 30,
Supreme Court. These words express alarm that 2011."
the Indian judiciary has already taken on the role of
running the government in environmental cases. A The Department of the Interior and Local
similar situation would result in the Philippines were Government is directed to "order the Mayors of all
the majority Resolution to be adopted. Despite cities in Metro Manila; the Governors of Rizal,
having the best of intentions to ensure compliance Laguna, Cavite, Bulacan, Pampanga and Bataan;
by petitioners with their corresponding statutory and the Mayors of all the cities and towns in said
mandates in an urgent manner, this Court has provinces to inspect all factories, commercial
unfortunately encroached upon prerogatives solely establishments and private homes along the banks
to be exercised by the President and by Congress. of the major river systems…" to determine if they
have wastewater treatment facilities, on or before
On 18 December 2008, the Court promulgated its 30 June 2011. The LGUs are given a deadline of 30
decision in MMDA v. Concerned Residents of September 2011 to finish the inspection. In
Manila Bay, G.R. Nos. 171947-48, denying the cooperation with the Department of Public Works
petition of the government agencies, defendants in and Highways (DPWH), these local governments
Civil Case No. 1851-99. It held that the Court of are required to submit their plan for the removal of
Appeals, subject to some modifications, was correct informal settlers and encroachments which are in
in affirming the 13 September 2002 Decision of the violation of Republic Act No. 7279. The said
Regional Trial Court in Civil Case No. 1851-99. It demolition must take place not later than 31
ordered "the abovenamed defendant-government December 2012.
agencies to clean up, rehabilitate, and preserve
Manila Bay, and restore and maintain its waters to The Metropolitan Waterworks and Sewerage
SB level (Class B sea waters per Water System (MWSS) is required to submit its plans for
Classification Tables under DENR Administrative the construction of wastewater treatment facilities in
Order No. 34 [1990]) to make them fit for swimming, areas where needed, the completion period for
skin-diving, and other forms of contact recreation." which shall not go beyond the year 2020. On or
before 30 June 2011, the MWSS is further required
The Court further issued each of the to have its two concessionaires submit a report on
aforementioned agencies specific orders to comply the amount collected as sewerage fees. The Local
with their statutory mandate.2 Pursuant to the Water Utilities Administration (LWUA) is ordered to
judgment above, the Court established its own submit on or before 30 September 2011 its plan to
Manila Bay Advisory Committee. Upon the install and operate sewerage and sanitation
recommendations of the said Committee, the facilities in the towns and cities where needed,
present Resolution was issued. It encompasses which must be fully implemented by 31 December
several of the specific instructions laid out by the 2020.
court in the original case, but also goes further by
requiring reports and updates from the said The Department of Agriculture and the Bureau of
government agencies, and setting deadlines for the Aquatic Fisheries and Resources are ordered to
submission thereof. submit on or before 30 June 2011 a list of areas
where marine life in Manila Bay has improved, and
I find these directives in the Majority Resolution the assistance extended to different Local
patently irreconcilable with basic constitutional Government Units in this regard. The Philippine
doctrines and with the legislative mechanisms Ports Authority (PPA) is ordered to report the
already in place, such as the Administrative Code names, make, and capacity of each ship that would
and the Local Government Code, which explicitly dock in PPA ports; the days they docked and the
grant control and supervision over these agencies days they were at sea; the activities of the
to the President alone, and to no one else. For concessionaire that would collect solid and liquid
these reasons, I respectfully dissent from the ship-generated waste, the volume, treatment and
Majority Resolution. disposal sites for such wastes; and the violators
that PPA has apprehended.
In issuing these directives, the Court has
encroached upon the exclusive authority of the
The Department of Health (DOH) is required to public order. Thus, he is granted administrative
submit the names and addresses of septic and power over bureaus and offices under his control to
sludge companies that have no treatment facilities. enable him to discharge his duties effectively.
The said agency must also require companies to
procure a "license to operate" issued by the DOH. To herein petitioner agencies impleaded below, this
The Metropolitan Manila Development Authority Court has given very specific instructions to report
(MMDA) and the seventeen (17) LGUs in Metro the progress and status of their operations directly
Manila must submit a report on the "amount of to the latter. The Court also required the agencies
garbage collected per district…vis-à-vis the average to apprise it of any noncompliance with the
amount of garbage disposed monthly in landfills standards set forth by different laws as to
and dumpsites." MMDA must also submit a plan for environment protection. This move is tantamount to
the removal of informal settlers and encroachments making these agencies accountable to the Court
along NCR Rivers which violate R.A. No. 7279. instead of the President. The very occupation
streamlined especially for the technical and
Clearly, the Court has no authority to issue these practical expertise of the Executive Branch is being
directives. They fall squarely under the domain of usurped without regard for the delineations of
the executive branch of the state. The issuance of power in the Constitution. In fact, the issuance of
specific instructions to subordinate agencies in the the Resolution itself is in direct contravention of the
implementation of policy mandates in all laws, not President’s exclusive power to issue administrative
just those that protect the environment, is an orders, as shown thus:
exercise of the power of supervision and control –
the sole province of the Office of the President. Administrative Orders. - Acts of the President which
relate to particular aspect of governmental
Both the 1987 Constitution and Executive Order No. operations in pursuance of his duties as
292, or the Administrative Code of the Philippines, administrative head shall be promulgated in
state: administrative orders.7

Exercise of Executive Power. - The Executive The Court’s discussion in Ople v. Torres 8 pertaining
power shall be vested in the President.3 to the extent and breadth of administrative power
bestowed upon the President is apt:
Power of Control.- The President shall have control
of all the executive departments, bureaus, and Administrative power is concerned with the work of
offices. He shall ensure that the laws be faithfully applying policies and enforcing orders as
executed.4 determined by proper governmental organs. It
enables the President to fix a uniform standard of
In Anak Mindanao Party-list Group v. Executive administrative efficiency and check the official
Secretary,5 this Court has already asserted that the conduct of his agents. To this end, he can issue
enforcement of all laws is the sole domain of the administrative orders, rules and regulations.
Executive. The Court pronounced that the express
constitutional grant of authority to the Executive is ………
broad and encompassing, such that it justifies
reorganization measures6 initiated by the President. An administrative order is an ordinance issued by
The Court said: the President which relates to specific aspects in
the administrative operation of government. It must
While Congress is vested with the power to enact be in harmony with the law and should be for the
laws, the President executes the laws. The sole purpose of implementing the law and carrying
executive power is vested in the President. It is out the legislative policy.
generally defined as the power to enforce and
administer the laws. It is the power of carrying the The implementation of the policy laid out by the
laws into practical operation and enforcing their due legislature – in the Philippine Clean Water Act of
observance. 2004, the Toxic and Hazardous Waste Act or
Republic Act 6969, the Environment Code, and
As head of the Executive Department, the President other laws geared towards environment protection –
is the Chief Executive. He represents the is under the competence of the President. Achieved
government as a whole and sees to it that all laws thereby is a uniform standard of administrative
are enforced by the officials and employees of his efficiency. And since it is through administrative
department. He has control over the executive orders promulgated by the President that specific
department, bureaus and offices. This means that operational aspects for these policies are laid out,
he has the authority to assume directly the the Resolution of this Court overlaps with the
functions of the executive department, bureau and President’s administrative power. No matter how
office, or interfere with the discretion of its officials. urgent and laudatory the cause of environment
Corollary to the power of control, the President also protection has become, it cannot but yield to the
has the duty of supervising and enforcement of higher mandate of separation of powers and the
laws for the maintenance of general peace and
mechanisms laid out by the people through the resolutions, and that of trying the causes of
Constitution. individuals. 12

One of the directives is that which requires local Nor is there merit in the contention that these
governments to conduct inspection of homes and directives will speed up the rehabilitation of Manila
establishments along the riverbanks, and to submit Bay better than if said rehabilitation were left to the
a plan for the removal of certain informal settlers. appropriate agencies. Expediency is never a reason
Not content with arrogating unto itself the powers of to abandon legitimacy. "The Separation of Powers
"control" and "supervision" granted by the often impairs efficiency, in terms of dispatch and the
Administrative Code to the President over said immediate functioning of government. It is the long-
petitioner administrative agencies, the Court is also term staying power of government that is enhanced
violating the latter’s general supervisory authority by the mutual accommodation required by the
over local governments: separation of powers."13

Sec. 18. General Supervision Over Local Mandamus does not lie to compel a discretionary
Governments. - The President shall exercise act.
general supervision over local governments.9
In G.R. Nos. 171947-48, the Court explicitly
Sec. 25. National Supervision over Local admitted that "[w]hile the implementation of the
Government Units.––(a) Consistent with the basic MMDA’s mandated tasks may entail a decision-
policy on local autonomy, the President shall making process, the enforcement of the law or the
exercise general supervision over local government very act of doing what the law exacts to be done is
units to ensure that their acts are within the scope ministerial in nature and may be compelled by
of their prescribed powers and functions.10 mandamus."14 In denying the appeal of petitioners
and affirming the Decision of the RTC, the Court of
The powers expressly vested in any branch of the Appeals stressed that the trial court’s Decision did
Government shall not be exercised by, nor not require petitioners to do tasks outside of their
delegated to, any other branch of the Government, usual basic functions under existing laws.15
except to the extent authorized by the
Constitution.11 In its revised Resolution, the Court is now setting
deadlines for the implementation of policy
As has often been repeated by this Court, the formulations which require decision-making by the
doctrine of separation of powers is the very agencies. It has confused an order enjoining a duty,
wellspring from which the Court draws its with an order outlining specific technical rules on
legitimacy. Former Chief Justice Reynato S. Puno how to perform such a duty. Assuming without
has traced its origin and rationale as inhering in the conceding that mandamus were availing under Rule
republican system of government: 65, the Court can only require a particular action,
but it cannot provide for the means to accomplish
such action. It is at this point where the demarcation
The principle of separation of powers prevents of the general act of "cleaning up the Manila Bay"
the concentration of legislative, executive, and has become blurred, so much so that the Court now
judicial powers to a single branch of government by engages in the slippery slope of overseeing
deftly allocating their exercise to the three branches technical details.
of government...
In Sps. Abaga v. Sps. Panes16 the Court said:
In his famed treatise, The Spirit of the Laws,
Montesquieu authoritatively analyzed the nature of
executive, legislative and judicial powers and with a From the foregoing Rule, there are two situations
formidable foresight counselled that any when a writ of mandamus may issue: (1) when any
combination of these powers would create a system tribunal, corporation, board, officer or
with an inherent tendency towards tyrannical person unlawfully neglects the performance of
actions… an act which the law specifically enjoins as a
duty resulting from an office, trust, or station; or (2)
when any tribunal, corporation, board, officer or
Again, there is no liberty, if the judiciary power be person unlawfully excludes another from the use
not separated from the legislative and the and enjoyment of a right or office to which the other
executive. Were it joined with the legislative, the life is entitled. The "duty" mentioned in the first situation
and liberty of the subject would be exposed to is a ministerial duty, not a discretionary duty,
arbitrary control; for the judge would be then the requiring the exercise of judgment…In short, for
legislator. Were it joined to the executive power, the mandamus to lie, the duty sought to be compelled
judge might behave with violence and oppression. to be performed must be a ministerial duty, not a
discretionary duty, and the petitioner must show
There would be an end of everything, were the that he has a well-defined, clear and certain right.
same man or the same body, whether of the nobles
or of the people, to exercise those three powers,
that of enacting laws, that of executing the public
Discretion, on the other hand, is a faculty conferred In fact, the Supreme Court is in danger of acting as
upon a court or official by which he may decide the a "super-administrator"20– the scenario presently
question either way and still be right.17 unfolding in India where the supposed remedy
originated. There the remedy was first used in
The duty being enjoined in mandamus must be one Vineet Narain and Others v. Union of India,21 a
according to the terms defined in the law itself. public interest case for corruption filed against high-
Thus, the recognized rule is that, in the level officials. Since then, the remedy has been
performance of an official duty or act involving applied to environmental cases as an oversight and
discretion, the corresponding official can only be control power by which the Supreme Court of India
directed by mandamus to act, but not to act one has created committees (i.e. the Environment
way or the other. This is the end of any participation Pollution Authority and the Central Empowered
by the Court, if it is authorized to participate at all. Committee in forest cases) and allowed these
committees to act as the policing agencies. 22 But
the most significant judicial intervention in this
In setting a deadline for the accomplishment of regard was the series of orders promulgated by the
these directives, not only has the Court provided Court in T.N. Godavarman v. Union of India.23
the means of accomplishing the task required, it
has actually gone beyond the standards set by the
law. There is nothing in the Environment Code, the Although the Writ Petition filed by Godavarman was
Administrative Code, or the Constitution which an attempt to seek directions from the Court
grants this authority to the judiciary. It is already regarding curbing the illegal felling of trees, the
settled that, "If the law imposes a duty upon a public Supreme Court went further to make policy
officer and gives him the right to decide when and determinations in an attempt to improve the
how the duty shall be performed, such duty is not country’s forests. The Court Order suspending
ministerial."18 felling of trees that did not adhere to state
government working plans resulted in effectively
freezing the country’s timber industry. The Supreme
In Alvarez v. PICOP Resources,19 the Court ruled Court completely banned tree felling in certain
that, north-eastern states to any part of the country. The
court’s role was even more pronounced in its later
As an extraordinary writ, the remedy of mandamus directions. While maintaining the ban on felling of
lies only to compel an officer to perform trees in the seven northeast states, the court
a ministerial duty, not a discretionary one; directed the state governments to gather, process,
mandamus will not issue to control the exercise of sell, and otherwise manage the already felled
discretion of a public officer where the law imposes timber in the manner its specified the Supreme
upon him the duty to exercise his judgment in Court became the supervisor of all forest issues,
reference to any manner in which he is required to ranging from controlling, pricing and transport of
act, because it is his judgment that is to be timber to management of forest revenue, as well as
exercised and not that of the court. implementation of its orders.24

The Constitution does not authorize the courts to Thus, while it was originally intended to assert
"monitor" the execution of their decisions. public rights in the face of government inaction and
neglect, the remedy is now facing serious criticism
It is an oft-repeated rule that the Court has no as it has spiraled out of control.25 In fact, even
power to issue advisory opinions, much less Justice J. S. Verma, who penned the majority
"directives" requiring progress reports from the opinion in Vineet Narain in which ‘continuing
parties respecting the execution of its decisions. mandamus’ first made its appearance,
The requirements of "actual case or controversy" subsequently pronounced that "judicial activism
and "justiciability" have long been established in should be neither judicial ad hocism nor judicial
order to limit the exercise of judicial review. While tyranny."26 Justice B.N. Srikrishna observed that
its dedication to the implementation of the fallo in judges now seem to want to engage themselves
G.R. 171947-48 is admirable, the Court’s power with boundless enthusiasm in complex socio-
cannot spill over to actual encroachment upon both economic issues raising myriads of facts and
the "control" and police powers of the State under ideological issues that cannot be managed by
the guise of a "continuing mandamus." "judicially manageable standards."27 Even Former
Chief Justice A. S. Anand, a known defender of
judicial activism, has warned against the tendency
In G.R. 171947-48, the Court said: "Under what towards "judicial adventurism," reiterating the
other judicial discipline describes as ‘continuing principle that "the role of the judge is that of a
mandamus,’ the Court may, under extraordinary referee. I can blow my judicial whistle when the ball
circumstances, issue directives with the end in view goes out of play; but when the game restarts I must
of ensuring that its decision would not be set to neither take part in it nor tell the players how to
naught by administrative inaction or indifference." play."28

Needless to say, the "continuing mandamus" in this Unless our own Supreme Court learns to curb its
case runs counter to principles of "actual case or excesses and apply to this case the standards for
controversy" and other requisites for judicial review. judicial review it has developed over the years and
applied to co-equal branches, the scenario in India shall not be limited to written questions, but may
could very well play out in the Philippines. The cover matters related thereto. When the security of
Court must try to maintain a healthy balance the state or the public interest so requires and the
between the departments, precisely as the President so states in writing, the appearance shall
Constitution mandates, by delineating its "deft be conducted in executive session.
strokes and bold lines,"29 ever so conscious of the
requirements of actual case and controversy. While, This provision pertains to the power to conduct a
admittedly, there are certain flaws in the operation question hour, the objective of which is to obtain
and implementation of the laws, the judiciary cannot information in pursuit of Congress’ oversight
take the initiative to compensate for such perceived function. Macalintal v. Comelec34 discussed the
inaction. scope of congressional oversight in full. Oversight
refers to the power of the legislative department to
The Court stated in Tolentino v. Secretary of check, monitor and ensure that the laws it has
Finance:30 enacted are enforced:

Disregard of the essential limits imposed by the The power of Congress does not end with the
case and controversy requirement can in the long finished task of legislation. Concomitant with its
run only result in undermining our authority as a principal power to legislate is the auxiliary
court of law. For, as judges, what we are called power to ensure that the laws it enacts are
upon to render is judgment according to law, not faithfully executed. As well stressed by one
according to what may appear to be the opinion of scholar, the legislature "fixes the main lines of
the day… substantive policy and is entitled to see that
administrative policy is in harmony with it; it
Hence, "over nothing but cases and controversies establishes the volume and purpose of public
can courts exercise jurisdiction, and it is to make expenditures and ensures their legality and
the exercise of that jurisdiction effective that they propriety; it must be satisfied that internal
are allowed to pass upon constitutional administrative controls are operating to secure
questions."31 Admirable though the sentiments of economy and efficiency; and it informs itself of the
the Court may be, it must act within jurisdictional conditions of administration of remedial measure.
limits. These limits are founded upon the traditional
requirement of a cause of action: "the act or ………
omission by which a party violates a right of
another."32 In constitutional cases, for every writ or Clearly, oversight concerns post-
remedy, there must be a clear pronouncement of enactment measures undertaken by Congress: (a)
the corresponding right which has been infringed. to monitor bureaucratic compliance with program
Only then can there surface that "clear objectives, (b) to determine whether agencies are
concreteness provided when a question emerges properly administered, (c) to eliminate executive
precisely framed and necessary for decision from a waste and dishonesty, (d) to prevent executive
clash of adversary argument exploring every aspect usurpation of legislative authority, and (d) to assess
of a multifaceted situation embracing conflicting and executive conformity with the congressional
demanding interests."33 perception of public interest.

Unfortunately, the Court fails to distinguish between ………

a pronouncement on violation of rights on one
hand, and non-performance of duties vis-à-vis
operational instructions, on the other. Moreover, it Congress, thus, uses its oversight power to
also dabbles in an interpretation of constitutional make sure that the administrative agencies
rights in a manner that is dangerously pre-emptive perform their functions within the authority
of legally available remedies. delegated to them.

The "continuing mandamus" palpably overlaps with Macalintal v. Comelec further discusses that
the power of congressional oversight. legislative supervision under the oversight power
connotes a continuing and informed awareness on
the part of Congress regarding executive operations
Article 6, Section 22 of the 1987 Constitution states: in a given administrative area. Because the power
to legislate includes the power to ensure that the
The heads of department may upon their own laws are enforced, this monitoring power has been
initiative, with the consent of the President, or upon granted by the Constitution to the legislature. In
the request of either House, or as the rules of each cases of executive non-implementation of statutes,
House shall provide, appear before and be heard the courts cannot justify the use of "continuing
by such House on any matter pertaining to their mandamus," as it would by its very definition
departments. Written questions shall be submitted overlap with the monitoring power under
to the President of the Senate or the Speaker of the congressional oversight. The Resolution does not
House of Representatives at least three days only encroach upon the general supervisory
before their scheduled appearance. Interpellations function of the Executive, it also diminished and
arrogated unto itself the power of congressional Stewards of God's Creations, Petitioners, 
oversight. vs.
SECRETARY ANGELO REYES, in his capacity
Conclusion as Secretary of the Department of Energy (DOE),
SECRETARY JOSE L. ATIENZA, in his capacity
as Secretary of the Department of Environment
This Court cannot nobly defend the environmental and Natural Resources (DENR), LEONARDO R.
rights of generations of Filipinos enshrined in the SIBBALUCA, DENR Regional Director-Region
Constitution while in the same breath eroding the VII and in his capacity as Chairperson of the
foundations of that very instrument from which it Tañon Strait Protected Seascape Management
draws its power. While the remedy of "continuing Board, Bureau of Fisheries and Aquatic
mandamus" has evolved out of a Third World Resources (BFAR), DIRECTOR MALCOLM J.
jurisdiction similar to ours, we cannot overstep the SARMIENTO, JR., BFAR Regional Director for
boundaries laid down by the rule of law. Otherwise, Region VII ANDRES M. BOJOS, JAPAN
this Court would rush recklessly beyond the PETROLEUM EXPLORATION CO., LTD.
delimitations precisely put in place to safeguard (JAPEX), as represented by its Philippine Agent,
excesses of power. The tribunal, considered by SUPPLY OILFIELD SERVICES,
many citizens as the last guardian of fundamental INC. Respondents.
rights, would then resemble nothing more than an
idol with feet of clay: strong in appearance, but
weak in foundation. x-----------------------x

…The Court becomes a conscience by acting to G.R. No. 181527

remind us of limitation on power, even judicial
power, and the interrelation of good purposes with CENTRAL VISAYAS FISHERFOLK
good means. Morality is not an end dissociated DEVELOPMENT CENTER (FIDEC), CERILO D.
from means. There is a morality of morality, which ENGARCIAL, RAMON YANONG, FRANCISCO
respects the limitation of office and the fallibility of LABID, in their personal capacity and as
the human mind…self-limitation is the first mark of representatives of the SUBSISTENCE
the master. That, too is part of the role of the FISHERFOLKS OF THE MUNICIPALITIES OF
conscience.35 ALOGUINSAN AND PINAMUNGAJAN, CEBU,
AND THEIR FAMILIES, AND THE PRESENT AND
The majority Resolution would, at the same time, FUTURE GENERATIONS OF FILIPINOS WHOSE
cast the light of scrutiny more harshly on judicial RIGHTS ARE SIMILARLY
action in which the Court’s timely exercise of its AFFECTED, Petitioners, 
powers is called for – as in the cases of prisoners vs.
languishing in jail whose cases await speedy SECRETARY ANGELO REYES, in his capacity
resolution by this Court. There would then be as Secretary of the Department of Energy (DOE),
nothing to stop the executive and the legislative JOSE L. ATIENZA, in his capacity as Secretary
departments from considering as fair game the of the Department of Environment and Natural
judiciary’s own accountability in its clearly Resources (DENR), LEONARDO R. SIBBALUCA,
delineated department. in his capacity as DENR Regional Director-
Region VII and as Chairperson of the Tañon
Strait Protected Seascape Management Board,
MARIA LOURDES P. A. SERENO ALAN ARRANGUEZ, in his capacity as Director -
Associate Justice Environmental Management Bureau-Region VII,
DOE Regional Director for Region VIII1 ANTONIO
LABIOS, JAPAN PETROLEUM EXPLORATION
CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES,
Republic of the Philippines
INC., Respondents.
SUPREME COURT
Baguio City
CONCURRING OPINION
EN BANC
"Until one has loved an animal,
a part of one 's soul remains
G.R. No. 180771               April 21, 2015
unawakened."

RESIDENT MARINE MAMMALS OF THE

Anatole France
PROTECTED SEASCAPE TAÑON STRAIT, e.g.,
TOOTHED WHALES, DOLPHINS, PORPOISES,
AND OTHER CETACEAN SPECIES, Joined in LEONEN, J.:
and Represented herein by Human Beings
Gloria Estenzo Ramos and Rose-Liza Eisma- I concur in the result, with the following additional
Osorio, In Their Capacity as Legal Guardians of reasons.
the Lesser Life-Forms and as Responsible
I Fundamental judicial doctrines that may
significantly change substantive and procedural law
In G.R. No. 180771, petitioners Resident Marine cannot be founded on feigned representation.
Mammals allegedly bring their case in their
personal capacity, alleging that they stand to benefit Instead, I agree that the human petitioners should
or be injured from the judgment on the issues. The only speak for themselves and already have legal
human petitioners implead themselves in a standing to sue with respect to the issue raised in
representative capacity "as legal guardians of the their pleading. The rules on standing have already
lesser life-forms and as responsible stewards of been liberalized to take into consideration the
God's Creations."1 They use Oposa v. Factoran, difficulties in the assertion of environmental rights.
Jr.2 as basis for their claim, asserting their right to When standing becomes too liberal, this can be the
enforce international and domestic environmental occasion for abuse.
laws enacted for their benefit under the concept of
stipulation pour autrui.3As the representatives of II
Resident Marine Mammals, the human petitioners
assert that they have the obligation to build
awareness among the affected residents of Tañon Rule 3, Section 1 of the 1997 Rules of Civil
Strait as well as to protect the environment, Procedure, in part, provides:
especially in light of the government's failure, as
primary steward, to do its duty under the doctrine of SECTION 1. Who may be parties; plaintiff and
public trust.4 defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil
Resident Marine Mammals and the human action.
petitioners also assert that through this case, this
court will have the opportunity to lower the The Rules provide that parties may only be natural
threshold for locus standi as an exercise of or juridical persons or entities that may be
"epistolary jurisdiction."5 authorized by statute to be parties in a civil action.

The zeal of the human petitioners to pursue their Basic is the concept of natural and juridical persons
desire to protect the environment and to continue to in our Civil Code:
define environmental rights in the context of actual
cases is commendable. However, the space for ARTICLE 37. Juridical capacity, which is the fitness
legal creativity usually required for advocacy of to be the subject of legal relations, is inherent in
issues of the public interest is not so unlimited that every natural person and is lost only through death.
it should be allowed to undermine the other values Capacity to act, which is the power to do acts with
protected by current substantive and procedural legal effect, is acquired and may be lost.
laws. Even rules of procedure as currently
formulated set the balance between competing
interests. We cannot abandon these rules when the Article 40 further defines natural persons in the
necessity is not clearly and convincingly presented. following manner:

The human petitioners, in G.R. No. 180771, want ARTICLE 40. Birth determines personality; but the
us to create substantive and procedural rights for conceived child shall be considered born for all
animals through their allegation that they can speak purposes that are favorable to it, provided it be born
for them. Obviously, we are asked to accept the later with the conditions specified 'in the following
premises that (a) they were chosen by the Resident article.
Marine Mammals of Tañon Strait; (b) they were
chosen by a representative group of all the species Article 44, on the other hand, enumerates the
of the Resident Marine Mammals; (c) they were concept of a juridical person:
able to communicate with them; and (d) they
received clear consent from their animal principals
ARTICLE 44. The following are juridical persons:
that they would wish to use human legal institutions
to pursue their interests. Alternatively, they ask us
to acknowledge through judicial notice that the (1) The State and its political subdivisions;
interests that they, the human petitioners, assert
are identical to what the Resident Marine Mammals (2) Other corporations, institutions and
would assert had they been humans and the legal entities for public interest or purpose,
strategies that they invoked are the strategies that created by law; their personality begins as
they agree with. soon as they have been constituted
according to law;
In the alternative, they want us to accept through
judicial notice that there is a relationship of (3) Corporations, partnerships and
guardianship between them and all the resident associations for private interest or purpose
mammals in the affected ecology. to which the law grants a juridical
 personality, separate and distinct from that petitioners are authorized by law or the Rules to act
of each shareholder, partner or member. in a representative capacity.

Petitioners in G.R. No. 180771 implicitly suggest The Resident Marine Mammals are comprised of
that we amend, rather than simply construe, the "toothed whales, dolphins, porpoises, and other
provisions of the Rules of Court as well as cetacean species inhabiting Tañon Strait."12 While
substantive law to accommodate Resident Marine relatively new in Philippine jurisdiction, the issue of
Mammals or animals. This we cannot do. whether animals have legal standing before courts
has been the subject of academic discourse in light
Rule 3, Section 2 of the 1997 Rules of Civil of the emergence of animal and environmental
Procedure further defines real party in interest: rights.

SEC. 2. Parties in interest.-A real party in interest is In the United States, anim4l rights advocates have
the party who stands to be benefited or injured by managed to establish a system which Hogan
the judgment in the suit, or the party entitled to the explains as the "guardianship model for nonhuman
avails of the suit. Unless otherwise authorized by animals":13
law or these Rules, every action must be
prosecuted or defended in the name of the real Despite Animal Lovers, there exists a well-
party in interest. (2a)6 established system by which nonhuman animals
may obtain judicial review to enforce their statutory
A litigant who stands to benefit or sustain an injury rights and protections: guardianships. With court
from the judgment of a case is a real party in approval, animal advocacy organizations may bring
interest.7 When a case is brought to the courts, the suit on behalf of nonhuman animals in the same
real party in interest must show that another party's way court-appointed guardians bring suit on behalf
act or omission has caused a direct injury, making of mentally-challenged humans who possess an
his or her interest both material and based on an enforceable right but lack the ability to enforce it
enforceable legal right.8 themselves.

Representatives as parties, on the other hand, are In the controversial but pivotal Should Trees Have
parties acting in representation of the real party in Standing?-Toward Legal Rights for Natural Objects,
interest, as defined in Rule 3, Section 3 of the 1997 Christopher D. Stone asserts that the environment
Rules of Civil Procedure: should possess the right to seek judicial redress
even though it is incapable of representing itself.
While asserting the rights of
SEC. 3. Representatives as parties. - Where the
action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary speechless entities such as the environment or
capacity, the beneficiary shall be included in the title nonhuman animals certainly poses legitimate
of the case and shall be deemed to be the real challenges - such as identifying the proper
party in interest. A representative may be a trustee spokesman -the American legal system is already
of an express rust, a guardian, an executor or well-equipped with a reliable mechanism by which
administrator, or a party authorized by law or these nonhumans may obtain standing via a judicially
Rules. An agent acting in his own name and for the established guardianship. Stone notes that other
benefit of an undisclosed principal may sue or be speechless - and nonhuman - entities such as
sued without joining the principal except when the corporations, states, estates, and municipalities
contract involves things belonging to the principal. have standing to bring suit on their own behalf.
(3a)9 There is little reason to fear abuses under this
regime as procedures for removal and substitution,
avoiding conflicts of interest, and termination of a
The rule is two-pronged. First, it defines .a guardianship are well established.
representative as a party who is not bound to
directly or actually benefit or suffer from the
judgment, but instead brings a case in favor of an In fact, the opinion in Animal Lovers suggests that
identified real party in interest. 10 The representative such an arrangement is indeed possible. The court
is an outsider to the cause of action. Second, the indicated that AL VA might have obtained standing
rule provides a list of who may be considered as in its own right if it had an established history of
"representatives." It is not an exhaustive list, but the dedication to the cause of the humane treatment of
rule limits the coverage only to those authorized by animals. It noted that the Fund for Animals had
law or the Rules of Court.11 standing and indicated that another more well-
known advocacy organization might have had
standing as well. The court further concluded that
These requirements should apply even in cases an organization's standing is more than a derivative
involving the environment, which means that for the of its history, but history is a relevant consideration
Petition of the human petitioners to prosper, they where organizations are not well-established prior
must show that (a) the Resident Marine Mammals to commencing legal action. ALVA was not the
are real parties in interest; and (b) that the human proper plaintiff because it could not identify previous
activities demonstrating its recognized activism for
and commitment to the dispute independent of its Animals play an important role in households,
desire to pursue legal action. The court's analysis communities, and the environment. While we, as
suggests that a qualified organization with a humans, may feel the need to nurture and protect
demonstrated commitment to a cause could indeed them, we cannot go as far as saying we represent
bring suit on behalf of the speechless in the form of their best interests and can, therefore, speak for
a court-sanctioned guardianship. them before the courts. As humans, we cannot be
so arrogant as to argue that we know the suffering
This Comment advocates a shift in contemporary of animals and that we know what remedy they
standing doctrine to empower non-profit need in the face of an injury.
organizations with an established history of
dedication to the cause and relevant expertise to Even in Hogan's discussion, she points out that in a
serve as official guardians ad !item on behalf of case before the United States District Court for the
nonhuman animals interests. The American legal Central District of California, Animal Lovers
system has numerous mechanisms for representing Volunteer Ass'n v. Weinberger,15 the court held that
the rights and interests of nonhumans; any an emotional response to what humans perceive to
challenges inherent in extending these pre-existing be an injury inflicted on an animal is not within the
mechanisms to nonhuman animals are minimal "zone-of-interest" protected by law.16Such sympathy
compared to an interest in the proper administration cannot stand independent of or as a substitute for
of justice. To adequately protect the statutory rights an actual injury suffered by the claimant. 17 The
of nonhuman animals, the legal system must ability to represent animals was further limited in
recognize those statutory rights independent of that case by the need to prove "genuine dedication"
humans and provide a viable means of to asserting and protecting animal rights:
enforcement. Moreover, the idea of a guardianship
for speechless plaintiffs is not new and has been What ultimately proved fatal to ALVA 's claim,
urged on behalf of the natural environment. 'Such a however, was the court's assertion that standing
model is even more compelling as applied to doctrine further required ALVA to differentiate its
nonhuman animals, because they are sentient genuine dedication to the humane treatment of
beings with the ability to feel pain and exercise animals from the general disdain for animal cruelty
rational thought. Thus, animals are qualitatively shared by the public at large. In doing so, the court
different from other legally protected nonhumans found ALVA 's asserted organizational injury to be
and therefore have interests deserving direct legal abstract and thus relegated ALVA to the ranks of
protection. the "concerned bystander. "

Furthermore, the difficulty of enforcing the statutory ....

rights of nonhuman animals threatens the integrity
of the federal statutes designed to protect them,
essentially rendering them meaningless. Sensing In fact, the opinion in Animal Lovers suggests that
that laws protecting nonhuman animals would be such an arrangement is indeed possible. The court
difficult to enforce, Congress provided for citizen indicated that ALVA might have obtained standing
suit provisions: the most well-known example is in its own right if it had an established history of
found in the Endangered Species Act (ESA). Such dedication to the cause of the humane treatment of
provisions are evidence of legislative intent to animals. It noted that the Fund for Animals had
encourage civic participation on behalf of standing and indicated that another more well-
nonhuman animals. Our law of standing should known advocacy organization might have had
reflect this intent and its implication that humans are standing as well. The court further concluded that
suitable representatives of the natural environment, an organization's standing is more than a derivative
which includes nonhuman animals.14 (Emphasis of its history, but history is a relevant consideration
supplied, citation omitted) where organizations are not well-established prior
to commencing legal action. ALVA was not the
proper plaintiff because it could not identify previous
When a court allows guardianship as a basis of activities demonstrating its recognized activism for
representation, animals are considered as similarly and commitment to the dispute independent of its
situated as individuals who have enforceable rights desire to pursue legal action. The court's analysis
but, for a legitimate reason (e.g., cognitive suggests that a qualified organization with a
disability), are unable to bring suit for themselves. demonstrated commitment to a cause could indeed
They are also similar to entities that by their very bring suit on behalf of the speechless in the form of
nature are incapable of speaking for themselves a court-sanctioned guardianship.18(Emphasis
(e.g., corporations, states, and others). supplied, citation omitted)

In our jurisdiction, persons and entities are What may be argued as being parallel to this
recognized both in law and the Rules of Court as concept of guardianship is the principle of human
having standing to sue and, therefore, may be stewardship over the environment in a citizen suit
properly represented as real parties in interest. The under the Rules of Procedure for Environmental
same cannot be said about animals. Cases. A citizen suit allows any Filipino to act as a
representative of a party who has enforceable rights
under environmental laws before Philippine courts, restrain itself from assuming that it can speak best
and is defined in Section 5: . for those who will exist at a different time, under a
different set of circumstances. In essence, the
SEC. 5. Citizen suit. - Any Filipino citizen in unbridled resort to representative suit will inevitably
representation of others, including minors or result in preventing future generations from
generations yet unborn, may file an action to protecting their own rights and pursuing their own
enforce rights or obligations under environmental interests and decisions. It reduces the autonomy of
laws. Upon the filing of a citizen suit, the court shall our children and our children 's children. Even
issue an order which shall contain a brief before they are born, we again restricted their ability
description of the cause of action and the reliefs to make their own arguments.
prayed for, requiring all interested parties to
manifest their interest to intervene in the case within It is my opinion that, at best, the use of the Oposa
fifteen (15) days from notice thereof. The plaintiff doctrine in environmental cases should be allowed
may publish the order once in a newspaper of a only when a) there is a clear legal basis for the
general circulation in the Philippines or furnish all representative suit; b) there are actual concerns
affected barangays copies of said order. based squarely upon an existing legal right; c) there
is no possibility of any countervailing interests
There is no valid reason in law or the practical existing within the population represented or those
requirements of this case to implead and feign that are yet to be born; and d) there is an absolute
representation on behalf of animals. To have done necessity for such standing because there is a
so betrays a very anthropocentric view of threat of catastrophe so imminent that an
environmental advocacy. There is no way that we, immediate protective measure is necessary. Better
humans, can claim to speak for animals let alone still, in the light of its costs and risks, we abandon
present that they would wish to use our court the precedent all together.23 (Emphasis in the
system, which is designed to ensure that humans original)
seriously carry their responsibility including
ensuring a viable ecology for themselves, which of Similarly, in Paje:
course includes compassion for all living things.
A person cannot invoke the court's jurisdiction if he
Our rules on standing are sufficient and need not be or she has no right or interest to protect. He or she
further relaxed. who invokes the court's jurisdiction must be the
"owner of the right sought to be enforced." In other
In Arigo v. Swift,19 I posed the possibility of further words, he or she must have a cause of action. An
reviewing the broad interpretation we have given to action may be dismissed on the ground of lack of
the rule on standing. While representatives are not cause of action if the person who instituted it is not
required to establish direct injury on their part, they the real party in interest.24 The term "interest" under
should only be allowed to represent after complying the Rules of Court must refer to a material interest
with the following: [I]t is imperative for them to that is not merely a curiosity about or an "interest in
indicate with certainty the injured parties on whose the question involved." The interest must be present
behalf they bring the suit. Furthermore, the interest and substantial. It is not a mere expectancy or a
of those they represent must be based upon future, contingent interest.
concrete legal rights. It is not sufficient to draw out a
perceived interest from a general, nebulous idea of A person who is not a real party in interest may
a potential "injury."20 institute an action if he or she is suing as
representative of a .real party in interest. When an
I reiterate my position in Arigo v. Swift and in Paje v. action is prosecuted or defended by a
Casiño21 regarding this rule alongside the representative, that representative is not and does
appreciation of legal standing in Oposa v. not become the real party in interest. The person
Factoran22 for environmental cases. In Arigo, I represented is deemed the real party in interest.
opined that procedural liberality, especially in cases The representative remains to be a third party to the
brought by representatives, should be used with action instituted on behalf of another.
great caution:
....
Perhaps it is time to revisit the ruling in Oposa v.
Factoran. To sue under this rule, two elements must be
present: "(a) the suit is brought on behalf of an
That case was significant in that, at that time, there identified party whose right has been violated,
was need to call attention to environmental resulting in some form of damage, and (b) the
concerns in light of emerging international legal representative authorized by law or the Rules of
principles. While "intergenerational responsibility" is Court to represent the victim."
a noble principle, it should not be used to obtain
judgments that would preclude future generations The Rules of Procedure for Environmental Cases
from making their own assessment based on their allows filing of a citizen's suit. A citizen's suit under
actual concerns. The present generation must this rule allows any Filipino citizen to file an action
for the enforcement of environmental law on behalf unwarranted consequences should follow. I concur
of minors or generations yet unborn. It is essentially with the approach of Madame Justice Teresita J.
a representative suit that allows persons who are Leonardo-De Castro in her brilliant ponencia as it
not real parties in interest to institute actions on carefully narrows down the doctrine in terms of
behalf of the real party in interest. standing. Resident Marine Mammals and the
human petitioners have no legal standing to file any
The expansion of what constitutes "real party in kind of petition.
interest" to include minors and generations yet
unborn is a recognition of this court's ruling in However, I agree that petitioners in G.R. No.
Oposa v. Factoran. This court recognized the 181527, namely, Central Visayas Fisherfolk
capacity of minors (represented by their parents) to Development Center,. Engarcial, Yanong, and
file a class suit on behalf of succeeding generations Labid, have standing both as real parties in interest
based on the concept of intergenerational and as representatives of subsistence fisherfolks of
responsibility to ensure the future generation's the Municipalities of Aloguinsan and
access to and enjoyment of [the] country's natural Pinamungahan, Cebu, and their families, and the
resources. present and future generations of Filipinos whose
rights are similarly affected. The activities
To allow citizen's suits to enforce environmental undertaken under Service Contract 46 (SC-46)
rights of others, including future generations, is directly affected their source of livelihood, primarily
dangerous for three reasons: felt through the significant reduction of their fish
harvest.27 The actual, direct, and material damage
they suffered, which has potential long-term effects
First, they run the risk of foreclosing arguments of transcending generations, is a proper subject of a
others who are unable to take part in the suit, legal suit.
putting into. question its representativeness.
Second, varying interests may potentially result in
arguments that are bordering on political issues, the III
resolutions of which do not fall upon this court.
Third, automatically allowing a class or citizen's suit In our jurisdiction, there is neither reason nor any
on behalf of minors and generations yet unborn legal basis for the concept of implied petitioners,
may result in the oversimplification of what may be most especially when the implied petitioner was a
a complex issue, especially in light of the sitting President of the Republic of the Philippines.
impossibility of determining future generation's true In G.R. No. 180771, apart from adjudicating unto
interests on the matter. themselves the status of "legal guardians" of
whales, dolphins, porpoises, and other cetacean
In citizen's suits, persons who may have no interest species, human petitioners also impleaded Former
in the case may file suits for others. Uninterested President Gloria Macapagal-Arroyo as "unwilling
persons will argue for the persons they represent, co-petitioner" for "her express declaration and
and the court will decide based on their evidence undertaking in the ASEAN Charter to protect Tañon
and arguments. Any decision by the court will be Strait."28
binding upon the beneficiaries, which in this case
are the minors and the future generations. The No person may implead any other person as a co-
court's decision will be res judicata upon them and plaintiff or co-petitioner without his or her consent.
conclusive upon the issues presented.25 In our jurisdiction, only when there is a party that
should have been a necessary party but was
The danger in invoking Oposa v. Factoran to justify unwilling to join would there be an allegation as to
all kinds of environmental claims lies in its potential why that party has been omitted. In Rule 3, Section
to diminish the value of legitimate environmental 9 of the 1997 Rules of Civil Procedure:
rights. Extending the application of "real party in
interest" to the Resident Marine Mammals, or SEC. 9. Non-joinder of necessary parties to be
animals in general, through a judicial pleaded. -Whenever in any pleading in which a
pronouncement will potentially result in allowing claim is asserted a necessary party is not joined,
petitions based on mere concern rather than an the pleader shall set forth his name, if known, and
actual enforcement of a right. It is impossible for shall state why he is omitted. Should the court find
animals to tell humans what their concerns are. At the reason for the omission unmeritorious, it may
best, humans can only surmise the extent of injury order the inclusion of the omitted necessary party if
inflicted, if there be any. Petitions invoking a right jurisdiction over his person may be obtained.
and seeking legal redress before this court cannot
be a product of guesswork, and representatives The failure to comply with the order for his
have the responsibility to ensure that they bring inclusion, without justifiable cause, shall be deemed
"reasonably cogent, rational, scientific, well-founded a waiver of the claim against such party.
arguments"26 on behalf of those they represent.
The non-inclusion of a necessary party does not
Creative approaches to fundamental problems prevent the court from proceeding in the action, and
should be welcome. However, they should be
considered carefully so that no unintended or
the judgment rendered therein shall be without preferential use of communal marine and fishing
prejudice to the rights of such necessary party.29 resources.35

A party who should have been a plaintiff or VI

petitioner but whose consent cannot be obtained
should be impleaded as a defendant in the nature Article XII, Section 2 of the 1987 Constitution
of an unwilling co-plaintiff under Rule 3, Section 10 states:
of the 1997 Rules of Civil Procedure:
Section 2. All lands of the public domain, waters,
SEC. 10. Unwilling co-plaintiff. - If the consent of minerals, coal, petroleum, and other mineral oils, all
any party who should be joined as plaintiff can not forces of potential energy, fisheries, forests or
be obtained, he may be made a defendant and the timber, wildlife, flora and fauna, and other natural
reason therefor shall be stated in the complaint.30 resources are owned by the State. With the
exception. of agricultural lands, all other natural
The reason for this rule is plain: Indispensable party resources shall not be alienated. The exploration,
plaintiffs who should be part of the action but who development, and utilization of natural resources
do not consent should be put within the jurisdiction shall be under the full control and supervision of the
of the court through summons or other court State. The State may directly undertake such
processes. Petitioners. should not take it upon activities, or it may enter into co-production, joint
themselves to simply imp lead any party who does venture, or production-sharing agreements with
not consent as a petitioner. This places the Filipino citizens, or corporations or associations at
unwilling co-petitioner at the risk of being denied least sixty per centum of whose capital is owned by
due process. such citizens. Such agreements may be for a period
not exceeding twenty-five years, renewable for not
Besides, Former President Gloria Macapagal- more than twenty-five years, and under such terms
Arroyo cannot be a party to this suit. As a co-equal and conditions as may be provided by law. In cases
constitutional department, we cannot assume that of water rights for irrigation, water supply fisheries,
the President needs to enforce policy directions by or industrial uses other than the development of
suing his or her alter-egos. The procedural situation water power, beneficial use may be the measure
caused by petitioners may have gained public and limit of the grant.
attention, but its legal absurdity borders on the
contemptuous. The Former President's name The State shall protect the nation's marine wealth in
should be stricken out of the title of this case. its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
IV exclusively to Filipino citizens.

I also concur with the conclusion that SC-46 is both. The Congress may, by law, allow small-scale
illegal and unconstitutional. utilization of natural resources by Filipino citizens,
as well as cooperative fish farming, with priority to
subsistence fishermen and fish-workers in rivers,
SC-46 is illegal because it violates Republic Act No. lakes, bays, and lagoons.
·7586 or the National Integrated Protected Areas
System Act of 1992, and Presidential Decree No.
1234,31 which declared Tañon Strait as a protected The President may enter into agreements with
seascape. It is unconstitutional because it violates foreign-owned corporations involving either
the fourth paragraph of Article XII, Section 2 of the technical or financial assistance for large-scale
Constitution. exploration, development, and utilization of
minerals, petroleum, and other mineral oils
according to the general terms and conditions
V provided by law, based on real contributions to the
economic growth and general welfare of the
Petitioner Central Visayas Fisherfolk Development country. In such agreements, the State shall
Center asserts that SC-46 violated Article XII, promote the development and use of local scientific
Section 2, paragraph 1 of the .1987 Constitution and technical resources.
because Japan Petroleum Exploration Co., Ltd.
(JAPEX) is 100% Japanese-owned.32 It further The President shall notify the Congress of every
asserts that SC-46 cannot be validly classified as a contract entered into in accordance with this
technical and financial assistance agreement provision, within thirty days from its execution.
executed under Article XII, Section 2, paragraph 4 (Emphasis supplied)
of the 1987 Constitution.33 Public respondents
counter that SC-46 does not fall under the coverage
of paragraph 1, but is a validly executed contract I agree that fully foreign-owned corporations may
under paragraph 4.34· Public respondents further participate in the exploration, development, and use
aver that SC-46 neither granted exclusive fishing of natural resources, but only through either
rights to JAPEX nor violated Central Visayas financial agreements or technical ones. This is the
Fisherfolk Development Center's right to
clear import of the words "either financial or product of a full sovereign act: deliberations in a
technical assistance agreements." This is also constituent assembly and ratification. Reliance on
recorded discussion of Constitutional Commissions,
the clear result if we compare the 1987 on the other hand, may result in dependence on
constitutional provision with the versions in the incomplete authorship; Besides, it opens judicial
1973 and 1935 Constitution: review to further subjectivity from those who spoke
during the Constitutional Commission deliberations
who may not have predicted how their words will be
1973 CONSTITUTION used. It is safer that we use the words already in
the Constitution. The Constitution was their product.
ARTICLE XIV Its words were read by those who ratified it. The
THE NATIONAL ECONOMY AND THE Constitution is what society relies upon even at
PATRIMONY OF THE NATION present.

SEC. 9. The disposition, exploration, development, SC-46 is neither a financial assistance nor a
of exploitation, or utilization of any of the natural technical assistance agreement.
resources of the Philippines shall be limited to
citizens of the Philippines, or to corporations or Even supposing for the sake of argument that it is, it
association at least sixty per centum of the capital could not be declared valid in light of the standards
of which is owned by such citizens. The Batasang set forth in La Bugal-B'laan Tribal Association, Inc.
Pambansa, in the national interest, may allow such v. Ramos:36
citizens, corporations, or associations to enter into
service contracts for financial, technical,
management, or other forms of assistance with any Such service contracts may be entered into only
foreign person or entity for the exploitation, with respect to minerals, petroleum and other
development, exploitation, or utilization of any of the mineral oils. The grant thereof is subject to several
natural resources. Existing valid and binding service safeguards, among which are these requirements:
contracts for financial, the technical, management,
or other forms of assistance are hereby recognized (1) The service contract shall be crafted m
as such. (Emphasis supplied) accordance with a general law that will set
standard or uniform terms, conditions and
1935 CONSTITUTION requirements, presumably to attain a
certain uniformity in provisions and avoid
the possible insertion of terms
ARTICLE XIII disadvantageous to the country.
CONSERVATION AND UTILIZATION OF
NATURAL RESOURCES
(2) The President shall be the signatory for
the government because, supposedly
SECTION 1. All agricultural timber, and mineral. before an agreement is presented to the
lands of the public domain, waters, minerals, coal, President for signature, it will have been
petroleum, and other mineral oils, all forces of vetted several times over at different levels
potential energy, and other natural resources of the to ensure that it conforms to law and can
Philippines belong to the State, and their withstand public scrutiny.
disposition, exploitation, development, or utilization
shall be limited to citizens of the Philippines, or to
corporations or associations at least sixty per (3) Within thirty days of the executed
centum of the capital of which is owned by such agreement, the President shall report it to
citizens, subject to any existing right, grant, lease, Congress to give that branch of
or concession at the time of the inauguration of the government an opportunity to look over the
Government established under this Constitution. agreement and interpose timely
Natural resources, with the exception of public objections, if any.37 (Emphasis in the
agricultural land, shall not be alienated, and no original, citation omitted)
license, concession, or lease for the exploitation,
development, or utilization of any of the natural Based on the standards pronounced in La Bugal,
resources shall be granted for a period exceeding SC-46' S validity must be tested against three
twenty-five years, renewable for another twenty-five important points: (a) whether SC-46 was crafted in
years, except as to water rights for irrigation, water accordance with a general law that provides
supply, fisheries, or industrial uses other than the standards, terms, and conditions; (b) whether SC-
development of water power, in which cases 46 was signed by the President for and on behalf of
beneficial use may be the measure and the limit of the government; and (c) whether it was reported by
the grant. the President to Congress within 30 days of
execution.
The clear text of the Constitution in light of its
history prevails over any attempt to infer VII
interpretation from the Constitutional Commission
deliberations. The constitutional texts are the
The general law referred to as a possible basis for Tañon Strait and, therefore, no such activities could
SC-46's validity is Presidential Decree No. 87 or the have been validly undertaken under SC-46. The
Oil Exploration and Development Act of National Integrated Protected Areas System Act of
1972.1âwphi1 It is my opinion that this law is 1992 is clear that exploitation and utilization of
unconstitutional in that it allows service contracts, energy resources in a protected seascape such as
contrary to Article XII, Section 2 of the 1987 Tañon Strait shall only be allowed through a
Constitution: specific law.

The President may enter into agreements with VIII

foreign-owned corporations involving either
technical or financial assistance for large-scale Former President Gloria Macapagal-Arroyo was not
exploration, development, and utilization of the signatory to SC-46, contrary to the requirement
minerals, petroleum, and other mineral oils set by paragraph 4 of Article XII, Section 2 for
according to the general terms and conditions service contracts involving the exploration of
provided by law, based on real contributions to the petroleum. SC-46 was entered into by then
economic growth and general welfare of the Department of Energy Secretary Vicente S. Perez,
country. In such agreements, the State shall Jr., on behalf of the government. I agree with the
promote the development and use of local scientific Main Opinion that in cases where the Constitution
and technical resources. (Emphasis supplied) or law requires the President to act personally on
the matter, the duty cannot be delegated to another
The deletion of service contracts from the public official.41 La Bugal highlights the importance
enumeration of the kind of agreements the of the President's involvement, being one of the
President may enter into with foreign-owned constitutional safeguards against abuse and
corporations for exploration and utilization of corruption, as not mere formality:
resources means that service contracts are no
longer allowed by the Constitution. Pursuant to At this point, we sum up the matters established,
Article XVIII, Section 3 of the 1987 based on a careful reading of the ConCom
Constitution,38 this inconsistency renders the law deliberations, as follows:
invalid and ineffective.
• In their deliberations on what was to
SC-46 suffers from the lack of a special law become paragraph 4, the framers used the
allowing its activities. The Main Opinion term service contracts in referring to
emphasizes an important point, which is that SC-46 agreements x x x involving either technical
did not merely involve exploratory activities, but or financial assistance. • They spoke of
also provided the rights and obligations of the service contracts as the concept was
parties should it be discovered that there is oil in understood in the 1973 Constitution.
commercial quantities in the area. The Tañon Strait
being a protected seascape under Presidential
Decree No. 123439 requires that the exploitation and • It was obvious from their discussions that
utilization of energy resources from that area are they were not about to ban or eradicate
explicitly covered by a law passed by Congress service contracts.
specifically for that purpose, pursuant to Section 14
of Republic Act No. 7586 or the National Integrated • Instead, they were plainly crafting
Protected Areas System Act of 1992: provisions to. put in place safeguards that
would eliminate or m minimize the abuses
SEC. 14. Survey for Energy R6'sources. - prevalent during the marital law
Consistent with the policies declared in Section 2, regime.42 (Emphasis in the original)
hereof, protected areas, except strict nature
reserves and natural parks, may be subjected to Public respondents failed to show that. Former
exploration only for the purpose of gathering President Gloria Macapagal-Arroyo was involved in
information on energy resources and only if such the signing or execution of SC-46. The failure to
activity is carried out with the least damage to comply with this constitutional requirement renders
surrounding areas. Surveys shall be conducted only SC-46 null and void.
in accordance with a program approved by the
DENR, and the result of such surveys shall be IX
made available to the public and submitted to the
President for recommendation to Congress. Any
exploitation and utilization of energy resources Public respondents also failed to show that
found within NIP AS areas shall be allowed only Congress was subsequently informed of the
through a law passed by Congress. 40 (Emphasis execution and existence of SC-46. The reporting
supplied) requirement is an equally important requisite to the
validity of any service contract involving the
exploration, development, and utilization of
No law was passed by Congress specifically Philippine petroleum. Public respondents' failure to
providing the standards, terms, and conditions of an report to Congress about SC-46 effectively took
oil exploration, extraction, and/or utilization for
away any opportunity for the legislative branch to Pursuant to this law, any proposed activity in Tañon
scrutinize its terms and conditions. Strait must undergo an Environmental Impact
Assessment:
In sum, SC-46 was executed and implemented
absent all the requirements provided under SEC. 12. Environmental Impact Assessment. -
paragraph 4 of Article XII, Section 2. It is, therefore, Proposals for activities which are outside the scope
null and void. of the management plan for protected areas shall
be subject to an environmental impact assessment
X as required by law before they are adopted, and the
results thereof shall be taken into consideration in
the decision-making process.45(Emphasis supplied)
I am of the view that SC-46, aside from not having
complied with the 1987 Constitution, is also null and
void for being violative of environmental laws The same provision further requires that an
protecting Tañon Strait. In particular, SC-46 was Environmental Compliance Certificate be secured
implemented despite falling short of the under the Philippine Environmental Impact
requirements of the National Integrated Protected Assessment System before arty project is
Areas System Act of 1992. implemented:

As a protected seascape under Presidential Decree No actual implementation of such activities shall be
No. 1234,43 Tañon Strait is covered by the National allowed without the required Environmental
Integrated Protected Areas System Act of 1992. Compliance Certificate (ECC) under the Philippine
This law declares as a matter of policy: Environment Impact Assessment (EIA) system. In
instances where such activities are allowed to be
undertaken, the proponent shall plan and carry
SEC. 2. Declaration of Policy. Cognizant of the them out in such manner as will minimize any
profound impact of man's activities on all adverse effects and take preventive and remedial
components of the natural environment particularly action when appropriate. The proponent shall be
the effect of increasing population, resource liable for any damage due to lack of caution or
exploitation and industrial advancement and indiscretion.46 (Emphasis supplied)
recognizing the critical importance of protecting and
maintaining the natural biological and physical
diversities of the environment notably on areas with In projects involving the exploration or utilization of
biologically unique features to sustain human life energy resources, the National Integrated Protected
and development, as well as plant and animal life, it Areas System Act of 1992 additionally requires that
is hereby declared the policy of the State to secure a program be approved by the Department of
for the Filipino people of present and future Environment and Natural Resources, which shall be
generations the perpetual existence of all native publicly accessible. The program shall also be
plants and animals through the establishment of a submitted to the President, who in turn will
comprehensive system of integrated protected recommend the program to Congress. Furthermore,
areas within the classification of national park as Congress must enact a law specifically allowing the
provided for in the Constitution. exploitation of energy resources found within a
protected area such as Tañon Strait:
It is hereby recognized that these areas, although
distinct in features, possess common ecological SEC. 14. Survey for Energy Resources. -
values that may be incorporated into a holistic plan Consistent with the policies declared in Section 2,
representative of our natural heritage; that effective hereof, protected areas, except strict nature
administration of these areas is possible only reserves and natural parks, may be subjected to
through cooperation among national government, exploration only for the purpose of gathering
local and concerned private organizations; that the information on energy resources and only if such
use and enjoyment of these protected areas must activity is carried out with the least damage to
be consistent with the principles of biological surrounding areas. Surveys shall be conducted only
diversity and sustainable development. in accordance with a program approved by the
DENR, and the result of such surveys shall be
made available to the public and submitted to the
To this end, there is hereby established a National President for recommendation to Congress. Any
Integrated Protected Areas System (NIPAS), which exploitation and utilization of energy resources
shall encompass outstanding remarkable areas and found within NIPAS areas shall be allowed only
biologically important public lands that are habitats through a taw passed by Congress. 47 (Emphasis
of rare and endangered species of plants and supplied)
animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland or marine,
all of which shall be designated as "protected Public respondents argue that SC-46 complied with
areas."44 (Emphasis supplied) the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate,
they assert that the activities covered by SC-46 fell
under Section 14 of the National Integrated
Protected Areas System Act of 1992, which they
interpret to be an exception to Section 12. They (c) to DECLARE SERVICE CONTRACT
argue that the Environmental Compliance 46 NULL AND VOID for violating the 1987
Certificate is not a strict requirement for the validity Constitution, Republic Act No. 7586, and
of SC-46 since (a) the Tañon Strait is not a nature' Presidential Decree No. 1234.
reserve or natural park; (b) the exploration was
merely for gathering information; and ( c) measures MARVIC M.V.F. LEONEN
were in place to ensure that the exploration caused Associate Justice
the least possible damage to the area.49

Section 14 is not an exception to Section 12, but

instead provides additional requirements for cases United States Supreme Court
involving Philippine energy resources. The National
Integrated Protected Areas System Act of 1992 was CARINO v. INSULAR GOVERNMENT OF
enacted to recognize the importance of protecting PHILIPPINE ISLANDS(1909)
the environment in light of resource exploitation, No. 72
among others.50 Systems are put in place to secure Argued: January 13, 1909    Decided:
for Filipinos local resources under the most February 23, 1909
favorable conditions. With the status of Tañon Strait
as a protected seascape, the institution of additional [212 U.S. 449, 450]   Messrs. Frederic R. Coudert,
legal safeguards is even more significant. Howard Thayer Kingsbury, Charles C. Cohn, D. R.
Williams, and Paul Fuller for plaintiff in error.
Public respondents did not validly obtain an [212 U.S. 449, 453]   Solicitor General Hoyt and
Environmental Compliance Certificate for SC-46. Paul Charlton for defendant in error.
Based on the records, JAPEX commissioned an
environmental impact evaluation only in the second [212 U.S. 449, 455]  
subphase of its project, with the Environmental
Management .Bureau of Region
Mr. Justice Holmes delivered the opinion of the
court:
VII granting the project an Environmental
Compliance Certificate on March 6, 2007.51 This was an application to the Philippine court of
land registration for the registration of certain land.
Despite its scale, the seismic surveys from May 9 to The application was granted by the court on March
18, 2005 were conducted without any 4, 1904. An appeal was taken to the court of first
environmental assessment contrary to Section 12 of instance of the province of Benguet, on behalf of the
the National Integrated Protected Areas System Act government of the Philippines, and also on behalf of
of 1992. the United States, those governments having taken
possession of the property for public and military
purposes. The court of first instance found the facts
XI and dismissed the application upon grounds of law.
This judgment was affirmed by the supreme court
Finally, we honor every living creature when we (7 Philippine, 132 ), and the case then was brought
take care of our environment. As sentient species, here by writ of error.
we do not lack in the wisdom or sensitivity to realize
that we only borrow the resources that we use to The material facts found are very few. The applicant
survive and to thrive. We are not incapable of and plaintiff in error is an Igorot of the province of
mitigating the greed that is slowly causing the Benguet, where the land lies. For more than fifty
demise of our planet. Thus, there is no need for us years before the treaty of [212 U.S. 449, 456]   Paris,
to feign representation of any other species or April 11, 1899 [30 Stat. at L. 1754], as far back as the
some imagined unborn generation in filing any findings go, the plaintiff and his ancestors had held
action in our courts of law to claim any of our the land as owners. His grandfather had lived upon
fundamental rights to a healthful ecology. In this it, and had maintained fences sufficient for the
way and with candor and courage, we fully shoulder holding of cattle, according to the custom of the
the responsibility deserving of the grace and power country, some of the fences, it seems, having been
endowed on our species. of much earlier date. His father had cultivated parts
and had used parts for pasturing cattle, and he had
ACCORDINGLY, I vote: used it for pasture in his turn. They all had been
recognized as owners by the Igorots, and he had
inherited or received the land from his father, in
(a) to DISMISS G.R. No. 180771 for lack accordance with Igorot custom. No document of
of standing and STRIKE OUT the name of title, however, had issued from the Spanish Crown,
Former President Gloria Macapagal- and although, in 1893-1894, and again in 1896-
Arroyo from the title of this case; 1897, he made application for one under the royal
decrees then in force, nothing seems to have come
(b) to GRANT G.R. No. 181527; and of it, unless, perhaps, information that lands in
Benguet could not be conceded until those to be
occupied for a sanatorium, etc., had been
designated,-a purpose that has been carried out by in form asserted a title to this land at the date of the
the Philippine government and the United States. In treaty of Paris, to which the United States
1901 the plaintiff filed a petition, alleging succeeded, it is not to be assumed without
ownership, under the mortgage law, and the lands argument that the plaintiff's case is at an end. It is
were registered to him, that process, however, true that Spain, in its earlier decrees, embodied the
establishing only a possessory title, it is said. universal feudal theory that all lands were held from
the Crown, and perhaps the general attitude of
Before we deal with the merits, we must dispose of a conquering nations toward people not recognized as
technical point. The government has spent some entitled to the treatment accorded to those[212 U.S.
energy in maintaining that this case should have 449, 458]   in the same zone of civilization with
been brought up by appeal, and not by writ of error. themselves. It is true, also, that, in legal theory,
We are of opinion, however, that the mode adopted sovereignty is absolute, and that, as against foreign
was right. The proceeding for registration is likened nations, the United States may assert, as Spain
to bills in equity to quiet title, but it is different in asserted, absolute power. But it does not follow
principle. It is a proceeding in rem under a statute that, as against the inhabitants of the Philippines,
of the type of the Torrens act, such as was discussed the United States asserts that Spain had such
in Tyler v. Registration Ct. Judges, 175 Mass. 71, 51 power. When theory is left on one side, sovereignty
L.R.A. 433, 55 N. E. 812. It is nearer to law than to is a question of strength, and may vary in degree.
equity, and is an assertion of legal title; but we think How far a new sovereign shall insist upon the
it unnecessary to put it into either pigeon hole. A theoretical relation of the subjects to the head in the
writ of error is the general method of bringing cases past, and how far it shall recognize actual facts, are
to this court, an appeal the exception, confined to matters for it to decide.
equity in the main. There is no reason for not
applying the general rule to this case. Ormsby v. The province of Benguet was inhabited by a tribe
Webb, 134 U.S. 47, 65 , 33 S. L. ed. 805, 812, 10 that the Solicitor General, in his argument,
Sup. Ct. Rep. 478; Campbell v. Porter, 162 U.S. 478 , characterized as a savage tribe that never was
40 L. ed. 1044, 16 Sup. Ct. Rep. 871; Metropolitan brought under the civil or military government of
R. Co. v. District of Columbia ( Metropolitan R. Co. the Spanish Crown. It seems probable, if not
v. Macfarland) 195 U.S. 322 , 49 L. ed. 219, 25 Sup. certain, that the Spanish officials would not have
Ct. Rep. 28. [212 U.S. 449, 457]   Another granted to anyone in that province the registration
preliminary matter may as well be disposed of here. to which formerly the plaintiff was entitled by the
It is suggested that, even if the applicant have title, Spanish laws, and which would have made his title
he cannot have it registered, because the Philippine beyond question good. Whatever may have been the
Commission's act No. 926, of 1903, excepts the technical position of Spain, it does not follow that,
province of Benguet among others from its in the view of the United States, he had lost all
operation. But that act deals with the acquisition of rights and was a mere trespasser when the present
new titles by homestead entries, purchase, etc., and government seized his land. The argument to that
the perfecting of titles begun under the Spanish law. effect seems to amount to a denial of native titles
The applicant's claim is that he now owns the land, throughout an important part of the island of
and is entitled to registration under the Philippine Luzon, at least, for the want of ceremonies which
Commission's act No. 496, of 1902, which the Spaniards would not have permitted and had
established a court for that purpose with not the power to enforce.
jurisdiction 'throughout the Philippine archipelago,'
2, and authorized in general terms applications to The acquisition of the Philippines was not like the
be made by persons claiming to own the legal estate settlement of the white race in the United States.
in fee simple, as the applicant does. He is entitled to Whatever consideration may have been shown to
registration if his claim of ownership can be the North American Indians, the dominant purpose
maintained. of the whites in America was to occupy the land. It
is obvious that, however stated, the reason for our
We come, then, to the question on which the case taking over the Philippines was different. No one,
was decided below,- namely, whether the plaintiff we suppose, would deny that, so far as consistent
owns the land. The position of the government, with paramount necessities, our first object in the
shortly stated, is that Spain assumed, asserted, and internal administration of the islands is to do justice
had title to all the land in the Philippines except so to the natives, not to exploit their country for
far as it saw fit to permit private titles to be private gain. By the organic act of July 1, 1902,
acquired; that there was no prescription against the chap. 1369, 12, 32 Stat. at L. 691, all the property
Crown, and that, if there was, a decree of June 25, and rights acquired there by the [212 U.S. 449,
1880, required registration within a limited time to 459]   United States are to be administered 'for the
make the title good; that the plaintiff's land was not benefit of the inhabitants thereof.' It is reasonable
registered, and therefore became, if it was not to suppose that the attitude thus assumed by the
always, public land; that the United States United States with regard to what was
succeeded to the title of Spain, and so that the unquestionably its own is also its attitude in
plaintiff has no rights that the Philippine deciding what it will claim for its own. The same
government is bound to respect. statute made a bill of rights, embodying the
safeguards of the Constitution, and, like the
If we suppose for the moment that the government's Constitution, extends those safeguards to all. It
contention is so far correct that the Crown of Spain provides that 'no law shall be enacted in said islands
which shall deprive any person of life, liberty, or If the applicant's case is to be tried by the law of
property without due process of law, or deny to any Spain, we do not discover such clear proof that it
person therein the equal protection of the laws.' 5. was bad by that law as to satisfy us that he does not
In the light of the declaration that we have quoted own the land. To begin with, the older decrees and
from 12, it is hard to believe that the United States laws cited by the counsel for the plaintiff in error
was ready to declare in the next breath that 'any seem to indicate pretty clearly that the natives were
person' did not embrace the inhabitants of Benguet, recognized as owning some lands, irrespective of
or that it meant by 'property' only that which had any royal grant. In other words, Spain did not
become such by ceremonies of which presumably a assume to convert all the native inhabitants of the
large part of the inhabitants never had heard, and Philippines into trespassers or even into tenants at
that it proposed to treat as public land what they, by will. For instance, Book 4, title 12, Law 14 of the
native custom and by long association,-one of the Recopilacion de Leyes de las Indias, cited for a
profoundest factors in human thought,-regarded as contrary conclusion in Valenton v. Murciano, 3
their own. Philippine, 537, while it commands viceroys and
others, when it seems proper, to call for the
It is true that, by 14, the government of the exhibition of grants, directs them to confirm those
Philippines is empowered to enact rules and who hold by good grants or justa prescripcion. It is
prescribe terms for perfecting titles to public lands true that it [212 U.S. 449, 461]   begins by the
where some, but not all, Spanish conditions had characteristic assertion of feudal overlordship and
been fulfilled, and to issue patents to natives for not the origin of all titles in the King or his
more than 16 hectares of public lands actually predecessors. That was theory and discourse. The
occupied by the native or his ancestors before fact was that titles were admitted to exist that owed
August 13, 1898. But this section perhaps might be nothing to the powers of Spain beyond this
satisfied if confined to cases where the occupation recognition in their books.
was of land admitted to be public land, and had not
continued for such a length of time and under such Prescription is mentioned again in the royal cedula
circumstances as to give rise to the understanding of October 15, 1754, cited in 3 Philippine, 546:
that the occupants were owners at that date. We 'Where such possessors shall not be able to produce
hesitate to suppose that it was intended to declare title deeds, it shall be sufficient if they shall show
every native who had not a paper title a trespasser, that ancient possession, as a valid title by
and to set the claims of all the wilder tribes afloat. It prescription.' It may be that this means possession
is true again that there is excepted from the from before 1700; but, at all events, the principle is
provision that we have quoted as to the admitted. As prescription, even against Crown
administration of the property and rights acquired lands, was recognized by the laws of Spain, we see
by the United States, such land and property as no sufficient reason for hesitating to admit that it
shall be designated by the President for military or was recognized in the Philippines in regard to lands
other reser- [212 U.S. 449, 460]   vations, as this over which Spain had only a paper sovereignty.
land since has been. But there still remains the
question what property and rights the United States The question comes, however, on the decree of June
asserted itself to have acquired. 25, 1880, for the adjustment of royal lands
wrongfully occupied by private individuals in the
Whatever the law upon these points may be, and we Philippine Islands. This begins with the usual
mean to go no further than the necessities of theoretic assertion that, for private ownership, there
decision demand, every presumption is and ought must have been a grant by competent authority; but
to be against the government in a case like the instantly descends to fact by providing that, for all
present. It might, perhaps, be proper and sufficient legal effects, those who have been in possession for
to say that when, as far back as testimony or certain times shall be deemed owners. For
memory goes, the land has been held by individuals cultivated land, twenty years, uninterrupted, is
under a claim of private ownership, it will be enough. For uncultivated, thirty. Art. 5. So that,
presumed to have been held in the same way from when this decree went into effect, the applicant's
before the Spanish conquest, and never to have father was owner of the land by the very terms of
been public land. Certainly in a case like this, if the decree. But, it is said, the object of this law was
there is doubt or ambiguity in the Spanish law, we to require the adjustment or registration
ought to give the applicant the benefit of the doubt. proceedings that it described, and in that way to
Whether justice to the natives and the import of the require every one to get a document of title or lose
organic act ought not to carry us beyond a subtle his land. That purpose may have been entertained,
examination of ancient texts, or perhaps even but it does not appear clearly to have been
beyond the attitude of Spanish law, humane though applicable to all. The regulations purport to have
it was, it is unnecessary to decide. If, in a tacit way, been made 'for the adjustment of royal lands
it was assumed that the wild tribes of the wrongfully occupied by private individuals.' (We
Philippines were to be dealt with as the power and follow the translation in the government's brief.) It
inclination of the conqueror might dictate, Congress does not appear that this land ever was royal land or
has not yet sanctioned the same course as the wrongfully occupied. In Article 6 it is provided that
proper one 'for the benefit of the inhabitants 'interested parties not included within the two
thereof.' preceding [212 U.S. 449, 462]  articles [the articles
recognizing prescription of twenty and thirty years]
may legalize their possession, and thereby acquire
the full ownership of the said lands, by means of among whom he lived, was his property, through a
adjustment proceedings, to be conducted in the refined interpretation of an almost forgotten law of
following manner.' This seems, by its very terms, Spain.
not to apply to those declared already to be owners
by lapse of time. Article 8 provides for the case of Judgment reversed.
parties not asking an adjustment of the lands of
which they are unlawfully enjoying the possession,
within one year, and threatens that the treasury 'will
reassert the ownership of the state over the lands,'
and will sell at auction such part as it does not
reserve. The applicant's possession was not
unlawful, and no attempt at any such proceedings EN BANC
against him or his father ever was made. Finally, it
should be noted that the natural construction of the G.R. No. 135385               December 6, 2000
decree is confirmed by the report of the council of
state. That report puts forward as a reason for the ISAGANI CRUZ and CESAR
regulations that, in view of the condition of almost EUROPA, petitioners, 
all property in the Philippines, it is important to fix
vs.
its status by general rules, on the principle that the
SECRETARY OF ENVIRONMENT AND NATURAL
lapse of a fixed period legalizes completely all
RESOURCES, SECRETARY OF BUDGET AND
possession; recommends in two articles twenty and
MANAGEMENT and CHAIRMAN and
thirty years, as adopted in the decree; and then
COMMISSIONERS OF THE NATIONAL
suggests that interested parties not included in
COMMISSION ON INDIGENOUS
those articles may legalize their possession and
PEOPLES, respondents.
acquire ownership by adjustment at a certain price.
HON. JUAN M .FLAVIER, HON. PONCIANO
BENNAGEN, BAYANI ASCARRAGA, EDTAMI
It is true that the language of arts. 4 and 5 attributes MANSAYANGAN, BASILIO WANDAG, EVELYN
title to those 'who may prove' possession for the
DUNUAN, YAOM TUGAS, ALFREMO CARPIANO,
necessary time, and we do not overlook the
LIBERATO A. GABIN, MATERNIDAD M. COLAS,
argument that this means may prove in registration
NARCISA M. DALUPINES, BAI KIRAM-CONNIE
proceedings. It may be that an English conveyancer
SATURNO, BAE MLOMO-BEATRIZ T. ABASALA,
would have recommended an application under the
DATU BALITUNGTUNG-ANTONIO D.
foregoing decree, but certainly it was not calculated
LUMANDONG, DATU MANTUMUKAW TEOFISTO
to convey to the mind of an Igorot chief the notion
SABASALES, DATU EDUAARDO BANDA, DATU
that ancient family possessions were in danger, if he
JOEL UNAD, DATU RAMON BAYAAN, TIMUAY
had read every word of it. The words 'may prove'
JOSE ANOY, TIMUAY MACARIO D. SALACAO,
(acrediten), as well, or better, in view of the other
TIMUAY EDWIN B. ENDING, DATU
provisions, might be taken to mean when called
SAHAMPONG MALANAW VI, DATU BEN
upon to do so in any litigation. There are indications
PENDAO CABIGON, BAI NANAPNAY-LIZA
that registration was expected from all, but none
SAWAY, BAY INAY DAYA-MELINDA S.
sufficient to show that, for want of it, ownership
actually gained would be lost. [212 U.S. 449, REYMUNDO, BAI TINANGHAGA HELINITA T.
463]   The effect of the proof, wherever made, was PANGAN, DATU MAKAPUKAW ADOLINO L.
not to confer title, but simply to establish it, as SAWAY, DATU MAUDAYAW-CRISPEN SAWAY,
already conferred by the decree, if not by earlier VICKY MAKAY, LOURDES D. AMOS, GILBERT
law. The royal decree of February 13, 1894, P. HOGGANG, TERESA GASPAR, MANUEL S.
declaring forfeited titles that were capable of ONALAN, MIA GRACE L. GIRON, ROSEMARIE
adjustment under the decree of 1880, for which G. PE, BENITO CARINO, JOSEPH JUDE
adjustment had not been sought, should not be CARANTES, LYNETTE CARANTES-VIVAL,
construed as a confiscation, but as the withdrawal of LANGLEY SEGUNDO, SATUR S. BUGNAY,
a privilege. As a matter of fact, the applicant never CARLING DOMULOT, ANDRES MENDIOGRIN,
was disturbed. This same decree is quoted by the LEOPOLDO ABUGAN, VIRGILIO CAYETANO,
court of land registration for another recognition of CONCHITA G. DESCAGA, LEVY ESTEVES,
the common-law prescription of thirty years as still ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR,
running against alienable Crown land. MAURO VALONES, PEPE H. ATONG, OFELIA T.
DAVI, PERFECTO B. GUINOSAO, WALTER N.
It will be perceived that the rights of the applicant TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY,
under the Spanish law present a problem not RICO O. SULATAN, RAFFY MALINDA, ALFREDO
without difficulties for courts of a different legal ABILLANOS, JESSIE ANDILAB, MIRLANDO H.
tradition. We have deemed it proper on that MANGKULINTAS, SAMIE SATURNO, ROMEO A.
account to notice the possible effect of the change of LINDAHAY, ROEL S. MANSANG-CAGAN,
sovereignty and the act of Congress establishing the PAQUITO S. LIESES, FILIPE G. SAWAY,
fundamental principles now to be observed. Upon a HERMINIA S. SAWAY, JULIUS S. SAWAY,
consideration of the whole case we are of opinion LEONARDA SAWAY, JIMMY UGYUB,
that law and justice require that the applicant SALVADOR TIONGSON, VENANCIO APANG,
should be granted what he seeks, and should not be MADION MALID, SUKIM MALID, NENENG
deprived of what, by the practice and belief of those MALID, MANGKATADONG AUGUSTO DIANO,
JOSEPHINE M. ALBESO, MORENO MALID,
MARIO MANGCAL, FELAY DIAMILING, SALOME constitutionality of IPRA and praying for the
P. SARZA, FELIPE P. BAGON, SAMMY dismissal of the petition.
SALNUNGAN, ANTONIO D. EMBA, NORMA
MAPANSAGONOS, ROMEO SALIGA, SR., On March 22, 1999, the Commission on Human
JERSON P. GERADA, RENATO T. BAGON, JR., Rights (CHR) likewise filed a Motion to Intervene
SARING MASALONG, SOLEDAD M. GERARDA, and/or to Appear as Amicus Curiae. The CHR
ELIZABETH L. MENDI, MORANTE S. TIWAN, asserts that IPRA is an expression of the principle
DANILO M. MALUDAO, MINORS MARICEL of parens patriae and that the State has the
MALID, represented by her father CORNELIO responsibility to protect and guarantee the rights of
MALID, MARCELINO M. LADRA, represented by those who are at a serious disadvantage like
her father MONICO D. LADRA, JENNYLYN indigenous peoples. For this reason it prays that the
MALID, represented by her father TONY MALID, petition be dismissed.
ARIEL M. EVANGELISTA, represented by her
mother LINAY BALBUENA, EDWARD M. EMUY,
SR., SUSAN BOLANIO, OND, PULA BATO On March 23, 1999, another group, composed of
B'LAAN TRIBAL FARMER'S ASSOCIATION, the Ikalahan Indigenous People and the Haribon
INTER-PEOPLE'S EXCHANGE, INC. and GREEN Foundation for the Conservation of Natural
FORUM-WESTERN VISAYAS, intervenors. Resources, Inc. (Haribon, et al.), filed a motion to
COMMISSION ON HUMAN RIGHTS, intervenor. Intervene with attached Comment-in-Intervention.
IKALAHAN INDIGENOUS PEOPLE and They agree with the NCIP and Flavier, et al. that
HARIBON FOUNDATION FOR THE IPRA is consistent with the Constitution and pray
CONSERVATION OF NATURAL RESOURCES, that the petition for prohibition and mandamus be
INC., intervenor. dismissed.

RESOLUTION The motions for intervention of the aforesaid groups

and organizations were granted.
PER CURIAM:
Oral arguments were heard on April 13, 1999.
Thereafter, the parties and intervenors filed their
Petitioners Isagani Cruz and Cesar Europa brought respective memoranda in which they reiterate the
this suit for prohibition and mandamus as citizens arguments adduced in their earlier pleadings and
and taxpayers, assailing the constitutionality of during the hearing.
certain provisions of Republic Act No. 8371 (R.A.
8371), otherwise known as the Indigenous Peoples
Rights Act of 1997 (IPRA), and its Implementing Petitioners assail the constitutionality of the
Rules and Regulations (Implementing Rules). following provisions of the IPRA and its
Implementing Rules on the ground that they amount
to an unlawful deprivation of the State’s ownership
In its resolution of September 29, 1998, the Court over lands of the public domain as well as minerals
required respondents to comment.1 In compliance, and other natural resources therein, in violation of
respondents Chairperson and Commissioners of the regalian doctrine embodied in Section 2, Article
the National Commission on Indigenous Peoples XII of the Constitution:
(NCIP), the government agency created under the
IPRA to implement its provisions, filed on October
13, 1998 their Comment to the Petition, in which "(1) Section 3(a) which defines the extent and
they defend the constitutionality of the IPRA and coverage of ancestral domains, and Section 3(b)
pray that the petition be dismissed for lack of merit. which, in turn, defines ancestral lands;

On October 19, 1998, respondents Secretary of the "(2) Section 5, in relation to section 3(a), which
Department of Environment and Natural Resources provides that ancestral domains including
(DENR) and Secretary of the Department of Budget inalienable public lands, bodies of water, mineral
and Management (DBM) filed through the Solicitor and other resources found within ancestral domains
General a consolidated Comment. The Solicitor are private but community property of the
General is of the view that the IPRA is partly indigenous peoples;
unconstitutional on the ground that it grants
ownership over natural resources to indigenous "(3) Section 6 in relation to section 3(a) and 3(b)
peoples and prays that the petition be granted in which defines the composition of ancestral domains
part. and ancestral lands;

On November 10, 1998, a group of intervenors, "(4) Section 7 which recognizes and enumerates
composed of Sen. Juan Flavier, one of the authors the rights of the indigenous peoples over the
of the IPRA, Mr. Ponciano Bennagen, a member of ancestral domains;
the 1986 Constitutional Commission, and the
leaders and members of 112 groups of indigenous (5) Section 8 which recognizes and enumerates the
peoples (Flavier, et. al), filed their Motion for Leave rights of the indigenous peoples over the ancestral
to Intervene. They join the NCIP in defending the lands;
"(6) Section 57 which provides for priority rights of used to resolve disputes involving
the indigenous peoples in the harvesting, indigenous peoples; and
extraction, development or exploration of minerals
and other natural resources within the areas "(5) Section 66 which vests on the NCIP
claimed to be their ancestral domains, and the right the jurisdiction over all claims and disputes
to enter into agreements with nonindigenous involving rights of the indigenous
peoples for the development and utilization of peoples."5
natural resources therein for a period not exceeding
25 years, renewable for not more than 25 years;
and Finally, petitioners assail the validity of Rule VII,
Part II, Section 1 of the NCIP Administrative Order
No. 1, series of 1998, which provides that "the
"(7) Section 58 which gives the indigenous peoples administrative relationship of the NCIP to the Office
the responsibility to maintain, develop, protect and of the President is characterized as a lateral but
conserve the ancestral domains and portions autonomous relationship for purposes of policy and
thereof which are found to be necessary for critical program coordination." They contend that said Rule
watersheds, mangroves, wildlife sanctuaries, infringes upon the President’s power of control over
wilderness, protected areas, forest cover or executive departments under Section 17, Article VII
reforestation."2 of the Constitution.6

Petitioners also content that, by providing for an all- Petitioners pray for the following:
encompassing definition of "ancestral domains" and
"ancestral lands" which might even include private
lands found within said areas, Sections 3(a) and "(1) A declaration that Sections 3, 5, 6, 7,
3(b) violate the rights of private landowners.3 8, 52[I], 57, 58, 59, 63, 65 and 66 and
other related provisions of R.A. 8371 are
unconstitutional and invalid;
In addition, petitioners question the provisions of
the IPRA defining the powers and jurisdiction of the
NCIP and making customary law applicable to the "(2) The issuance of a writ of prohibition
settlement of disputes involving ancestral domains directing the Chairperson and
and ancestral lands on the ground that these Commissioners of the NCIP to cease and
provisions violate the due process clause of the desist from implementing the assailed
Constitution.4 provisions of R.A. 8371 and its
Implementing Rules;
These provisions are:
"(3) The issuance of a writ of prohibition
directing the Secretary of the Department
"(1) sections 51 to 53 and 59 which detail of Environment and Natural Resources to
the process of delineation and recognition cease and desist from implementing
of ancestral domains and which vest on Department of Environment and Natural
the NCIP the sole authority to delineate Resources Circular No. 2, series of 1998;
ancestral domains and ancestral lands;
"(4) The issuance of a writ of prohibition
"(2) Section 52[i] which provides that upon directing the Secretary of Budget and
certification by the NCIP that a particular Management to cease and desist from
area is an ancestral domain and upon disbursing public funds for the
notification to the following officials, implementation of the assailed provisions
namely, the Secretary of Environment and of R.A. 8371; and
Natural Resources, Secretary of Interior
and Local Governments, Secretary of
Justice and Commissioner of the National "(5) The issuance of a writ of mandamus
Development Corporation, the jurisdiction commanding the Secretary of Environment
of said officials over said area terminates; and Natural Resources to comply with his
duty of carrying out the State’s
constitutional mandate to control and
"(3) Section 63 which provides the supervise the exploration, development,
customary law, traditions and practices of utilization and conservation of Philippine
indigenous peoples shall be applied first natural resources."7
with respect to property rights, claims of
ownership, hereditary succession and
settlement of land disputes, and that any After due deliberation on the petition, the members
doubt or ambiguity in the interpretation of the Court voted as follows:
thereof shall be resolved in favor of the
indigenous peoples; Seven (7) voted to dismiss the petition. Justice
Kapunan filed an opinion, which the Chief Justice
"(4) Section 65 which states that and Justices Bellosillo, Quisumbing, and Santiago
customary laws and practices shall be join, sustaining the validity of the challenged
provisions of R.A. 8371. Justice Puno also filed a Expounding on Nietzsche's essay, Judge Richard
separate opinion sustaining all challenged Posner1 wrote:2
provisions of the law with the exception of Section
1, Part II, Rule III of NCIP Administrative Order No. "Law is the most historically oriented, or if you like
1, series of 1998, the Rules and Regulations the most backward-looking, the most 'past-
Implementing the IPRA, and Section 57 of the IPRA dependent,' of the professions. It venerates
which he contends should be interpreted as dealing tradition, precedent, pedigree, ritual, custom,
with the large-scale exploitation of natural ancient practices, ancient texts, archaic
resources and should be read in conjunction with terminology, maturity, wisdom, seniority,
Section 2, Article XII of the 1987 Constitution. On gerontocracy, and interpretation conceived of as a
the other hand, Justice Mendoza voted to dismiss method of recovering history. It is suspicious of
the petition solely on the ground that it does not innovation, discontinuities, 'paradigm shifts,' and the
raise a justiciable controversy and petitioners do not energy and brashness of youth. These ingrained
have standing to question the constitutionality of attitudes are obstacles to anyone who wants to re-
R.A. 8371. orient law in a more pragmatic direction. But, by the
same token, pragmatic jurisprudence must come
Seven (7) other members of the Court voted to to terms with history."
grant the petition. Justice Panganiban filed a
separate opinion expressing the view that Sections When Congress enacted the Indigenous Peoples
3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of Rights Act (IPRA), it introduced radical concepts
R.A. 8371 are unconstitutional. He reserves into the Philippine legal system which appear to
judgment on the constitutionality of Sections 58, 59, collide with settled constitutional and jural precepts
65, and 66 of the law, which he believes must await on state ownership of land and other natural
the filing of specific cases by those whose rights resources. The sense and subtleties of this law
may have been violated by the IPRA. Justice Vitug cannot be appreciated without considering its
also filed a separate opinion expressing the view distinct sociology and the labyrinths of its history.
that Sections 3(a), 7, and 57 of R.A. 8371 are This Opinion attempts to interpret IPRA by
unconstitutional. Justices Melo, Pardo, Buena, discovering its soul shrouded by the mist of our
Gonzaga-Reyes, and De Leon join in the separate history. After all, the IPRA was enacted by
opinions of Justices Panganiban and Vitug. Congress not only to fulfill the constitutional
mandate of protecting the indigenous cultural
As the votes were equally divided (7 to 7) and the communities' right to their ancestral land but more
necessary majority was not obtained, the case was importantly, to correct a grave historical injustice
redeliberated upon. However, after redeliberation, to our indigenous people.
the voting remained the same. Accordingly,
pursuant to Rule 56, Section 7 of the Rules of Civil This Opinion discusses the following:
Procedure, the petition is DISMISSED.
I. The Development of the Regalian Doctrine in the
Attached hereto and made integral parts thereof are Philippine Legal System.
the separate opinions of Justices Puno, Vitug,
Kapunan, Mendoza, and Panganiban.
A. The Laws of the Indies
SO ORDERED.
B. Valenton v. Murciano
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, C. The Public Land Acts and the Torrens
and De Leon, Jr., JJ., concur. System
Puno, Vitug, Kapunan, Mendoza and Panganiban J
J., see separate opinion D. The Philippine Constitutions

II. The Indigenous Peoples Rights Act (IPRA).

A. Indigenous Peoples

SEPARATE OPINION 1. Indigenous Peoples: Their History

PUNO, J.: 2. Their Concept of Land

PRECIS III. The IPRA is a Novel Piece of Legislation.

A classic essay on the utility of history was written A. Legislative History

in 1874 by Friedrich Nietzsche entitled "On the
Uses and Disadvantages of History for Life."
IV. The Provisions of the IPRA Do Not Contravene (c) The large-scale utilization of
the Constitution. natural resources in Section 57
of the IPRA may be
A. Ancestral domains and ancestral lands harmonized with Paragraphs 1
are the private property of indigenous and 4, Section 2, Article XII of
peoples and do not constitute part of the the 1987 Constitution.
land of the public domain.
V. The IPRA is a Recognition of Our Active
1. The right to ancestral domains and Participation in the International Indigenous
ancestral lands: how acquired Movement.

2. The concept of native title DISCUSSION

(a) Cariño v. Insular Government I. THE DEVELOPMENT OF THE REGALIAN

DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM.
(b) Indian Title to land
A. The Laws of the Indies
(c) Why the Cariño doctrine is
unique The capacity of the State to own or acquire property
is the state's power of dominium.3 This was the
foundation for the early Spanish decrees embracing
3. The option of securing a the feudal theory of jura regalia. The "Regalian
torrens title to the ancestral land Doctrine" or jura regalia is a Western legal concept
that was first introduced by the Spaniards into
B. The right of ownership and possession the country through the Laws of the Indies and
by the ICCs/IPs to their ancestral domains the Royal Cedulas. The Laws of the Indies, i.e.,
is a limited form of ownership and does not more specifically, Law 14, Title 12, Book 4 of the
include the right to alienate the same. Novisima Recopilacion de Leyes de las Indias, set
the policy of the Spanish Crown with respect to the
1. The indigenous concept of Philippine Islands in the following manner:
ownership and customary law
"We, having acquired full sovereignty over the
C. Sections 7 (a), 7 (b) and 57 of the IPRA Indies, and all lands, territories, and possessions
do not violate the Regalian Doctrine not heretofore ceded away by our royal
enshrined in Section 2, Article XII of the predecessors, or by us, or in our name, still
1987 Constitution. pertaining to the royal crown and patrimony, it is our
will that all lands which are held without proper and
true deeds of grant be restored to us as they belong
1. The rights of ICCs/IPs over to us, in order that after reserving before all what to
their ancestral domains and lands us or to our viceroys, audiencias, and governors
may seem necessary for public squares, ways,
2. The right of ICCs/IPs to pastures, and commons in those places which are
develop lands and natural peopled, taking into consideration not only their
resources within the ancestral present condition, but also their future and their
domains does not deprive the probable increase, and after distributing to the
State of ownership over the natives what may be necessary for tillage and
natural resources, control and pasturage, confirming them in what they now have
supervision in their development and giving them more if necessary, all the rest of
and exploitation. said lands may remain free and unencumbered for
us to dispose of as we may wish.
(a) Section 1, Part II, Rule III of
the Implementing Rules goes We therefore order and command that all viceroys
beyond the parameters of and presidents of pretorial courts designate at such
Section 7(a) of the law on time as shall to them seem most expedient, a
ownership of ancestral domains suitable period within which all possessors of tracts,
and is ultra vires. farms, plantations, and estates shall exhibit to them
and to the court officers appointed by them for this
purpose, their title deeds thereto. And those who
(b) The small-scale utilization of
are in possession by virtue of proper deeds and
natural resources in Section 7
receipts, or by virtue of just prescriptive right shall
(b) of the IPRA is allowed
be protected, and all the rest shall be restored to us
under Paragraph 3, Section 2,
to be disposed of at our will."4
Article XII of the 1987
Consitution.
The Philippines passed to Spain by virtue of Prior to 1880, the Court said, there were no laws
"discovery" and conquest. Consequently, all lands specifically providing for the disposition of land in
became the exclusive patrimony and dominion of the Philippines. However, it was understood that in
the Spanish Crown. The Spanish Government took the absence of any special law to govern a specific
charge of distributing the lands by issuing royal colony, the Laws of the Indies would be followed.
grants and concessions to Spaniards, both military Indeed, in the Royal Order of July 5, 1862, it was
and civilian.5 Private land titles could only be decreed that until regulations on the subject could
acquired from the government either by purchase or be prepared, the authorities of the Philippine
by the various modes of land grant from the Crown.6 Islands should follow strictly the Laws of the Indies,
the Ordenanza of the Intendentes of 1786, and the
The Laws of the Indies were followed by the Ley Royal Cedula of 1754.11
Hipotecaria, or the Mortgage Law of 1893.7 The
Spanish Mortgage Law provided for the systematic Quoting the preamble of Law 14, Title 12, Book 4 of
registration of titles and deeds as well as the Recopilacion de Leyes de las Indias, the
possessory claims. The law sought to register and court interpreted it as follows:
tax lands pursuant to the Royal Decree of 1880.
The Royal Decree of 1894, or the "Maura Law," was "In the preamble of this law there is, as is seen, a
partly an amendment of the Mortgage Law as well distinct statement that all those lands belong to the
as the Laws of the Indies, as already amended by Crown which have not been granted by Philip, or in
previous orders and decrees.8 This was the last his name, or by the kings who preceded him. This
Spanish land law promulgated in the Philippines. It statement excludes the idea that there might be
required the "adjustment" or registration of all lands not so granted, that did not belong to the
agricultural lands, otherwise the lands shall revert to king. It excludes the idea that the king was not
the state. still the owner of all ungranted lands, because
some private person had been in the adverse
Four years later, by the Treaty of Paris of occupation of them. By the mandatory part of the
December 10, 1898, Spain ceded to the law all the occupants of the public lands are
government of the United States all rights, interests required to produce before the authorities named,
and claims over the national territory of the and within a time to be fixed by them, their title
Philippine Islands. In 1903, the United States papers. And those who had good title or showed
colonial government, through the Philippine prescription were to be protected in their holdings. It
Commission, passed Act No. 926, the first Public is apparent that it was not the intention of the law
Land Act. that mere possession for a length of time should
make the possessors the owners of the land
B. Valenton v. Murciano possessed by them without any action on the part
of the authorities."12
In 1904, under the American regime, this Court
decided the case of Valenton v. Murciano.9 The preamble stated that all those lands which had
not been granted by Philip, or in his name, or by the
kings who preceded him, belonged to the
Valenton resolved the question of which is the Crown.13 For those lands granted by the king, the
better basis for ownership of land: long-time decree provided for a system of assignment of such
occupation or paper title. Plaintiffs had entered into lands. It also ordered that all possessors of
peaceful occupation of the subject land in 1860. agricultural land should exhibit their title deed,
Defendant's predecessor-in-interest, on the other otherwise, the land would be restored to the
hand, purchased the land from the provincial Crown.14
treasurer of Tarlac in 1892. The lower court ruled
against the plaintiffs on the ground that they had
lost all rights to the land by not objecting to the The Royal Cedula of October 15, 1754 reinforced
administrative sale. Plaintiffs appealed the the Recopilacion when it ordered the Crown's
judgment, asserting that their 30-year adverse principal subdelegate to issue a general order
possession, as an extraordinary period of directing the publication of the Crown's instructions:
prescription in the Partidas and the Civil Code, had
given them title to the land as against everyone, "x x x to the end that any and all persons who, since
including the State; and that the State, not owning the year 1700, and up to the date of the
the land, could not validly transmit it. promulgation and publication of said order, shall
have occupied royal lands, whether or not x x x
The Court, speaking through Justice Willard, cultivated or tenanted, may x x x appear and exhibit
decided the case on the basis of "those special to said subdelegates the titles and patents by virtue
laws which from earliest time have regulated the of which said lands are occupied. x x x. Said
disposition of the public lands in the colonies."10 The subdelegates will at the same time warn the parties
question posed by the Court was: "Did these interested that in case of their failure to present
special laws recognize any right of prescription as their title deeds within the term designated, without
against the State as to these lands; and if so, to a just and valid reason therefor, they will be
what extent was it recognized?" deprived of and evicted from their lands, and they
will be granted to others."15
On June 25, 1880, the Crown adopted regulations excluded the patrimonial property of the
for the adjustment of lands "wrongfully occupied" by government and the friar lands.22
private individuals in the Philippine
Islands. Valenton construed these regulations Act No. 926 was superseded in 1919 by Act
together with contemporaneous legislative and 2874, the second Public Land Act. This new law
executive interpretations of the law, and concluded was passed under the Jones Law. It was more
that plaintiffs' case fared no better under the 1880 comprehensive in scope but limited the exploitation
decree and other laws which followed it, than it did of agricultural lands to Filipinos and Americans and
under the earlier ones. Thus as a general doctrine, citizens of other countries which gave Filipinos the
the Court stated: same privileges.23 After the passage of the 1935
Constitution, Act 2874 was amended in 1936
"While the State has always recognized the right of by Commonwealth Act No. 141. Commonwealth
the occupant to a deed if he proves a possession Act No. 141 remains the present Public Land Law
for a sufficient length of time, yet it has always and it is essentially the same as Act 2874. The
insisted that he must make that proof before the main difference between the two relates to the
proper administrative officers, and obtain from transitory provisions on the rights of American
them his deed, and until he did that the State citizens and corporations during the Commonwealth
remained the absolute owner."16 period at par with Filipino citizens and
corporations.24
In conclusion, the Court ruled: "We hold that from
1860 to 1892 there was no law in force in these Grants of public land were brought under the
Islands by which the plaintiffs could obtain the operation of the Torrens system under Act 496,
ownership of these lands by prescription, without or the Land Registration Law of 1903. Enacted by
any action by the State."17 Valenton had no rights the Philippine Commission, Act 496 placed all
other than those which accrued to mere public and private lands in the Philippines under the
possession. Murciano, on the other hand, was Torrens system. The law is said to be almost a
deemed to be the owner of the land by virtue of the verbatim copy of the Massachussetts Land
grant by the provincial secretary. In effect, Valenton Registration Act of 1898,25 which, in turn, followed
upheld the Spanish concept of state ownership of the principles and procedure of the Torrens system
public land. of registration formulated by Sir Robert Torrens who
patterned it after the Merchant Shipping Acts in
As a fitting observation, the Court added that "[t]he South Australia. The Torrens system requires that
policy pursued by the Spanish Government the government issue an official certificate of title
from earliest times, requiring settlers on the attesting to the fact that the person named is the
public lands to obtain title deeds therefor from owner of the property described therein, subject to
the State, has been continued by the American such liens and encumbrances as thereon noted or
Government in Act No. 926."18 the law warrants or reserves.26 The certificate of title
is indefeasible and imprescriptible and all claims to
the parcel of land are quieted upon issuance of said
C. The Public Land Acts and the Torrens certificate. This system highly facilitates land
System conveyance and negotiation.27

Act No. 926, the first Public Land Act, was passed D. The Philippine Constitutions
in pursuance of the provisions of the the Philippine
Bill of 1902. The law governed the disposition of
lands of the public domain. It prescribed rules and The Regalian doctrine was enshrined in the 1935
regulations for the homesteading, selling, and Constitution. One of the fixed and dominating
leasing of portions of the public domain of the objectives of the 1935 Constitutional Convention
Philippine Islands, and prescribed the terms and was the nationalization and conservation of the
conditions to enable persons to perfect their titles to natural resources of the country.28There was an
public lands in the Islands. It also provided for the overwhelming sentiment in the Convention in
"issuance of patents to certain native settlers upon favor of the principle of state ownership of
public lands," for the establishment of town sites natural resources and the adoption of the
and sale of lots therein, for the completion of Regalian doctrine.29 State ownership of natural
imperfect titles, and for the cancellation or resources was seen as a necessary starting point to
confirmation of Spanish concessions and grants in secure recognition of the state's power to control
the Islands." In short, the Public Land Act operated their disposition, exploitation, development, or
on the assumption that title to public lands in the utilization.30 The delegates to the Constitutional
Philippine Islands remained in the Convention very well knew that the concept of State
government;19 and that the government's title to ownership of land and natural resources was
public land sprung from the Treaty of Paris and introduced by the Spaniards, however, they were
other subsequent treaties between Spain and the not certain whether it was continued and applied by
United States.20 The term "public land" referred to the Americans. To remove all doubts, the
all lands of the public domain whose title still Convention approved the provision in the
remained in the government and are thrown open to Constitution affirming the Regalian doctrine.31
private appropriation and settlement,21 and
Thus, the 1935 Constitution, in Section 1 of Article directly undertake such activities or it may enter
XIII on "Conservation and Utilization of Natural into co-production, joint venture, or production-
Resources," reads as follows: sharing agreements with Filipino citizens, or
corporations or associations at least sixty per
"Sec. 1. All agricultural, timber, and mineral centum of whose capital is owned by such
lands of the public domain, waters, minerals, citizens. Such agreements may be for a period not
coal, petroleum, and other mineral oils, all exceeding twenty-five years, renewable for not
forces of potential energy, and other natural more than twenty-five years, and under such terms
resources of the Philippines belong to the State, and conditions as may be provided by law. In cases
and their disposition, exploitation, development, of water rights for irrigation, water supply, fisheries,
or utilization shall be limited to citizens of the or industrial uses other than the development of
Philippines, or to corporations or associations water power, beneficial use may be the measure
at least sixty per centum of the capital of which and limit of the grant.
is owned by such citizens, subject to any
existing right, grant, lease, or concession at the x x x."
time of the inauguration of the Government
established under this Constitution. Natural Simply stated, all lands of the public domain as
resources, with the exception of public well as all natural resources enumerated therein,
agricultural land, shall not be alienated, and no whether on public or private land, belong to the
license, concession, or lease for the exploitation, State. It is this concept of State ownership that
development, or utilization of any of the natural petitioners claim is being violated by the IPRA.
resources shall be granted for a period exceeding
twenty-five years, except as to water rights for
irrigation, water supply, fisheries, or industrial uses II. THE INDIGENOUS PEOPLES RIGHTS ACT.
other than the development of water power, in
which cases beneficial use may be the measure Republic Act No. 8371 is entitled "An Act to
and the limit of the grant." Recognize, Protect and Promote the Rights of
Indigenous Cultural Communities/ Indigenous
The 1973 Constitution reiterated the Regalian Peoples, Creating a National Commission on
doctrine in Section 8, Article XIV on the "National Indigenous Peoples, Establishing Implementing
Economy and the Patrimony of the Nation," to wit: Mechanisms, Appropriating Funds Therefor, and for
Other Purposes." It is simply known as "The
Indigenous Peoples Rights Act of 1997" or the
"Sec. 8. All lands of the public domain, waters, IPRA.
minerals, coal, petroleum and other mineral oils,
all forces of potential energy, fisheries, wildlife,
and other natural resources of the Philippines The IPRA recognizes the existence of the
belong to the State. With the exception of indigenous cultural communities or indigenous
agricultural, industrial or commercial, peoples (ICCs/IPs) as a distinct sector in Philippine
residential, and resettlement lands of the public society. It grants these people the ownership
domain, natural resources shall not be and possession of their ancestral domains and
alienated, and no license, concession, or lease ancestral lands, and defines the extent of these
for the exploration, development, exploitation, lands and domains. The ownership given is the
or utilization of any of the natural resources indigenous concept of ownership under
shall be granted for a period exceeding twenty- customary law which traces its origin to native
five years, renewable for not more than twenty- title.
five years, except as to water rights for irrigation,
water supply, fisheries, or industrial uses other than Other rights are also granted the ICCs/IPs, and
the development of water power, in which cases these are:
beneficial use may be the measure and the limit of
the grant." - the right to develop lands and natural
resources;
The 1987 Constitution reaffirmed the Regalian
doctrine in Section 2 of Article XII on "National - the right to stay in the territories;
Economy and Patrimony," to wit:

- the right in case of displacement;

"Sec. 2. All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, - the right to safe and clean air and water;
forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. - the right to claim parts of reservations;
With the exception of agricultural lands, all
other natural resources shall not be alienated.
- the right to resolve conflict;32
The exploration, development and utilization of
natural resources shall be under the full control
and supervision of the State. The State may - the right to ancestral lands which include
 a. the right to transfer land/property ICCs/IPs are defined by the IPRA as:
to/among members of the same
ICCs/IPs, subject to customary laws "Sec. 3 [h]. Indigenous Cultural Communities/
and traditions of the community Indigenous Peoples- refer to a group of people or
concerned; homogeneous societies identified by self-ascription
and ascription by others, who have continuously
b. the right to redemption for a period lived as organized community on communally
not exceeding 15 years from date of bounded and defined territory, and who have, under
transfer, if the transfer is to a non- claims of ownership since time immemorial,
member of the ICC/IP and is tainted occupied, possessed and utilized such territories,
by vitiated consent of the ICC/IP, or if sharing common bonds of language, customs,
the transfer is for an unconscionable traditions and other distinctive cultural traits, or who
consideration.33 have, through resistance to political, social and
cultural inroads of colonization, non-indigenous
Within their ancestral domains and ancestral lands, religions and cultures, became historically
the ICCs/IPs are given the right to self-governance differentiated from the majority of Filipinos. ICCs/IPs
and empowerment,34 social justice and human shall likewise include peoples who are regarded as
rights,35 the right to preserve and protect their indigenous on account of their descent from the
culture, traditions, institutions and community populations which inhabited the country, at the time
intellectual rights, and the right to develop their own of conquest or colonization, or at the time of inroads
sciences and technologies.36 of non-indigenous religions and cultures, or the
establishment of present state boundaries, who
retain some or all of their own social, economic,
To carry out the policies of the Act, the law created cultural and political institutions, but who may have
the National Commission on Indigenous Peoples been displaced from their traditional domains or
(NCIP). The NCIP is an independent agency under who may have resettled outside their ancestral
the Office of the President and is composed of domains."
seven (7) Commissioners belonging to ICCs/IPs
from each of the ethnographic areas- Region I and
the Cordilleras; Region II; the rest of Luzon; Island Indigenous Cultural Communities or Indigenous
groups including Mindoro, Palawan, Romblon, Peoples refer to a group of people or
Panay and the rest of the Visayas; Northern and homogeneous societies who have continuously
Western Mindanao; Southern and Eastern lived as an organized community on
Mindanao; and Central Mindanao.37 The NCIP took communally bounded and defined
over the functions of the Office for Northern Cultural territory. These groups of people have actually
Communities and the Office for Southern Cultural occupied, possessed and utilized their territories
Communities created by former President Corazon under claim of ownership since time immemorial.
Aquino which were merged under a revitalized They share common bonds of language, customs,
structure.38 traditions and other distinctive cultural traits, or,
they, by their resistance to political, social and
cultural inroads of colonization, non-indigenous
Disputes involving ICCs/IPs are to be resolved religions and cultures, became historically
under customary laws and practices. When still differentiated from the Filipino majority. ICCs/IPs
unresolved, the matter may be brought to the NCIP, also include descendants of ICCs/IPs who inhabited
which is granted quasi-judicial powers.39 The the country at the time of conquest or colonization,
NCIP's decisions may be appealed to the Court of who retain some or all of their own social,
Appeals by a petition for review. economic, cultural and political institutions but who
may have been displaced from their traditional
Any person who violates any of the provisions of territories or who may have resettled outside their
the Act such as, but not limited to, unauthorized ancestral domains.
and/or unlawful intrusion upon ancestral lands and
domains shall be punished in accordance with 1. Indigenous Peoples: Their History
customary laws or imprisoned from 9 months to 12
years and/or fined from ₱100,000.00 to
₱500,000.00 and obliged to pay damages.40 Presently, Philippine indigenous peoples inhabit the
interiors and mountains of Luzon, Mindanao,
Mindoro, Negros, Samar, Leyte, and the Palawan
A. Indigenous Peoples and Sulu group of islands. They are composed of
110 tribes and are as follows:
The IPRA is a law dealing with a specific group of
people, i.e., the Indigenous Cultural Communities 1. In the Cordillera Autonomous Region-
(ICCs) or the Indigenous Peoples (IPs). The term Kankaney, Ibaloi, Bontoc, Tinggian or Itneg,
"ICCs" is used in the 1987 Constitution while that of Ifugao, Kalinga, Yapayao, Aeta or Agta or
"IPs" is the contemporary international language in Pugot, and Bago of Ilocos Norte and
the International Labor Organization (ILO) Pangasinan; Ibanag of Isabela, Cagayan;
Convention 16941 and the United Nations (UN) Draft Ilongot of Quirino and Nueva Vizcaya;
Declaration on the Rights of Indigenous Peoples.42 Gaddang of Quirino, Nueva Vizcaya, Itawis of
 Cagayan; Ivatan of Batanes, Aeta of Before the time of Western contact, the
Cagayan, Quirino and Isabela. Philippine archipelago was peopled largely by the
Negritos, Indonesians and Malays.44 The strains
2. In Region III- Aetas. from these groups eventually gave rise to common
cultural features which became the dominant
influence in ethnic reformulation in the archipelago.
3. In Region IV- Dumagats of Aurora, Rizal; Influences from the Chinese and Indian civilizations
Remontado of Aurora, Rizal, Quezon; in the third or fourth millenium B.C. augmented
Alangan or Mangyan, Batangan, Buid or these ethnic strains. Chinese economic and socio-
Buhid, Hanunuo and Iraya of Oriental and cultural influences came by way of Chinese
Occidental Mindoro; Tadyawan of Occidental porcelain, silk and traders. Indian influence found
Mindoro; Cuyonon, Palawanon, Tagbanua their way into the religious-cultural aspect of pre-
and Tao't bato of Palawan. colonial society.45

4. In Region V- Aeta of Camarines Norte and The ancient Filipinos settled beside bodies of

Camarines Sur; Aeta-Abiyan, Isarog, and water. Hunting and food gathering became
Kabihug of Camarines Norte; Agta, and Mayon supplementary activities as reliance on them was
of Camarines Sur; Itom of Albay, Cimaron of reduced by fishing and the cultivation of the
Sorsogon; and the Pullon of Masbate and soil.46 From the hinterland, coastal, and riverine
Camarines Sur. communities, our ancestors evolved an essentially
homogeneous culture, a basically common way of
5. In Region VI- Ati of Negros Occidental, Iloilo life where nature was a primary
and Antique, Capiz; the Magahat of Negros factor. Community life throughout the archipelago
Occidental; the Corolano and Sulod. was influenced by, and responded to, common
ecology. The generally benign tropical climate and
6. In Region VII- Magahat of Negros Oriental the largely uniform flora and fauna favored
and Eskaya of Bohol. similarities, not differences.47 Life was essentially
subsistence but not harsh.48

7. In Region IX- the Badjao numbering about

192,000 in Tawi-Tawi, Zamboanga del Sur; the The early Filipinos had a culture that was basically
Kalibugan of Basilan, the Samal, Subanon and Malayan in structure and form. They had languages
Yakat. that traced their origin to the Austronesian parent-
stock and used them not only as media of daily
communication but also as vehicles for the
8. Region X- Numbering 1.6 million in Region X expression of their literary moods.49 They fashioned
alone, the IPs are: the Banwaon, Bukidnon, concepts and beliefs about the world that they could
Matigsalog, Talaanding of Bukidnon; the not see, but which they sensed to be part of their
Camiguin of Camiguin Island; the Higa-unon of lives.50 They had their own religion and religious
Agusan del Norte, Agusan del Sur, Bukidnon beliefs. They believed in the immortality of the soul
and Misamis Occidental; the Tigwahanon of and life after death. Their rituals were based on
Agusan del Sur, Misamis Oriental and and beliefs in a ranking deity whom they called
Misamis Occidental, the Manobo of the Agusan Bathalang Maykapal, and a host of other deities, in
provinces, and the Umayamnon of Agusan and the environmental spirits and in soul spirits. The
Bukidnon. early Filipinos adored the sun, the moon, the
animals and birds, for they seemed to consider the
9. In Region XI- There are about 1,774,065 IPs objects of Nature as something to be respected.
in Region XI. They are tribes of the Dibabaon, They venerated almost any object that was close to
Mansaka of Davao del Norte; B'laan, Kalagan, their daily life, indicating the importance of the
Langilad, T'boli and Talaingod of Davao del relationship between man and the object of
Sur; Mamamanua of Surigao del Sur; Mandaya nature.51
of the Surigao provinces and Davao Oriental;
Manobo Blit of South Cotabato; the The unit of government was the "barangay," a term
Mangguangon of Davao and South Cotabato; that derived its meaning from the Malay word
Matigsalog of Davao del Norte and Del Sur; "balangay," meaning, a boat, which transported
Tagakaolo, Tasaday and Ubo of South them to these shores.52 The barangay was basically
Cotabato; and Bagobo of Davao del sur and a family-based community and consisted of thirty to
South Cotabato. one hundred families. Each barangay was different
and ruled by a chieftain called a "dato." It was the
10. In Region XII- Ilianen, Tiruray, chieftain's duty to rule and govern his subjects and
Maguindanao, Maranao, Tausug, promote their welfare and interests. A chieftain had
Yakan/Samal, and Iranon.43 wide powers for he exercised all the functions of
government. He was the executive, legislator and
judge and was the supreme commander in time of
How these indigenous peoples came to live in
war.53
the Philippines goes back to as early as 25,000
to 30,000 B.C.
Laws were either customary or written. provision on the lease of cultivated lands. It,
Customary laws were handed down orally from however, has no provision for the acquisition,
generation to generation and constituted the transfer, cession or sale of land.64
bulk of the laws of the barangay. They were
preserved in songs and chants and in the memory The societies encountered by Magellan and
of the elder persons in the community.54 The written Legaspi therefore were primitive economies where
laws were those that the chieftain and his elders most production was geared to the use of the
promulgated from time to time as the necessity producers and to the fulfillment of kinship
arose.55 The oldest known written body of laws was obligations. They were not economies geared to
the Maragtas Code by Datu Sumakwel at about exchange and profit.65 Moreover, the family basis of
1250 A.D. Other old codes are the Muslim Code of barangay membership as well as of leadership and
Luwaran and the Principal Code of Sulu.56 Whether governance worked to splinter the population of the
customary or written, the laws dealt with various islands into numerous small and separate
subjects, such as inheritance, divorce, usury, loans, communities.66
partnership, crime and punishment, property rights,
family relations and adoption. Whenever disputes
arose, these were decided peacefully through a When the Spaniards settled permanently in the
court composed by the chieftain as "judge" and the Philippines in 1565, they found the Filipinos
barangay elders as "jury." Conflicts arising between living in barangay settlements scattered along
subjects of different barangays were resolved by water routes and river banks. One of the first
arbitration in which a board composed of elders tasks imposed on the missionaries and the
from neutral barangays acted as arbiters.57 encomenderos was to collect all scattered Filipinos
together in a reduccion.67 As early as 1551, the
Spanish government assumed an unvarying
Baranganic society had a distinguishing solicitous attitude towards the natives.68 The
feature: the absence of private property in Spaniards regarded it a sacred "duty to conscience
land. The chiefs merely administered the lands in and humanity to civilize these less fortunate people
the name of the barangay. The social order was an living in the obscurity of ignorance" and to accord
extension of the family with chiefs embodying the them the "moral and material advantages" of
higher unity of the community. Each individual, community life and the "protection and vigilance
therefore, participated in the community ownership afforded them by the same laws."69
of the soil and the instruments of production as a
member of the barangay.58 This ancient
communalism was practiced in accordance with the The Spanish missionaries were ordered to
concept of mutual sharing of resources so that no establish pueblos where the church and convent
individual, regardless of status, was without would be constructed. All the new Christian
sustenance. Ownership of land was non-existent converts were required to construct their houses
or unimportant and the right of usufruct was around the church and the unbaptized were invited
what regulated the development of to do the same.70 With the reduccion, the Spaniards
lands.59 Marine resources and fishing grounds were attempted to "tame" the reluctant Filipinos through
likewise free to all. Coastal communities depended Christian indoctrination using the convento/casa
for their economic welfare on the kind of fishing real/plaza complex as focal point. The reduccion, to
sharing concept similar to those in land the Spaniards, was a "civilizing" device to make the
communities.60 Recognized leaders, such as the Filipinos law-abiding citizens of the Spanish Crown,
chieftains and elders, by virtue of their positions of and in the long run, to make them ultimately adopt
importance, enjoyed some economic privileges and Hispanic culture and civilization.71
benefits. But their rights, related to either land and
sea, were subject to their responsibility to protect All lands lost by the old barangays in the
the communities from danger and to provide them process of pueblo organization as well as all
with the leadership and means of survival.61 lands not assigned to them and the pueblos,
were now declared to be crown lands
Sometime in the 13th century, Islam was or realengas, belonging to the Spanish king. It
introduced to the archipelago in was from the realengas that land grants were
Maguindanao. The Sultanate of Sulu was made to non-Filipinos.72
established and claimed jurisdiction over territorial
areas represented today by Tawi-tawi, Sulu, The abrogation of the Filipinos' ancestral rights
Palawan, Basilan and Zamboanga. Four ethnic in land and the introduction of the concept of
groups were within this jurisdiction: Sama, Tausug, public domain were the most immediate
Yakan and Subanon.62The Sultanate of fundamental results of Spanish colonial theory
Maguindanao spread out from Cotabato toward and law.73 The concept that the Spanish king
Maranao territory, now Lanao del Norte and Lanao was the owner of everything of value in the
del Sur.63 Indies or colonies was imposed on the natives,
and the natives were stripped of their ancestral
The Muslim societies evolved an Asiatic form of rights to land.74
feudalism where land was still held in common
but was private in use. This is clearly indicated in Increasing their foothold in the Philippines, the
the Muslim Code of Luwaran. The Code contains a Spanish colonialists, civil and religious, classified
the Filipinos according to their religious practices The Americans classified the Filipinos into two:
and beliefs, and divided them into three types . First the Christian Filipinos and the non-Christian
were the Indios, the Christianized Filipinos, who Filipinos. The term "non-Christian" referred not to
generally came from the lowland populations. religious belief, but to a geographical area, and
Second, were the Moros or the Muslim more directly, "to natives of the Philippine Islands of
communities, and third, were the infieles or a low grade of civilization, usually living in tribal
the indigenous communities.75 relationship apart from settled communities."82

The Indio was a product of the advent of Spanish Like the Spaniards, the Americans pursued a
culture. This class was favored by the Spaniards policy of assimilation. In 1903, they passed Act
and was allowed certain status although below the No. 253 creating the Bureau of Non-Christian
Spaniards. The Moros and infieles were regarded Tribes (BNCT). Under the Department of the
as the lowest classes.76 Interior, the BNCT's primary task was to conduct
ethnographic research among unhispanized
The Moros and infieles resisted Spanish rule Filipinos, including those in Muslim Mindanao, with
and Christianity. The Moros were driven from a "special view to determining the most practicable
Manila and the Visayas to Mindanao; while the means for bringing about their advancement in
infieles, to the hinterlands. The Spaniards did not civilization and prosperity." The BNCT was
pursue them into the deep interior. The upland modeled after the bureau dealing with American
societies were naturally outside the immediate Indians. The agency took a keen anthropological
concern of Spanish interest, and the cliffs and interest in Philippine cultural minorities and
forests of the hinterlands were difficult and produced a wealth of valuable materials about
inaccessible, allowing the infieles, in effect, relative them.83
security.77 Thus, the infieles, which were peripheral
to colonial administration, were not only able to The 1935 Constitution did not carry any policy
preserve their own culture but also thwarted the on the non-Christian Filipinos. The raging issue
Christianization process, separating themselves then was the conservation of the national
from the newly evolved Christian community.78 Their patrimony for the Filipinos.
own political, economic and social systems were
kept constantly alive and vibrant. In 1957, the Philippine Congress passed R.A. No.
1888, an "Act to effectuate in a more rapid and
The pro-Christian or pro-Indio attitude of colonialism complete manner the economic, social, moral and
brought about a generally mutual feeling of political advancement of the non-Christian Filipinos
suspicion, fear, and hostility between the Christians or national cultural minorities and to render real,
on the one hand and the non-Christians on the complete, and permanent the integration of all said
other. Colonialism tended to divide and rule an national cultural minorities into the body politic,
otherwise culturally and historically related creating the Commission on National
populace through a colonial system that exploited Integration charged with said functions." The law
both the virtues and vices of the Filipinos.79 called for a policy of integration of indigenous
peoples into the Philippine mainstream and for this
President McKinley, in his instructions to the purpose created the Commission on National
Philippine Commission of April 7, 1900, Integration (CNI).84 The CNI was given, more or
addressed the existence of the infieles: less, the same task as the BNCT during the
American regime. The post-independence policy
of integration was like the colonial policy of
"In dealing with the uncivilized tribes of the assimilation understood in the context of a
Islands, the Commission should adopt the same guardian-ward relationship.85
course followed by Congress in permitting the
tribes of our North American Indians to maintain
their tribal organization and government, and The policy of assimilation and integration did not
under which many of those tribes are now living in yield the desired result. Like the Spaniards and
peace and contentment, surrounded by civilization Americans, government attempts at integration
to which they are unable or unwilling to conform. met with fierce resistance. Since World War II, a
Such tribal government should, however, be tidal wave of Christian settlers from the lowlands of
subjected to wise and firm regulation; and, without Luzon and the Visayas swamped the highlands and
undue or petty interference, constant and active wide open spaces in Mindanao.86Knowledge by
effort should be exercised to prevent barbarous the settlers of the Public Land Acts and the
practices and introduce civilized customs."80 Torrens system resulted in the titling of several
ancestral lands in the settlers' names. With
government initiative and participation, this
Placed in an alternative of either letting the natives titling displaced several indigenous peoples
alone or guiding them in the path of civilization, the from their lands. Worse, these peoples were also
American government chose "to adopt the latter displaced by projects undertaken by the national
measure as one more in accord with humanity and government in the name of national development.87
with the national conscience."81
It was in the 1973 Constitution that the State the Office of Muslim Affairs, Office for Northern
adopted the following provision: Cultural Communities and the Office for
Southern Cultural Communities all under the
"The State shall consider the customs, traditions, Office of the President.95
beliefs, and interests of national cultural
communities in the formulation and implementation The 1987 Constitution carries at least six (6)
of State policies."88 provisions which insure the right of tribal
Filipinos to preserve their way of life.96 This
For the first time in Philippine history, the "non- Constitution goes further than the 1973
Christian tribes" or the "cultural minorities" Constitution by expressly guaranteeing the
were addressed by the highest law of the rights of tribal Filipinos to their ancestral
Republic, and they were referred to as "cultural domains and ancestral lands. By recognizing
communities." More importantly this time, their their right to their ancestral lands and domains,
"uncivilized" culture was given some recognition the State has effectively upheld their right to live
and their "customs, traditions, beliefs and interests" in a culture distinctly their own.
were to be considered by the State in the
formulation and implementation of State 2. Their Concept of Land
policies. President Marcos abolished the CNI and
transferred its functions to the Presidential Indigenous peoples share distinctive traits that
Adviser on National Minorities set them apart from the Filipino mainstream. They
(PANAMIN). The PANAMIN was tasked to are non-Christians. They live in less accessible,
integrate the ethnic groups that sought full marginal, mostly upland areas. They have a system
integration into the larger community, and at the of self-government not dependent upon the laws of
same time "protect the rights of those who wish to the central administration of the Republic of the
preserve their original lifeways beside the larger Philippines. They follow ways of life and customs
community."89 In short, while still adopting the that are perceived as different from those of the rest
integration policy, the decree recognized the of the population.97 The kind of response the
right of tribal Filipinos to preserve their way of indigenous peoples chose to deal with colonial
life.90 threat worked well to their advantage by making it
difficult for Western concepts and religion to erode
In 1974, President Marcos promulgated P.D. No. their customs and traditions. The "infieles societies"
410, otherwise known as the Ancestral Lands which had become peripheral to colonial
Decree. The decree provided for the issuance of administration, represented, from a cultural
land occupancy certificates to members of the perspective, a much older base of archipelagic
national cultural communities who were given up to culture. The political systems were still structured
1984 to register their claims.91 In 1979, on the patriarchal and kinship oriented arrangement
the Commission on the Settlement of Land of power and authority. The economic activities
Problems was created under E.O. No. 561 which were governed by the concepts of an ancient
provided a mechanism for the expeditious communalism and mutual help. The social structure
resolution of land problems involving small settlers, which emphasized division of labor and distinction
landowners, and tribal Filipinos.92 of functions, not status, was maintained. The
cultural styles and forms of life portraying the
Despite the promulgation of these laws, from 1974 varieties of social courtesies and ecological
to the early 1980's, some 100,000 Kalingas and adjustments were kept constantly vibrant.98
Bontoks of the Cordillera region were displaced by
the Chico River dam project of the National Power Land is the central element of the indigenous
Corporation (NPC). The Manobos of Bukidnon saw peoples' existence. There is no traditional concept
their land bulldozed by the Bukidnon Sugar of permanent, individual, land ownership. Among
Industries Company (BUSCO). In Agusan del Sur, the Igorots, ownership of land more accurately
the National Development Company was applies to the tribal right to use the land or to
authorized by law in 1979 to take approximately territorial control. The people are the secondary
40,550 hectares of land that later became the NDC- owners or stewards of the land and that if a
Guthrie plantation in Agusan del Sur. Most of the member of the tribe ceases to work, he loses his
land was possessed by the Agusan claim of ownership, and the land reverts to the
natives.93 Timber concessions, water projects, beings of the spirit world who are its true and
plantations, mining, and cattle ranching and other primary owners. Under the concept of "trusteeship,"
projects of the national government led not only to the right to possess the land does not only belong
the eviction of the indigenous peoples from their to the present generation but the future ones as
land but also to the reduction and destruction of well.99
their natural environment.94
Customary law on land rests on the traditional
The Aquino government signified a total shift belief that no one owns the land except the gods
from the policy of integration to one of and spirits, and that those who work the land are its
preservation. Invoking her powers under the mere stewards.100 Customary law has a strong
Freedom Constitution, President Aquino created preference for communal ownership, which could
either be ownership by a group of individuals or consultations and one national consultation
families who are related by blood or by with indigenous peoples nationwide. 108 At the
marriage,101 or ownership by residents of the same Second Regular Session of the Tenth Congress,
locality who may not be related by blood or Senator Flavier, in his sponsorship speech, gave a
marriage. The system of communal ownership background on the situation of indigenous peoples
under customary laws draws its meaning from the in the Philippines, to wit:
subsistence and highly collectivized mode of
economic production. The Kalingas, for instance, "The Indigenous Cultural Communities, including
who are engaged in team occupation like hunting, the Bangsa Moro, have long suffered from the
foraging for forest products, and swidden farming dominance and neglect of government controlled by
found it natural that forest areas, swidden farms, the majority. Massive migration of their Christian
orchards, pasture and burial grounds should be brothers to their homeland shrunk their territory and
communally-owned.102 For the Kalingas, everybody many of the tribal Filipinos were pushed to the
has a common right to a common economic base. hinterlands. Resisting the intrusion, dispossessed of
Thus, as a rule, rights and obligations to the land their ancestral land and with the massive
are shared in common. exploitation of their natural resources by the elite
among the migrant population, they became
Although highly bent on communal ownership, marginalized. And the government has been an
customary law on land also sanctions individual indispensable party to this insidious conspiracy
ownership.The residential lots and terrace rice against the Indigenous Cultural Communities
farms are governed by a limited system of (ICCs). It organized and supported the resettlement
individual ownership. It is limited because while of people to their ancestral land, which was
the individual owner has the right to use and massive during the Commonwealth and early years
dispose of the property, he does not possess all the of the Philippine Republic. Pursuant to the Regalian
rights of an exclusive and full owner as defined Doctrine first introduced to our system by Spain
under our Civil Code.103 Under Kalinga customary through the Royal Decree of 13 February 1894 or
law, the alienation of individually-owned land is the Maura Law, the government passed laws to
strongly discouraged except in marriage and legitimize the wholesale landgrabbing and provide
succession and except to meet sudden financial for easy titling or grant of lands to migrant
needs due to sickness, death in the family, or loss homesteaders within the traditional areas of the
of crops.104 Moreover, and to be alienated should ICCs."109
first be offered to a clan-member before any village-
member can purchase it, and in no case may land Senator Flavier further declared:
be sold to a non-member of the ili.105
"The IPs are the offsprings and heirs of the peoples
Land titles do not exist in the indigenous who have first inhabited and cared for the land long
peoples' economic and social system. The before any central government was established.
concept of individual land ownership under the Their ancestors had territories over which they ruled
civil law is alien to them. Inherently colonial in themselves and related with other tribes. These
origin, our national land laws and governmental territories- the land- include people, their dwelling,
policies frown upon indigenous claims to the mountains, the water, the air, plants, forest and
ancestral lands. Communal ownership is looked the animals. This is their environment in its totality.
upon as inferior, if not inexistent.106 Their existence as indigenous peoples is
manifested in their own lives through political,
III. THE IPRA IS A NOVEL PIECE OF economic, socio-cultural and spiritual practices. The
LEGISLATION. IPs culture is the living and irrefutable proof to this.

A. The Legislative History of the IPRA Their survival depends on securing or acquiring
land rights; asserting their rights to it; and
It was to address the centuries-old neglect of depending on it. Otherwise, IPs shall cease to exist
the Philippine indigenous peoples that the Tenth as distinct peoples."110
Congress of the Philippines, by their joint efforts,
passed and approved R.A. No. 8371, the To recognize the rights of the indigenous peoples
Indigenous Peoples Rights Act (IPRA) of effectively, Senator Flavier proposed a bill based
1997. The law was a consolidation of two Bills- on two postulates: (1) the concept of native title;
Senate Bill No. 1728 and House Bill No. 9125. and (2) the principle of parens patriae.

Principally sponsored by Senator Juan M. According to Senator Flavier, "[w]hile our legal
Flavier,107 Senate Bill No. 1728 was a tradition subscribes to the Regalian Doctrine
consolidation of four proposed measures referred to reinstated in Section 2, Article XII of the 1987
the Committees on Cultural Communities, Constitution," our "decisional laws" and
Environment and Natural Resources, Ways and jurisprudence passed by the State have "made
Means, as well as Finance. It adopted almost en exception to the doctrine." This exception was first
toto the comprehensive version of Senate Bill Nos. laid down in the case of Cariño v. Insular
1476 and 1486 which was a result of six regional Government where:
"x x x the court has recognized long occupancy of matters seriously and early approval of the
land by an indigenous member of the cultural substitute bill shall bring into reality the aspirations,
communities as one of private ownership, which, in the hope and the dreams of more than 12 million
legal concept, is termed "native title." This ruling Filipinos that they be considered in the mainstream
has not been overturned. In fact, it was affirmed in of the Philippine society as we fashion for the year
subsequent cases."111 2000." 114

Following Cariño, the State passed Act No. 926, Rep. Andolana stressed that H.B. No. 9125 is
Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410, based on the policy of preservation as mandated in
P.D. 1529, R.A. 6734 (the Organic Act for the the Constitution. He also emphasized that the rights
Autonomous Region of Muslim Mindanao). These of IPs to their land was enunciated in Cariño v.
laws, explicitly or implicitly, and liberally or Insular Government which recognized the fact that
restrictively, recognized "native title" or "private they had vested rights prior to the establishment of
right" and the existence of ancestral lands and the Spanish and American regimes.115
domains. Despite the passage of these laws,
however, Senator Flavier continued: After exhaustive interpellation, House Bill No.
9125, and its corresponding amendments, was
"x x x the executive department of government approved on Second Reading with no
since the American occupation has not objections.
implemented the policy. In fact, it was more
honored in its breach than in its observance, its IV. THE PROVISIONS OF THE IPRA DO NOT
wanton disregard shown during the period unto the CONTRAVENE THE CONSTITUTION.
Commonwealth and the early years of the
Philippine Republic when government organized
and supported massive resettlement of the people A. Ancestral Domains and Ancestral Lands are
to the land of the ICCs." the Private Property of Indigenous Peoples and
Do Not Constitute Part of the Land of the Public
Domain.
Senate Bill No. 1728 seeks to genuinely recognize
the IPs right to own and possess their ancestral
land. The bill was prepared also under the principle The IPRA grants to ICCs/IPs a distinct kind of
of parens patriae inherent in the supreme power of ownership over ancestral domains and
the State and deeply embedded in Philippine legal ancestral lands.Ancestral lands are not the same
tradition. This principle mandates that persons as ancestral domains. These are defined in Section
suffering from serious disadvantage or handicap, 3 [a] and [b] of the Indigenous Peoples Right
which places them in a position of actual inequality Act, viz:
in their relation or transaction with others, are
entitled to the protection of the State. "Sec. 3 a) Ancestral Domains. - Subject to
Section 56 hereof, refer to all areas generally
Senate Bill No. 1728 was passed on Third belonging to ICCs/IPs comprising lands, inland
Reading by twenty-one (21) Senators voting in waters, coastal areas, and natural resources
favor and none against, with no abstention.112 therein, held under a claim of ownership, occupied
or possessed by ICCs/IPs by themselves or through
their ancestors, communally or individually since
House Bill No. 9125 was sponsored by Rep. time immemorial, continuously to the present
Zapata, Chairman of the Committee on Cultural except when interrupted by war, force majeure or
Communities. It was originally authored and displacement by force, deceit, stealth or as a
subsequently presented and defended on the floor consequence of government projects or any other
by Rep. Gregorio Andolana of North Cotabato.113 voluntary dealings entered into by government and
private individuals/corporations, and which are
Rep. Andolana's sponsorhip speech reads as necessary to ensure their economic, social and
follows: cultural welfare. It shall include ancestral lands,
forests, pasture, residential, agricultural, and other
"This Representation, as early as in the 8th lands individually owned whether alienable and
Congress, filed a bill of similar implications that disposable or otherwise, hunting grounds, burial
would promote, recognize the rights of indigenous grounds, worship areas, bodies of water, mineral
cultural communities within the framework of and other natural resources, and lands which may
national unity and development. no longer be exclusively occupied by ICCs/IPs but
from which they traditionally had access to for their
subsistence and traditional activities, particularly the
Apart from this, Mr. Speaker, is our obligation, the home ranges of ICCs/IPs who are still nomadic
government's obligation to assure and ascertain and/or shifting cultivators;
that these rights shall be well-preserved and the
cultural traditions as well as the indigenous laws
that remained long before this Republic was b) Ancestral Lands.- Subject to Section 56 hereof,
established shall be preserved and promoted. refers to land occupied, possessed and utilized by
There is a need, Mr. Speaker, to look into these individuals, families and clans who are members of
the ICCs/IPs since time immemorial, by themselves The procedure for the delineation and recognition
or through their predecessors-in-interest, under of ancestral domains is set forth in Sections 51
claims of individual or traditional group ownership, and 52 of the IPRA. The identification, delineation
continuously, to the present except when and certification of ancestral lands is in Section 53
interrupted by war, force majeure or displacement of said law.
by force, deceit, stealth, or as a consequence of
government projects and other voluntary dealings Upon due application and compliance with the
entered into by government and private procedure provided under the law and upon finding
individuals/corporations, including, but not limited by the NCIP that the application is meritorious, the
to, residential lots, rice terraces or paddies, private NCIP shall issue a Certificate of Ancestral Domain
forests, swidden farms and tree lots." Title (CADT) in the name of the community
concerned.122 The allocation of lands within the
Ancestral domains are all areas belonging to ancestral domain to any individual or indigenous
ICCs/IPs held under a claim of ownership, occupied corporate (family or clan) claimants is left to the
or possessed by ICCs/IPs by themselves or through ICCs/IPs concerned to decide in accordance with
their ancestors, communally or individually since customs and traditions.123 With respect to
time immemorial, continuously until the present, ancestral lands outside the ancestral domain, the
except when interrupted by war, force majeure or NCIP issues a Certificate of Ancestral Land Title
displacement by force, deceit, stealth or as a (CALT).124
consequence of government projects or any other
voluntary dealings with government and/or private CADT's and CALT's issued under the IPRA shall be
individuals or corporations. Ancestral domains registered by the NCIP before the Register of
comprise lands, inland waters, coastal areas, Deeds in the place where the property is situated.125
and natural resources therein and includes
ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned (1) Right to Ancestral Domains and Ancestral
whether alienable or not, hunting grounds, Lands: How Acquired
burial grounds, worship areas, bodies of water,
mineral and other natural resources. They also The rights of the ICCs/IPs to their ancestral
include lands which may no longer be exclusively domains and ancestral lands may be acquired in
occupied by ICCs/IPs but from which they two modes: (1) by native title over both ancestral
traditionally had access to for their subsistence and lands and domains; or (2) by torrens title under
traditional activities, particularly the home ranges of the Public Land Act and the Land Registration
ICCs/IPs who are still nomadic and/or shifting Act with respect to ancestral lands only.
cultivators.116
(2) The Concept of Native Title
Ancestral lands are lands held by the ICCs/IPs
under the same conditions as ancestral domains Native title is defined as:
except that these are limited to lands and that these
lands are not merely occupied and possessed but
are also utilized by the ICCs/IPs under claims of "Sec. 3 [l]. Native Title- refers to pre-conquest rights
individual or traditional group ownership. These to lands and domains which, as far back as memory
lands include but are not limited to residential lots, reaches, have been held under a claim
rice terraces or paddies, private forests, swidden of private ownership by ICCs/IPs, have never been
farms and tree lots.117 public lands and are thus indisputably
presumed to have been held that way since before
the Spanish Conquest."126
The procedures for claiming ancestral domains and
lands are similar to the procedures embodied in
Department Administrative Order (DAO) No. 2, Native title refers to ICCs/IPs' preconquest rights to
series of 1993, signed by then Secretary of the lands and domains held under a claim of private
Department of Environment and Natural Resources ownership as far back as memory reaches. These
(DENR) Angel Alcala.118 DAO No. 2 allowed the lands are deemed never to have been public lands
delineation of ancestral domains by special task and are indisputably presumed to have been held
forces and ensured the issuance of Certificates of that way since before the Spanish Conquest. The
Ancestral Land Claims (CALC's) and Certificates of rights of ICCs/IPs to their ancestral domains (which
Ancestral Domain Claims (CADC's) to IPs. also include ancestral lands) by virtue of native title
shall be recognized and respected.127 Formal
recognition, when solicited by ICCs/IPs concerned,
The identification and delineation of these ancestral shall be embodied in a Certificate of Ancestral
domains and lands is a power conferred by the Domain Title (CADT), which shall recognize the title
IPRA on the National Commission on Indigenous of the concerned ICCs/IPs over the territories
Peoples (NCIP).119 The guiding principle in identified and delineated.128
identification and delineation is self-
delineation.120 This means that the ICCs/IPs have a
decisive role in determining the boundaries of their Like a torrens title, a CADT is evidence of private
domains and in all the activities pertinent thereto.121 ownership of land by native title. Native title,
however, is a right of private ownership peculiarly
granted to ICCs/IPs over their ancestral lands and those in the same zone of civilization with
domains. The IPRA categorically declares ancestral themselves. It is true, also, that in legal theory,
lands and domains held by native title as never to sovereignty is absolute, and that, as against foreign
have been public land. Domains and lands held nations, the United States may assert, as Spain
under native title are, therefore, indisputably asserted, absolute power. But it does not follow
presumed to have never been public lands and are that, as against the inhabitants of the Philippines,
private. the United States asserts that Spain had such
power. When theory is left on one side, sovereignty
(a) Cariño v. Insular Government129 is a question of strength, and may vary in degree.
How far a new sovereign shall insist upon the
theoretical relation of the subjects to the head in the
The concept of native title in the IPRA was taken past, and how far it shall recognize actual facts, are
from the 1909 case of Cariño v. Insular matters for it to decide."137
Government.130 Cariñofirmly established a concept
of private land title that existed irrespective of any
royal grant from the State. The U.S. Supreme Court noted that it need not
accept Spanish doctrines. The choice was with the
new colonizer. Ultimately, the matter had to be
In 1903, Don Mateo Cariño, an Ibaloi, sought to decided under U.S. law.
register with the land registration court 146 hectares
of land in Baguio Municipality, Benguet Province.
He claimed that this land had been possessed and The Cariño decision largely rested on the North
occupied by his ancestors since time immemorial; American constitutionalist's concept of "due
that his grandfather built fences around the property process" as well as the pronounced policy "to do
for the holding of cattle and that his father cultivated justice to the natives."138 It was based on the strong
some parts of the land. Cariño inherited the land in mandate extended to the Islands via the Philippine
accordance with Igorot custom. He tried to have the Bill of 1902 that "No law shall be enacted in said
land adjusted under the Spanish land laws, but no islands which shall deprive any person of life,
document issued from the Spanish Crown.131 In liberty, or property without due process of law, or
1901, Cariño obtained a possessory title to the land deny to any person therein the equal protection of
under the Spanish Mortgage Law.132 The North the laws." The court declared:
American colonial government, however, ignored
his possessory title and built a public road on the "The acquisition of the Philippines was not like the
land prompting him to seek a Torrens title to his settlement of the white race in the United States.
property in the land registration court. While his Whatever consideration may have been shown to
petition was pending, a U.S. military the North American Indians, the dominant purpose
reservation133 was proclaimed over his land and, of the whites in America was to occupy land. It is
shortly thereafter, a military detachment was obvious that, however stated, the reason for our
detailed on the property with orders to keep cattle taking over the Philippines was different. No one,
and trespassers, including Cariño, off the land.134 we suppose, would deny that, so far as consistent
with paramount necessities, our first object in the
In 1904, the land registration court granted Cariño's internal administration of the islands is to do justice
application for absolute ownership to the land. Both to the natives, not to exploit their country for private
the Government of the Philippine Islands and the gain. By the Organic Act of July 1, 1902, chapter
U.S. Government appealed to the C.F.I. of Benguet 1369, section 12 (32 Statutes at Large, 691), all the
which reversed the land registration court and property and rights acquired there by the United
dismissed Cariño's application. The Philippine States are to be administered 'for the benefit of the
Supreme Court135 affirmed the C.F.I. by applying inhabitants thereof.' It is reasonable to suppose that
the Valenton ruling. Cariño took the case to the the attitude thus assumed by the United States with
U.S. Supreme Court.136 On one hand, the Philippine regard to what was unquestionably its own is also
government invoked the Regalian doctrine and its attitude in deciding what it will claim for its own.
contended that Cariño failed to comply with the The same statute made a bill of rights, embodying
provisions of the Royal Decree of June 25, 1880, the safeguards of the Constitution, and, like the
which required registration of land claims within a Constitution, extends those safeguards to all. It
limited period of time. Cariño, on the other, asserted provides that 'no law shall be enacted in said
that he was the absolute owner of the land jure islands which shall deprive any person of life,
gentium, and that the land never formed part of the liberty, or property without due process of law, or
public domain. deny to any person therein the equal protection of
the laws.' In the light of the declaration that we have
quoted from section 12, it is hard to believe that the
In a unanimous decision written by Justice Oliver United States was ready to declare in the next
Wendell Holmes, the U.S. Supreme Court held: breath that "any person" did not embrace the
inhabitants of Benguet, or that it meant by
"It is true that Spain, in its earlier decrees, "property" only that which had become such by
embodied the universal feudal theory that all lands ceremonies of which presumably a large part of the
were held from the Crown, and perhaps the general inhabitants never had heard, and that it proposed to
attitude of conquering nations toward people not treat as public land what they, by native custom and
recognized as entitled to the treatment accorded to
by long association,- of the profoundest factors in laws were not framed in a manner as to convey to
human thought,- regarded as their own."139 the natives that failure to register what to them has
always been their own would mean loss of such
The Court went further: land. The registration requirement was "not to
confer title, but simply to establish it;" it was "not
calculated to convey to the mind of an Igorot chief
"Every presumption is and ought to be against the the notion that ancient family possessions were in
government in a case like the present. It might, danger, if he had read every word of it."
perhaps, be proper and sufficient to say that
when, as far back as testimony or memory goes,
the land has been held by individuals under a By recognizing this kind of title, the court
claim of private ownership, it will be presumed clearly repudiated the doctrine of Valenton. It was
to have been held in the same way from before frank enough, however, to admit the possibility that
the Spanish conquest, and never to have been the applicant might have been deprived of his land
public land. Certainly in a case like this, if there is under Spanish law because of the inherent
doubt or ambiguity in the Spanish law, we ought to ambiguity of the decrees and concomitantly, the
give the applicant the benefit of the doubt."140 various interpretations which may be given
them. But precisely because of the ambiguity
and of the strong "due process mandate" of the
The court thus laid down the presumption of a Constitution, the court validated this kind of
certain title held (1) as far back as testimony or title.142 This title was sufficient, even without
memory went, and (2) under a claim of private government administrative action, and entitled the
ownership. Land held by this title is presumed to holder to a Torrens certificate. Justice Holmes
"never have been public land." explained:

Against this presumption, the U.S. Supreme Court "It will be perceived that the rights of the applicant
analyzed the Spanish decrees upheld in the 1904 under the Spanish law present a problem not
decision ofValenton v. Murciano. The U.S. without difficulties for courts of a legal tradition. We
Supreme Court found no proof that the Spanish have deemed it proper on that account to notice the
decrees did not honor native title. On the contrary, possible effect of the change of sovereignty and the
the decrees discussed in Valenton appeared to act of Congress establishing the fundamental
recognize that the natives owned some land, principles now to be observed. Upon a
irrespective of any royal grant. The Regalian consideration of the whole case we are of the
doctrine declared in the preamble of opinion that law and justice require that the
the Recopilacion was all "theory and discourse" and applicant should be granted what he seeks, and
it was observed that titles were admitted to exist should not be deprived of what, by the practice and
beyond the powers of the Crown, viz: belief of those among whom he lived, was his
property, through a refined interpretation of an
"If the applicant's case is to be tried by the law almost forgotten law of Spain."143
of Spain, we do not discover such clear proof
that it was bad by that law as to satisfy us that Thus, the court ruled in favor of Cariño and
he does not own the land. To begin with, the ordered the registration of the 148 hectares in
older decrees and laws cited by the counsel for Baguio Municipality in his name.144
the plaintiff in error seem to indicate pretty
clearly that the natives were recognized as
owning some lands, irrespective of any royal Examining Cariño closer, the U.S. Supreme Court
grant. In other words, Spain did not assume to did not categorically refer to the title it upheld as
convert all the native inhabitants of the Philippines "native title." It simply said:
into trespassers or even into tenants at will. For
instance, Book 4, title 12, Law 14 of the "The Province of Benguet was inhabited by a
the Recopilacion de Leyes de las Indias, cited for a tribe that the Solicitor-General, in his argument,
contrary conclusion in Valenton v. Murciano, 3 characterized as a savage tribe that never was
Philippine 537, while it commands viceroys and brought under the civil or military government
others, when it seems proper, to call for the of the Spanish Crown. It seems probable, if not
exhibition of grants, directs them to confirm those certain, that the Spanish officials would not
who hold by good grants or justa prescripcion. It is have granted to anyone in that province the
true that it begins by the characteristic registration to which formerly the plaintiff was
assertion of feudal overlordship and the origin entitled by the Spanish Laws, and which would
of all titles in the King or his predecessors. That have made his title beyond question
was theory and discourse. The fact was that good. Whatever may have been the technical
titles were admitted to exist that owed nothing position of Spain it does not follow that, in the view
to the powers of Spain beyond this recognition of the United States, he had lost all rights and was
in their books." (Emphasis supplied).141 a mere trespasser when the present government
seized his land. The argument to that effect seems
The court further stated that the Spanish to amount to a denial of native titles through an
"adjustment" proceedings never held sway over important part of the Island of Luzon, at least, for
unconquered territories. The wording of the Spanish the want of ceremonies which the Spaniards would
not have permitted and had not the power to From the beginning of the United States, and even
enforce."145 before, the Indians have been treated as "in a state
of pupilage." The recognized relation between the
This is the only instance when Justice Holmes used Government of the United States and the Indians
the term "native title" in the entire length of may be described as that of guardian and ward. It is
the Cariño decision. It is observed that the for the Congress to determine when and how the
widespread use of the term "native title" may be guardianship shall be terminated. The Indians are
traced to Professor Owen James Lynch, Jr., a always subject to the plenary authority of the United
Visiting Professor at the University of the States.152
Philippines College of Law from the Yale University
Law School. In 1982, Prof. Lynch published an x x x.
article in the Philippine Law
Journal entitled Native Title, Private Right and As to the second point, the facts in the Standing
Tribal Land Law.146 This article was made after Bear case and the Rubi case are not exactly
Professor Lynch visited over thirty tribal identical. But even admitting similarity of facts, yet it
communities throughout the country and studied the is known to all that Indian reservations do exist in
origin and development of Philippine land the United States, that Indians have been taken
laws.147 He discussed Cariño extensively and used from different parts of the country and placed on
the term "native title" to refer to Cariño's title as these reservations, without any previous
discussed and upheld by the U.S. Supreme Court in consultation as to their own wishes, and that, when
said case. once so located, they have been made to remain on
the reservation for their own good and for the
(b) Indian Title general good of the country. If any lesson can be
drawn from the Indian policy of the United States, it
In a footnote in the same article, Professor Lynch is that the determination of this policy is for the
stated that the concept of "native title" as defined by legislative and executive branches of the
Justice Holmes in Cariño "is conceptually similar to government and that when once so decided upon,
"aboriginal title" of the American Indians. 148 This is the courts should not interfere to upset a carefully
not surprising, according to Prof. Lynch, considering planned governmental system. Perhaps, just as
that during the American regime, government policy many forceful reasons exist for the segregation of
towards ICCs/IPs was consistently made in the Manguianes in Mindoro as existed for the
reference to native Americans.149 This was clearly segregation of the different Indian tribes in the
demonstrated in the case of Rubi v. Provincial United States."153
Board of Mindoro.150
Rubi applied the concept of Indian land grants or
In Rubi, the Provincial Board of Mindoro adopted a reservations in the Philippines. An Indian
Resolution authorizing the provincial governor to reservation is a part of the public domain set apart
remove the Mangyans from their domains and by proper authority for the use and occupation of a
place them in a permanent reservation in Sitio tribe or tribes of Indians.154 It may be set apart by an
Tigbao, Lake Naujan. Any Mangyan who refused to act of Congress, by treaty, or by executive order,
comply was to be imprisoned. Rubi and some but it cannot be established by custom and
Mangyans, including one who was imprisoned for prescription.155
trying to escape from the reservation, filed for
habeas corpus claiming deprivation of liberty under Indian title to land, however, is not limited to
the Board Resolution. This Court denied the petition land grants or reservations. It also covers the
on the ground of police power. It upheld "aboriginal right of possession or
government policy promoting the idea that a occupancy."156 The aboriginal right of possession
permanent settlement was the only successful depends on the actual occupancy of the lands in
method for educating the Mangyans, introducing question by the tribe or nation as their ancestral
civilized customs, improving their health and home, in the sense that such lands constitute
morals, and protecting the public forests in which definable territory occupied exclusively by the
they roamed.151 Speaking through Justice Malcolm, particular tribe or nation.157 It is a right which exists
the court said: apart from any treaty, statute, or other
governmental action, although in numerous
"Reference was made in the President's instructions instances treaties have been negotiated with Indian
to the Commission to the policy adopted by the tribes, recognizing their aboriginal possession and
United States for the Indian Tribes. The methods delimiting their occupancy rights or settling and
followed by the Government of the Philippine adjusting their boundaries.158
Islands in its dealings with the so-called non-
Christian people is said, on argument, to be American jurisprudence recognizes the Indians'
practically identical with that followed by the United or native Americans' rights to land they have
States Government in its dealings with the Indian held and occupied before the "discovery" of the
tribes. Valuable lessons, it is insisted, can be Americas by the Europeans. The earliest
derived by an investigation of the American-Indian definitive statement by the U.S. Supreme Court
policy. on the nature of aboriginal title was made in
1823 in Johnson & Graham's Lessee v. claims to land. Rather, until the discoverer, by
M'Intosh.159 purchase or conquest, exercised its right, the
concerned Indians were recognized as the "rightful
In Johnson, the plaintiffs claimed the land in occupants of the soil, with a legal as well as just
question under two (2) grants made by the chiefs of claim to retain possession of it." Grants made by
two (2) Indian tribes. The U.S. Supreme Court the discoverer to her subjects of lands occupied by
refused to recognize this conveyance, the plaintiffs the Indians were held to convey a title to the
being private persons. The only conveyance that grantees, subject only to the Indian right of
was recognized was that made by the Indians to the occupancy. Once the discoverer purchased the
government of the European discoverer. Speaking land from the Indians or conquered them, it was
for the court, Chief Justice Marshall pointed out that only then that the discoverer gained an absolute
the potentates of the old world believed that they title unrestricted by Indian rights.
had made ample compensation to the inhabitants of
the new world by bestowing civilization and The court concluded, in essence, that a grant of
Christianity upon them; but in addition, said the Indian lands by Indians could not convey a title
court, they found it necessary, in order to avoid paramount to the title of the United States itself to
conflicting settlements and consequent war, to other parties, saying:
establish the principle that discovery gives title to
the government by whose subjects, or by whose "It has never been contended that the Indian title
authority, the discovery was made, against all amounted to nothing. Their right of possession
other European governments, which title might has never been questioned. The claim of
be consummated by possession.160 The government extends to the complete ultimate
exclusion of all other Europeans gave to the nation title, charged with this right of possession, and
making the discovery the sole right of acquiring the to the exclusive power of acquiring that right."162
soil from the natives and establishing settlements
upon it. As regards the natives, the court further
stated that: It has been said that the history of America, from its
discovery to the present day, proves the universal
recognition of this principle.163
"Those relations which were to exist between the
discoverer and the natives were to be regulated by
themselves. The rights thus acquired being The Johnson doctrine was a compromise. It
exclusive, no other power could interpose between protected Indian rights and their native lands
them. without having to invalidate conveyances made by
the government to many U.S. citizens.164
In the establishment of these relations, the rights of
the original inhabitants were, in no instance, Johnson was reiterated in the case of Worcester
entirely disregarded; but were necessarily, to a v. Georgia.165 In this case, the State of Georgia
considerable extent, impaired. They were admitted enacted a law requiring all white persons residing
to be the rightful occupants of the soil, with a within the Cherokee nation to obtain a license or
legal as well as just claim to retain possession permit from the Governor of Georgia; and any
of it, and to use it according to their own violation of the law was deemed a high
discretion; but their rights to complete sovereignty, misdemeanor. The plaintiffs, who were white
as independent nations, were necessarily missionaries, did not obtain said license and were
diminished, and their power to dispose of the soil at thus charged with a violation of the Act.
their own will, to whomsoever they pleased, was
denied by the fundamental principle that discovery The U.S. Supreme Court declared the Act as
gave exclusive title to those who made it. unconstitutional for interfering with the treaties
established between the United States and the
While the different nations of Europe respected Cherokee nation as well as the Acts of Congress
the right of the natives as occupants, they regulating intercourse with them. It characterized
asserted the ultimate dominion to be in the relationship between the United States
themselves; and claimed and exercised, as a government and the Indians as:
consequence of this ultimate dominion, a power
to grant the soil, while yet in possession of the "The Indian nations were, from their situation,
natives. These grants have been understood by necessarily dependent on some foreign potentate
all to convey a title to the grantees, subject only for the supply of their essential wants, and for their
to the Indian right of occupancy." 161 protection from lawless and injurious intrusions into
their country. That power was naturally termed their
Thus, the discoverer of new territory was deemed to protector. They had been arranged under the
have obtained the exclusive right to acquire Indian protection of Great Britain; but the extinguishment
land and extinguish Indian titles. Only to the of the British power in their neighborhood, and the
discoverer- whether to England, France, Spain or establishment of that of the United States in its
Holland- did this right belong and not to any other place, led naturally to the declaration, on the part of
nation or private person. The mere acquisition of the Cherokees, that they were under the protection
the right nonetheless did not extinguish Indian of the United States, and of no other power. They
assumed the relation with the United States which of the land. The discoverer nonetheless asserted
had before subsisted with Great Britain. the exclusive right to acquire the Indians' land-
either by purchase, "defensive" conquest, or
This relation was that of a nation claiming and cession- and in so doing, extinguish the Indian title.
receiving the protection of one more powerful, not Only the discoverer could extinguish Indian title
that of individuals abandoning their national because it alone asserted ultimate dominion in
character, and submitting as subjects to the laws of itself. Thus, while the different nations of Europe
a master."166 respected the rights of the natives as occupants,
they all asserted the ultimate dominion and title to
be in themselves.170
It was the policy of the U.S. government to treat the
Indians as nations with distinct territorial boundaries
and recognize their right of occupancy over all the As early as the 19th century, it became
lands within their domains. Thus: accepted doctrine that although fee title to the
lands occupied by the Indians when the
colonists arrived became vested in the
"From the commencement of our government sovereign- first the discovering European nation
Congress has passed acts to regulate trade and and later the original 13 States and the United
intercourse with the Indians; which treat them as States- a right of occupancy in the Indian tribes
nations, respect their rights, and manifest a firm was nevertheless recognized. The Federal
purpose to afford that protection which treaties Government continued the policy of respecting the
stipulate. All these acts, and especially that of 1802, Indian right of occupancy, sometimes called Indian
which is still in force, manifestly consider the title, which it accorded the protection of complete
several Indian nations as distinct political ownership.171 But this aboriginal Indian interest
communities, having territorial boundaries, simply constitutes "permission" from the whites to
within which their authority is exclusive, and occupy the land, and means mere possession not
having a right to all the lands within those specifically recognized as ownership by
boundaries, which is not only acknowledged, Congress.172 It is clear that this right of occupancy
but guaranteed by the United States. based upon aboriginal possession is not a property
right.173 It is vulnerable to affirmative action by the
x x x. federal government who, as sovereign, possessed
exclusive power to extinguish the right of
"The Indian nations had always been occupancy at will.174 Thus, aboriginal title is not
considered as distinct, independent political the same as legal title. Aboriginal title rests on
communities, retaining their original natural actual, exclusive and continuous use and
rights, as the undisputed possessors of the soil occupancy for a long time.175 It entails that land
from time immemorial, with the single exception of owned by Indian title must be used within the tribe,
that imposed by irresistible power, which excluded subject to its laws and customs, and cannot be sold
them from intercourse with any other European to another sovereign government nor to any
potentate than the first discoverer of the coast of citizen.176 Such title as Indians have to possess and
the particular region claimed: and this was a occupy land is in the tribe, and not in the individual
restriction which those European potentates Indian; the right of individual Indians to share in the
imposed on themselves, as well as on the Indians. tribal property usually depends upon tribal
The very term "nation," so generally applied to membership, the property of the tribe generally
them, means "a people distinct from others." x x being held in communal ownership.177
x.167
As a rule, Indian lands are not included in the term
The Cherokee nation, then, is a distinct community, "public lands," which is ordinarily used to designate
occupying its own territory, with boundaries such lands as are subject to sale or other disposal
accurately described, in which the laws of Georgia under general laws.178 Indian land which has been
can have no force, and which the citizens of abandoned is deemed to fall into the public
Georgia have no right to enter but with the assent of domain.179 On the other hand, an Indian reservation
the Cherokees themselves or in conformity with is a part of the public domain set apart for the use
treaties and with the acts of Congress. The whole and occupation of a tribe of Indians. 180 Once set
intercourse between the United States and this apart by proper authority, the reservation ceases to
nation is, by our Constitution and laws, vested in be public land, and until the Indian title is
the government of the United States."168 extinguished, no one but Congress can initiate any
preferential right on, or restrict the nation's power to
dispose of, them.181
The discovery of the American continent gave title
to the government of the discoverer as against all
other European governments. Designated as the The American judiciary struggled for more than
naked fee,169 this title was to be consummated by 200 years with the ancestral land claims of
possession and was subject to the Indian title of indigenous Americans.182 And two things are
occupancy. The discoverer acknowledged the clear. First, aboriginal title is recognized. Second,
Indians' legal and just claim to retain possession of indigenous property systems are also recognized.
the land, the Indians being the original inhabitants From a legal point of view, certain benefits can be
drawn from a comparison of Philippine IPs to native
Americans.183 Despite the similarities between All these years, Cariño had been quoted out of
native title and aboriginal title, however, there are at context simply to justify long, continuous, open and
present some misgivings on whether jurisprudence adverse possession in the concept of owner of
on American Indians may be cited authoritatively in public agricultural land. It is this long, continuous,
the Philippines. The U.S. recognizes the open and adverse possession in the concept of
possessory rights of the Indians over their land; title owner of thirty years both for ordinary
to the land, however, is deemed to have passed to citizens194 and members of the national cultural
the U.S. as successor of the discoverer. The minorities195 that converts the land from public into
aboriginal title of ownership is not specifically private and entitles the registrant to a torrens
recognized as ownership by action authorized by certificate of title.
Congress.184 The protection of aboriginal title merely
guards against encroachment by persons other (3) The Option of Securing a Torrens Title to the
than the Federal Government.185 Although there are Ancestral Land Indicates that the Land is
criticisms against the refusal to recognize the native Private.
Americans' ownership of these lands,186 the power
of the State to extinguish these titles has remained
firmly entrenched.187 The private character of ancestral lands and
domains as laid down in the IPRA is
further strengthened by the option given to
Under the IPRA, the Philippine State is not barred individual ICCs/IPs over their individually-owned
form asserting sovereignty over the ancestral ancestral lands. For purposes of registration
domains and ancestral lands.188 The IPRA, under the Public Land Act and the Land
however, is still in its infancy and any similarities Registration Act, the IPRA expressly converts
between its application in the Philippines vis-à-vis ancestral land into public agricultural land
American Jurisprudence on aboriginal title will which may be disposed of by the State. The
depend on the peculiar facts of each case. necessary implication is that ancestral land is
private.  It, however, has to be first converted to
(c) Why the Cariño doctrine is unique public agricultural land simply for registration
purposes. To wit:
In the Philippines, the concept of native title first
upheld in Cariño and enshrined in the IPRA grants "Sec. 12. Option to Secure Certificate of Title Under
ownership, albeit in limited form, of the land to the Commonwealth Act 141, as amended, or the Land
ICCs/IPs. Native title presumes that the land is Registration Act 496- Individual members of cultural
private and was never public. Cariño is the only communities, with respect to their individually-
case that specifically and categorically owned ancestral lands who, by themselves or
recognizes native title. The long line of cases through their predecessors-in-interest, have been in
citing Cariño did not touch on native title and continuous possession and occupation of the same
the private character of ancestral domains and in the concept of owner since time immemorial or
lands. Cariñowas cited by the succeeding cases for a period of not less than thirty (30) years
to support the concept of acquisitive immediately preceding the approval of this Act and
prescription under the Public Land Act which is uncontested by the members of the same ICCs/IPs
a different matter altogether. Under the Public shall have the option to secure title to their
Land Act, land sought to be registered must ancestral lands under the provisions of
be public agricultural land. When the conditions Commonwealth Act 141, as amended, or the Land
specified in Section 48 [b] of the Public Land Act Registration Act 496.
are complied with, the possessor of the land is
deemed to have acquired, by operation of law, a For this purpose, said individually-owned ancestral
right to a grant of the land. 189 The land ceases to be lands, which are agricultural in character and
part of the public domain,190 ipso jure,191 and is actually used for agricultural, residential, pasture,
converted to private property by the mere lapse or and tree farming purposes, including those with a
completion of the prescribed statutory period. slope of eighteen percent (18%) or more, are
hereby classified as alienable and disposable
It was only in the case of Oh Cho v. Director of agricultural lands.
Lands192  that the court declared that the rule that all
lands that were not acquired from the government, The option granted under this section shall be
either by purchase or grant, belong to the public exercised within twenty (20) years from the
domain has an exception. This exception would be approval of this Act."196
any land that should have been in the possession of
an occupant and of his predecessors-in-interest
since time immemorial. It is this kind of possession ICCs/IPs are given the option to secure a torrens
that would justify the presumption that the land had certificate of title over their individually-owned
never been part of the public domain or that it had ancestral lands. This option is limited to
been private property even before the Spanish ancestral lands only, not domains, and such lands
conquest.193 Oh Cho, however, was decided under must be individually, not communally, owned.
the provisions of the Public Land Act
and Cariño was cited to support the applicant's
claim of acquisitive prescription under the said Act.
Ancestral lands that are owned by individual land. Land and space are of vital concern in terms
members of ICCs/IPs who, by themselves or of sheer survival of the ICCs/IPs.201
through their predecessors-in-interest, have been in
continuous possession and occupation of the same The 1987 Constitution mandates the State to
in the concept of owner since time immemorial 197 or "protect the rights of indigenous cultural
for a period of not less than 30 years, which claims communities to their ancestral lands" and that
are uncontested by the members of the same "Congress provide for the applicability of
ICCs/IPs, may be registered under C.A. 141, customary laws x x x in determining the
otherwise known as the Public Land Act, or Act ownership and extent of ancestral domain." 202 It
496, the Land Registration Act. For purposes of is the recognition of the ICCs/IPs distinct rights
registration, the individually-owned ancestral lands of ownership over their ancestral domains and
are classified as alienable and disposable lands that breathes life into this constitutional
agricultural lands of the public domain, provided, mandate.
they are agricultural in character and are actually
used for agricultural, residential, pasture and tree
farming purposes. These lands shall be classified B. The right of ownership and possession by
as public agricultural lands regardless of whether the ICCs/IPs of their ancestral domains is a
they have a slope of 18% or more. limited form of ownership and does not include
the right to alienate the same.
The classification of ancestral land as public
agricultural land is in compliance with the Registration under the Public Land Act and Land
requirements of the Public Land Act and the Land Registration Act recognizes the concept of
Registration Act. C.A. 141, the Public Land Act, ownership under the civil law. This ownership is
deals specifically with lands of the public based on adverse possession for a specified
domain.198 Its provisions apply to those lands period, and harkens to Section 44 of the Public
"declared open to disposition or concession" x x x Land Act on administrative legalization (free patent)
"which have not been reserved for public or quasi- of imperfect or incomplete titles and Section 48 (b)
public purposes, nor appropriated by the and (c) of the same Act on the judicial confirmation
Government, nor in any manner become private of imperfect or incomplete titles. Thus:
property, nor those on which a private right
authorized and recognized by this Act or any other "Sec. 44. Any natural-born citizen of the Philippines
valid law x x x or which having been reserved or who is not the owner of more than twenty-four
appropriated, have ceased to be so."199 Act 496, the hectares and who since July fourth, 1926 or prior
Land Registration Act, allows registration only of thereto, has continuously occupied and cultivated,
private lands and public agricultural lands. Since either by himself or through his predecessors-in-
ancestral domains and lands are private, if the interest, a tract or tracts of agricultural public lands
ICC/IP wants to avail of the benefits of C.A. 141 subject to disposition, or who shall have paid the
and Act 496, the IPRA itself converts his real estate tax thereon while the same has not been
ancestral land, regardless of whether the land occupied by any person shall be entitled, under the
has a slope of eighteen per cent (18%) or provisions of this chapter, to have a free patent
over,200 from private to public agricultural land issued to him for such tract or tracts of such land
for proper disposition. not to exceed twenty-four hectares.

The option to register land under the Public Land A member of the national cultural
Act and the Land Registration Act has nonetheless minorities who has continuously occupied and
a limited period. This option must be exercised cultivated, either by himself or through his
within twenty (20) years from October 29, 1997, the predecessors-in-interest, a tract or tracts of
date of approval of the IPRA. land, whether disposable or not since July 4,
1955, shall be entitled to the right granted in the
Thus, ancestral lands and ancestral domains preceding paragraph of this section: Provided,
are not part of the lands of the public domain. That at the time he files his free patent
They are private and belong to the ICCs/IPs. application he is not the owner of any real
Section 3 of Article XII on National Economy and property secured or disposable under the
Patrimony of the 1987 Constitution classifies lands provision of the Public Land Law.203
of the public domain into four categories: (a)
agricultural, (b) forest or timber, (c) mineral lands, x x x.
and (d) national parks. Section 5 of the same
Article XII mentions ancestral lands and ancestral "Sec. 48. The following described citizens of the
domains but it does not classify them under any of Philippines, occupying lands of the public domain or
the said four categories. To classify them as claiming to own any such lands or an interest
public lands under any one of the four classes therein, but whose titles have not been perfected or
will render the entire IPRA law a nullity. The spirit completed, may apply to the Court of First Instance
of the IPRA lies in the distinct concept of ancestral of the province where the land is located for
domains and ancestral lands. The IPRA addresses confirmation of their claims and the issuance of a
the major problem of the ICCs/IPs which is loss of
certificate of title therefor, under the Land Ownership of ancestral domains by native title does
Registration Act, to wit: not entitle the ICC/IP to a torrens title but to a
Certificate of Ancestral Domain Title (CADT). The
(a) [perfection of Spanish titles] xxx. CADT formally recognizes the indigenous concept
of ownership of the ICCs/IPs over their ancestral
domain. Thus:
(b) Those who by themselves or through
their predecessors-in-interest have been in
open, continuous, exclusive, and notorious "Sec. 5. Indigenous concept of ownership.-
possession and occupation of agricultural Indigenous concept of ownership sustains the view
lands of the public domain, under a bona that ancestral domains and all resources found
fide claim of acquisition or ownership, for therein shall serve as the material bases of their
at least thirty years immediately preceding cultural integrity. The indigenous concept of
the filing of the application for confirmation ownership generally holds that ancestral domains
of title except when prevented by war or are the ICCs/IPs private but community property
force majeure. These shall be conclusively which belongs to all generations and therefore
presumed to have performed all the cannot be sold, disposed or destroyed. It likewise
conditions essential to a Government grant covers sustainable traditional resource rights."
and shall be entitled to a certificate of title
under the provisions of this Chapter. The right of ownership and possession of the
ICCs/IPs to their ancestral domains is held
(c) Members of the national cultural under the indigenous concept of ownership.
minorities who by themselves or This concept maintains the view that ancestral
through their predecessors-in-interest domains are the ICCs/IPs private but community
have been in open, continuous, property. It is private simply because it is not
exclusive and notorious possession part of the public domain. But its private
and occupation of lands of the public character ends there. The ancestral domain is
domain suitable to agriculture, whether owned in common by the ICCs/IPs and not by
disposable or not, under a bona fide one particular person. The IPRA itself provides
claim of ownership for at least 30 years that areas within the ancestral domains, whether
shall be entitled to the rights granted in delineated or not, are presumed to be communally
sub-section (b) hereof."204 held.209 These communal rights, however, are
not exactly the same as co-ownership rights
under the Civil Code.210 Co-ownership gives any
Registration under the foregoing provisions co-owner the right to demand partition of the
presumes that the land was originally public property held in common. The Civil Code expressly
agricultural land but because of adverse possession provides that "no co-owner shall be obliged to
since July 4, 1955 (free patent) or at least thirty remain in the co-ownership." Each co-owner may
years (judicial confirmation), the land has become demand at any time the partition of the thing in
private. Open, adverse, public and continuous common, insofar as his share is concerned.211 To
possession is sufficient, provided, the possessor allow such a right over ancestral domains may be
makes proper application therefor. The possession destructive not only of customary law of the
has to be confirmed judicially or administratively community but of the very community itself.212
after which a torrens title is issued.
Communal rights over land are not the same as
A torrens title recognizes the owner whose name corporate rights over real property, much less
appears in the certificate as entitled to all the rights corporate condominium rights. A corporation can
of ownership under the civil law. The Civil Code of exist only for a maximum of fifty (50) years subject
the Philippines defines ownership in Articles 427, to an extension of another fifty years in any single
428 and 429. This concept is based on Roman Law instance.213 Every stockholder has the right to
which the Spaniards introduced to the Philippines disassociate himself from the
through the Civil Code of 1889. Ownership, under corporation.214 Moreover, the corporation itself may
Roman Law, may be exercised over things or be dissolved voluntarily or involuntarily.215
rights. It primarily includes the right of the owner to
enjoy and dispose of the thing owned. And the right
to enjoy and dispose of the thing includes the right Communal rights to the land are held not only
to receive from the thing what it produces,205 the by the present possessors of the land but
right to consume the thing by its use,206 the right to extends to all generations of the ICCs/IPs, past,
alienate, encumber, transform or even destroy the present and future, to the domain. This is the
thing owned,207 and the right to exclude from the reason why the ancestral domain must be kept
possession of the thing owned by any other person within the ICCs/IPs themselves. The domain cannot
to whom the owner has not transmitted such be transferred, sold or conveyed to other persons. It
thing.208 belongs to the ICCs/IPs as a community.

1. The Indigenous Concept of Ownership and Ancestral lands are also held under the
Customary Law. indigenous concept of ownership. The lands are
communal. These lands, however, may be
transferred subject to the following limitations: (a) 1. The Rights of ICCs/IPs Over Their Ancestral
only to the members of the same ICCs/IPs; (b) in Domains and Lands
accord with customary laws and traditions; and (c)
subject to the right of redemption of the ICCs/IPs for The IPRA grants the ICCs/IPs several rights over
a period of 15 years if the land was transferred to a their ancestral domains and ancestral lands.
non-member of the ICCs/IPs. Section 7 provides for the rights over
ancestral domains:
Following the constitutional mandate that
"customary law govern property rights or relations in "Sec. 7. Rights to Ancestral Domains.- The rights of
determining the ownership and extent of ancestral ownership and possession of ICCs/IPs to their
domains,"216 the IPRA, by legislative fiat, ancestral domains shall be recognized and
introduces a new concept of ownership. This is protected. Such rights include:
a concept that has long existed under
customary law.217
a) Right of Ownership.- The right to
claim ownership over lands, bodies of
Custom, from which customary law is derived, water traditionally and actually
is also recognized under the Civil Code as a occupied by ICCs/IPs, sacred places,
source of law.218 Some articles of the Civil Code traditional hunting and fishing grounds,
expressly provide that custom should be applied in and all improvements made by them at
cases where no codal provision is applicable.219 In any time within the domains;
other words, in the absence of any applicable
provision in the Civil Code, custom, when duly
proven, can define rights and liabilities.220 b) Right to Develop Lands and Natural
Resources.- Subject to Section 56
hereof, the right to develop, control and
Customary law is a primary, not secondary, use lands and territories traditionally
source of rights under the IPRA and uniquely occupied, owned, or used; to manage
applies to ICCs/IPs. Its recognition does not and conserve natural resources within
depend on the absence of a specific provision the territories and uphold the
in the civil law. The indigenous concept of responsibilities for future generations;
ownership under customary law is specifically to benefit and share the profits from
acknowledged and recognized, and coexists with allocation and utilization of the natural
the civil law concept and the laws on land titling and resources found therein; the right to
land registration.221 negotiate the terms and conditions for
the exploration of natural resources in
To be sure, the indigenous concept of ownership the areas for the purpose of ensuring
exists even without a paper title. The CADT is ecological, environmental protection
merely a "formal recognition" of native title. This is and the conservation measures,
clear from Section 11 of the IPRA, to wit: pursuant to national and customary
laws; the right to an informed and
"Sec. 11. Recognition of Ancestral Domain Rights.- intelligent participation in the formulation
The rights of ICCs/IPs to their ancestral domains by and implementation of any project,
virtue of Native Title shall be recognized and government or private, that will affect or
respected. Formal recognition, when solicited by impact upon the ancestral domains and to
ICCs/IPs concerned shall be embodied in a receive just and fair compensation for any
Certificate of Ancestral Domain Title, which shall damages which they may sustain as a
recognize the title of the concerned ICCs/IPs over result of the project; and the right to
the territories identified and delineated." effective measures by the government to
prevent any interference with, alienation
and encroachment upon these rights;"
The moral import of ancestral domain, native
land or being native is "belongingness" to the land,
being people of the land- by sheer force of having c) Right to Stay in the Territories.- The
sprung from the land since time beyond recall, and right to stay in the territory and not to be
the faithful nurture of the land by the sweat of one's removed therefrom. No ICCs/IPs will be
brow. This is fidelity of usufructuary relation to the relocated without their free and prior
land- the possession of stewardship through informed consent, nor through any means
perduring, intimate tillage, and the mutuality of other than eminent domain. x x x;
blessings between man and land; from man, care
for land; from the land, sustenance for man.222 d) Right in Case of Displacement.- In case
displacement occurs as a result of natural
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do catastrophes, the State shall endeavor to
Not Violate the Regalian Doctrine Enshrined in resettle the displaced ICCs/IPs in suitable
Section 2, Article XII of the 1987 Constitution. areas where they can have temporary life
support systems: x x x;
 e) Right to Regulate the Entry of Migrants.- and water; (f) the right to claim parts of the
Right to regulate the entry of migrant ancestral domains as reservations; and (g) the right
settlers and organizations into their to resolve conflict in accordance with customary
domains; laws.

f) Right to Safe and Clean Air and Water.- Section 8 governs their rights to ancestral lands.
For this purpose, the ICCs/IPs shall have Unlike ownership over the ancestral domains,
access to integrated systems for the Section 8 gives the ICCs/IPs also the right to
management of their inland waters and air transfer the land or property rights to members of
space; the same ICCs/IPs or non-members thereof. This is
in keeping with the option given to ICCs/IPs to
g) Right to Claim Parts of Reservations.- secure a torrens title over the ancestral lands, but
The right to claim parts of the ancestral not to domains.
domains which have been reserved for
various purposes, except those reserved 2. The Right of ICCs/IPs to Develop Lands and
and intended for common and public Natural Resources Within the Ancestral Domains
welfare and service; Does Not Deprive the State of Ownership Over the
Natural Resources and Control and Supervision in
h) Right to Resolve Conflict.- Right to their Development and Exploitation.
resolve land conflicts in accordance with
customary laws of the area where the land The Regalian doctrine on the ownership,
is located, and only in default thereof shall management and utilization of natural resources is
the complaints be submitted to amicable declared in Section 2, Article XII of the 1987
settlement and to the Courts of Justice Constitution, viz:
whenever necessary."
"Sec. 2. All lands of the public domain, waters,
Section 8 provides for the rights over minerals, coal, petroleum, and other mineral
ancestral lands: oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and
"Sec. 8. Rights to Ancestral Lands.- The right of other natural resources are owned by the
ownership and possession of the ICCs/IPs to their State. With the exception of agricultural lands, all
ancestral lands shall be recognized and protected. other natural resources shall not be alienated. The
exploration, development, and utilization of
natural resources shall be under the full control
a) Right to transfer land/property.- Such and supervision of the State. The State may
right shall include the right to transfer land directly undertake such activities, or, it may
or property rights to/among members of enter into co-production, joint venture, or
the same ICCs/IPs, subject to customary production-sharing agreements with Filipino
laws and traditions of the community citizens, or corporations or associations at least
concerned. sixty per centum of whose capital is owned by
such citizens. Such agreements may be for a
b) Right to Redemption.- In cases where it period not exceeding twenty-five years, renewable
is shown that the transfer of land/property for not more than twenty-five years, and under such
rights by virtue of any agreement or terms and conditions as may be provided by law. In
devise, to a non-member of the concerned cases of water rights for irrigation, water supply,
ICCs/IPs is tainted by the vitiated consent fisheries, water supply, fisheries, or industrial uses
of the ICCs/IPs, or is transferred for an other than the development of water power,
unconscionable consideration or price, the beneficial use may be the measure and limit of the
transferor ICC/IP shall have the right to grant.
redeem the same within a period not
exceeding fifteen (15) years from the date The State shall protect the nation's marine wealth in
of transfer." its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
Section 7 (a) defines the ICCs/IPs the right of exclusively to Filipino citizens.
ownership over their ancestral domains which
covers (a) lands, (b) bodies of water traditionally The Congress may, by law, allow small-scale
and actually occupied by the ICCs/IPs, (c) sacred utilization of natural resources by Filipino
places, (d) traditional hunting and fishing grounds, citizens, as well as cooperative fish farming, with
and (e) all improvements made by them at any time priority to subsistence fishermen and fishworkers in
within the domains. The right of ownership rivers, lakes, bays, and lagoons.
includes the following rights: (1) the right to
develop lands and natural resources; (b) the right to
stay in the territories; (c) the right to resettlement in The President may enter into agreements with
case of displacement; (d) the right to regulate the foreign-owned corporations involving either
entry of migrants; (e) the right to safe and clean air technical or financial assistance for large-scale
exploration, development, and utilization of i.e., co-production, joint venture or production-
minerals, petroleum, and other mineral sharing, may apply to both large-scale227 and small-
oils according to the general terms and conditions scale mining.228 "Small-scale mining" refers to
provided by law, based on real contributions to the "mining activities which rely heavily on manual labor
economic growth and general welfare of the using simple implements and methods and do not
country. In such agreements, the state shall use explosives or heavy mining equipment."229
promote the development and use of local scientific
and technical resources. Examining the IPRA, there is nothing in the law
that grants to the ICCs/IPs ownership over the
The President shall notify the Congress of every natural resources within their ancestral
contract entered into in accordance with this domains. The right of ICCs/IPs in their ancestral
provision, within thirty days from its execution."223 domains includes ownership, but this
"ownership" is expressly defined and limited in
All lands of the public domain and all natural Section 7 (a) as:
resources- waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, "Sec. 7. a) Right of ownership- The right to claim
fisheries, forests or timber, wildlife, flora and fauna, ownership over lands, bodies of water traditionally
and other natural resources- are owned by the and actually occupied by ICCs/IPs, sacred places,
State. The Constitution provides that in the traditional hunting and fishing grounds, and all
exploration, development and utilization of these improvements made by them at any time within the
natural resources, the State exercises full control domains;"
and supervision, and may undertake the same in
four (4) modes: The ICCs/IPs are given the right to claim ownership
over "lands, bodies of water traditionally and
1. The State may directly undertake such actually occupied by ICCs/IPs, sacred places,
activities; or traditional hunting and fishing grounds, and all
improvements made by them at any time within the
2. The State may enter into co-production, domains." It will be noted that this enumeration
joint venture or production-sharing does not mention bodies of water not occupied by
agreements with Filipino citizens or the
qualified corporations; ICCs/IPs, minerals, coal, wildlife, flora and fauna in
the traditional hunting grounds, fish in the traditional
fishing grounds, forests or timber in the sacred
3. Congress may, by law, allow small-scale places, etc. and all other natural resources found
utilization of natural resources by Filipino within the ancestral domains. Indeed, the right of
citizens; ownership under Section 7 (a) does not cover
"waters, minerals, coal, petroleum and other
4. For the large-scale exploration, mineral oils, all forces of potential
development and utilization of minerals, energy, fisheries, forests or timber, wildlife, flor
petroleum and other mineral oils, the aand fauna and all other natural resources"
President may enter into agreements with enumerated in Section 2, Article XII of the 1987
foreign-owned corporations involving Constitution as belonging to the State.
technical or financial assistance.
The non-inclusion of ownership by the ICCs/IPs
As owner of the natural resources, the State is over the natural resources in Section 7(a) complies
accorded primary power and responsibility in with the Regalian doctrine.
the exploration, development and utilization of
these natural resources. The State may directly (a) Section 1, Part II, Rule III of the Implementing
undertake the exploitation and development by Rules Goes Beyond the Parameters of Sec. 7 (a)
itself, or, it may allow participation by the private of the IPRA And is Unconstitutional.
sector through co-production,224joint venture,225 or
production-sharing agreements.226 These
agreements may be for a period of 25 years, The Rules Implementing the IPRA230 in Section 1,
renewable for another 25 years. The State, through Part II, Rule III reads:
Congress, may allow the small-scale utilization of
natural resources by Filipino citizens. For the large- "Section 1. Rights of Ownership. ICCs/IPs have
scale exploration of these resources, specifically rights of ownership over lands, waters, and natural
minerals, petroleum and other mineral oils, the resources and all improvements made by them at
State, through the President, may enter into any time within the ancestral domains/ lands. These
technical and financial assistance agreements with rights shall include, but not limited to, the right over
foreign-owned corporations. the fruits, the right to possess, the right to use, right
to consume, right to exclude and right to recover
Under the Philippine Mining Act of 1995, (R.A. ownership, and the rights or interests over land and
7942) and the People's Small-Scale Mining Act of natural resources. The right to recover shall be
1991 (R.A. 7076) the three types of agreements, particularly applied to lands lost through fraud or
any form or vitiated consent or transferred for an The right to develop lands and natural
unconscionable price." resources under Section 7 (b) of the IPRA
enumerates the following rights:
Section 1 of the Implementing Rules gives the
ICCs/IPs rights of ownership over "lands, waters a) the right to develop, control and
and natural resources." The term "natural use lands and territories traditionally
resources" is not one of those expressly mentioned occupied;
in Section 7 (a) of the law. Our Constitution and
jurisprudence clearly declare that the right to claim b) the right to manage and
ownership over land does not necessarily include conserve natural resources within the
the right to claim ownership over the natural territories and uphold the responsibilities
resources found on or under the land.231 The IPRA for future generations;
itself makes a distinction between land and
natural resources. Section 7 (a) speaks of the
right of ownership only over the land within the c) the right to benefit and share the profits
ancestral domain. It is Sections 7 (b) and 57 of from the allocation and utilization of
the law that speak of natural resources, and the natural resources found therein;
these provisions, as shall be discussed later, do
not give the ICCs/IPs the right of ownership d) the right to negotiate the terms and
over these resources. conditions for the exploration of natural
resources for the purpose of ensuring
The constitutionality of Section 1, Part II, Rule III of ecological, environmental protection and
the Implementing Rules was not specifically and the conservation measures, pursuant to
categorically challenged by petitioners. Petitioners national and customary laws;
actually assail the constitutionality of the
Implementing Rules in general.232Nevertheless, to e) the right to an informed and intelligent
avoid any confusion in the implementation of the participation in the formulation and
law, it is necessary to declare that the inclusion of implementation of any project, government
"natural resources" in Section 1, Part II, Rule III of or private, that will affect or impact upon
the Implementing Rules goes beyond the the ancestral domains and to receive just
parameters of Section 7 (b) of the law and and fair compensation for any damages
is contrary to Section 2, Article XII of the 1987 which they may sustain as a result of the
Constitution. project;

(b) The Small-Scale Utilization of Natural f) the right to effective measures by the

Resources In Sec. 7 (b) of the IPRA Is Allowed government to prevent any interference
Under Paragraph 3, Section 2 of Article XII of the with, alienation and encroachment upon
Constitution. these rights.233

Ownership over natural resources remain with the Ownership over the natural resources in the
State and the IPRA in Section 7 (b) merely grants ancestral domains remains with the State and
the ICCs/IPs the right to manage them, viz: the ICCs/IPs are merely granted the right to
"manage and conserve" them for future
"Sec. 7 (b) Right to Develop Lands and Natural generations, "benefit and share" the profits
Resources.- Subject to Section 56 hereof, right to from their allocation and utilization, and
develop, control and use lands and "negotiate the terms and conditions for their
territories traditionally occupied, owned, or used; to exploration" for the purpose of "ensuring
manage and conserve natural resourceswithin the ecological and environmental protection and
territories and uphold the responsibilities for future conservation measures." It must be noted that the
generations; to benefit and share the profits from right to negotiate the terms and conditions over the
allocation and utilization of the natural resources natural resources covers only their exploration
found therein; the right to negotiate the terms and which must be for the purpose of ensuring
conditions for the exploration of natural resources in ecological and environmental protection of, and
the areas for the purpose of ensuring ecological, conservation measures in the ancestral domain. It
environmental protection and the conservation does not extend to the exploitation and
measures, pursuant to national and customary development of natural resources.
laws; the right to an informed and intelligent
participation in the formulation and implementation Simply stated, the ICCs/IPs' rights over the
of any project, government or private, that will affect natural resources take the form of management
or impact upon the ancestral domains and to or stewardship. For the ICCs/IPs may use these
receive just and fair compensation for any damages resources and share in the profits of their utilization
which they may sustain as a result of the project; or negotiate the terms for their exploration. At the
and the right to effective measures by the same time, however, the ICCs/IPs must ensure that
government to prevent any interference with, the natural resources within their ancestral domains
alienation and encroachment upon these rights;" are conserved for future generations and that the
"utilization" of these resources must not harm the Section 57 of the IPRA does not give the ICCs/IPs
ecology and environment pursuant to national and the right to "manage and conserve" the natural
customary laws.234 resources. Instead, the law only grants the ICCs/IPs
"priority rights" in the development or exploitation
The limited rights of "management and use" in thereof. Priority means giving preference. Having
Section 7 (b) must be taken to contemplate priority rights over the natural resources does not
small-scale utilization of natural resources as necessarily mean ownership rights. The grant of
distinguished from large-scale. Small-scale priority rights implies that there is a superior
utilization of natural resources is expressly entity that owns these resources and this entity has
allowed in the third paragraph of Section 2, the power to grant preferential rights over the
Article XII of the Constitution "in recognition of resources to whosoever itself chooses.
the plight of forest dwellers, gold panners, marginal
fishermen and others similarly situated who exploit Section 57 is not a repudiation of the Regalian
our natural resources for their daily sustenance and doctrine. Rather, it is an affirmation of the said
survival."235 Section 7 (b) also expressly mandates doctrine that all natural resources found within the
the ICCs/IPs to manage and conserve these ancestral domains belong to the State. It
resources and ensure environmental and ecological incorporates by implication the Regalian doctrine,
protection within the domains, which duties, by their hence, requires that the provision be read in the
very nature, necessarily reject utilization in a large- light of Section 2, Article XII of the 1987
scale. Constitution. Interpreting Section 2, Article XII of
the 1987 Constitution237 in relation to Section 57
(c) The Large-Scale Utilization of Natural of IPRA, the State, as owner of these natural
Resources In Section 57 of the IPRA Is Allowed resources, may directly undertake the
Under Paragraphs 1 and 4, Section 2, Article XII development and exploitation of the natural
of the 1987 Constitution. resources by itself, or in the alternative, it may
recognize the priority rights of the ICCs/IPs as
owners of the land on which the natural
Section 57 of the IPRA provides: resources are found by entering into a co-
production, joint venture, or production-sharing
"Sec. 57. Natural Resources within Ancestral agreement with them. The State may likewise
Domains.- The ICCs/IPs shall have priority enter into any of said agreements with a non-
rights in the harvesting, extraction, development member of the ICCs/IPs, whether natural or
or exploitation of any natural resources within juridical, or enter into agreements with foreign-
the ancestral domains. A non-member of the owned corporations involving either technical
ICCs/IPs concerned may be allowed to take part in or financial assistance for the large-scale
the development and utilization of the natural exploration, development and utilization of
resources for a period of not exceeding twenty-five minerals, petroleum, and other mineral oils, or
(25) years renewable for not more than twenty-five allow such non-member to participate in its
(25) years: Provided, That a formal and written agreement with the ICCs/IPs. If the State decides
agreement is entered into with the ICCs/IPs to enter into an agreement with a non-ICC/IP
concerned or that the community, pursuant to its member, the National Commission on Indigenous
own decision-making process, has agreed to allow Peoples (NCIP) shall ensure that the rights of the
such operation: Provided finally, That the NCIP may ICCs/IPs under the agreement shall be protected.
exercise visitorial powers and take appropriate The agreement shall be for a period of 25 years,
action to safeguard the rights of the ICCs/IPs under renewable for another 25 years.
the same contract."
To reiterate, in the large-scale utilization of natural
Section 57 speaks of the "harvesting, extraction, resources within the ancestral domains, the State,
development or exploitation of natural resources as owner of these resources, has four (4) options:
within ancestral domains" and "gives the ICCs/IPs (1) it may, of and by itself, directly undertake the
'priority rights' therein." The terms "harvesting, development and exploitation of the natural
extraction, development or exploitation" of any resources; or (2) it may recognize the priority rights
natural resources within the ancestral domains of the ICCs/IPs by entering into an agreement with
obviously refer to large-scale utilization. It is them for such development and exploitation; or (3)
utilization not merely for subsistence but for it may enter into an agreement with a non-member
commercial or other extensive use that require of the ICCs/IPs, whether natural or juridical, local or
technology other than manual labor.236 The law foreign; or (4) it may allow such non-member to
recognizes the probability of requiring a non- participate in the agreement with the ICCs/IPs.
member of the ICCs/IPs to participate in the
development and utilization of the natural resources The rights granted by the IPRA to the ICCs/IPs
and thereby allows such participation for a period of over the natural resources in their ancestral
not more than 25 years, renewable for another 25 domains merely gives the ICCs/IPs, as owners
years. This may be done on condition that a formal and occupants of the land on which the
written agreement be entered into by the non- resources are found, the right to the small-scale
member and members of the ICCs/IPs. utilization of these resources, and at the same
time, a priority in their large-scale development
and exploitation. Section 57 does not mandate State as to determine whether to grant or deny any
the State to automatically give priority to the concession or license or agreement. It merely gives
ICCs/IPs. The State has several options and it is the NCIP the authority to ensure that the ICCs/IPs
within its discretion to choose which option to have been informed of the agreement and that their
pursue. Moreover, there is nothing in the law that consent thereto has been obtained. Note that the
gives the ICCs/IPs the right to solely undertake the certification applies to agreements over natural
large-scale development of the natural resources resources that do not necessarily lie within the
within their domains. The ICCs/IPs must undertake ancestral domains. For those that are found within
such endeavour always under State supervision or the said domains, Sections 7(b) and 57 of the IPRA
control. This indicates that the State does not lose apply.
control and ownership over the resources even in
their exploitation. Sections 7 (b) and 57 of the law V. THE IPRA IS A RECOGNITION OF OUR
simply give due respect to the ICCs/IPs who, as ACTIVE PARTICIPATION IN THE INDIGENOUS
actual occupants of the land where the natural INTERNATIONAL MOVEMENT.
resources lie, have traditionally utilized these
resources for their subsistence and survival.
The indigenous movement can be seen as the heir
to a history of anti-imperialism stretching back to
Neither is the State stripped of ownership and prehistoric times. The movement received a
control of the natural resources by the following massive impetus during the 1960's from two
provision: sources. First, the decolonization of Asia and Africa
brought into the limelight the possibility of peoples
"Section 59. Certification Precondition.- All controlling their own destinies. Second, the right of
departments and other governmental agencies shall self-determination was enshrined in the UN
henceforth be strictly enjoined from issuing, Declaration on Human Rights.238 The rise of the civil
renewing or granting any concession, license or rights movement and anti-racism brought to the
lease, or entering into any production-sharing attention of North American Indians, Aborigines in
agreement. without prior certification from the NCIP Australia, and Maori in New Zealand the possibility
that the area affected does not overlap with any of fighting for fundamental rights and freedoms.
ancestral domain. Such certification shall only be
issued after a field-based investigation is conducted In 1974 and 1975, international indigenous
by the Ancestral Domains Office of the area organizations were founded,239 and during the
concerned: Provided, That no certification shall be 1980's, indigenous affairs were on the international
issued by the NCIP without the free and prior agenda. The people of the Philippine Cordillera
informed and written consent of the ICCs/IPs were the first Asians to take part in the international
concerned: Provided, further, That no department, indigenous movement. It was the Cordillera
government agency or government-owned or - People's Alliance that carried out successful
controlled corporation may issue new concession, campaigns against the building of the Chico River
license, lease, or production sharing agreement Dam in 1981-82 and they have since become one
while there is a pending application for a of the best-organized indigenous bodies in the
CADT: Provided, finally, That the ICCs/IPs shall world.240
have the right to stop or suspend, in accordance
with this Act, any project that has not satisfied the
requirement of this consultation process." Presently, there is a growing concern for indigenous
rights in the international scene. This came as a
result of the increased publicity focused on the
Concessions, licenses, lease or production-sharing continuing disrespect for indigenous human rights
agreements for the exploitation of natural resources and the destruction of the indigenous peoples'
shall not be issued, renewed or granted by all environment, together with the national
departments and government agencies without governments' inability to deal with the
prior certification from the NCIP that the area situation.241Indigenous rights came as a result of
subject of the agreement does not overlap with any both human rights and environmental protection,
ancestral domain. The NCIP certification shall be and have become a part of today's priorities for the
issued only after a field-based investigation shall international agenda.242
have been conducted and the free and prior
informed written consent of the ICCs/IPs obtained.
Non-compliance with the consultation requirement International institutions and bodies have realized
gives the ICCs/IPs the right to stop or suspend any the necessity of applying policies, programs and
project granted by any department or government specific rules concerning IPs in some nations. The
agency. World Bank, for example, first adopted a policy on
IPs as a result of the dismal experience of projects
in Latin America.243 The World Bank now seeks to
As its subtitle suggests, this provision requires as a apply its current policy on IPs to some of its projects
precondition for the issuance of any concession, in Asia. This policy has provided an influential
license or agreement over natural resources, that a model for the projects of the Asian Development
certification be issued by the NCIP that the area Bank.244
subject of the agreement does not lie within any
ancestral domain. The provision does not vest the
NCIP with power over the other agencies of the
The 1987 Philippine Constitution formally
recognizes the existence of ICCs/IPs and declares
as a State policy the promotion of their rights within
the framework of national unity and
development.245 The IPRA amalgamates the SEPARATE OPINION
Philippine category of ICCs with the international
category of IPs,246 and is heavily influenced by both
the International Labor Organization (ILO) VITUG, J.:
Convention 169 and the United Nations (UN) Draft
Declaration on the Rights of Indigenous Peoples.247 An issue of grave national interest indeed
deserves a proper place in any forum and, when
ILO Convention No. 169 is entitled the "Convention it shows itself in a given judicial controversy,
Concerning Indigenous and Tribal Peoples in the rules of procedure, like locus standi, the
Independent Countries"248 and was adopted on propriety of the specific remedy invoked, or the
June 27, 1989. It is based on the Universal principle of hierarchy of courts, that may
Declaration of Human Rights, the International ordinarily be raised by party-litigants, should
Covenant on Economic, Social and Cultural Rights, not be so perceived as good and inevitable
the International Covenant on Civil and Political justifications for advocating timidity, let alone
Rights, and many other international instruments on isolationism, by the Court.
the prevention of discrimination.249 ILO Convention
No. 169 revised the "Convention Concerning the A cardinal requirement, to which I agree, is that one
Protection and Integration of Indigenous and Other who invokes the Court’s adjudication must have a
Tribal and Semi-Tribal Populations in Independent personal and substantial interest in the
Countries" (ILO No. 107) passed on June 26, 1957. dispute;1 indeed, the developing trend would require
Developments in international law made it a logical nexus between the status asserted and
appropriate to adopt new international standards on the claim sought to be adjudicated in order to
indigenous peoples "with a view to removing the ensure that one is the proper and appropriate party
assimilationist orientation of the earlier standards," to invoke judicial power.2 The rule requires a party
and recognizing the aspirations of these peoples to to aptly show a personal stake in the outcome of
exercise control over their own institutions, ways of the case or an injury to himself that can be
life and economic development."250 redressed by a favorable decision so as to warrant
his invocation of the Court’s jurisdiction and to
CONCLUSION render legally feasible the exercise of the Court’s
remedial powers in his behalf. If it were otherwise,
the exercise of that power can easily become too
The struggle of the Filipinos throughout colonial unwieldy by its sheer magnitude and scope to a
history had been plagued by ethnic and religious point that may, in no small measure, adversely
differences. These differences were carried over affect its intended essentiality, stability and
and magnified by the Philippine government consequentiality.
through the imposition of a national legal order that
is mostly foreign in origin or derivation.251 Largely
unpopulist, the present legal system has resulted in Nevertheless, where a most compelling reason
the alienation of a large sector of society, exits, such as when the matter is of transcendental
specifically, the indigenous peoples. The histories importance and paramount interest to the
and cultures of the indigenes are relevant to the nation,3 the Court must take the liberal approach
evolution of Philippine culture and are vital to the that recognizes the legal standing of nontraditional
understanding of contemporary problems.252 It is plaintiffs, such as citizens and taxpayers, to raise
through the IPRA that an attempt was made by our constitutional issues that affect them.4 This Court
legislators to understand Filipino society not in thus did so in a case5 that involves the conservation
terms of myths and biases but through common of our forests for ecological needs. Until and exact
experiences in the course of history. The balance is struck, the Court must accept an
Philippines became a democracy a centennial ago eclectic notion that can free itself from the
and the decolonization process still continues. If the bondage of legal nicety and hold trenchant
evolution of the Filipino people into a democratic technicalities subordinate to what may be
society is to truly proceed democratically, i.e., if the considered to be of overriding concern.
Filipinos as a whole are to participate fully in the
task of continuing democratization,253 it is this The petition seeks a declaration by the Court of
Court's duty to acknowledge the presence of unconstitutionality of certain provisions of Republic
indigenous and customary laws in the country and Act No. 8371, a law that obviously is yet incapable
affirm their co-existence with the land laws in our of exact equation in its significance to the nation
national legal system. and its people now and in the generations yet to
come. Republic Act No. 8371, otherwise also
With the foregoing disquisitions, I vote to uphold the known as the Indigenous Peoples Rights Act of
constitutionality of the Indigenous Peoples Rights 1997 ("IPRA"), enacted into law in 1997 and made
Act of 1997. effective on 22 November 1997, is apparently
intended to be a legislative response to the 1987
Constitution which recognizes the rights of
indigenous cultural communities "within the with the exception of agricultural lands, "shall not
framework of national unity and development" 6 and be alienated." It ordains that the "exploration,
commands the State, "subject to the provisions development, and utilization of natural
of this Constitution and national development resources shall be under the full control and
policies and programs," to protect the rights of supervision of the State."8
indigenous cultural communities to their ancestral
lands in order to ensure their economic, social, and These provisions had roots in the 1935 Constitution
cultural well-being.7 which, along with some other specific mandates in
the 1935 Constitution, forming Article XII under the
Among the assailed provisions in IPRA is its title "Conservation and Utilization of Natural
Section 3(a) which defines "ancestral domains" to Resources", were derived largely from the report of
embrace "all areas generally belonging to the Committee on Nationalization and Preservation
ICCs/IPs comprising lands, inland waters, of Lands and other Natural Resources.9 According
coastal areas, and natural resources" including to the Committee report, among the principles upon
"ancestral lands, forest, pasture, residential, which these provisions were based, was "that the
agricultural, and other lands individually owned land, minerals, forest and other natural resources
whether alienable and disposable or otherwise," constitute the exclusive heritage of the Filipino
over which indigenous cultural Nation," and should thereby "be preserved for those
communities/indigenous under the sovereign authority of the Nation and for
peoples ("ICCs/IPs") could exercise virtual their posterity."10 The delegates to the 1934
ownership and control. Constitutional Convention were of the unanimous
view that the "policy on natural resources, being
IPRA effectively withdraws from the public fundamental to the nation’s survival should not be
domain the so-called ancestral domains left to the changing mood of the lawmaking body."11
covering literally millions of hectares. The
notion of community property would The 1987 Constitution, like the precursor provisions
comprehend not only matters of proprietary in the 1935 and 1973 Constitutions, thus expresses
interest but also some forms of self-governance this regalian doctrine of the old, and the domainial
over the curved-out territory. This concept is doctrine of the new, that all lands and natural
elaborated in Section 7 of the law which states that resources belong to the state other than those
the "rights of ownership and possession of ICCs/IPs which it recognizes to be of private
to their ancestral domains shall be recognized and ownership. Except for agricultural lands of the
protected," subsumed under which would public domain which alone may be alienated,
encompass the right of ownership(paragraph forest or timber, and mineral lands, as well as all
a); the right to develop, control and use lands other natural resources, of the country must
and natural resources, including "the right to remain with the state, the exploration,
negotiate the terms and conditions for the development and utilization of which shall be
exploration of natural resources in the areas for subject to its full control and
the purpose of ensuring ecological, environmental supervision albeit allowing it to enter into co-
protection and the conservation measures, production, joint venture or production-sharing
pursuant to national and customary laws;" (par. b); agreements, or into agreements with foreign-owned
the right to stay in the territories (par. c); corporations involving technical or financial
the right to return to their abandoned lands in assistance for large-scale exploration, development
case of displacement (par. d); the right to and utilization.12
regulate entry of migrants (par. e); the right to
claim parts of ancestral domains previously The decision of the United States Supreme Court
reserved (par. g); and the right to resolve land in Cariño vs. Insular Government,13 holding that a
conflicts in accordance primarily with parcel of land held since time immemorial by
customary law (par. h). Concurrently, Section 57 individuals under a claim of private ownership is
states that ICCs/IPs shall be given "priority rights in presumed never to have been public land and cited
the harvesting, extraction, development or to downgrade the application of the regalian
exploitation of any natural resources within the doctrine, cannot override the collective will of the
ancestral domains." These provisions of IPRA, in people expressed in the Constitution. It is in them
their totality, are, in my view, beyond the that sovereignty resides and from them that all
context of the fundamental law and virtually government authority emanates.14 It is not then for a
amount to an undue delegation, if not an court ruling or any piece of legislation to be
unacceptable abdication, of State authority over conformed to by the fundamental law, but it is for
a significant area of the country and its the former to adapt to the latter, and it is the
patrimony. sovereign act that must, between them, stand
inviolate.
Article XII of the 1987 Constitution expresses that
all "lands of the public domain, waters, minerals, The second paragraph of Section 5 of Article XII of
coal, petroleum, and other mineral oils, all the Constitution allows Congress to provide "for the
forces of potential energy, fisheries, forest or applicability of customary laws governing property
timber, wildlife, flora and fauna, and other rights or relations in determining the ownership and
natural resources are owned by the State," and, extent of ancestral domains." I do not see this
statement as saying that Congress may enact a law And so land is a grace that must be nurtured. To
that would simply express that "customary laws enrich it and make it fructify is the eternal
shall govern" and end it there. Had it been so, the exhortation of Apu Kabunian to all his children.
Constitution could have itself easily provided Land is sacred. Land is beloved. From its womb
without having to still commission Congress to do it. springs …life.
Mr. Chief Justice Davide has explained this
authority of Congress, during the deliberations of - Macli-ing Dulag, Chieftain of the Kalinga Tribe
the 1986 Constitutional Convention, thus: (quoted in Ponciano L. Bennagen, "Tribal Filipinos"
in Indigenous View of Land and the Environment,
"Mr. Davide. x x x Insofar as the application of the ed. Shelton H. Davis, the World Bank Discussion
customary laws governing property rights or Papers, No. 188, pp. 71-72.)
relations in determining the ownership and extent of
the ancestral domain is concerned, it is respectfully It is established doctrine that a statute should be
submitted that the particular matter must be construed whenever possible in harmony with,
submitted to Congress. I understand that the idea of rather than in violation of, the Constitution. 1 The
Comm. Bennagen is for the possibility of the presumption is that the legislature intended to enact
codification of these customary laws. So before a valid, sensible and just law and one which
these are codified, we cannot now mandate that the operates no further than may be necessary to
same must immediately be applicable. We leave it effectuate the specific purpose of the law.2
to Congress to determine the extent of the ancestral
domain and the ownership thereof in relation to
whatever may have been codified earlier. So, in The challenged provisions of the Indigenous
short, let us not put the cart ahead of the horse."15 Peoples Rights Act (IPRA) must be construed in
view of such presumption of constitutionality.
Further, the interpretation of these provisions
The constitutional aim, it seems to me, is to get should take into account the purpose of the law,
Congress to look closely into the customary which is to give life to the constitutional mandate
laws and, with specificity and by proper recitals, that the rights of the indigenous peoples be
to hew them to, and make them part of, the recognized and protected.
stream of laws. The "due process clause," as I so
understand it in Tanada vs. Tuvera16  would require
an apt publication of a legislative enactment before The struggle of our indigenous peoples to reclaim
it is permitted to take force and effect. So, also, their ancestral lands and domains and therefore,
customary laws, when specifically enacted to their heritage, is not unique. It is one that they share
become part of statutory law, must first undergo with the red-skinned "Indians" of the United States,
that publication to render them correspondingly with the aborigines of Australia, the Maori of New
binding and effective as such. Zealand and the Sazmi of Sweden, to name a few.
Happily, the nations in which these indigenous
peoples live all have enacted measures in an
Undoubtedly, IPRA has several good points, attempt to heal an oppressive past by the promise
and I would respectfully urge Congress to re- of a progressive future. Thus has the international
examine the law. Indeed, the State is exhorted to community realized the injustices that have been
protect the rights of indigenous cultural perpetrated upon the indigenous peoples. This
communities to their ancestral lands, a task that sentiment among the family of nations is expressed
would entail a balancing of interest between in a number of documents, the most recent and
their specific needs and the imperatives of most comprehensive of which is the Draft United
national interest. Nations Declaration on the Rights of Indigenous
Peoples which was adopted by the UN Sub-
WHEREFORE, I vote to grant the petition. Commission on Prevention of Discrimination and
Protection of Minorities by its resolution on August
26, 1994. Among the rights recognized by the UN
Draft is the restitution of lands, territories and even
the resources which the indigenous peoples have
SEPARATE OPINION traditionally owned or otherwise occupied or used,
and which have been confiscated, occupied, used
KAPUNAN, J.: or damaged without the free and informed consent
of the indigenous peoples.
You ask if we own the land. . . How can you own
that which will outlive you? Only the race own the A Historical Backdrop on the Indigenous Peoples
land because only the race lives forever. To claim a
piece of land is a birthright of every man. The lowly The term "indigenous" traces its origin to the Old
animals claim their place; how much more man? Latin word indu, meaning "within." In the sense the
Man is born to live. Apu Kabunian, lord of us all, term has come to be used, it is nearer in meaning
gave us life and placed us in the world to live to the Latin word indigenus, which means
human lives. And where shall we obtain life? From "native."3 "Indigenous" refers to that which
the land. To work (the land) is an obligation, not originated or has been produced naturally in a
merely a right. In tilling the land, you possess it. particular land, and has not been introduced from
the outside.4In international law, the definition of Sec. 3. Definition of Terms.-  For purposes of this
what constitutes "indigenous peoples" attains some Act, the following terms shall mean:
degree of controversy. No definition of the term
"indigenous peoples" has been adopted by the xxx
United Nations (UN), although UN practice has
been guided by a working definition in the 1986
Report of UN Special Rapporteur Martinez Cobo:5 (h) Indigenous peoples/Indigenous cultural
communities. - refer to a group of people or
homogenous societies identified by self-ascription
Indigenous communities, peoples and nations are and ascription by others, who have continuously
those which, having a historical continuity with pre- lived as organized community on communally
invasion and pre-colonial societies that developed bounded and defined territory, and who have, under
on their territories, consider themselves distinct claims of ownership since time immemorial,
from other sections of the societies now prevailing occupied, possessed and utilized such territories,
in those territories, or parts of them. They form at sharing common bonds of language, customs,
present non-dominant sections of society and are traditions, and other distinctive cultural traits, or who
determined to preserve, develop and transmit to have, through resistance to political, social and
future generations their ancestral territories, and cultural inroads of colonization, non-indigenous
their ethnic identity, as the basis of their continued religions and cultures, became historically
existence as peoples, in accordance with their own differentiated from the majority of Filipinos.
cultural patterns, social institutions and legal Indigenous peoples shall likewise include peoples
systems. who are regarded as indigenous on account of their
descent from the populations which inhabited the
This historical continuity may consist of the country at the time of conquest or colonization, or at
continuation, for an extended period reaching into the time of inroads of non-indigenous religions and
the present, of one or more of the following factors: cultures, or the establishment of present State
boundaries, who retain some or all of their own
(a) Occupation of ancestral lands, or at social, economic, cultural and political institutions,
least of part of them; but who may have been displaced from their
traditional domains or who may have resettled
outside their ancestral domains x x x.
(b) Common ancestry with the original
occupants of these lands;
Long before the Spaniards set foot in these islands,
the indigenous peoples were already plowing our
(c) Culture in general, or in specific soil and hunting in our forests. The Filipinos of Aeta
manifestations (such as religion, living and Malay stock, who were the original inhabitants
under a tribal system, membership of an of our archipelago, were, at that time, practicing a
indigenous community, dress, means of native culture. From the time the Spaniards arrived
livelihood, life-style, etc.); up to the early part of the American regime, 12 these
native inhabitants resisted foreign invasion,
(d) Language (whether used as the only relentlessly fighting for their lands. Today, from the
language, as mother-tongue, as the remote uplands of Northern Luzon, to Palawan,
habitual means of communication at home Mindoro and Mindanao, the indigenous peoples
or in the family, or as the main, preferred, continue to live on and cultivate their ancestral
habitual, general or normal language); lands, the lands of their forefathers.

(e) Residence in certain parts of the Though Filipinos today are essentially of the same
country; or in certain regions of the world; stock as the indigenous peoples, our national
culture exhibits only the last vestiges of this native
(f) Other relevant facts.6 culture. Centuries of colonial rule and neocolonial
domination have created a discernible distinction
between the cultural majority and the group of
In Philippine constitutional law, the term "indigenous cultural minorities.13 The extant Philippine national
peoples" pertains to those groups of Filipinos who culture is the culture of the majority; its indigenous
have retained a high degree of continuity from pre- roots were replaced by foreign cultural elements
Conquest culture.7 Philippine legal history, however, that are decidedly pronounced, if not
has not been kind to the indigenous peoples, dominant.14 While the culture of the majority
characterized them as "uncivilized,"8 "backward reoriented itself to Western influence, the culture of
people,"9 with "barbarous practices"10and "a low the minorities has retained its essentially native
order of intelligence."11 character.

Drawing inspiration from both our fundamental law One of every six Filipinos is a member of an
and international law, IPRA now employs the indigenous cultural community. Around twelve
politically-correct conjunctive term "indigenous million Filipinos are members of the one hundred
peoples/indigenous cultural communities" as and ten or so indigenous cultural
follows: communities,15 accounting for more than
seventeen per centum of the estimated seventy communities to preserve and develop their cultures,
million Filipinos16 in our country. Sadly, the traditions, and institutions. It shall consider these
indigenous peoples are one of the poorest sectors rights in the formulation of national plans and
of Philippine society. The incidence of poverty and policies.21
malnutrition among them is significantly higher than
the national average. The indigenous peoples are Sec. 12. The Congress may create a consultative
also among the most powerless. Perhaps because body to advise the President on policies affecting
of their inability to speak the language of law and indigenous cultural communities, the majority of the
power, they have been relegated to the fringes of members of which shall come from such
society. They have little, if any, voice in national communities.22
politics and enjoy the least protection from
economic exploitation.
IPRA was enacted precisely to implement the
foregoing constitutional provisions. It provides,
The Constitutional Policies on Indigenous Peoples among others, that the State shall recognize and
promote the rights of indigenous peoples within the
The framers of the 1987 Constitution, looking back framework of national unity and development,
to the long destitution of our less fortunate brothers, protect their rights over the ancestral lands and
fittingly saw the historic opportunity to actualize the ancestral domains and recognize the applicability of
ideals of people empowerment and social justice, customary laws governing property rights or
and to reach out particularly to the marginalized relations in determining the ownership and extent of
sectors of society, including the indigenous the ancestral domains.23 Moreover, IPRA
peoples. They incorporated in the fundamental law enumerates the civil and political rights of the
several provisions recognizing and protecting the indigenous peoples;24 spells out their social and
rights and interests of the indigenous peoples, to cultural rights;25 acknowledges a general concept of
wit: indigenous property right and recognizes title
thereto;26 and creates the NCIP as an independent
Sec. 22. The State recognizes and promotes the agency under the Office of the President.27
rights of indigenous peoples within the framework of
national unity and development.17 Preliminary Issues

Sec. 5. The State, subject to the provisions of this A. The petition presents an actual controversy.
Constitution and national development policies and
programs, shall protect the rights of indigenous The time-tested standards for the exercise of
cultural communities to their ancestral lands to judicial review are: (1) the existence of an
ensure their economic, social, and cultural well- appropriate case; (2) an interest personal and
being. substantial by the party raising the constitutional
question; (3) the plea that the function be exercised
The Congress may provide for the applicability of at the earliest opportunity; and (4) the necessity that
customary laws governing property rights and the constitutional question be passed upon in order
relations in determining the ownership and extent of to decide the case.28
ancestral domains.18
Courts can only decide actual controversies, not
Sec. 1. The Congress shall give the highest priority hypothetical questions or cases.29 The threshold
to the enactment of measures that protect and issue, therefore, is whether an "appropriate case"
enhance the right of all the people to human dignity, exists for the exercise of judicial review in the
reduce social, economic and political inequalities, present case.
and remove cultural inequities by equitably diffusing
wealth and political power for the common good. An "actual case or controversy" means an existing
case or controversy which is both ripe for resolution
To this end, the State shall regulate the acquisition, and susceptible of judicial determination, and that
ownership, use and disposition of property and its which is not conjectural or anticipatory,30 or that
increments.19 which seeks to resolve hypothetical or feigned
constitutional problems.31 A petition raising a
Sec. 6. The State shall apply the principles of constitutional question does not present an "actual
agrarian reform or stewardship, whenever controversy," unless it alleges a legal right or
applicable in accordance with law, in the disposition power. Moreover, it must show that a conflict of
and utilization of other natural resources, including rights exists, for inherent in the term "controversy" is
lands of the public domain under lease or the presence of opposing views or
concession, subject to prior rights, homestead contentions.32 Otherwise, the Court will be forced to
rights of small settlers, and the rights of indigenous resolve issues which remain unfocused because
communities to their ancestral lands.20 they lack such concreteness provided when a
question emerges precisely framed from a clash of
adversary arguments exploring every aspect of a
Sec. 17. The State shall recognize, respect, and multi-faceted situation embracing conflicting and
protect the rights of indigenous cultural
demanding interests.33 The controversy must also This Court has recognized that a "public right," or
be justiciable; that is, it must be susceptible of that which belongs to the people at large, may also
judicial determination.34 be the subject of an actual case or controversy.
In Severino,  we ruled that a private citizen may
In the case at bar, there exists a live controversy enforce a "public right" in behalf of other citizens.
involving a clash of legal rights. A law has been We opined therein that:
enacted, and the Implementing Rules and
Regulations approved. Money has been … The right which [petitioner] seeks to enforce is
appropriated and the government agencies not greater or different from that of any other
concerned have been directed to implement the qualified elector in the municipality of Silay. It is also
statute. It cannot be successfully maintained that true that the injury which he would suffer in case he
we should await the adverse consequences of the fails to obtain the relief sought would not be greater
law in order to consider the controversy actual and or different from that of the other electors; but he is
ripe for judicial resolution. It is precisely the seeking to enforce a public right as distinguished
contention of the petitioners that the law, on its from a private right. The real party in interest is
face, constitutes an unconstitutional abdication of the public, or the qualified electors of the town of
State ownership over lands of the public domain Silay. Each elector has the same right and
and other natural resources. Moreover, when the would suffer the same injury. Each elector
State machinery is set into motion to implement an stands on the same basis with reference to
alleged unconstitutional statute, this Court maintaining a petition whether or not the relief
possesses sufficient authority to resolve and sought by the relator should be granted.43
prevent imminent injury and violation of the
constitutional process. In Tañada v. Tuvera,44 the Court enforced the
"public right" to due process and to be informed of
B. Petitioners, as citizens and taxpayers, have the matters of public concern.
requisite standing to raise the constitutional
questions herein. In Garcia vs. Board of Investments, 45 the Court
upheld the "public right" to be heard or consulted on
In addition to the existence of an actual case or matters of national concern.
controversy, a person who assails the validity of a
statute must have a personal and substantial In Oposa v. Factoran,46 the Court recognized the
interest in the case, such that, he has sustained, or "public right" of citizens to "a balanced and healthful
will sustain, a direct injury as a result of its ecology which, for the first time in our nation’s
enforcement.35 Evidently, the rights asserted by constitutional history, is solemnly incorporated in
petitioners as citizens and taxpayers are held in the fundamental law."47 Mr. Justice (now Chief
common by all the citizens, the violation of which Justice) Hilario G. Davide, Jr., delivering the opinion
may result only in a "generalized grievance".36 Yet, of the Court, stated that:
in a sense, all citizen’s and taxpayer’s suits are
efforts to air generalized grievances about the
conduct of government and the allocation of Such a right belongs to a different category of rights
power.37 altogether for it concerns nothing less than self-
preservation and self-perpetuation-aptly and fittingly
stressed by petitioners-the advancement of which
In several cases, the Court has adopted a liberal may even be said to predate all governments and
attitude with regard to standing.38 The proper party constitutions. As a matter of fact, these basic
requirement is considered as merely rights need not even be written in the
procedural,39 and the Court has ample discretion Constitution for they are assumed to exist from
with regard thereto.40 As early as 1910, the Court in the inception of humankind.48
the case of Severino vs. Governor General 41 held:
Petitioners, as citizens, possess the "public right"
x x x When the relief is sought merely for the to ensure that the national patrimony is not
protection of private rights, the relator must show alienated and diminished in violation of the
some personal or special interest in the subject Constitution. Since the government, as the guardian
matter, since he is regarded as the real party in of the national patrimony, holds it for the benefit of
interest and his right must clearly appear. Upon the all Filipinos without distinction as to ethnicity, it
other hand, when the question is one of public follows that a citizen has sufficient interest to
right and the object of the mandamus is to procure maintain a suit to ensure that any grant of
the enforcement of a public duty, the people are concessions covering the national economy and
regarded as the real party in interest, and the patrimony strictly complies with constitutional
relator at whose instigation the proceedings are requirements. Thus, the preservation of the integrity
instituted need not show that he has any legal and inviolability of the national patrimony is a proper
or special interest in the result, it being subject of a citizen’s suit.
sufficient to show that he is a citizen and as
such interested in the execution of the laws.42
In addition, petitioners, as taxpayers, possess the
right to restrain officials from wasting public funds
through the enforcement of an unconstitutional duty to control and supervise the activities
statute. It is well-settled that a taxpayer has the pertaining to natural resources.
right to enjoin public officials from wasting public
funds through the implementation of an Prohibition will lie to restrain the public officials
unconstitutional statute,49 and by necessity, he may concerned from implementing the questioned
assail the validity of a statute appropriating public provisions of the IPRA and from disbursing funds in
funds.50 The taxpayer has paid his taxes and connection therewith if the law is found to be
contributed to the public coffers and, thus, may unconstitutional. Likewise, mandamus  will lie to
inquire into the manner by which the proceeds of compel the Secretary of the DENR to perform his
his taxes are spent. The expenditure by an official duty to control and supervise the exploration,
of the State for the purpose of administering an development, utilization and conservation of the
invalid law constitutes a misapplication of such country’s natural resources. Consequently, the
funds.51 petition for prohibition and mandamus is not an
improper remedy for the relief sought.
The IPRA appropriates funds as indicated in its title:
"An Act to Recognize, Protect and Promote the D. Notwithstanding the failure of petitioners to
Rights of Indigenous Cultural observe the hierarchy of courts, the Court assumes
Communities/Indigenous Peoples, Creating the jurisdiction over the petition in view of the
National Commission on Indigenous Peoples, importance of the issues raised therein.
Establishing Implementing
Mechanisms, Appropriating Funds Therefor, and
for Other Purposes." In the same manner, Section Between two courts of concurrent original
79 authorizes for the expenditure of public funds by jurisdiction, it is the lower court that should initially
providing that "the amount necessary to finance [its] pass upon the issues of a case. That way, as a
initial implementation shall be charged against the particular case goes through the hierarchy of
current year's appropriation for the Office for courts, it is shorn of all but the important legal
Northern Cultural Communities (the "ONCC") and issues or those of first impression, which are the
the Office for Southern Cultural Communities (the proper subject of attention of the appellate court.
"OSCC"),"52which were merged as organic offices of This is a procedural rule borne of experience and
the NCIP.53 Thus, the IPRA is a valid subject of a adopted to improve the administration of justice.
taxpayer’s suit.
This Court has consistently enjoined litigants to
C. The petition for prohibition and mandamus is not respect the hierarchy of courts. Although this Court
an improper remedy. has concurrent jurisdiction with the Regional Trial
Courts and the Court of Appeals to issue writs
of certiorari, prohibition, mandamus, quo warranto,
Prohibition is an extraordinary writ directed against habeas corpus and injunction,56 such concurrence
any tribunal, corporation, board, officer or person, does not give a party unrestricted freedom of choice
whether exercising judicial, quasi-judicial or of court forum. The resort to this Court’s primary
ministerial functions, ordering said entity or person jurisdiction to issue said writs shall be allowed only
to desist from further proceedings when said where the redress desired cannot be obtained in
proceedings are without or in excess of said entity’s the appropriate courts or where exceptional and
or person’s jurisdiction, or are accompanied with compelling circumstances justify such
grave abuse of discretion, and there is no appeal or invocation.57 We held in People v. Cuaresma58  that:
any other plain, speedy and adequate remedy in
the ordinary course of law.54 Mandamus, on the
other hand, is an extraordinary writ commanding a A becoming regard for judicial hierarchy most
tribunal, corporation, board, officer or person, certainly indicates that petitions for the issuance of
immediately or at some other specified time, to do extraordinary writs against first level ("inferior")
the act required to be done, when said entity or courts should be filed with the Regional Trial Court,
person unlawfully neglects the performance of an and those against the latter, with the Court of
act which the law specifically enjoins as a duty Appeals. A direct invocation of the Supreme
resulting from an office, trust or station, or when Court’s original jurisdiction to issue these writs
said entity or person unlawfully excludes another should be allowed only where there are special
from the use and enjoyment of a right or office to and important reasons therefor, clearly and
which such other is entitled, and there is no other specifically set out in the petition. This is
plain, speedy and adequate remedy in the ordinary established policy. It is a policy necessary to
course of law.55 prevent inordinate demands upon the Court’s time
and attention which are better devoted to those
matters within its exclusive jurisdiction, and to
In this case, the petitioners pray that respondents prevent further over-crowding of the Court’s docket
be restrained from implementing the challenged x x x.59 (Emphasis supplied.)
provisions of the IPRA and its Implementing Rules
and the assailed DENR Circular No. 2, series of
1998, and that the same officials be enjoined from IPRA aims to rectify the historical injustice inflicted
disbursing public funds for the implementation of upon indigenous peoples. Its impact upon the lives
the said law and rules. They further ask that the not only of the indigenous peoples but also upon
Secretary of the DENR be compelled to perform his the lives of all Filipinos cannot be denied. The
resolution of this case by the Court at the earliest The President shall notify the Congress of every
opportunity is necessary if the aims of the law are to contract entered into in accordance with this
be achieved. This reason is compelling enough to provision, within thirty days from its execution.
allow petitioners’ invocation of this Court’s
jurisdiction in the first instance. Under IPRA, indigenous peoples may obtain the
recognition of their right of ownership60 over
Substantive Issues ancestral lands and ancestral domains by virtue of
native title.61 The term "ancestral lands" under the
Primary Issue statute refers to lands occupied by individuals,
families and clans who are members of indigenous
cultural communities, including residential lots, rice
The issue of prime concern  raised by petitioners terraces or paddies, private forests, swidden farms
and the Solicitor General revolves around the and tree lots. These lands are required to have
constitutionality of certain provisions of IPRA, been "occupied, possessed and utilized" by them or
specifically Sections 3(a), 3(b), 5, 6, 7, 8, 57, 58 through their ancestors "since time immemorial,
and 59. These provisions allegedly violate Section continuously to the present".62 On the other hand,
2, Article XII of the Constitution, which states: "ancestral domains" is defined as areas generally
belonging to indigenous cultural communities,
Sec. 2. All lands of the public domain, waters, including ancestral lands, forests, pasture,
minerals, coal, petroleum, and other mineral oils, all residential and agricultural lands, hunting grounds,
forces of potential energy, fisheries, forests or worship areas, and lands no longer occupied
timber, wildlife, flora and fauna, and other natural exclusively by indigenous cultural communities but
resources are owned by the State. With the to which they had traditional access, particularly the
exception of agricultural lands, all other natural home ranges of indigenous cultural communities
resources shall not be alienated. The exploration, who are still nomadic or shifting cultivators.
development, and utilization of natural resources Ancestral domains also include inland waters,
shall be under the full control and supervision of the coastal areas and natural resources
State. The State may directly undertake such therein.63 Again, the same are required to have
activities, or it may enter into co-production, joint been "held under a claim of ownership, occupied or
venture, or production-sharing agreements with possessed by ICCs/IPs, by themselves or through
Filipino citizens, or corporations or associations at their ancestors, communally or individually since
least sixty per centum of whose capital is owned by time immemorial, continuously to the
such citizens. Such agreements may be for a period present".64 Under Section 56, property rights within
not exceeding twenty-five years, renewable for not the ancestral domains already existing and/or
more than twenty-five years, and under such terms vested upon effectivity of said law "shall be
and conditions as may be provided by law. In cases recognized and respected."
of water rights for irrigation, water supply, fisheries,
or industrial uses other than the development of Ownership is the crux of the issue of whether the
water power, beneficial use may be the measure provisions of IPRA pertaining to ancestral lands,
and limit of the grant. ancestral domains, and natural resources are
unconstitutional. The fundamental question is, who,
The State shall protect the nation’s marine wealth in between the State and the indigenous peoples, are
its archipelagic waters, territorial sea, and exclusive the rightful owners of these properties?
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens. It bears stressing that a statute should be construed
in harmony with, and not in violation, of the
The Congress, may, by law, allow small-scale fundamental law.65The reason is that the legislature,
utilization of natural resources by Filipino citizens, in enacting a statute, is assumed to have acted
as well as cooperative fish farming, with priority to within its authority and adhered to the constitutional
subsistence fishermen and fishworkers in rivers, limitations. Accordingly, courts should presume that
lakes, bays and lagoons. it was the intention of the legislature to enact a
valid, sensible, and just law and one which operates
The President may enter into agreements with no further than may be necessary to effectuate the
foreign-owned corporations involving either specific purpose of the law.66
technical or financial assistance for large-scale
exploration, development and utilization of minerals, A. The provisions of IPRA recognizing the
petroleum, and other mineral oils according to the ownership of indigenous peoples over the ancestral
general terms and conditions provided by law, lands and ancestral domains are not
based on real contributions to the economic growth unconstitutional.
and general welfare of the country. In such
agreements, the State shall promote the In support of their theory that ancestral lands and
development and use of local scientific and ancestral domains are part of the public domain
technical resources. and, thus, owned by the State, pursuant to Section
2, Article XII of the Constitution, petitioners and the
Solicitor General advance the following arguments:
First,  according to petitioners, the King of Spain incorporated into our fundamental law and has
under international law acquired exclusive dominion been recognized by the Court.67
over the Philippines by virtue of discovery and
conquest. They contend that the Spanish King Generally, under the concept of jura regalia, private
under the theory of jura regalia, which was title to land must be traced to some grant, express
introduced into Philippine law upon Spanish or implied, from the Spanish Crown or its
conquest in 1521, acquired title to all the lands in successors, the American Colonial government,
the archipelago. and thereafter, the Philippine Republic. The belief
that the Spanish Crown is the origin of all land titles
Second, petitioners and the Solicitor General in the Philippines has persisted because title to land
submit that ancestral lands and ancestral domains must emanate from some source for it cannot issue
are owned by the State. They invoke the theory forth from nowhere.68
of jura regalia  which imputes to the State the
ownership of all lands and makes the State the In its broad sense, the term "jura regalia" refers to
original source of all private titles. They argue that royal rights,69 or those rights which the King has by
the Philippine State, as successor to Spain and the virtue of his prerogatives.70 In Spanish law, it refers
United States, is the source of any asserted right of to a right which the sovereign has over anything in
ownership in land. which a subject has a right of property
or propriedad.71 These were rights enjoyed during
Third, petitioners and the Solicitor General concede feudal times by the king as the sovereign.
that the Cariño doctrine exists. However, petitioners
maintain that the doctrine merely states that title to The theory of the feudal system was that title to all
lands of the public domain may be acquired by lands was originally held by the King, and while the
prescription. The Solicitor General, for his part, use of lands was granted out to others who were
argues that the doctrine applies only to alienable permitted to hold them under certain conditions, the
lands of the public domain and, thus, cannot be King theoretically retained the title.72 By fiction of
extended to other lands of the public domain such law, the King was regarded as the original
as forest or timber, mineral lands, and national proprietor of all lands, and the true and only source
parks. of title, and from him all lands were held. 73 The
theory of jura regalia was therefore nothing more
Fourth, the Solicitor General asserts that even than a natural fruit of conquest.74
assuming that native title over ancestral lands and
ancestral domains existed by virtue of The Regalian theory, however, does not negate
the Cariño doctrine, such native title was native title to lands held in private ownership since
extinguished upon the ratification of the 1935 time immemorial. In the landmark case of Cariño
Constitution. vs. Insular Government75  the United States
Supreme Court, reversing the decision76of the pre-
Fifth, petitioners admit that Congress is mandated war Philippine Supreme Court, made the following
under Section 5, Article XII of the Constitution to pronouncement:
protect that rights of indigenous peoples to their
ancestral lands and ancestral domains. However, x x x Every presumption is and ought to be taken
they contend that the mandate is subject to Section against the Government in a case like the present.
2, Article XII and the theory of jura It might, perhaps, be proper and sufficient to say
regalia embodied therein. According to petitioners, that when, as far back as testimony or memory
the recognition and protection under R.A. 8371 of goes, the land has been held by individuals
the right of ownership over ancestral lands and under a claim of private ownership, it will be
ancestral domains is far in excess of the legislative presumed to have been held in the same way
power and constitutional mandate of Congress. from before the Spanish conquest, and never to
have been public land. x x x.77 (Emphasis
Finally, on the premise that ancestral lands and supplied.)
ancestral domains are owned by the State,
petitioners posit that R.A. 8371 violates Section 2, The above  ruling institutionalized the recognition of
Article XII of the Constitution which prohibits the the existence of native title to land, or ownership of
alienation of non-agricultural lands of the public land by Filipinos by virtue of possession under a
domain and other natural resources. claim of ownership since time immemorial and
independent of any grant from the Spanish Crown,
I am not persuaded by these contentions. as an exception to the theory of jura regalia.

Undue reliance by petitioners and the Solicitor In Cariño, an Igorot by the name of Mateo Cariño
General on the theory of jura regalia is applied for registration in his name of an ancestral
understandable. Not only is the theory well land located in Benguet. The applicant established
recognized in our legal system; it has been that he and his ancestors had lived on the land, had
regarded, almost with reverence, as the immutable cultivated it, and had used it as far they could
postulate of Philippine land law. It has been remember. He also proved that they had all been
recognized as owners, the land having been regarded as private in character as far back as
passed on by inheritance according to native memory goes. In contrast, ownership of land by
custom. However, neither he nor his ancestors had acquisitive prescription against the State involves a
any document of title from the Spanish Crown. The conversion of the character of the property from
government opposed the application for alienable public land to private land, which
registration, invoking the theory of jura regalia. On presupposes a transfer of title from the State to a
appeal, the United States Supreme Court held that private person. Since native title assumes that the
the applicant was entitled to the registration of his property covered by it is private land and is deemed
native title to their ancestral land. never to have been part of the public domain, the
Solicitor General’s thesis that native title
Cariño was decided by the U.S. Supreme Court in under Cariño applies only to lands of the public
1909, at a time when decisions of the U.S. Court domain is erroneous. Consequently, the
were binding as precedent in our jurisdiction. 78 We classification of lands of the public domain into
applied the Cariño doctrine in the 1946 case of Oh agricultural, forest or timber, mineral lands, and
Cho vs. Director of Lands,79where we stated that national parks under the Constitution82 is irrelevant
"[a]ll lands that were not acquired from the to the application of the Cariño doctrine because
Government either by purchase or by grant, belong the Regalian doctrine which vests in the State
to the public domain, but [a]n exception to the rule ownership of lands of the public domain does not
would be any land that should have been in the cover ancestral lands and ancestral domains.
possession of an occupant and of his predecessors
in interest since time immemorial, for such Legal history supports the Cariño doctrine.
possession would justify the presumption that the
land had never been part of the public domain or When Spain acquired sovereignty over the
that it had been private property even before the Philippines by virtue of its discovery and occupation
Spanish conquest."80 thereof in the 16th century and the Treaty of
Tordesillas of 1494 which it entered into with
Petitioners however aver that the U.S. Supreme Portugal,83 the continents of Asia, the Americas and
Court’s ruling in Cariño was premised on the fact Africa were considered as terra nullius although
that the applicant had complied with the requisites already populated by other peoples.84 The discovery
of acquisitive prescription, having established that and occupation by the European States, who were
he and his predecessors-in-interest had been in then considered as the only members of the
possession of the property since time immemorial. international community of civilized nations, of lands
In effect, petitioners suggest that title to the in the said continents were deemed sufficient to
ancestral land applied for by Cariño was transferred create title under international law.85
from the State, as original owner, to Cariño by
virtue of prescription. They conclude that the Although Spain was deemed to have acquired
doctrine cannot be the basis for decreeing "by mere sovereignty over the Philippines, this did not mean
legislative fiat…that ownership of vast tracts of land that it acquired title to all lands in the archipelago.
belongs to [indigenous peoples] without judicial By virtue of the colonial laws of Spain, the Spanish
confirmation."81 Crown was considered to have
acquired dominion only over the unoccupied and
The Solicitor General, for his part, claims that unclaimed portions of our islands.86
the Cariño doctrine applies only to alienable lands
of the public domain and, as such, cannot be In sending the first expedition to the Philippines,
extended to other lands of the public domain such Spain did not intend to deprive the natives of their
as forest or timber, mineral lands, and national property. Miguel Lopez de Legazpi was under
parks. instruction of the Spanish King to do no harm to the
natives and to their property. In this regard, an
There is no merit in these contentions. authority on the early Spanish colonial period in the
Philippines wrote:
A proper reading of Cariño would show that the
doctrine enunciated therein applies only to lands The government of [the King of Spain] Philip II
which have always been considered as private, regarded the Philippines as a challenging
and not to lands of the public domain, whether opportunity to avoid a repetition of the sanguinary
alienable or otherwise. A distinction must be made conquests of Mexico and Peru. In his written
between ownership of land under native title and instructions for the Adelantado Legazpi, who
ownership by acquisitive prescription against the commanded the expedition, Philip II envisaged a
State. Ownership by virtue of native title bloodless pacification of the archipelago. This
presupposes that the land has been held by its extraordinary document could have been lifted
possessor and his predecessors-in-interest in the almost verbatim from the lectures of the Dominican
concept of an owner since time immemorial. The theologian, Francisco de Vitoria, delivered in the
land is not acquired from the State, that is, Spain or University of Salamanca. The King instructed
its successors-in-interest, the United States and the Legazpi to inform the natives that the Spaniards
Philippine Government. There has been no transfer had come to do no harm to their persons or to their
of title from the State as the land has been property. The Spaniards intended to live among
them in peace and in friendship and "to explain to The Sovereign, which is the source of all rights
them the law of Jesus Christ by which they will be including ownership, has the power to restructure
saved." Although the Spanish expedition could the consolidation of rights inherent in ownership in
defend themselves if attacked, the royal instructions the State. Through the mandate of the Constitutions
admonished the commander to commit no that have been adopted, the State has wrested
aggressive act which might arouse native hostility.87 control of those portions of the natural resources it
deems absolutely necessary for social welfare and
Spanish colonial laws recognized and respected existence. It has been held that the State may
Filipino landholdings including native land impair vested rights through a legitimate exercise of
occupancy.88 Thus, the Recopilación de Leyes de police power.
las Indias expressly conferred ownership of lands
already held by the natives.89  The royal decrees of Vested rights do not prohibit the Sovereign from
1880 and 1894 did not extinguish native title to land performing acts not only essential to but
in the Philippines. The earlier royal decree, dated determinative of social welfare and existence. To
June 25, 1880, provided that all those in "unlawful allow otherwise is to invite havoc in the established
possession of royal lands" must legalize their social system. x x x
possession by means of adjustment
proceedings,90 and within the period specified. The Time-immemorial possession does not create
later royal decree, dated February 13, 1894, private ownership in cases of natural resources that
otherwise known as the Maura Law, declared that have been found from generation to generation to
titles that were capable of adjustment under the be critical to the survival of the Sovereign and its
royal decree of 1880, but for which adjustment was agent, the State.98
not sought, were forfeited. Despite the harsh
wording of the Maura Law, it was held in the case
of Cariño that the royal decree of 1894 should not Stated simply, the Solicitor General’s argument is
be construed as confiscation of title, but merely as that the State, as the source of all titles to land, had
the withdrawal of the privilege of registering such the power to re-vest in itself, through the 1935
title.91 Constitution, title to all lands, including ancestral
lands and ancestral domains. While the Solicitor
General admits that such a theory would
Neither was native title disturbed by the Spanish necessarily impair vested rights, he reasons out
cession of the Philippines to the United States, that even vested rights of ownership over ancestral
contrary to petitioners’ assertion that the US merely lands and ancestral domains are not absolute and
succeeded to the rights of Spain, including the may be impaired by the legitimate exercise of police
latter’s rights over lands of the public power.
domain.92 Under the Treaty of Paris of December
10, 1898, the cession of the Philippines did not
impair any right to property existing at the I cannot agree. The text of the provision of the 1935
time.93 During the American colonial regime, native Constitution invoked by the Solicitor General, while
title to land was respected, even protected. The embodying the theory of jura regalia, is too clear for
Philippine Bill of 1902 provided that property and any misunderstanding. It simply declares that "all
rights acquired by the US through cession from agricultural, timber, and mineral lands of the public
Spain were to be administered for the benefit of the domain, waters, minerals, coal, petroleum, and
Filipinos.94 In obvious adherence to libertarian other mineral oils, all forces of potential energy, and
principles, McKinley’s Instructions, as well as the other natural resources of the Philippines belong to
Philippine Bill of 1902, contained a bill of rights the State."99 Nowhere does it state that certain
embodying the safeguards of the US Constitution. lands which are "absolutely necessary for social
One of these rights, which served as an inviolable welfare and existence," including those which
rule upon every division and branch of the are not part of the public domain, shall thereafter
American colonial government in the be owned by the State. If there is any room for
Philippines,95 was that "no person shall be deprived constitutional construction, the provision should be
of life, liberty, or property without due process of interpreted in favor of the preservation, rather than
law."96 These vested rights safeguarded by the impairment or extinguishment, of vested rights.
Philippine Bill of 1902 were in turn expressly Stated otherwise, Section 1, Article XII of the 1935
protected by the due process clause of the 1935 Constitution cannot be construed to mean that
Constitution. Resultantly, property rights of the vested right which had existed then were
indigenous peoples over their ancestral lands and extinguished and that the landowners were divested
ancestral domains were firmly established in law. of their lands, all in the guise of "wrest[ing] control
of those portions of the natural resources [which the
State] deems absolutely necessary for social
Nonetheless, the Solicitor General takes the view welfare and existence." On the contrary, said
that the vested rights of indigenous peoples to their Section restated the fundamental rule against the
ancestral lands and domains were "abated by the diminution of existing rights by expressly providing
direct act by the sovereign Filipino people of that the ownership of lands of the public domain
ratifying the 1935 Constitution."97 He advances the and other natural resources by the State is "subject
following arguments: to any existing right, grant, lease, or concessions."
The "existing rights" that were intended to be
protected must, perforce, include the right of
ownership by indigenous peoples over their MR. REGALADO. Thank you, Madame President.
ancestral lands and domains. The words of the law May I seek some clarifications from either
should be given their ordinary or usual Commissioner Bennagen or Commissioner Davide
meaning,100 and the term "existing rights" cannot be regarding this phrase "CONGRESS SHALL
assigned an unduly restrictive definition. PROVIDE FOR THE APPLICABILITY OF
CUSTOMARY LAWS GOVERNING PROPERTY
Petitioners concede that Congress is mandated RIGHTS OR RELATIONS in determining the
under Section 5, Article XII of the 1987 ownership and extent of the ancestral domain,"
Constitution101to protect the rights of indigenous because ordinarily it is the law on ownership and
peoples to their ancestral lands and ancestral the extent thereof which determine the property
domains. Nonetheless, they contend that the rights or relations arising therefrom. On the other
recognition and protection under IPRA of the right hand, in this proposed amendment the phraseology
of ownership of indigenous peoples over ancestral is that it is the property rights or relations which
lands and ancestral domains are far in excess of shall be used as the basis in determining the
the legislative power and constitutional mandate of ownership and extent of the ancestral domain. I
the Congress,102 since such recognition and assume there must be a certain difference in the
protection amount to the alienation of lands of the customary laws and our regular civil laws on
public domain, which is proscribed under Section 2, property.
Article XII of the Constitution.
MR. DAVIDE. That is exactly the reason, Madam
Section 5, Article XII of the Constitution expresses President, why we will leave it to Congress to make
the sovereign intent to "protect the rights of the necessary exception to the general law on
indigenous peoples to their ancestral lands." In its property relations.
general and ordinary sense, the term "right" refers
to any legally enforceable claim.103It is a power, MR. REGALADO. I was thinking if Commissioner
privilege, faculty or demand inherent in one person Bennagen could give us an example of such a
and incident upon another.104 When used in relation customary law wherein it is the property rights and
to property, "right" includes any interest in or title to relations that determine the ownership and the
an object, or any just and legal claim to hold, use extent of that ownership, unlike the basic
and enjoy it.105 Said provision in the Constitution fundamental rule that it is the ownership and the
cannot, by any reasonable construction, be extent of ownership which determine the property
interpreted to exclude the protection of the right of rights and relations arising therefrom and
ownership over such ancestral lands. For this consequent thereto. Perhaps, these customary laws
reason, Congress cannot be said to have exceeded may have a different provision or thrust so that we
its constitutional mandate and power in enacting the could make the corresponding suggestions also by
provisions of IPRA, specifically Sections 7(a) and 8, way of an amendment.
which recognize the right of ownership of the
indigenous peoples over ancestral lands. MR. DAVIDE. That is exactly my own perception.

The second paragraph of Section 5, Article XII also MR. BENNAGEN. Let me put it this way.
grants Congress the power to "provide for the
applicability of customary laws governing property
rights or relations in determining the ownership and There is a range of customary laws governing
extent of ancestral domains." In light of this certain types of ownership. There would be
provision, does Congress have the power to decide ownership based on individuals, on clan or
whether ancestral domains shall be private property lineage, or on community. And the thinking
or part of the public domain? Also, does Congress expressed in the consultation is that this should be
have the power to determine whether the "extent" of codified and should be recognized in relation to
ancestral domains shall include the natural existing national laws. That is essentially the
resources found therein? concept. 106(Emphasis supplied.)

It is readily apparent from the constitutional records The intention to treat ancestral domains as private
that the framers of the Constitution did not intend property is also apparent from the following
Congress to decide whether ancestral domains exchange between Messrs. Suarez and Bennagen:
shall be public or private property. Rather, they
acknowledged that ancestral domains shall be MR. SUAREZ. When we speak of customary laws
treated as private property, and that customary laws governing property rights or relations in determining
shall merely determine whether such private the ownership and extent of the ancestral domain,
ownership is by the entire indigenous cultural are we thinking in terms of the tribal ownership or
community, or by individuals, families, or clans community ownership or of private ownership within
within the community. The discussion below the ancestral lands or ancestral domain?
between Messrs. Regalado and Bennagen and Mr.
Chief Justice Davide, then members of the 1986 MR. BENNAGEN. The concept of customary
Constitutional Commission, is instructive: laws is that it is considered as ownership by
private individuals, clans and even MR. BENNAGEN. I think that was also discussed in
communities. the committee hearings and we did say that in
cases where due process is clearly established in
MR. SUAREZ. So, there will be two aspects to this terms of prior rights, these two have to be
situation. This means that the State will set aside respected.
the ancestral domain and there is a separate law for
that. Within the ancestral domain it could accept MR. NATIVIDAD. The other point is: How vast is
more specific ownership in terms of individuals this ancestral land? Is it true that parts of Baguio
within the ancestral lands. City are considered as ancestral lands?

MR. BENNAGEN. Individuals and groups within the MR. BENNAGEN. They could be regarded as such.
ancestral domain. 107 (Emphasis supplied.) If the Commissioner still recalls, in one of the
publications that I provided the Commissioners, the
It cannot be correctly argued that, because the parts could be considered as ancestral domain in
framers of the Constitution never expressly relation to the whole population of Cordillera but not
mentioned Cariño in their deliberations, they did not in relation to certain individuals or certain groups.
intend to adopt the concept of native title to land, or
that they were unaware of native title as an MR. NATIVIDAD. The Commissioner means that
exception to the theory of jura regalia.108 The the whole Baguio City is considered as ancestral
framers of the Constitution, as well as the people land?
adopting it, were presumed to be aware of the
prevailing judicial doctrines concerning the subject MR. BENNAGEN. Yes, in the sense that it belongs
of constitutional provisions, and courts should take to Cordillera or in the same manner that Filipinos
these doctrines into consideration in construing the can speak of the Philippine archipelago as
Constitution.109 ancestral land, but not in terms of the right of a
particular person or particular group to exploit,
Having thus recognized that ancestral domains utilize, or sell it.
under the Constitution are considered as private
property of indigenous peoples, the IPRA, by MR. NATIVIDAD. But is clear that the prior rights
affirming or acknowledging such ownership through will be respected.
its various provisions, merely abides by the
constitutional mandate and does not suffer any vice
of unconstitutionality. MR. BENNAGEN. Definitely. 110

Petitioners interpret the phrase "subject to the Thus, the phrase "subject to the provisions of this
provisions of this Constitution and national Constitution" was intended by the framers of the
development policies and programs" in Section 5, Constitution as a reiteration of the constitutional
Article XII of the Constitution to mean "as subject to guarantee that no person shall be deprived of
the provision of Section 2, Article XII of the property without due process of law.
Constitution," which vests in the State ownership of
all lands of the public domain, mineral lands and There is another reason why Section 5 of Article XII
other natural resources. Following this mandating the protection of rights of the indigenous
interpretation, petitioners maintain that ancestral peoples to their ancestral lands cannot be
lands and ancestral domains are the property of the construed as subject to Section 2 of the same
State. Article ascribing ownership of all public lands to the
State. The Constitution must be construed as a
This proposition is untenable. Indeed, Section 2, whole. It is a rule that when construction is proper,
Article XII reiterates the declarations made in the the whole Constitution is examined in order to
1935 and 1973 Constitutions on the state policy of determine the meaning of any provision. That
conservation and nationalization of lands of the construction should be used which would give effect
public domain and natural resources, and is of to the entire instrument.111
paramount importance to our national economy and
patrimony. A close perusal of the records of the Thus, the provisions of the Constitution on State
1986 Constitutional Commission reveals that the ownership of public lands, mineral lands and other
framers of the Constitution inserted the phrase natural resources should be read together with the
"subject to the provisions of this Constitution" other provisions thereof which firmly recognize the
mainly to prevent the impairment of Torrens titles rights of the indigenous peoples. These, as set forth
and other prior rights in the determination of what hereinbefore,112 include: Section 22, Article II,
constitutes ancestral lands and ancestral domains, providing that the State recognizes and promotes
to wit: the rights of indigenous peoples within the
framework of national unity and
MR. NATIVIDAD. Just one question. I want to clear development; Section 5, Article XII, calling for the
this section protecting ancestral lands. How does protection of the rights of indigenous cultural
this affect the Torrens title and other prior rights? communities to their ancestral lands to ensure their
economic, social, and cultural well-being, and for
the applicability of customary laws governing these cultural communities in like manner that we
property rights and relations in determining the did so in the autonomous regions.115 (Emphasis
ownership and extent of ancestral supplied.)
domains; Section 1, Article XIII, directing the
removal or reduction of social, economic, political B. The provisions of R.A. 8371 do not infringe upon
and cultural inequities and inequalities by equitably the State’s ownership over the natural resources
diffusing wealth and political power for the common within the ancestral domains.
good; Section 6, Article XIII, directing the
application of the principles of agrarian reform or
stewardship in the disposition and utilization of Petitioners posit that IPRA deprives the State of its
other natural resources, subject to prior rights, ownership over mineral lands of the public domain
homestead rights of small settlers, and the rights of and other natural resources,116 as well as the
indigenous communities to their ancestral State’s full control and supervision over the
lands; Section 17, Article XIV, decreeing that the exploration, development and utilization of natural
State shall recognize, respect, and protect the resources.117 Specifically, petitioners and the
rights of indigenous cultural communities to Solicitor General assail Sections 3 (a),118 5,119and
preserve and develop their cultures, traditions, and 7120 of IPRA as violative of Section 2, Article XII of
institutions; and Section 12, Article XVI, the Constitution which states, in part, that "[a]ll
authorizing the Congress to create a consultative lands of the public domain, waters, minerals, coal,
body to advise the President on policies affecting petroleum, and other mineral oils, all forces of
indigenous cultural communities. potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are
owned by the State."121 They would have the Court
Again, as articulated in the Constitution, the first declare as unconstitutional Section 3(a) of IPRA
goal of the national economy is the more equitable because the inclusion of natural resources in the
distribution of opportunities, income, and definition of ancestral domains purportedly results
wealth.113 Equity is given prominence as the first in the abdication of State ownership over these
objective of national economic development.114 The resources.
framers of the Constitution did not, by the phrase
"subject to the provisions of this Constitution and
national development policies and programs," I am not convinced.
intend to establish a hierarchy of constitutional
norms. As explained by then Commissioner (now Section 3(a) merely defines the coverage of
Chief Justice) Hilario G. Davide, Jr., it was not their ancestral domains, and describes the extent, limit
objective to make certain interests primary or and composition of ancestral domains by setting
paramount, or to create absolute limitations or forth the standards and guidelines in determining
outright prohibitions; rather, the idea is towards the whether a particular area is to be considered as
balancing of interests: part of and within the ancestral domains. In other
words, Section 3(a) serves only as a yardstick
BISHOP BACANI. In Commissioner Davide’s which points out what properties are within the
formulation of the first sentence, he says: "The ancestral domains. It does not confer or recognize
State, SUBJECT TO THE provisions of this any right of ownership over the natural resources to
Constitution AND NATIONAL DEVELOPMENT the indigenous peoples. Its purpose is definitional
POLICIES AND PROGRAMS shall guarantee the and not declarative of a right or title.
rights of cultural or tribal communities to their
ancestral lands to insure their economic, social and The specification of what areas belong to the
cultural well-being." There are at least two concepts ancestral domains is, to our mind, important to
here which receive different weights very often. ensure that no unnecessary encroachment on
They are the concepts of national development private properties outside the ancestral domains will
policies and programs, and the rights of cultural or result during the delineation process. The mere fact
tribal communities to their ancestral lands, et that Section 3(a) defines ancestral domains to
cetera. I would like to ask: When the Commissioner include the natural resources found therein does
proposed this amendment, which was the not ipso facto convert the character of such natural
controlling concept? I ask this because sometimes resources as private property of the indigenous
the rights of cultural minorities are precisely peoples. Similarly, Section 5 in relation to Section
transgressed in the interest of national development 3(a) cannot be construed as a source of ownership
policies and programs. Hence, I would like to know rights of indigenous people over the natural
which is the controlling concept here. Is it the rights resources simply because it recognizes ancestral
of indigenous peoples to their ancestral lands or is it domains as their "private but community property."
national development policies and programs.
The phrase "private but community property" is
MR. DAVIDE. It is not really a question of which merely descriptive of the indigenous peoples’
is primary or which is more paramount. The concept of ownership as distinguished from that
concept introduced here is really the balancing provided in the Civil Code. In Civil Law, "ownership"
of interests. That is what we seek to attain. We is the "independent and general power of a person
have to balance the interests taking into account over a thing for purposes recognized by law and
the specific needs and the specific interests also of within the limits established thereby."122 The civil law
concept of ownership has the following HON. ADAMAT. I second that, Mr. Chairman.
attributes: jus utendi  or the right to receive from the
thing that which it produces, jus abutendi or the CHAIRMAN FLAVIER. Okay, thank you. So we now
right to consume the thing by its use, jus move to Section 8, there is a Senate version you do
disponendi or the power to alienate, encumber, not have and if you agree we will adopt
transform and even destroy that which is owned that.127 (Emphasis supplied.)
and jus vidicandi  or the right to exclude other
persons from the possession the thing owned. 123 In
contrast, the indigenous peoples’ concept of Further, Section 7 makes no mention of any right of
ownership emphasizes the importance of ownership of the indigenous peoples over the
communal or group ownership. By virtue of the natural resources. In fact, Section 7(a) merely
communal character of ownership, the property recognizes the "right to claim ownership over lands,
held in common "cannot be sold, disposed or bodies of water traditionally and actually occupied
destroyed"124 because it was meant to benefit the by indigenous peoples, sacred places, traditional
whole indigenous community and not merely the hunting and fishing grounds, and all improvements
individual member.125 made by them at any time within the domains."
Neither does Section 7(b), which enumerates
certain rights of the indigenous peoples over the
That IPRA is not intended to bestow ownership over natural resources found within their ancestral
natural resources to the indigenous peoples is also domains, contain any recognition of ownership vis-
clear from the deliberations of the bicameral a-vis the natural resources.
conference committee on Section 7 which recites
the rights of indigenous peoples over their ancestral
domains, to wit: What is evident is that the IPRA protects the
indigenous peoples’ rights and welfare in relation to
the natural resources found within their ancestral
CHAIRMAN FLAVIER. Accepted. Section 8126 rights domains,128 including the preservation of the
to ancestral domain, this is where we transferred ecological balance therein and the need to ensure
the other provision but here itself - that the indigenous peoples will not be unduly
displaced when State-approved activities involving
HON. DOMINGUEZ. Mr. Chairman, if I maybe the natural resources located therein are
allowed to make a very short Statement. Earlier, Mr. undertaken.
Chairman, we have decided to remove the
provisions on natural resources because we all Finally, the concept of native title to natural
agree that that belongs to the State. Now, the resources, unlike native title to land, has not been
plight or the rights of those indigenous communities recognized in the Philippines. NCIP and Flavier, et
living in forest and areas where it could be exploited al. invoke the case of Reavies v. Fianza129 in
by mining, by dams, so can we not also provide a support of their thesis that native title to natural
provision to give little protection or either rights for resources has been upheld in this
them to be consulted before any mining areas jurisdiction.130 They insist that "it is possible for
should be done in their areas, any logging done in rights over natural resources to vest on a private
their areas or any dam construction because this (as opposed to a public) holder if these were held
has been disturbing our people especially in the prior to the 1935 Constitution."131However, a
Cordilleras. So, if there could be, if our lawyers or judicious examination of Reavies  reveals that,
the secretariat could just propose a provision for contrary to the position of NCIP and Flavier, et al.,
incorporation here so that maybe the right to the Court did not recognize native title to natural
consultation and the right to be compensated when resources. Rather, it merely upheld the right of the
there are damages within their ancestral lands. indigenous peoples to claim ownership of
minerals under the Philippine Bill of 1902.
CHAIRMAN FLAVIER. Yes, very well taken but to
the best of my recollection both are already While as previously discussed, native title
considered in subsequent sections which we are to land or private ownership by Filipinos of land by
now looking for. virtue of time immemorial possession in the concept
of an owner was acknowledged and recognized as
HON. DOMINGUEZ. Thank you. far back during the Spanish colonization of the
Philippines, there was no similar favorable
CHAIRMAN FLAVIER. First of all there is a line that treatment as regards natural resources. The unique
gives priority use for the indigenous people where value of natural resources has been acknowledged
they are. Number two, in terms of the mines there is by the State and is the underlying reason for its
a need for prior consultation of source which is here consistent assertion of ownership and control over
already. So, anyway it is on the record that you said natural resources from the Spanish regime up
want to make sure that the secretariat takes note of to the present.132 Natural resources, especially
those two issues and my assurance is that it is minerals, were considered by Spain as an abundant
already there and I will make sure that they cross source of revenue to finance its battles in wars
check. against other nations. Hence, Spain, by asserting
its ownership over minerals wherever these may be
found, whether in public or private lands,
recognized the separability of title over lands and following the procedure outlined in Sections 51 to
that over minerals which may be found therein. 133 53 of the IPRA, jurisdiction of the government
agency or agencies concerned over lands forming
On the other hand, the United States viewed natural part thereof ceases. Nevertheless, the jurisdiction of
resources as a source of wealth for its nationals. As government agencies over the natural
the owner of natural resources over the Philippines resources within the ancestral domains does not
after the latter’s cession from Spain, the United terminate by such certification because said
States saw it fit to allow both Filipino and American agencies are mandated under existing laws to
citizens to explore and exploit minerals in public administer the natural resources for the State,
lands, and to grant patents to private mineral lands. which is the owner thereof. To construe Section
A person who acquired ownership over a parcel of 52[i] as divesting the State, through the government
private mineral land pursuant to the laws then agencies concerned, of jurisdiction over the natural
prevailing could exclude other persons, even the resources within the ancestral domains would be
State, from exploiting minerals within his inconsistent with the established doctrine that all
property.134 Although the United States made a natural resources are owned by the State.
distinction between minerals found in public lands
and those found in private lands, title in these C. The provisions of IPRA pertaining to the
minerals was in all cases sourced from the State. utilization of natural resources are not
The framers of the 1935 Constitution found it unconstitutional.
necessary to maintain the State’s ownership over
natural resources to insure their conservation for The IPRA provides that indigenous peoples shall
future generations of Filipinos, to prevent foreign have the right to manage and conserve the natural
control of the country through economic domination; resources found on the ancestral domains, to
and to avoid situations whereby the Philippines benefit from and share in the profits from the
would become a source of international conflicts, allocation and utilization of these resources, and to
thereby posing danger to its internal security and negotiate the terms and conditions for the
independence.135 exploration of such natural resources.138 The statute
also grants them priority rights in the harvesting,
The declaration of State ownership and control over extraction, development or exploitation of any
minerals and other natural resources in the 1935 natural resources within the ancestral
Constitution was reiterated in both the 1973 136 and domains.139 Before the NCIP can issue a
1987 Constitutions.137 certification for the renewal, or grant of any
concession, license or lease, or for the perfection of
Having ruled that the natural resources which may any production-sharing agreement the prior
be found within the ancestral domains belong to the informed written consent of the indigenous peoples
State, the Court deems it necessary to clarify that concerned must be obtained.140 In return, the
the jurisdiction of the NCIP with respect to ancestral indigenous peoples are given the responsibility to
domains under Section 52 [i] of IPRA extends only maintain, develop, protect and conserve the
to the lands and not to ancestral domains or portions thereof which are
the natural resources therein. found to be necessary for critical watersheds,
mangroves, wildlife sanctuaries, wilderness,
protected areas, forest cover, or reforestation.141
Section 52[i] provides:
The Solicitor General argues that these provisions
Turnover of Areas Within Ancestral Domains deny the State an active and dominant role in the
Managed by Other Government Agencies. - The utilization of our country’s natural resources.
Chairperson of the NCIP shall certify that the area Petitioners, on the other hand, allege that under the
covered is an ancestral domain. The secretaries of Constitution the exploration, development and
the Department of Agrarian Reform, Department of utilization of natural resources may only be
Environment and Natural Resources, Department of undertaken by the State, either directly or indirectly
Interior and Local Government, and Department of through co-production, joint venture, or production-
Justice, the Commissioner of the National sharing agreements.142 To petitioners, no other
Development Corporation, and any other method is allowed by the Constitution. They
government agency claiming jurisdiction over the likewise submit that by vesting ownership of
area shall be notified thereof. Such notification shall ancestral lands and ancestral domains in the
terminate any legal basis for the jurisdiction indigenous peoples, IPRA necessarily gives them
previously claimed. control over the use and enjoyment of such natural
resources, to the prejudice of the State.143
Undoubtedly, certain areas that are claimed as
ancestral domains may still be under the Section 2, Article XII of the Constitution provides in
administration of other agencies of the Government, paragraph 1 thereof that the exploration,
such as the Department of Agrarian Reform, with development and utilization of natural resources
respect to agricultural lands, and the Department of must be under the full control and supervision of the
Environment and Natural Resources with respect to State, which may directly undertake such activities
timber, forest and mineral lands. Upon the or enter into co-production, joint venture, or
certification of these areas as ancestral domain production-sharing agreements. This provision,
however, should not be read in isolation to avoid a conserve natural resources within territories
mistaken interpretation that any and all forms of and uphold it for future generations; to benefit and
utilization of natural resources other than the share the profits from allocation and utilization of
foregoing are prohibited. The Constitution must be the natural resources found therein; to negotiate
regarded as consistent with itself throughout.144 No the terms and conditions for the exploration of
constitutional provision is to be separated from all natural resources in the areas for the purpose of
the others, or to be considered alone, all provisions ensuring ecological, environmental protection and
bearing upon a particular subject are to be brought the conservation measures, pursuant to national
into view and to be so interpreted as to effectuate and customary laws; to an informed and
the great purposes of the fundamental law.145 intelligent participation in the formulation and
implementation of any project, government or
In addition to the means of exploration, private, that will affect or impact upon the ancestral
development and utilization of the country’s natural domains and to receive just and fair
resources stated in paragraph 1, Section 2 of Article compensation for any damages which they may
XII, the Constitution itself states in the third sustain as a result of the project, and the right to
paragraph of the same section that Congress may, effective measures by the government to prevent
by law, allow small-scale utilization of natural any interference with, alienation and encroachment
resources by its citizens.146 Further, Section 6, of these rights."
Article XIII, directs the State, in the disposition
and utilization of natural resources, to apply the It must be noted that the right to negotiate terms
principles of agrarian reform or and conditions granted under Section 7(b) pertains
stewardship.147 Similarly, Section 7, Article XIII only to the exploration of natural resources. The
mandates the State to protect the rights of term "exploration" refers only to the search or
subsistence fishermen to the preferential use  of prospecting of mineral resources, or any other
marine and fishing resources.148 Clearly, Section 2, means for the purpose of determining the existence
Article XII, when interpreted in view of the pro- and the feasibility of mining them for profit. 155 The
Filipino, pro-poor philosophy of our fundamental exploration, which is merely a preliminary activity,
law, and in harmony with the other provisions of the cannot be equated with the entire process of
Constitution rather as a sequestered "exploration, development and utilization" of natural
pronouncement,149 cannot be construed as a resources which under the Constitution belong to
prohibition against any and all forms of utilization of the State.
natural resources without the State’s direct
participation. Section 57, on the other hand, grants the
indigenous peoples "priority rights" in the utilization
Through the imposition of certain requirements and of natural resources and not absolute ownership
conditions for the exploration, development and thereof. Priority rights does not mean exclusive
utilization of the natural resources under existing rights. What is granted is merely the right of
laws,150 the State retains full control over such preference or first consideration in the award of
activities, whether done on small-scale basis151 or privileges provided by existing laws and regulations,
otherwise. with due regard to the needs and welfare of
indigenous peoples living in the area.
The rights given to the indigenous peoples
regarding the exploitation of natural resources There is nothing in the assailed law which implies
under Sections 7(b) and 57 of IPRA amplify what an automatic or mechanical character in the grant
has been granted to them under existing laws, such of concessions. Nor does the law negate the
as the Small-Scale Mining Act of 1991 (R.A. 7076) exercise of sound discretion by government entities.
and the Philippine Mining Act of 1995 (R.A. 7942). Several factors still have to be considered. For
R.A. 7076 expressly provides that should an example, the extent and nature of utilization and the
ancestral land be declared as a people’s small- consequent impact on the environment and on the
scale mining area, the members of the indigenous indigenous peoples’ way of life are important
peoples living within said area shall be considerations. Moreover, the indigenous peoples
given priority in the awarding of small-scale must show that they live in the area and that they
mining contracts.152 R.A. 7942 declares that no are in the best position to undertake the required
ancestral land shall be opened for mining utilization.
operations without the prior consent of the
indigenous cultural community It must be emphasized that the grant of said priority
concerned153 and in the event that the members of rights to indigenous peoples is not a blanket
such indigenous cultural community give their authority to disregard pertinent laws and
consent to mining operations within their ancestral regulations. The utilization of said natural resources
land, royalties shall be paid to them by the is always subject to compliance by the indigenous
parties to the mining to the contract.154 peoples with existing laws, such as R.A. 7076 and
R.A. 7942 since it is not they but the State, which
In any case, a careful reading of Section 7(b) would owns these resources.
reveal that the rights given to the indigenous
peoples are duly circumscribed. These rights are
limited only to the following: "to manage and
It also bears stressing that the grant of priority rights regulations such as the Philippine Environmental
does not preclude the State from undertaking Policy,158the Environmental Impact System,159 the
activities, or entering into co-production, joint Local Government Code160 and the Philippine
venture or production-sharing agreements with Mining Act of 1995161already require increased
private entities, to utilize the natural resources consultation and participation of stakeholders, such
which may be located within the ancestral domains. as indigenous peoples, in the planning of activities
There is no intention, as between the State and the with significant environment impact.
indigenous peoples, to create a hierarchy of values;
rather, the object is to balance the interests of the The requirement in Section 59 that prior written
State for national development and those of the informed consent of the indigenous peoples must
indigenous peoples. be procured before the NCIP can issue a
certification for the "issuance, renewal, or grant of
Neither does the grant of priority rights to the any concession, license or lease, or to the
indigenous peoples exclude non-indigenous perfection of any production-sharing agreement,"
peoples from undertaking the same activities within must be interpreted, not as a grant of the power to
the ancestral domains upon authority granted by control the exploration, development and utilization
the proper governmental agency. To do so would of natural resources, but merely the imposition of an
unduly limit the ownership rights of the State over additional requirement for such concession or
the natural resources. agreement. The clear intent of the law is to protect
the rights and interests of the indigenous peoples
To be sure, the act of the State of giving preferential which may be adversely affected by the operation
right to a particular sector in the utilization of natural of such entities or licensees.
resources is nothing new. As previously mentioned,
Section 7, Article XIII of the Constitution mandates Corollary Issues
the protection by the State of "the rights of
subsistence fishermen, especially of local A. IPRA does not violate the Due Process clause.
communities, to the preferential use of communal
marine and fishing resources, both inland and
offshore." The first corollary issue raised by petitioners is
whether IPRA violates Section 1, Article III of the
Constitution, which provides that "no person shall
Section 57 further recognizes the possibility that the be deprived of life, liberty, or property without due
exploration and exploitation of natural resources process of law, nor shall any person be deprived
within the ancestral domains may disrupt the the equal protection of the laws."
natural environment as well as the traditional
activities of the indigenous peoples therein. Hence,
the need for the prior informed consent of the Petitioners maintain that the broad definition of
indigenous peoples before any search for or ancestral lands and ancestral domains under
utilization of the natural resources within their Section 3(a) and 3(b) of IPRA includes private
ancestral domains is undertaken. lands. They argue that the inclusion of private lands
in the ancestral lands and ancestral domains
violates the due process clause.162 Petitioners’
In a situation where the State intends to directly or contention is erroneous.
indirectly undertake such activities, IPRA requires
that the prior informed consent of the indigenous
peoples be obtained. The State must, as a matter of Sections 3(a) and 3(b) expressly provide that the
policy and law, consult the indigenous peoples in definition of ancestral lands and ancestral domains
accordance with the intent of the framers of the are "subject to Section 56," which reads:
Constitution that national development policies and
programs should involve a systematic consultation Sec. 56. Existing Property Rights Regimes. –
to balance local needs as well as national plans. As Property rights within the ancestral domains already
may be gathered from the discussion of the framers existing and/or vested upon effectivity of this Act,
of the Constitution on this point, the national plan shall be recognized and protected.
presumably takes into account the requirements of
the region after thorough consultation.156 To this Petitioners, however, contend that Section 56 aims
end, IPRA grants to the indigenous peoples the to protect only the vested rights of indigenous
right to an informed and intelligent participation in peoples, but not those who are not members of
the formulation and implementation of any project, such communities. Following their interpretation,
government or private, and the right not to be IPRA, under Section 56, recognizes the rights of
removed therefrom without their free and prior indigenous peoples to their ancestral lands and
informed consent.157 As to non-members, the prior ancestral domains, subject to the vested rights of
informed consent takes the form of a formal and the same communities to such ancestral lands
written agreement between the indigenous peoples and ancestral domains. Such interpretation is
and non-members under the proviso in Section 57 obviously incorrect.
in case the State enters into a co-production, joint
venture, or production-sharing agreement with
Filipino citizens, or corporations. This requirement The "property rights" referred to in Section 56
is not peculiar to IPRA. Existing laws and belong to those acquired by individuals, whether
indigenous or non-indigenous peoples. Said In addition, petitioners claim that IPRA prescribes
provision makes no distinction as to the ethnic that customary laws shall be applied first in disputes
origins of the ownership of these "property rights." involving property, succession and land,173 and that
The IPRA thus recognizes and respects "vested such laws shall likewise be used in disputes
rights" regardless of whether they pertain to involving indigenous peoples.174 They assert that
indigenous or non-indigenous peoples. Where the "[w]hen the dispute involves a member of an
law does not distinguish, the courts should not [indigenous cultural community and another who is
distinguish.163 What IPRA only requires is that these not], a resolution of such a dispute based on
"property rights" already exist and/or vested upon customary laws. . . would clearly be a denial of due
its effectivity. process. . . [because those who are not indigenous
peoples] do not know what these customary laws
Further, by the enactment of IPRA, Congress did are."175
not purport to annul any and all Torrens titles within
areas claimed as ancestral lands or ancestral Petitioners’ concerns are unfounded. The fact that
domains. The statute imposes strict procedural the NCIP is composed of members of the
requirements for the proper delineation of ancestral indigenous peoples does not mean that it (the
lands and ancestral domains as safeguards against NCIP) is incapable, or will appear to be so
the fraudulent deprivation of any landowner of his incapable, of delivering justice to the non-
land, whether or not he is member of an indigenous indigenous peoples. A person’s possession of the
cultural community. In all proceedings for trait of impartiality desirable of a judge has nothing
delineation of ancestral lands and ancestral to do with his or her ethnic roots. In this wise, the
domains, the Director of Lands shall appear to indigenous peoples are as capable of rendering
represent the interest of the Republic of the justice as the non-indigenous peoples for, certainly,
Philippines.164 With regard to ancestral domains, the latter have no monopoly of the concept of
the following procedure is mandatory: first, petition justice.
by an indigenous cultural community, or motu
proprio by the NCIP; second, investigation and In any case, there are sufficient checks in the law
census by the Ancestral domains Office  ("ADO") of against any abuse by the NCIP of its quasi-judicial
the NCIP; third, preliminary report by the powers. Section 67 states that the decision of the
ADO; fourth, posting and publication; and lastly, NCIP shall be appealable to the Court of Appeals
evaluation by the NCIP upon submission of the final by petition for review. The regular remedies under
report of the ADO.165 With regard to ancestral our rules of procedure are likewise available to any
lands, unless such lands are within an ancestral party aggrieved by the decision of the NCIP.
domain, the statute imposes the following
procedural requirements: first, application; second,
posting and publication; third, investigation and Anent the use of customary laws in determining the
inspection by the ADO; fourth, delineation; lastly, ownership and extent of ancestral domains, suffice
evaluation by the NCIP upon submission of a report it to say that such is allowed under paragraph 2,
by the ADO.166 Hence, we cannot sustain the Section 5 of Article XII of the Constitution. Said
arguments of the petitioners that the law affords no provision states, "The Congress may provide for the
protection to those who are not indigenous peoples. applicability of customary laws governing property
rights and relations in determining the ownership
and extent of the ancestral domains." Notably, the
Neither do the questioned sections of IPRA on the use of customary laws under IPRA is not absolute,
composition and powers and jurisdiction of the for the law speaks merely of primacy of use.176 The
NCIP167 and the application of customary IPRA prescribes the application of such customary
law,168 violate the due process clause of the laws where these present a workable solution
Constitution. acceptable to the parties, who are members of the
same indigenous group. This interpretation is
Petitioners point out that IPRA provides that the supported by Section 1, Rule IX of the
NCIP shall be composed exclusively of members of Implementing Rules which states:
indigenous peoples,169 and that the NCIP shall have
jurisdiction over all claims and disputes involving RULE IX. JURISDICTION AND PROCEDURES
indigenous peoples,170including even disputes FOR ENFORCEMENT OF RIGHTS
between a member of such communities and one
who is not a member, as well as over disputes in
the delineation of ancestral domains.171 Petitioners Section 1. Primacy of Customary Law. All conflicts
clarify that they do not claim that the members of related to ancestral domains and lands, involving
the NCIP are incapable of being fair and impartial ICCs/IPs, such as but not limited to conflicting
judges. They merely contend that the NCIP will claims and boundary disputes, shall be resolved by
not appear to be impartial, because a party who is the concerned parties through the application of
not a member of an indigenous cultural community customary laws in the area where the disputed
"who must defend his case against [one who is] ancestral domain or land is located.
before judges who are all members of [indigenous
peoples] cannot but harbor a suspicion that they do All conflicts related to the ancestral domains or
not have the cold neutrality of an impartial judge."172 lands where one of the parties is a non-ICC/IP or
where the dispute could not be resolved
through customary law shall be heard and Section 1. The NCIP is the primary agency of
adjudicated in accordance with the Rules on government for the formulation and implementation
Pleadings, Practice and Procedures Before the of policies, plans and programs to recognize,
NCIP to be adopted hereafter. (Emphasis supplied.) promote and protect the rights and well-being of
indigenous peoples. It shall be an independent
The application of customary law is limited to agency under the Office of the President. As such,
disputes concerning property rights or relations the administrative relationship of the NCIP to
in determining the ownership and extent of the the Office of the President is characterized as a
ancestral domains,177 where all the parties lateral but autonomous relationship for
involved are members of indigenous purposes of policy and program
peoples,178 specifically, of the same indigenous coordination. This relationship shall be carried out
group. It therefore follows that when one of the through a system of periodic reporting. Matters of
parties to a dispute is a non-member of an day-to-day administration or all those pertaining to
indigenous group, or when the indigenous peoples internal operations shall be left to the discretion of
involved belong to different groups, the application the Chairperson of the Commission, as the Chief
of customary law is not required. Executive Officer.

Like any other law, the objective of IPRA in Petitioners asseverate that the aforecited rule
prescribing the primacy of customary law in infringes upon the power of control of the President
disputes concerning ancestral lands and domains over the NCIP by characterizing the relationship of
where all parties involved are indigenous peoples is the NCIP to the Office of the President as "lateral
justice. The utilization of customary laws is in line but autonomous...for purposes of policy and
with the constitutional policy of recognizing the program coordination."
application thereof through legislation passed by
Congress. Although both Section 40 of the IPRA and Section
1, Part II, Rule VII of the Implementing Rules
Furthermore, the recognition and use of customary characterize the NCIP as an independent agency
law is not a novel idea in this jurisdiction. Under the under the Office of the President, such
Civil Code, use of customary law is sanctioned, as characterization does not remove said body from
long as it is proved as a fact according to the rules the President’s control and supervision.
of evidence,179 and it is not contrary to law, public
order or public policy.180 Moreover, the Local The NCIP has been designated under IPRA as the
Government Code of 1991 calls for the recognition primary government agency responsible for the
and application of customary laws to the resolution formulation and implementation of policies, plans
of issues involving members of indigenous peoples. and programs to promote and protect the rights and
This law admits the operation of customary laws in well being of the indigenous peoples and the
the settling of disputes if such are ordinarily used in recognition of their ancestral domain as well as their
barangays where majority of the inhabitants are rights thereto.182 It has been granted
members of indigenous peoples.181 administrative,183 quasi-legislative184 and quasi-
judicial powers185 to carry out its mandate. The
B. Section 1, Part II, Rule VII of the Implementing diverse nature of the NCIP’s functions renders it
Rules of IPRA does not infringe upon the impossible to place said agency entirely under the
President’s power of control over the Executive control of only one branch of government and this,
Department. apparently, is the reason for its characterization by
Congress as an independent agency. An
"independent agency" is defined as an
The second corollary issue is whether the administrative body independent of the executive
Implementing Rules of IPRA violate Section 17, branch or one not subject to a superior head of
Article VII of the Constitution, which provides that: department, as distinguished from a "subordinate
agency" or an administrative body whose action is
The President shall have control of all the executive subject to administrative review or revision.186
departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed. That Congress did not intend to place the NCIP
under the control of the President in all instances is
The assailed provision of the Implementing Rules evident in the IPRA itself, which provides that the
provides: decisions of the NCIP in the exercise of its quasi-
judicial functions shall be appealable to the Court of
Rule VII. The National Commission on Indigenous Appeals,187 like those of the National Labor
Peoples (NCIP) Relations Commission (NLRC) and the Securities
and Exchange Commission (SEC). Nevertheless,
the NCIP, although independent to a certain
xxx degree, was placed by Congress "under the office
of the President" and, as such, is still subject to the
Part II: NCIP as an Independent Agency Under the President’s power of control and supervision
Office of the President granted under Section 17, Article VII of the
Constitution188 with respect to its performance of
administrative functions, such as the following: (1) exploit natural resources within the
the NCIP must secure the President’s approval in ancestral lands and domains;198
obtaining loans to finance its projects;189 (2) it must
obtain the President’s approval for any negotiation (4) The Due Process Clause of the
for funds and for the acceptance of gifts and/or Constitution is not violated by the
properties in whatever from and from whatever provisions (Sections 40, 51-54, 62, 63, 65
source;190 (3) the NCIP shall submit annual reports and 66) of the IPRA which, among others,
of its operations and achievements to the President, establish the composition of the NCIP, and
and advise the latter on all matters relating to the prescribe the application of customary law
indigenous peoples;191 and (4) it shall exercise such in certain disputes involving indigenous
other powers as may be directed by the peoples. The fact the NCIP is composed
President.192 The President is also given the power wholly of indigenous peoples does not
to appoint the Commissioners of the NCIP193 as well mean that it is incapable of being impartial.
as to remove them from office for cause motu Moreover, the use of customary laws is
proprio or upon the recommendation of any sanctioned by paragraph 2, Section 5 of
indigenous community.194 Article XII of the Constitution; and

To recapitulate: (5) The provision of the Implementing

Rules characterizing the NCIP as an
(1) The provisions of the IPRA (specifically independent agency under the Office of
Sections 3, paragraphs (a) and (b), 5, 6, 7, the President does not infringe upon the
and 8) affirming the ownership by the President’s power of control under Section
indigenous peoples of their ancestral lands 17, Article VII of the Constitution, since
and domains by virtue of native title do not said provision as well as Section 40 of the
diminish the State’s ownership of lands of IPRA expressly places the NCIP under the
the public domain, because said ancestral Office of the President, and therefore
lands and domains are considered as under the President’s control and
private land, and never to have been part supervision with respect to its
of the public domain, following the doctrine administrative functions. However, insofar
laid down in Cariño vs. Insular as the decisions of the NCIP in the
Government;195 exercise of its quasi-judicial powers are
concerned, the same are reviewable by
(2) The constitutional provision vesting the Court of Appeals, like those of the
ownership over minerals, mineral lands NLRC and the SEC.
and other natural resources in the State is
not violated by Sections 3, 5, 7, 56, 57, 58 In view of the foregoing, I vote to DISMISS the
and 59 of the IPRA which grant certain petition.
rights to the indigenous peoples over the
natural resources found within the
ancestral domains, e.g., to benefit from
and share in the profits from the allocation
and utilization of the same, as well as SEPARATE OPINION
priority rights in the harvesting, extraction,
development or exploitation thereof. The MENDOZA, J.:
State retains full control over the
exploration, development and utilization of
This suit was instituted to determine the
natural resources even with the grant of
constitutionality of certain provisions of R.A. No.
said rights to the indigenous peoples,
8371, otherwise known as the Indigenous Peoples
through the imposition of requirements and
Rights Act. Petitioners do not complain of any injury
conditions for the utilization of natural
as a result of the application of the statute to them.
resources under existing laws, such as the
They assert a right to seek an adjudication of
Small-Scale Mining Act of 1991196and the
constitutional questions as citizens and taxpayers,
Philippine Mining Act of 1995.197 Moreover,
upon the plea that the questions raised are of
the rights granted to indigenous peoples
"transcendental importance."
for the utilization of natural resources
within their ancestral domains merely
amplify what has been earlier granted to The judicial power vested in this Court by Art. VIII,
them under the aforesaid laws; §1 extends only to cases and controversies for the
determination of such proceedings as are
established by law for the protection or enforcement
(3) While the IPRA recognizes the rights of
of rights, or the prevention, redress or punishment
indigenous peoples with regard to their
of wrongs.1 In this case, the purpose of the suit is
ancestral lands and domains, it also
not to enforce a property right of petitioners against
protects the vested rights of persons,
the government and other respondents or to
whether indigenous or non-indigenous
demand compensation for injuries suffered by them
peoples, who may have acquired rights of
as a result of the enforcement of the law, but only to
ownership lands or rights to explore and
settle what they believe to be the doubtful character only if, as applied to him, it is unconstitutional. Here
of the law in question. Any judgment that we render the IPRA is sought to be declared void on its face.
in this case will thus not conclude or bind real
parties in the future, when actual litigation will bring The only instance where a facial challenge to a
to the Court the question of the constitutionality of statute is allowed is when it operates in the area of
such legislation. Such judgment cannot be freedom of expression. In such instance, the
executed as it amounts to no more than an overbreadth doctrine permits a party to challenge
expression of opinion upon the validity of the the validity of a statute even though as applied to
provisions of the law in question.2 him it is not unconstitutional but it might be if
applied to others not before the Court whose
I do not conceive it to be the function of this Court activities are constitutionally protected. Invalidation
under Art. VIII, §1 of the Constitution to determine of the statute "on its face" rather than "as applied" is
in the abstract whether or not there has been a permitted in the interest of preventing a "chilling"
grave abuse of discretion amounting to lack or effect on freedom of expression. But in other cases,
excess of jurisdiction on the part of the legislative even if it is found that a provision of a statute is
and executive departments in enacting the IPRA. unconstitutional, courts will decree only partial
Our jurisdiction is confined to cases or invalidity unless the invalid portion is so far
controversies. No one reading Art. VIII, §5 can fail inseparable from the rest of the statute that a
to note that, in enumerating the matters placed in declaration of partial invalidity is not possible.
the keeping of this Court, it uniformly begins with
the phrase "all cases. . . ." For the Court to exercise its power of review when
there is no case or controversy is not only to act
The statement that the judicial power includes the without jurisdiction but also to run the risk that, in
duty to determine whether there has been a grave adjudicating abstract or hypothetical questions, its
abuse of discretion was inserted in Art. VIII, §1 not decision will be based on speculation rather than
really to give the judiciary a roving commission to experience. Deprived of the opportunity to observe
right any wrong it perceives but to preclude courts the impact of the law, the Court is likely to equate
from invoking the political question doctrine in order questions of constitutionality with questions of
to evade the decision of certain cases even where wisdom and is thus likely to intrude into the domain
violations of civil liberties are alleged. of legislation. Constitutional adjudication, it cannot
be too often repeated, cannot take place in a
The statement is based on the ruling of the Court vacuum.
in  Lansang v. Garcia,3 in which this Court, adopting
the submission of the Solicitor General, formulated Some of the brethren contend that not deciding the
the following test of its jurisdiction in such cases: constitutional issues raised by petitioners will be a
"galling cop out"4 or an "advocacy of timidity, let
[J]udicial inquiry into the basis of the questioned alone isolationism."5 To decline the exercise of
proclamation can go no further  than to satisfy the jurisdiction in this case is no more a "cop out" or a
Court not  that the President’s decision sign of "timidity" than it was for Chief Justice
is correct  and that public safety was endangered by Marshall in Marbury v. Madison6  to hold that
the rebellion and justified the suspension of the writ, petitioner had the right to the issuance of his
but that in suspending the writ, the President did not commission as justice of the peace of the District of
act arbitrarily. Columbia only to declare in the end that after all
mandamus did not lie, because §13 of the Judiciary
Act of 1789, which conferred original jurisdiction on
That is why Art. VII, §18 now confers on any citizen the United States Supreme Court to issue the writ
standing to question the proclamation of martial law of mandamus, was unconstitutional as the court’s
or the suspension of the privilege of the writ of jurisdiction is mainly appellate.
habeas corpus. It is noteworthy that Chief Justice
Roberto Concepcion, who chaired the Committee
on the Judiciary of the Constitutional Commission, Today Marbury v. Madison is remembered for the
was the author of the opinions of the Court in Lopez institution of the power of judicial review, and so
v. Roxas and Lansang v. Garcia. that there can be no doubt of this power of our
Court, we in this country have enshrined its
principle in Art. VIII, §1. Now, the exercise of judicial
Indeed, the judicial power cannot be extended to review can result either in the invalidation of an act
matters which do not involve actual cases or of Congress or in upholding it. Hence, the checking
controversies without upsetting the balance of and legitimating functions of judicial review so well
power among the three branches of the government mentioned in the decisions7 of this Court.
and erecting, as it were, the judiciary, particularly
the Supreme Court, as a third branch of Congress,
with power not only to invalidate statutes but even To decline, therefore, the exercise of jurisdiction
to rewrite them. Yet that is exactly what we would where there is no genuine controversy is not to
be permitting in this case were we to assume show timidity but respect for the judgment of a
jurisdiction and decide wholesale the constitutional coequal department of government whose acts,
validity of the IPRA contrary to the established rule unless shown to be clearly repugnant to the
that a party can question the validity of a statute fundamental law, are presumed to be valid. The
polestar of constitutional adjudication was set forth controversy involving at least two constitutional
by Justice Laurel in the Angara  case when he said questions of transcendental importance,1 which
that "this power of judicial review is limited to actual deserve judicious disposition on the merits directly
cases and controversies to be exercised after full by the highest court of the land. 2 Further, I am
opportunity of argument by the parties, and limited satisfied that the various aspects of this controversy
further to the constitutional question raised or the have been fully presented and impressively argued
very lis mota, presented."8 For the exercise of this by the parties. Moreover, prohibition and
power is legitimate only in the last resort, and as a mandamus are proper legal remedies3 to address
necessity in the determination of real, earnest, and the problems raised by petitioners. In any event,
vital controversy between individuals.9 Until, this Court has given due course to the Petition,
therefore, an actual case is brought to test the heard oral arguments and required the submission
constitutionality of the IPRA, the presumption of of memoranda. Indeed, it would then be a galling
constitutionality, which inheres in every statute, copout for us to dismiss it on mere technical or
must be accorded to it. procedural grounds.

Justice Kapunan, on the other hand, cites the Protection of Indigenous Peoples’ Rights Must Be
statement in Severino v. Governor Within the Constitutional Framework
General,10 reiterated in Tanada v. Tuvera,11 that
"when the question is one of public right and the With due respect, however, I dissent from
object of mandamus to procure the enforcement of the ponencia’s resolution of the two main
a public duty, the people are regarded as the real substantive issues, which constitute the core of this
party in interest, and the relator at whose instigation case. Specifically, I submit that Republic Act (RA)
the proceedings are instituted need not show that No. 8371, otherwise known as the Indigenous
he has any legal or special interest in the result, it Peoples’ Rights Act (IPRA) of 1997, violates and
being sufficient that he is a citizen and as such is contravenes the Constitution of the Philippines
interested in the execution of the laws." On the insofar as -
basis of this statement, he argues that petitioners
have standing to bring these proceedings.12
1. It recognizes or, worse, grants rights of
ownership over "lands of the public
In Severino v. Governor General,13 the question domain, waters, x x x and other natural
was whether mandamus lay to compel the resources" which, under Section 2, Article
Governor General to call a special election on the XII of the Constitution, "are owned by the
ground that it was his duty to do so. The ruling was State" and "shall not be alienated." I
that he did not have such a duty. On the other respectfully reject the contention that
hand, although mandamus was issued in Tanada v. "ancestral lands and ancestral domains
Tuvera, it was clear that petitioners had standing to are not public lands and have never been
bring the suit, because the public has a right to owned by the State." Such sweeping
know and the failure of respondents to publish all statement places substantial portions of
decrees and other presidential issuances in the Philippine territory outside the scope of the
Official Gazette placed petitioners in danger of Philippine Constitution and beyond the
violating those decrees and issuances. But, in this collective reach of the Filipino people. As
case, what public right is there for petitioners to will be discussed later, these real
enforce when the IPRA does not apply to them properties constitute a third of the entire
except in general and in common with other Philippine territory; and the resources, 80
citizens. percent of the nation's natural wealth.

For the foregoing reasons I vote to dismiss the 2. It defeats, dilutes or lessens the
petition in this case. authority of the State to oversee the
"exploration, development, and utilization
of natural resources," which the
Constitution expressly requires to "be
under the full control and supervision of
the State."

True, our fundamental law mandates the protection

of the indigenous cultural communities’ right to their
SEPARATE OPINION ancestral lands, but such mandate is "subject to the
(Concurring and Dissenting) provisions of this Constitution."4 I concede that
indigenous cultural communities and indigenous
PANGANIBAN, J.: peoples (ICCs/IPs) may be accorded preferential
rights to the beneficial use of public domains, as
well as priority in the exploration, development and
I concur with the draft ponencia of Mr. Justice
utilization of natural resources. Such privileges,
Santiago M. Kapunan in its well-crafted handling of
however, must be subject to the fundamental law.
the procedural or preliminary issues. In particular, I
agree that petitioners have shown an actual case or
Consistent with the social justice principle of giving obtained by prescription.9 Refusal to abide by the
more in law to those who have less in life, Congress system and its implementing laws meant the
in its wisdom may grant preferences and abandonment or waiver of ownership claims.
prerogatives to our marginalized brothers and
sisters, subject to the irreducible caveat that the By virtue of the 1898 Treaty of Paris, the Philippine
Constitution must be respected. I personally believe archipelago was ceded to the United States. The
in according every benefit to the poor, the latter assumed administration of the Philippines and
oppressed and the disadvantaged, in order to succeeded to the property rights of the Spanish
empower them to equally enjoy the blessings of Crown. But under the Philippine Bill of 1902, the US
nationhood. I cannot, however, agree to legitimize Government allowed and granted patents to Filipino
perpetual inequality of access to the nation's wealth and US citizens for the "free and open x x x
or to stamp the Court's imprimatur on a law that exploration, occupation and purchase [of mines]
offends and degrades the repository of the very and the land in which they are found."10 To a certain
authority of this Court - the Constitution of the extent, private individuals were entitled to own,
Philippines. exploit and dispose of mineral resources and other
rights arising from mining patents.
The Constitution Is a Compact
This US policy was, however, rejected by the
My basic premise is that the Constitution is the Philippine Commonwealth in 1935 when it crafted
fundamental law of the land, to which all other laws and ratified our first Constitution. Instead, the said
must conform.5 It is the people's quintessential act Constitution embodied the Regalian Doctrine, which
of sovereignty, embodying the principles upon more definitively declared as belonging to the State
which the State and the government are all lands of the public domain, waters, minerals and
founded.6 Having the status of a supreme and all- other natural resources.11 Although respecting
encompassing law, it speaks for all the people all mining patentees under the Philippine Bill of 1902, it
the time, not just for the majority or for the minority restricted the further exploration, development and
at intermittent times. Every constitution is a compact utilization of natural resources, both as to who
made by and among the citizens of a State to might be entitled to undertake such activities and
govern themselves in a certain manner. 7 Truly, the for how long. The pertinent provision reads:
Philippine Constitution is a solemn covenant made
by all the Filipinos to govern themselves. No group, "SECTION 1 [Art. XIII]. All agricultural, timber, and
however blessed, and no sector, however mineral lands of the public domain, waters,
distressed, is exempt from its compass. minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, and other natural
RA 8371, which defines the rights of indigenous resources of the Philippines belong to the State,
cultural communities and indigenous peoples, and their disposition, exploitation, development, or
admittedly professes a laudable intent. It was utilization shall be limited to citizens of the
primarily enacted pursuant to the state policy Philippines, or to corporations or associations at
enshrined in our Constitution to "recognize and least sixty per centum of the capital of which is
promote the rights of indigenous cultural owned by such citizens, subject to any existing
communities within the framework of national unity right, grant, lease, or concession at the time of the
and development."8Though laudable and well- inauguration of the Government established under
meaning, this statute, however, has provisions that this Constitution. Natural resources, with the
run directly afoul of our fundamental law from which exception of public agricultural land, shall not be
it claims origin and authority. More specifically, alienated, and license, concession, or lease for the
Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and other exploitation, development, or utilization of any of the
related provisions contravene the Regalian Doctrine natural resources shall be granted for a period
- the basic foundation of the State's property exceeding twenty-five years, renewable for another
regime. twenty-five years, except as to water rights for
irrigation, water supply, fisheries, or industrial uses
Public Domains and Natural Resources Are Owned other than the development of water power, in
by the State and Cannot Be Alienated or Ceded which cases beneficial use may be the measure
and the limit of the grant."
Jura regalia was introduced into our political system
upon the "discovery" and the "conquest" of our The concept was carried over in the 1973 and the
country in the sixteenth century. Under this concept, 1987 Constitutions. Hence, Sections 8 and 9,
the entire earthly territory known as the Philippine Article XIV of the 1973 Constitution, state:
Islands was acquired and held by the Crown of
Spain. The King, as then head of State, had the "SEC. 8. All lands of the public domain, waters,
supreme power or exclusive dominion over all our minerals, coal, petroleum and other mineral oils, all
lands, waters, minerals and other natural resources. forces of potential energy, fisheries, wildlife, and
By royal decrees, though, private ownership of real other natural resources of the Philippines belong to
property was recognized upon the showing of (1) a the State. With the exception of agricultural,
title deed; or (2) ancient possession in the concept industrial or commercial, residential, and
of owner, according to which a title could be resettlement lands of the public domain, natural
resources shall not be alienated and no license, "The President may enter into agreements with
concession, or lease for the exploration, foreign-owned corporations involving either
development, exploitation, utilization of any of the technical or financial assistance for large-scale
natural resources shall be granted for a period exploration, development, and utilization of
exceeding twenty-five years, renewable for not minerals, petroleum, and other mineral oils
more than twenty-five years, except as to water according to the general terms and conditions
rights for irrigation, water supply, fisheries, or provided by law, based on real contributions to the
industrial uses other than the development of water economic growth and general welfare of the
power, in which cases beneficial use may be the country. In such agreements, the State shall
measure and the limit of the grant. promote the development and use of local scientific
and technical resources.
SEC. 9. The disposition, exploration, development,
exploitation, or utilization of any of the natural "The President shall notify the Congress of every
resources of the Philippines shall be limited to contract entered into in accordance with this
citizens of the Philippines, or to corporations or provision, within thirty days from its execution."
associations at least sixty per centum of the capital
of which is owned by such citizens. The National The adoption of the Regalian Doctrine by the
Assembly, in the national interest, may allow such Philippine Commonwealth was initially impelled by
citizens, corporations, or associations to enter into the desire to preserve the nation's wealth in the
service contracts for financial, technical, hands of the Filipinos themselves. Nationalism was
management, or other forms of assistance with any fervent at the time, and our constitutional framers
foreign person or entity for the exploration, decided to embody the doctrine in our fundamental
development, exploitation, or utilization of any of the law. Charging the State with the conservation of the
natural resources. Existing valid and binding service national patrimony was deemed necessary for
contracts for financial, technical, management, or Filipino posterity. The arguments in support of the
other forms of assistance are hereby recognized as provision are encapsulated by Aruego as follows:
such." "[T]he natural resources, particularly the mineral
resources which constituted a great source of
Similarly, Section 2, Article XII of the 1987 wealth, belonged not only to the generation then but
Constitution, provides: also to the succeeding generation and
consequently should be conserved for them."12
"SEC. 2. All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all Thus, after expressly declaring that all lands of the
forces of potential energy, fisheries, forests or public domain, waters, minerals, all forces of energy
timber, wildlife, flora and fauna, and other natural and other natural resources belonged to the
resources are owned by the State. With the Philippine State, the Commonwealth absolutely
exception of agricultural lands, all other natural prohibited the alienation of these natural resources.
resources shall not be alienated. The exploration, Their disposition, exploitation, development and
development, and utilization of natural resources utilization were further restricted only to Filipino
shall be under the full control and supervision of the citizens and entities that were 60 percent Filipino-
State. The State may directly undertake such owned. The present Constitution even goes further
activities, or it may enter into co-production, joint by declaring that such activities "shall be under the
venture, or production-sharing agreements with full control and supervision of the State."
Filipino citizen, or corporations or associations at Additionally, it enumerates land classifications and
least sixty per centum of whose capital is owned by expressly states that only agricultural lands of the
such citizens. Such agreements may be for a period public domain shall be alienable. We quote below
not exceeding twenty-five years, renewable for not the relevant provision:13
more than twenty-five years, and under such terms
and conditions as may be provided by law. In cases "SEC. 3. Lands of the public domain are classified
of water rights for irrigation, water supply, fisheries, into agricultural, forest or timber, mineral lands, and
or industrial uses other than the development of national parks. Agricultural lands of the public
water power, beneficial use may be the measure domain may be further classified by law according
and limit of the grant. to the uses to which they may be devoted.
Alienable lands of the public domain shall be limited
"The State shall protect the nation's marine wealth to agricultural lands. Private corporations or
in its archipelagic waters, territorial sea, and associations may not hold such alienable lands of
exclusive economic zone, and reserve its use and the public domain except by lease, for a period not
enjoyment exclusively to Filipino citizens. exceeding twenty-five years, renewable for not
more than twenty-five years, and not to exceed one
"The Congress may, by law, allow small-scale thousand hectares in area. x x x."
utilization of natural resources by Filipino citizens,
as well as cooperative fish farming, with priority to Mr. Justice Kapunan upholds private respondents
subsistence fishermen and fish workers in rivers, and intervenors in their claim that all ancestral
lakes, bays and lagoons. domains and lands are outside the coverage of
public domain; and that these properties - including
forests, bodies of water, minerals and parks found the contrary, it declares that all lands of the public
therein - are private and have never been part of domain and natural resources "are owned by the
the public domain, because they have belonged to State"; and "with the exception of agricultural lands,
the indigenous people’s ancestors since time all other natural resources shall not be alienated."
immemorial.
As early as Oh Cho v. Director of Lands, 17 the Court
I submit, however, that all Filipinos, whether declared as belonging to the public domain all lands
indigenous or not, are subject to the Constitution. not acquired from the government, either by
Indeed, no one is exempt from its all-encompassing purchase or by grant under laws, orders or decrees
provisions. Unlike the 1935 Charter, which was promulgated by the Spanish government; or by
subject to "any existing right, grant, lease or possessory information under Act 496 (Mortgage
concession," the 1973 and the 1987 Constitutions Law).
spoke in absolute terms. Because of the State’s
implementation of policies considered to be for the On the other hand, Intervenors Flavier et
common good, all those concerned have to give up, al.18 differentiate the concept of ownership of
under certain conditions, even vested rights of ICCs/IPs from that which is defined in Articles 427
ownership. and 428 of the Civil Code. They maintain that
"[t]here are variations among ethnolinguistic groups
In Republic v. Court of Appeals,14  this Court said in the Cordillera, but a fair synthesis of these refers
that once minerals are found even in private land, to ‘x x x the tribal right to use the land or to territorial
the State may intervene to enable it to extract the control x x x, a collective right to freely use the
minerals in the exercise of its sovereign particular territory x x x [in] the concept of
prerogative. The land is converted into mineral land trusteeship.'"
and may not be used by any private person,
including the registered owner, for any other In other words, the "owner" is not an individual.
purpose that would impede the mining operations. Rather, it is a tribal community that preserves the
Such owner would be entitled to just compensation property for the common but nonetheless exclusive
for the loss sustained. and perpetual benefit of its members, without the
attributes of alienation or disposition. This concept,
In Atok Big-Wedge Mining Company v. IAC, 15 the however, still perpetually withdraws such property
Court clarified that while mining claim holders and from the control of the State and from its enjoyment
patentees have the exclusive right to the by other citizens of the Republic. The perpetual and
possession and enjoyment of the located claim, exclusive character of private respondents’ claims
their rights are not absolute or strictly one of simply makes them repugnant to basic fairness and
ownership. Thus, failure to comply with the equality.
requirements of pertinent mining laws was deemed
an abandonment or a waiver of the claim. Private respondents and intervenors trace their
"ownership" of ancestral domains and lands to the
Verily, as petitioners undauntedly point out, four pre-Spanish conquest. I should say that, at the
hundred years of Philippine political history cannot time, their claims to such lands and domains was
be set aside or ignored by IPRA, however well- limited to the surfaces thereof since their ancestors
intentioned it may be. The perceived lack of were agriculture-based. This must be the continuing
understanding of the cultural minorities cannot be scope of the indigenous groups’ ownership claims:
remedied by conceding the nation’s resources to limited to land, excluding the natural resources
their exclusive advantage. They cannot be more found within.
privileged simply because they have chosen to
ignore state laws. For having chosen not to be In any event, if all that the ICCs/IPs demand is
enfolded by statutes on perfecting land titles, preferential use - not ownership - of ancestral
ICCs/IPs cannot now maintain their ownership of domains, then I have no disagreement. Indeed,
lands and domains by insisting on their concept of consistent with the Constitution is IPRA’s Section
"native title" thereto. It would be plain injustice to the 5719- without the too-broad definitions under Section
majority of Filipinos who have abided by the law 3 (a) and (b) - insofar as it grants them priority
and, consequently, deserve equal opportunity to rights in harvesting, extracting, developing or
enjoy the country’s resources. exploiting natural resources within ancestral
domains.
Respondent NCIP claims that IPRA does not violate
the Constitution, because it does not grant The concerted effort to malign the Regalian
ownership of public domains and natural resources Doctrine as a vestige of the colonial past must fail.
to ICCs/IPs. "Rather, it recognizes and mandates Our Constitution vests the ownership of natural
respect for the rights of indigenous peoples over resources, not in colonial masters, but in all the
their ancestral lands and domains that had never Filipino people. As the protector of the Constitution,
been lands of the public domain."16 I say, however, this Court has the sworn duty to uphold the tenets
that such claim finds no legal support. Nowhere in of that Constitution - not to dilute, circumvent or
the Constitution is there a provision that exempts create exceptions to them.
such lands and domains from its coverage. Quite
Cariño v. Insular Government Was Modified by the communally or individually since time immemorial,
Constitution continuously to the present except when interrupted
by war, force majeure or displacement x x x. It shall
In this connection, I submit that Cariño v. Insular include ancestral lands, forests, pasture, residential,
Government20 has been modified or superseded by agricultural, and other lands individually owned
our 1935, 1973 and 1987 Constitutions. whether alienable and disposable or otherwise,
Its ratio should be understood as referring only to a hunting grounds x x x bodies of water, mineral and
means by which public agricultural land may be other natural resources x x x." (Emphasis ours.)
acquired by citizens. I must also stress that the
claim of Petitioner Cariño refers to land ownership Clearly, under the above-quoted provision of IPRA,
only, not to the natural resources underneath or to ancestral domains of ICCs/IPs encompass the
the aerial and cosmic space above. natural resources found therein. And Section 7
guarantees recognition and protection of
Significantly, in Director of Land Management v. their rights of ownership and possession over such
Court of Appeals,21 a Decision handed down after domains.
our three Constitutions had taken effect, the Court
rejected a cultural minority member's registration of The indigenous concept of ownership, as defined
land under CA 141, Section 48 (c). 22 The reason under Section 5 of the law, "holds that ancestral
was that the property fell within the Central domains are the ICC’s/IP’s private but community
Cordillera Forest Reserve. This Court quoted with property which belongs to all generations and
favor the solicitor general’s following statements: therefore cannot be sold, disposed or destroyed."
Simply put, the law declares that ancestral
"3. The construction given by respondent Court of domains, including the natural resources found
Appeals to the particular provision of law involved, therein, are owned by ICCs/IPs and cannot be sold,
as to include even forest reserves as susceptible to disposed or destroyed. Not only does it vest
private appropriation, is to unconstitutionally apply ownership, as understood under the Civil Code; it
such provision. For, both the 1973 and present adds perpetual exclusivity. This means that while
Constitutions do not include timber or forest lands ICCs/IPs could own vast ancestral domains, the
as alienable. Thus, Section 8, Article XIV of 1973 majority of Filipinos who are not indigenous can
Constitution states that ‘with the exception of never own any part thereof.
agricultural, industrial or commercial, residential
and resettlement lands of the public domain, natural On the other hand, Section 3 (b) 25 of IPRA defines
resources shall not be alienated.’ The new ancestral lands as referring to "lands occupied,
Constitution, in its Article XII, Section 2, also possessed and utilized by individuals, families and
expressly states that ‘with the exception of clans of the ICCs/IPs since time immemorial x x x,
agricultural lands, all other natural resources shall under claims of individual or traditional group
not be alienated’." ownership, x x x including, but not limited to,
residential lots, rice terraces or paddies, private
Just recently, in Gordula v. Court of Appeals,23  the forests, swidden farms and tree lots." Section 8
Court also stated that "forest land is incapable of recognizes and protects "the right of ownership and
registration, and its inclusion in a title nullifies that possession of ICCs/IPs to their ancestral lands."
title. To be sure, the defense of indefeasiblity of a Such ownership need not be by virtue of a
certificate of title issued pursuant to a free patent certificate of title, but simply by possession since
does not lie against the state in an action for time immemorial.
reversion of the land covered thereby when such
land is a part of a public forest or of a forest I believe these statutory provisions directly
reservation, the patent covering forest land being contravene Section 2, Article XII of the Constitution,
void ab initio." more specifically the declaration that the State
owns all lands of the public domain, minerals and
RA 8371 Violates the Inalienability of Natural natural resources – none of which, except
Resources and of Public Domains agricultural lands, can be alienated. In several
cases, this Court has consistently held that non-
agricultural land must first be reclassified and
The ponencia theorizes that RA 8371 does not converted into alienable or disposable land for
grant to ICCs/IPs ownership of the natural agricultural purposes by a positive act of the
resources found within ancestral domains. government.26 Mere possession or utilization
However, a simple reading of the very wordings of thereof, however long, does not automatically
the law belies this statement. convert them into private properties.27 The
presumption is that "all lands not appearing to be
Section 3 (a)24 defines and delineates ancestral clearly within private ownership are presumed to
domains as "all areas generally belonging to belong to the State. Hence, x x x all applicants in
ICCs/IPs comprising lands, inland waters, coastal land registration proceedings have the burden of
areas, and natural resources therein, held under a overcoming the presumption that the land thus
claim of ownership, occupied or possessed by sought to be registered forms part of the public
ICCs/IPs, by themselves or through their ancestors, domain. Unless the applicant succeeds in showing
by clear and convincing evidence that the property
involved was acquired by him or his ancestors to another place or go back to one they used to
either by composition title from the Spanish occupy. From year to year, a growing tribe could
Government or by possessory information title, or occupy and use enormous areas, to which they
any other means for the proper acquisition of public could claim to have had "traditional access." If
lands, the property must be held to be part of the nomadic ICCs/IPs succeed in acquiring title to their
public domain. The applicant must present enlarging ancestral domain or land, several
competent and persuasive proof to substantiate his thousands of hectares of land may yet be
claim; he may not rely on general statements, or additionally delineated as their private property.
mere conclusions of law other than factual evidence
of possession and title."28 Similarly, the Bangsa Moro people's claim to their
ancestral land is not based on compounded or
Respondents insist, and the ponencia agrees, that consolidated title, but "on a collective stake to the
paragraphs (a) and (b) of Sections 3 are merely right to claim what their forefathers secured for
definitions and should not be construed them when they first set foot on our country." 32 They
independently of the other provisions of the law. trace their right to occupy what they deem to be
But, precisely, a definition is "a statement of the their ancestral land way back to their ancient
meaning of a word or word group."29 It determines sultans and datus, who had settled in many islands
or settles the nature of the thing or person that have become part of Mindanao. This long
defined.30Thus, after defining a term as history of occupation is the basis of their claim to
encompassing several items, one cannot thereafter their ancestral lands.33
say that the same term should be interpreted as
excluding one or more of the enumerated items in Already, as of June 1998, over 2.5 million hectares
its definition. For that would be misleading the have been claimed by various ICCs/IPs as
people who would be bound by the law. In other ancestral domains; and over 10 thousand hectares,
words, since RA 8371 defines ancestral domains as as ancestral lands.34 Based on ethnographic
including the natural resources found therein and surveys, the solicitor general estimates that
further states that ICCs/IPs own these ancestral ancestral domains cover 80 percent of our mineral
domains, then it means that ICCs/IPs can own resources and between 8 and 10 million of the 30
natural resources. million hectares of land in the country.35 This means
that four fifths of its natural resources and one third
In fact, Intervenors Flavier et al. submit of the country's land will be concentrated among 12
that everything above and below these ancestral million Filipinos constituting 110 ICCs,36 while over
domains, with no specific limits, likewise belongs to 60 million other Filipinos constituting the
ICCs/IPs. I say that this theory directly contravenes overwhelming majority will have to share the
the Constitution. Such outlandish contention further remaining.  These figures indicate a violation of the
disregards international law which, by constitutional constitutional principle of a "more equitable
fiat, has been adopted as part of the law of the distribution of opportunities, income, and wealth"
land.31 among Filipinos.

No Land Area Limits Are Specified by RA 8371 RA 8371 Abdicates the State Duty to Take Full
Control and Supervision of Natural Resources
Under Section 3, Article XII of the Constitution,
Filipino citizens may acquire no more than 12 Section 2, Article XII of the Constitution, further
hectares of alienable public land, whether by provides that "[t]he exploration, development, and
purchase, homestead or grant. More than that, but utilization of natural resources shall be under the
not exceeding 500 hectares, they may hold by full control and supervision of the State." The State
lease only. may (1) directly undertake such activities; or (2)
enter into co-production, joint venture or production-
RA 8371, however, speaks of no area or term limits sharing agreements with Filipino citizens or entities,
to ancestral lands and domains.  In fact, by their 60 percent of whose capital is owned by
mere definitions, they could cover vast tracts of the Filipinos.37 Such agreements, however, shall not
nation's territory. The properties under the assailed exceed 25 years, renewable for the same period
law cover everything held, occupied or possessed and under terms and conditions as may be provided
"by themselves or through their ancestors, by law.
communally or individually since time immemorial."
It also includes all "lands which may no longer be But again, RA 8371 relinquishes this constitutional
exclusively occupied by [them] but from which they power of full control in favor of ICCs/IPs, insofar as
traditionally had access to for their subsistence and natural resources found within their territories are
traditional activities, particularly the home ranges of concerned. Pursuant to their rights of ownership
ICCs/IPs who are still nomadic and/or shifting and possession, they may develop and manage the
cultivators." natural resources, benefit from and share in the
profits from the allocation and the utilization
Nomadic groups have no fixed area within which thereof.38 And they may exercise such right without
they hunt or forage for food. As soon as they have any time limit, unlike non-ICCs/IPs who may do so
used up the resources of a certain area, they move only for a period not exceeding 25 years, renewable
for a like period.39 Consistent with the Constitution, it is best to await specific cases filed by those
the rights of ICCs/IPs to exploit, develop and utilize whose rights may have been injured by specific
natural resources must also be limited to such provisions of RA 8371.
period.
Epilogue
In addition, ICCs/IPs are given the right to negotiate
directly the terms and conditions for the exploration Section 5, Article XII of the Constitution, provides:
of natural resources,40 a right vested by the
Constitution only in the State. Congress, through
IPRA, has in effect abdicated in favor of a minority "SEC. 5. The State, subject to the provisions of this
group the State's power of ownership and full Constitution and national development policies and
control over a substantial part of the national programs, shall protect the rights of indigenous
patrimony, in contravention of our most cultural communities to their ancestral lands to
fundamental law. ensure their economic, social, and cultural well
being.
I make clear, however, that to the extent that
ICCs/IPs may undertake small-scale utilization of "The Congress may provide for the applicability of
natural resources and cooperative fish farming, I customary laws governing property rights and
absolutely have no objection. These undertakings relations in determining the ownership and extent of
are certainly allowed under the third paragraph of ancestral domain."
Section 2, Article XII of the Constitution.
Clearly, there are two parameters that must be
Having already disposed of the two major observed in the protection of the rights of ICCs/IPs:
constitutional dilemmas wrought by RA 8371 – (1) (1) the provisions of the 1987 Constitution and (2)
ownership of ancestral lands and domains and the national development policies and programs.
natural resources therein; and (2) the ICCs/IPs'
control of the exploration, development and Indigenous peoples may have long been
utilization of such resources – I believe I should no marginalized in Philippine politics and society. This
longer tackle the following collateral issues does not, however, give Congress any license to
petitioners have brought up: accord them rights that the Constitution withholds
from the rest of the Filipino people. I would concede
1. Whether the inclusion of private lands giving them priority in the use, the enjoyment and
within the coverage of ancestral domains the preservation of their ancestral lands and
amounts to undue deprivation of private domains.41 But to grant perpetual ownership and
property control of the nation's substantial wealth to them, to
the exclusion of other Filipino citizens who have
chosen to live and abide by our previous and
2. Whether ICCs/IPs may regulate the present Constitutions, would be not only unjust but
entry/exit of migrants also subversive of the rule of law.

3. Whether ancestral domains are exempt In giving ICCs/IPs rights in derogation of our
from real property taxes, special levies and fundamental law, Congress is effectively mandating
other forms of exaction "reverse discrimination." In seeking to improve their
lot, it would be doing so at the expense of the
4. Whether customary laws and traditions majority of the Filipino people. Such short-sighted
of ICCs/IPs should first be applied in the and misplaced generosity will spread the roots of
settlements of disputes over their rights discontent and, in the long term, fan the fires of
and claims turmoil to a conflagration of national proportions.

5. Whether the composition and the Peace cannot be attained by brazenly and
jurisdiction of the National Commission of permanently depriving the many in order to coddle
Indigenous Peoples (NCIP) violate the due the few, however disadvantaged they may have
process and equal protection clauses been. Neither can a just society be approximated by
maiming the healthy to place them at par with the
6. Whether members of the ICCs/IPs may injured. Nor can the nation survive by enclaving its
be recruited into the armed forces against wealth for the exclusive benefit of favored
their will minorities.

I believe that the first three of the above collateral Rather, the law must help the powerless by
issues have been rendered academic or, at least, enabling them to take advantage of opportunities
no longer of "transcendental importance," in view of and privileges that are open to all and by preventing
my contention that the two major IPRA propositions the powerful from exploiting and oppressing them.
are based on unconstitutional premises. On the This is the essence of social justice – empowering
other hand, I think that in the case of the last three, and enabling the poor to be able to compete with
the rich and, thus, equally enjoy the blessings of
prosperity, freedom and dignity.

WHEREFORE, I vote to partially  GRANT the

Petition and
to DECLARE as UNCONSTITUTIONAL Sections
3(a) and (b), 5, 6, 7(a) and (b), 8 and related
provisions of RA 8371.