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36. Miranda vs. Aguirre, G.R.

133064 (September 16, 1999)

EN BANC

[G.R. No. 133064. September 16, 1999]

JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO, MARIANO V. BABARAN and ANDRES R.
CABUYADAO, petitioners, vs. HON. ALEXANDER AGUIRRE, In his capacity as Executive Secretary; HON.
EPIMACO VELASCO, in his capacity as Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in
his capacity as Secretary of Budget, THE COMMISSION ON AUDIT THE COMMISSION ON ELECTIONS
HON. BENJAMIN G. DY, in his capacity as Governor of Isabela, THE HONORABLE SANGGUNIANG
PANLALAWIGAN OF ISABELA, ATTY. BALTAZAR PICIO, in his capacity as Provincial Administrator, and
MR. ANTONIO CHUA, in his capacity as Provincial Treasurer, respondents,

GIORGIDI B. AGGABAO, intervenor.

DECISION

PUNO, J.:

This is a petition for a writ of prohibition with prayer for preliminary injunction assailing the
constitutionality of Republic Act No. 8528 converting the city of Santiago, Isabela from an independent
component city to a component city.

On May 5, 1994, Republic Act No. 7720 which converted the municipality of Santiago, Isabela into an
independent component city was signed into law. On July 4, 1994, the people of Santiago ratified R.A.
No. 7720 in a plebiscite.1

On February 14, 1998, Republic Act No. 8528 was enacted. It amended R.A. No. 7720. Among others, it
changed the status of Santiago from an independent component city to a component city, viz:

AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT NUMBERED 7720 AN ACT CONVERTING THE
MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF
SANTIAGO.

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Section 2 of Republic Act No. 7720 is hereby amended by deleting the words an independent
thereon so that said Section will read as follows:

SEC. 2. The City of Santiago. The Municipality of Santiago shall be converted into a component city to be
known as the City of Santiago, hereinafter referred to as the City, which shall comprise of the present
territory of the Municipality of Santiago, Isabela. The territorial jurisdiction of the City shall be within the
present metes and bounds of the Municipality of Santiago.

Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting the entire section and in its
stead substitute the following:
SEC. 51. Election of Provincial Governor, Vice-Governor, Sangguniang Panlalawigan Members, and any
Elective Provincial Position for the Province of Isabela.-The voters of the City of Santiago shall be
qualified to vote in the elections of the Provincial Governor, Vice-Governor, Sangguniang Panlalawigan
members and other elective provincial positions of the Province of Isabela, and any such qualified voter
can be a candidate for such provincial positions and any elective provincial office.

Sec. 3. Repealing Clause.- All existing laws or parts thereof inconsistent with the provisions of this Act
are hereby repealed or modified accordingly.

Sec. 4. Effectivity.- This Act shall take effect upon its approval.

Approved.

Petitioners assail the constitutionality of R.A. No. 8528.2 They alleged as ground the lack of provision in
R.A. No. 8528 submitting the law for ratification by the people of Santiago City in a proper
plebiscite. Petitioner Miranda was the mayor of Santiago at the time of the filing of the petition at
bar. Petitioner Afiado is the President of the Liga ng mga Barangay ng Santiago City. Petitioners Dirige,
Cabuyadao and Babaran are residents of Santiago City.

In their Comment, respondent provincial officials of Isabela defended the constitutionality of R.A. No.
8528. They assailed the standing of petitioners to file the petition at bar. They also contend that the
petition raises a political question over which this Court lacks jurisdiction.

Another Comment was filed by the Solicitor General for the respondent public officials. The Solicitor
General also contends that petitioners are not real parties in interest. More importantly, it is contended
that R.A. No. 8528 merely reclassified Santiago City from an independent component city to a
component city. It allegedly did not involve any creation, division, merger, abolition, or substantial
alteration of boundaries of local government units, hence, a plebiscite of the people of Santiago is
unnecessary.

A third Comment similar in tone was submitted by intervenor Giorgidi B. Aggabao,3 a member of the
provincial board of Isabela.4 He contended that both the Constitution and the Local Government Code of
1991 do not require a plebiscite to approve a law that merely allowed qualified voters of a city to vote in
provincial elections. The rules implementing the Local Government Code cannot require a plebiscite. He
also urged that petitioners lacked locus standi.

Petitioners filed a Reply to meet the arguments of the respondents and the intervenor. They defended
their standing. They also stressed the changes that would visit the city of Santiago as a result of its
reclassification.

We find merit in the petition.

First. The challenge to the locus standi of petitioners cannot succeed. It is now an ancient rule that the
constitutionality of law can be challenged by one who will sustain a direct injury as a result of its
enforcement.5 Petitioner Miranda was the mayor of Santiago City when he filed the present petition in
his own right as mayor and not on behalf of the city, hence, he did not need the consent of the city
council of Santiago City. It is also indubitable that the change of status of the city of Santiago from
independent component city to a mere component city will affect his powers as mayor, as will be shown
hereafter. The injury that he would sustain from the enforcement of R.A. No. 8528 is direct and
immediate and not a mere generalized grievance shared with the people of Santiago City. Similarly, the
standing of the other petitioners rests on a firm foundation. They are residents and voters in the city of
Santiago. They have the right to be heard in the conversion of their city thru a plebiscite to be
conducted by the COMELEC. The denial of this right in R.A. No. 8528 gives them proper standing to
strike the law as unconstitutional.

Second. The plea that this court back off from assuming jurisdiction over the petition at bar on the
ground that it involves a political question has to be brushed aside. This plea has long lost its appeal
especially in light of Section 1 of Article VIII of the 1987 Constitution which defines judicial power as
including the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government. To be sure, the cut between a political and justiciable issue has been made by this Court in
many cases and need no longer mystify us. In Taada v. Cuenco,6 we held:

xxx

The term political question connotes what it means in ordinary parlance, namely, a question of policy. It
refers to those questions which under the Constitution are to be decided by the people in their
sovereign capacity; or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.

In Casibang v. Aquino,7 we defined a justiciable issue as follows:

A purely justiciable issue implies a given right, legally demandable and enforceable, an act or omission
violative of such right, and a remedy granted and sanctioned by law, for said breach of right.

Clearly, the petition at bar presents a justiciable issue. Petitioners claim that under Section 10, Article X
of the 1987 Constitution they have a right to approve or disapprove R.A. No. 8528 in a plebiscite before
it can be enforced. It ought to be self-evident that whether or not petitioners have the said right is a
legal not a political question. For whether or not laws passed by Congress comply with the requirements
of the Constitution pose questions that this Court alone can decide. The proposition that this Court is
the ultimate arbiter of the meaning and nuances of the Constitution need not be the subject of a prolix
explanation.

Third. The threshold issue is whether R.A. No. 8528 is unconstitutional for its failure to provide that the
conversion of the city of Santiago from an independent component city to a component city should be
submitted to its people in a proper plebiscite. We hold that the Constitution requires a
plebiscite. Section 10, Article X of the 1987 Constitution provides:

No province, city, municipality, or barangay may be created, or divided, merged, abolished, or its
boundary substantially altered except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.

This constitutional requirement is reiterated in Section 10, Chapter 2 of the Local Government Code
(R.A. No. 7160), thus:
Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.

The power to create, divide, merge, abolish or substantially alter boundaries of local government
units belongs to Congress.8 This power is part of the larger power to enact laws which the Constitution
vested in Congress.9 The exercise of the power must be in accord with the mandate of the
Constitution. In the case at bar, the issue is whether the downgrading of Santiago City from an
independent component city to a mere component city requires the approval of the people of Santiago
City in a plebiscite. The resolution of the issue depends on whether or not the downgrading falls within
the meaning of creation, division, merger, abolition or substantial alteration of boundaries of
municipalities per Section 10, Article X of the Constitution. A close analysis of the said constitutional
provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries
of local government units involve a common denominator - - - material change in the political and
economic rights of the local government units directly affected as well as the people therein. It is
precisely for this reason that the Constitution requires the approval of the people in the political units
directly affected. It is not difficult to appreciate the rationale of this constitutional requirement. The
1987 Constitution, more than any of our previous Constitutions, gave more reality to the sovereignty of
our people for it was borne out of the people power in the 1986 EDSA revolution. Its Section 10, Article
X addressed the undesirable practice in the past whereby local government units were created,
abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the
people. Thus, the consent of the people of the local government unit directly affected was required to
serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing,
merging or altering the boundaries of local government units. It is one instance where the people in
their sovereign capacity decide on a matter that affects them - - - direct democracy of the people as
opposed to democracy thru peoples representatives. This plebiscite requirement is also in accord with
the philosophy of the Constitution granting more autonomy to local government units.

The changes that will result from the downgrading of the city of Santiago from an independent
component city to a component city are many and cannot be characterized as insubstantial. For one, the
independence of the city as a political unit will be diminished. The city mayor will be placed under the
administrative supervision of the provincial governor. The resolutions and ordinances of the city council
of Santiago will have to be reviewed by the Provincial Board of Isabela.Taxes that will be collected by the
city will now have to be shared with the province. Petitioners pointed out these far reaching changes on
the life of the people of the city of Santiago, viz:10

Although RESPONDENTS would like to make it appear that R.A. No. 8528 had merely re-
classified Santiago City from an independent component city into a component city, the effect when
challenged (sic) the Act were operational would be, actually, that of conversion. Consequently, there
would be substantial changes in the political culture and administrative responsibilities of Santiago City,
and the Province of Isabela. Santiago City from an independent component city will revert to the
Province of Isabela, geographically, politically and administratively. Thus, the territorial land area of
Santiago City will be added to the land area comprising the province of Isabela. This will be to the
benefit or advantage of the Provincial Government of Isabela on account of the subsequent increase of
its share from the internal revenue allotment (IRA) from the National Government (Section 285, R.A. No.
7160 or the Local Government Code of 1991). The IRA is based on land area and population of local
government units, provinces included.

The nature or kinds, and magnitude of the taxes collected by the City Government, and which taxes shall
accrue solely to the City Government, will be redefined (Section 151, R.A. No. 7160), and may be shared
with the province such as taxes on sand, gravel and other quarry resources (Section 138, R.A. No. 7160),
professional taxes (Section 139, R.A. No. 7160), or amusement taxes (Section 140, R.A. No. 7160). The
Provincial Government will allocate operating funds for the City. Inarguably, there would be a (sic)
diminished funds for the local operations of the City Government because of reduced shares of the IRA
in accordance with the schedule set forth by Section 285 of the R.A. No. 7160. The City Governments
share in the proceeds in the development and utilization of national wealth shall be diluted since certain
portions shall accrue to the Provincial Government (Section 292, R.A. No.7160).

The registered voters of Santiago City will vote for and can be voted as provincial officials (Section 451
and 452 [c], R.A. No. 7160).

The City Mayor will now be under the administrative supervision of the Provincial Governor who is
tasked by law to ensure that every component city and municipality within the territorial jurisdiction of
the province acts within the scope of its prescribed powers and functions (Section 29 and 465 (b) (2) (i),
R.A. No. 7160), and to review (Section 30, R.A. No. 7160) all executive orders submitted by the former
(Section 455 (b) (1) (xii), R.A. No. 7160) and (R)eportorial requirements with respect to the local
governance and state of affairs of the city (Section 455 (b) (1) (xx), R.A. No. 7160). Elective city officials
will also be effectively under the control of the Provincial Governor (Section 63, R.A. No. 7160). Such will
be the great change in the state of the political autonomy of what is now Santiago City where by virtue
of R.A. No. 7720, it is the Office of the President which has supervisory authority over it as an
independent component city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987 Constitution).

The resolutions and ordinances adopted and approved by the Sangguniang Panlungsod will be subject to
the review of the Sangguniang Panlalawigan (Sections 56, 468 (a) (1) (i), 468 (a) (2) (vii), and 469 (c) (4),
R.A. No. 7160). Likewise, the decisions in administrative cases by the former could be appealed and
acted upon by the latter (Section 67, R.A. No. 7160).

It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality to an
independent component city, it required the approval of its people thru a plebiscite called for the
purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the
will of the people of Santiago City when R.A. No. 8528 downgrades the status of their city. Indeed, there
is more reason to consult the people when a law substantially diminishes their right. Rule II, Article 6,
paragraph (f) (1) of the Implementing Rules and Regulations of the Local Government Code is in accord
with the Constitution when it provides that:

(f) Plebiscite - (1) no creation, conversion, division, merger, abolition, or substantial alteration of
boundaries of LGUS shall take effect unless approved by a majority of the votes cast in a plebiscite called
for the purpose in the LGU or LGUs affected. The plebiscite shall be conducted by the Commission on
Elections (COMELEC) within one hundred twenty (120) days from the effectivity of the law or ordinance
prescribing such action, unless said law or ordinance fixes another date.

x x x.
The rules cover all conversions, whether upward or downward in character, so long as they result in a
material change in the local government unit directly affected, especially a change in the political and
economic rights of its people.

A word on the dissenting opinions of our esteemed brethren. Mr. Justice Buena justifies R.A. No. 8528
on the ground that Congress has the power to amend the charter of Santiago City. This power of
amendment, however, is limited by Section 10, Article X of the Constitution. Quite clearly, when an
amendment of a law involves the creation, merger, division, abolition or substantial alteration of
boundaries of local government units, a plebiscite in the political units directly affected is mandatory. He
also contends that the amendment merely caused a transition in the status of Santiago as a
city. Allegedly, it is a transition because no new city was created nor was a former city dissolved by R.A.
No. 8528. As discussed above, the spirit of Section 10, Article X of the Constitution calls for the people of
the local government unit directly affected to vote in a plebiscite whenever there is a material change in
their rights and responsibilities. They may call the downgrading of Santiago to a component city as a
mere transition but they cannot blink away from the fact that the transition will radically change its
physical and political configuration as well as the rights and responsibilities of its people.

On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits the theory that "only if the
classification involves changes in income, population, and land area of the local government unit is there
a need for such changes to be approved by the people x x x."

With due respect, such an interpretation runs against the letter and spirit of section 10, Article X of the
1987 Constitution which, to repeat, states: "No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria
established in the Local Government Code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected." It is clear that the Constitution imposes two
conditions - - - first, the creation, division, merger, abolition or substantial alteration of boundary of a
local government unit must meet the criteria fixed by the Local Government Code on income,
population and land area and second, the law must be approved by the people "by a majority of the
votes cast in a plebiscite in the political units directly affected."

In accord with the Constitution, sections 7, 8, and 9 of the Local Government Code fixed the said criteria
and they involve requirements on income, population and land area. These requirements, however, are
imposed to help assure the economic viability of the local government unit concerned. They were not
imposed to determine the necessity for a plebiscite of the people. Indeed, the Local Government Code
does not state that there will be no more plebiscite after its requirements on income, population and
land area have been satisfied. On the contrary, section 10, Chapter 2 of the Code provides: "No creation,
division, merger, abolition, or substantial alteration of boundaries of local government units shall take
effect unless approved by a majority of the votes casts in a plebiscite called for the purpose in the
political unit or units directly affected. Said plebiscite shall be conducted by the COMELEC within one
hundred twenty (120) days from the date of the effectivity of the law or ordinance effecting such action,
unless said law or ordinance fixes another date."11 Senator Aquilino Pimentel, the principal author of
the Local Government Code of 1991, opines that the plebiscite is absolute and mandatory. 12

It cannot be overstressed that the said two requirements of the Constitution have different
purposes. The criteria fixed by the Local Government Code on income, population and land area are
designed to achieve an economic purpose. They are to be based on verified indicators, hence, section 7,
Chapter 2 of the Local Government Code requires that these "indicators shall be attested by the
Department of Finance, the National Statistics Office, and the Lands Management Bureau of the
Department of Environment and Natural Resources." In contrast, the people's plebiscite is required to
achieve a political purpose --- to use the people's voice as a check against the pernicious political
practice of gerrymandering. There is no better check against this excess committed by the political
representatives of the people themselves than the exercise of direct people power. As well-observed by
one commentator, as the creation, division, merger, abolition, or substantial alteration of boundaries
are "xxx basic to local government, it is also imperative that these acts be done not only by Congress but
also be approved by the inhabitants of the locality concerned. xxx By giving the inhabitants a hand in
their approval, the provision will also eliminate the old practice of gerrymandering and minimize
legislative action designed for the benefit of a few politicians. Hence, it promotes the autonomy of local
government units."13

The records show that the downgrading of Santiago City was opposed by certain segments of its
people. In the debates in Congress, it was noted that at the time R.A. No. 8528 was proposed, Santiago
City has been converted to an independent component city barely two and a half (2 1/2) years ago and
the conversion was approved by a majority of 14,000 votes. Some legislators expressed surprise for the
sudden move to downgrade the status of Santiago City as there had been no significant change in its
socio-economic-political status. The only reason given for the downgrading is to enable the people of
the city to aspire for the leadership of the province. To say the least, the alleged reason is unconvincing
for it is the essence of an independent component city that its people can no longer participate or be
voted for in the election of officials of the province. The people of Santiago City were aware that they
gave up that privilege when they voted to be independentfrom the province of Isabela. There was an
attempt on the part of the Committee on Local Government to submit the downgrading of Santiago City
to its people via a plebiscite. The amendment to this effect was about to be voted upon when a recess
was called. After the recess, the chairman of the Committee anounced the withdrawal of the
amendment "after a very enlightening conversation with the elders of the Body." We quote the
debates, viz:14

"BILL ON SECOND READING

H.B. No. 8729 - City of Santiago

"Senator Tatad. Mr. President, I move that we consider House Bill No. 8729 as reported out under
Committee Report No. 971.

"The President. Is there any objection? [Silence] there being none, the motion is approved.

"Consideration of House Bill No. 8729 is now in order. With the permission of the Body, the Secretary
will read only the title of the bill without prejudice to inserting in the Record the whole text thereof.

"The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled

AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720 ENTITLED "AN ACT CONVERTING THE
MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF
SANTIAGO

_______________________________________________________
The following is the full text of H.B. No. 8729

Insert

_______________________________________________________

"Senator Tatad. Mr. President, for the sponsorship, I ask that the distinguished Chairman of the
Committee on Local Government be recognized.

"The President. Senator Sotto is recognized.

SPONSORSHIP SPEECH OF SENATOR SOTTO

"Mr. President. House Bill No. 8729, which was introduced in the House by Congressman Antonio M.
Abaya as its principal author, is a simple measure which merely seeks to convert the City of Santiago into
a component city of the Province of Isabela.

"The City of Santiago is geographically located within, and is physically an integral part of the Province of
Isabela. As an independent component city, however, it is completely detached and separate from the
said province as a local political unit. To use the language of the Explanatory Note of the proposed bill,
the City of Santiago is an island in the provincial milieu.

"The residents of the city no longer participate in the elections, nor are they qualified to run for any
elective positions in the Province of Isabela.

"The Province of Isabela, on the other hand, is no longer vested with the power and authority of general
supervision over the city and its officials, which power and authority are now exercised by the Office of
the President, which is very far away from Santiago City.

Being geographically located within the Province of Isabela, the City of Santiago is affected, one way or
the other, by the happenings in the said province, and is benefited by its progress and
development. Hence, the proposed bill to convert the City of Santiago into a component city of Isabela.

"Mr. President, it is my pleasure, therefore, to present for consideration of this august Body Committee
Report No. 971 of the Committee on Local Government , recommending approval, with our proposed
committee amendment, of House Bill No. 8729.

"Thank you, Mr. President.

"The President. The Majority Leader is recognized.

"Senator Tatad. Mr. President, I moved (sic) that we close the period of interpellations.

"The President. Is there any objection? [Silence] There being none, the period of interpellations is
closed.

"Senator Tatad. I move that we now consider the committee amendments.

"Senator Roco. Mr. President.

"The President. What is the pleasure of Senator Roco?


"Senator Roco. Mr. President, may I ask for a reconsideration of the ruling on the motion to close the
period of interpellations just to be able to ask a few questions?

"Senator Tatad. May I move for a reconsideration of my motion, Mr. President.

"The President. Is there any objection to the reconsideration of the closing of the period of
interpellations? [Silence] There being none, the motion is approved.

"Senator Roco is recognized.

"Senator Roco. Will the distinguished gentleman yield for some questions?

"Senator Sotto. Willingly, Mr. President.

"Senator Roco. Mr. President, together with the Chairman of the Committee on Local Government, we
were with the sponsors when we approved this bill to make Santiago a City. That was about two and a
half years ago. At that time, I remember it was the cry of the city that it be independent. Now we are
deleting that word independent.

"Mr. President, only because I was a co-author and a co-sponsor, for the Record, I want some
explanation on what happened between then and now that has made us decide that the City of
Santiago should cease to be independent and should now become a component city.

"Senator Sotto. Mr. President, the officials of the province said during the public hearing that they are
no longer vested with the power and authority of general supervision over the city. The power and
authority is now being exercised by the Office of the President and it is quite far from the City of
Santiago.

"In the public hearing, we also gathered that there is a clamor from some sectors that they want to
participate in the provincial elections.

"Senator Roco. Mr. President, I did not mean to delay this. I did want it on record, however. I think there
was a majority of 14,000 who approved the charter, and maybe we owe it to those who voted for that
charter some degree of respect. But if there has been a change of political will, there has been a change
of political will, then so be it.

"Thank you, Mr. President.

"Senator Sotto. Mr. President, to be very frank about it, that was a very important point raised by
Senator Roco, and I will have to place it on the Record of the Senate that the reason why we are
proposing a committee amendment is that, originally, there was an objection on the part of the local
officials and those who oppose it by incorporating a plebiscite in this bill. That was the solution. Because
there were some sectors in the City of Santiago who were opposing the reclassification or reconversion
of the city into a component city.

"Senator Roco. All I wanted to say, Mr. President -- because the two of us had special pictures (sic) in
the city -- is that I thought it should be put on record that we have supported originally the proposal to
make it an independent city. But now if it is their request, then, on the manifestation of the Chairman,
let it be so.

"Thank you.
"Senator Drilon. Mr. President.

"Senator Drilon. Will the gentleman yield for a few questions, Mr. President?

"Senator Sotto. Yes, Mr. President.

"Senator Drilon. Mr. President, further to the interpellation of our good friend, the Senator from Bicol,
on the matter of the opinion of the citizens of Santiago City, there is a resolution passed by the
Sanggunian on January 30, 1997 opposing the conversion of Santiago from an independent city.

"This opposition was placed on records during the committee hearings. And that is the reason why, as
mentioned by the good sponsor, one of the amendments is that a plebiscite be conducted before the
law takes effect.

"The question I would like to raise-- and I would like to recall the statement of our Minority Leader --
is that, at this time we should not be passing it for a particular politician.

"In this particular case, it is obvious that this bill is being passed in order that the additional territory
be added to the election of the provincial officials of the province of Isabela.

"Now, is this for the benefit of any particular politician, Mr. President.

"Senator Sotto. If it is, I am not aware of it, Mr. President.

"Senator Alvarez. Mr. President.

"The President. With the permission of the two gentlemen on the Floor, Senator Alvarez is recognized.

"Senator Alvarez. As a born inbred citizen of this city, Mr. President, may I share some information.

"Mr. President, if we open up the election of the city to the provincial leadership, it will not be to the
benefit of the provincial leadership, because the provincial leadership will then campaign in a bigger
territory.

"As a matter of fact, the ones who will benefit from this are the citizens of Santiago who will now be
enfranchised in the provincial electoral process, and whose children will have the opportunity to grow
into provincial leadership. This is one of the prime reasons why this amendment is being put forward.

"While it is true that there may have been a resolution by the city council, those who signed the
resolution were not the whole of the council. This bill was sponsored by the congressman of that district
who represents a constituency, the voice of the district.

"I think, Mr. President, in considering which interest is paramount, whose voice must be heard, and if
we have to fathom the interest of the people, the law which has been crafted here in accordance with
the rules should be given account, as we do give account to many of the legislations coming from the
House on local issues.

"Senator Drilon. Mr. President, the reason why I am raising this question is that, as Senator Roco said,
just two-and-a-half years ago we passed a bill which indeed disenfranchized--if we want to use that
phrase-- the citizens of the City of Santiago in the matter of the provincial election. Two-and-a-half
years after, we are changing the rule.
"In the original charter, the citizens of the City of Santiago participated in a plebiscite in order to
approve the conversion of the city into an independent city. I believe that the only way to resolve this
issue raised by Senator Roco is again to subject this issue to another plebiscite as part of the provision
of this proposed bill and as will be proposed by the Committee Chairman as an amendment.

"Thank you very much, Mr. President.

"Senator Alvarez. Mr. President, the Constitution does not require that the change from an independent
to a component city be subjected to a plebiscite.

Sections 10, 11, 12 of Article X of the 1987 Constitution provides as follows:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.

This change from an independent city into a component city is none of those enumerated. So the
proposal coming from the House is in adherence to this constitutional mandate which does not require a
plebiscite.

Senator Sotto. Mr. President, the key word here is conversion. The word conversion appears in that
provision wherein we must call a plebiscite. During the public hearing, the representative of
Congressman Abaya was insisting that this is not a conversion; this is merely a reclassification. But it is
clear in the bill.

We are amending a bill that converts, and we are converting it into a component city. That is how the
members of the committee felt. That is why we have proposed an amendment to this, and this is to
incorporate a plebiscite in as much as there is no provision on incorporating a plebiscite. Because we
would like not only to give the other people of Santiago a chance or be enfranchised as far as the
leadership of the province is concerned, but also we will give a chance to those who are opposing
it. To them, this is the best compromise. Let the people decide, instead of the political leaders of
Isabela deciding for them.

"Senator Tatad. Mr. President.

"The President. The Majority Leader is recognized.

"Senator Tatad. At this point, Mr. President, I think we can move to close the period of interpellations.

"The President. Is there any objection? [Silence] There being none, the motion is approved.

"Senator Tatad. I move that we now consider the committee amendments, Mr. President.

"The President. Is there any objection? Silence] There being none, the motion is approved.

"Senator Sotto. On page 2, after line 13, insert a new Section 3, as follows:

"SEC. 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY AMENDED BY DELETING THE ENTIRE
SECTION AND IN ITS STEAD SUBSTITUTE THE FOLLOWING:
"SEC. 49. PLEBISCITE. - THE CONVERSION OF THE CITY OF SANTIAGO INTO A COMPONENT CITY OF THE
PROVINCE OF ISABELA SHALL TAKE EFFECT UPON THE RATIFICATION OF THIS ACT BY A MAJORITY OF
THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE WITHIN SIXTY (60)
DAYS FROM THE APPROVAL OF THIS ACT. THE COMMISSION ON ELECTIONS SHALL CONDUCT AND
SUPERVISE SUCH PLEBISCITE.

"The President. Is there any objection?

"Senator Enrile. Mr. President.

"The President. Senator Enrile is recognized.

"Senator Enrile. I object to this committee amendment, Mr. President.

"SUSPENSION OF SESSION

"Senator Tatad. May I ask for a one-minute suspension of the session.

"The President. The session is suspended for a few minutes if there is no objection. [There was none]

"It was 7:54 p.m.

"RESUMPTION OF SESSION

"At 7:57 p.m., the session was resumed.

"The President. The session is resumed.

"Senator Sotto is recognized.

"Senator Sotto. Mr. President, after a very enlightening conversation with the elders of the Body, I
withdraw my amendment.

"The President. The amendment is withdrawn.

"Senator Maceda. Mr. President.

"The President. Senator Maceda is recognized.

"Senator Maceda. We wish to thank the sponsor for the withdrawal of the amendment.

"Mr. President, with due respect to the Senator from Isabela -- I am no great fan of the Senator from
Isabela -- but it so happens that this is a local bill affecting not only his province but his own city
where he is a resident and registered voter.

"So, unless the issue is really a matter of life and death and of national importance, senatorial courtesy
demands that we, as much as possible, accommodate the request of the Senator from Isabela as we
have done on matters affecting the district of other senators. I need not remind them.

"Thank you anyway, Mr. President.

"Senator Alvarez. Mr. President.

"The President. Senator Alvarez is recognized.


"Senator Alvarez. Mr. President, may I express my deepest appreciation for the statement of the
gentleman from Ilocos and Laguna. Whatever he may have said, the feeling is not mutual. At least for
now, I have suddenly become his great fan for the evening.

"May I put on record, Mr. President, that I campaigned against the cityhood of Santiago not because I do
not want it to be a city but because it had disenfranchised the young men of my city from aspiring for
the leadership of the province. The town is the gem of the province. How could we extricate the town
from the province?

"But I would like to thank the gentleman, Mr. President, and also the Chairman of the Committee.

"Senator Tatad. Mr. President.

"The President. The Majority Leader is recognized.

"Senator Tatad. There being no committee amendments, I move that the period of committee
amendments be closed.

"The President. Shall we amend the title of this bill by removing the word independent preceding
component city?

"Senator Sotto. No, Mr. President. We are merely citing the title. The main title of this House Bill No.
8729 is An Act Amending Certain Sections of Republic Act 7720. The title is the title of Republic Act
7720. So, I do not think that we should amend that anymore.

"The President. What is the pending motion? Will the gentleman kindly state the motion?

"Senator Tatad. I move that we close the period of committee amendments.

"The President. Is there any objection? [Silence] There being none, the motion is approved.

"Senator Tatad. Unless there are any individual amendments, I move that we close the period of
individual amendments.

"The President. Is there any objection? [Silence] There being none, the period of individual amendments
is closed.

"APPROVAL OF H.B. NO. 8729 ON SECOND READING

"Senator Tatad. Mr. President, I move that we vote on Second Reading on House Bill No. 8729.

"The President. Is there any objection? [Silence] There being none, we shall now vote on Second
Reading on House Bill No. 8729.

"As many as are in favor of the bill, say aye.

"Several Members. Aye

As many as are against the bill, say nay. [Silence]

"House Bill No. 8729 is approved on Second Reading."


The debates cannot but raise some quizzical eyebrows on the real purpose for the downgrading of the
city of Santiago. There is all the reason to listen to the voice of the people of the city via a plebiscite.

In the case of Tan, et al. vs. COMELEC,15 BP 885 was enacted partitioning the province of Negros
Occidental without consulting its people in a plebiscite. In his concurring opinion striking down the law
as unconstitutional, Chief Justice Teehankee cited the illicit political purpose behind its enactment, viz:

"The scenario, as petitioners urgently asserted, was to have the creation of the new Province a fait
accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so
that the new Governor and other officials shall by then have been installed in office, ready to function
for purposes of the election for President and Vice-President. Thus, the petitioners reported after the
event: With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by
President Marcos as in existence; a new set of government officials headed by Governor Armando
Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political
machinery was in place to deliver the solid North to ex-President Marcos. The rest is history. What
happened in Negros del Norte during the elections - the unashamed use of naked power and resources -
contributed in no small way to arousing peoples power and steel the ordinary citizen to perform deeds
of courage and patriotism that makes one proud to be a Filipino today.

"The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts
complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the
appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the
proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the
remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago
and La Carlota and the Municipalities of Las Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran,
Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and
Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing
1973 Constitution that no province may be created or divided or its boundary substantially altered
without the approval of a majority of the votes in a plebiscite in the unit or units affected. It is plain
that all the cities and municipalities of the province of Negros Occidental, not merely those of the
proposed new province, comprise the units affected. It follows that the voters of the whole and entire
province of Negros Occidental have to participate and give their approval in the plebiscite, because the
whole province is affected by its proposed division and substantial alteration of its boundary. To limit
the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as
absurd and illogical as allowing only the secessionists to vote for the secession that they demanded
against the wishes of the majority and to nullify the basic principle of majority rule.

Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when allegedly independent
component cities were downgraded into component cities without need of a plebiscite. They cite the
City of Oroquieta, Misamis Occidental,16 and the City of San Carlos, Pangasinan17 whose charters were
amended to allow their people to vote and be voted upon in the election of officials of the province to
which their city belongs without submitting the amendment to a plebiscite.With due respect, the cities
of Oroquieta and San Carlos are not similarly situated as the city of Santiago. The said two cities then
were not independent component cities unlike the city of Santiago. The two cities were chartered but
were not independent component cities for both were not highly urbanized cities which alone were
considered independent cities at that time. Thus, when the case of San Carlos City was under
consideration by the Senate, Senator Pimentel explained:18

"x x x Senator Pimentel. The bill under consideration, Mr. President, merely empowers the voters of San
Carlos to vote in the elections of provincial officials. There is no intention whatsoever to downgrade
the status of the City of San Carlos and there is no showing whatsoever that the enactment of this bill
will, in any way, diminish the powers and prerogatives already enjoyed by the City of San Carlos. In
fact, the City of San Carlos as of now, is a component city. It is not a highly urbanized city. Therefore,
this bill merely, as we said earlier, grants the voters of the city, the power to vote in provincial
elections, without in any way changing the character of its being a component city. It is for this reason
that I vote in favor of this bill.

It was Senator Pimentel who also sponsored the bill19 allowing qualified voters of the city of Oroquieta
to vote in provincial elections of the province of Misamis Occidental. In his sponsorship speech, he
explained that the right to vote being given to the people of Oroquieta City was consistent with its
status as a component city.20 Indeed, during the debates, former Senator Neptali Gonzales pointed out
the need to remedy the anomalous situation then obtaining xxx where voters of one component city
can vote in the provincial election while the voters of another component city cannot vote simply
because their charters so provide.21 Thus, Congress amended other charters of component cities
prohibiting their people from voting in provincial elections.

IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is declared unconstitutional and the
writ of prohibition is hereby issued commanding the respondents to desist from implementing said law.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Pardo, Gonzaga-Reyes, and Ynares-Santiago,
JJ., concur.

Vitug, J., see separate opinion.

Mendoza, J., see dissenting opinion.

Quisumbing, and Purisima, JJ., joins J. Mendoza in his dissenting opinion.

Buena, J., see dissenting opinion.

1
See Section 4 of R.A. No. 7720.
2
See Section 10, Article X of the 1987 Constitution.
3
The intervention was granted on June 30, 1998.
4
After R.A. No. 8528 was enacted, COMELEC reallocated the seats for the provincial board in Isabela. It
added one (1) seat to the 4th district where Santiago City belongs. The intervenor won the additional
seat in the May 11, 1998 elections.
5
Sanidad vs. COMELEC, 73 SCRA 333 (1976).
6
100 Phil. 1101 (1957).
7
92 SCRA 642 (1979).
8
Mendenilla v. Onandia, 115 Phil. 534 (1962).
9
Section 1, Article VI of the 1987 Constitution.
10
Reply of Petitioners, pp. 7-9.
11
See also Rule II, Article 6, par. F(1) of the Implementing Rules of the Local Government Code.
12
Pimentel, The Local Government Code of 1991, The Key to National Development, p. 36.
13
Hector S. de Leon, Philippine Constitutional Law, Vol. 2, 1991 ed., p. 509.
14
Journal of the Senate, 10th Congress, 3rd Regular Session, Session No. 55, February 3, 1998, pp. 92-
100.
15
142 SCRA 727, 753-754 (1986).
16
See R.A. No. 6720 which amended R.A. No. 5518.
17
See R.A. No. 6843 which amended R.A. No. 4487.
18
Record of the Senate, October 20, 1989, p. 795.
19
House Bill No. 1881; Committee Report Nos. 73 and 76 in the Senate.
20
Record of the Senate, November 25, 1988, p. 763.
21
Ibid., p. 764. See Record of the Senate, October 6, 1989, p. 506 where the cases of the cities of Naga
and Ormoc were cited as examples.

37. People vs. Gacott, G.R. No. 116049 (July 13, 1995)

EN BANC

[G.R. No. 133064. September 16, 1999]

JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO, MARIANO V. BABARAN and ANDRES R.
CABUYADAO, petitioners, vs. HON. ALEXANDER AGUIRRE, In his capacity as Executive Secretary; HON.
EPIMACO VELASCO, in his capacity as Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in
his capacity as Secretary of Budget, THE COMMISSION ON AUDIT THE COMMISSION ON ELECTIONS
HON. BENJAMIN G. DY, in his capacity as Governor of Isabela, THE HONORABLE SANGGUNIANG
PANLALAWIGAN OF ISABELA, ATTY. BALTAZAR PICIO, in his capacity as Provincial Administrator, and
MR. ANTONIO CHUA, in his capacity as Provincial Treasurer, respondents,
GIORGIDI B. AGGABAO, intervenor.

DECISION

PUNO, J.:

This is a petition for a writ of prohibition with prayer for preliminary injunction assailing the
constitutionality of Republic Act No. 8528 converting the city of Santiago, Isabela from an independent
component city to a component city.

On May 5, 1994, Republic Act No. 7720 which converted the municipality of Santiago, Isabela into an
independent component city was signed into law. On July 4, 1994, the people of Santiago ratified R.A.
No. 7720 in a plebiscite.1

On February 14, 1998, Republic Act No. 8528 was enacted. It amended R.A. No. 7720. Among others, it
changed the status of Santiago from an independent component city to a component city, viz:

AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT NUMBERED 7720 AN ACT CONVERTING THE
MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF
SANTIAGO.

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Section 2 of Republic Act No. 7720 is hereby amended by deleting the words an independent
thereon so that said Section will read as follows:

SEC. 2. The City of Santiago. The Municipality of Santiago shall be converted into a component city to be
known as the City of Santiago, hereinafter referred to as the City, which shall comprise of the present
territory of the Municipality of Santiago, Isabela. The territorial jurisdiction of the City shall be within the
present metes and bounds of the Municipality of Santiago.

Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting the entire section and in its
stead substitute the following:

SEC. 51. Election of Provincial Governor, Vice-Governor, Sangguniang Panlalawigan Members, and any
Elective Provincial Position for the Province of Isabela.-The voters of the City of Santiago shall be
qualified to vote in the elections of the Provincial Governor, Vice-Governor, Sangguniang Panlalawigan
members and other elective provincial positions of the Province of Isabela, and any such qualified voter
can be a candidate for such provincial positions and any elective provincial office.

Sec. 3. Repealing Clause.- All existing laws or parts thereof inconsistent with the provisions of this Act
are hereby repealed or modified accordingly.

Sec. 4. Effectivity.- This Act shall take effect upon its approval.

Approved.

Petitioners assail the constitutionality of R.A. No. 8528.2 They alleged as ground the lack of provision in
R.A. No. 8528 submitting the law for ratification by the people of Santiago City in a proper
plebiscite. Petitioner Miranda was the mayor of Santiago at the time of the filing of the petition at
bar. Petitioner Afiado is the President of the Liga ng mga Barangay ng Santiago City. Petitioners Dirige,
Cabuyadao and Babaran are residents of Santiago City.

In their Comment, respondent provincial officials of Isabela defended the constitutionality of R.A. No.
8528. They assailed the standing of petitioners to file the petition at bar. They also contend that the
petition raises a political question over which this Court lacks jurisdiction.

Another Comment was filed by the Solicitor General for the respondent public officials. The Solicitor
General also contends that petitioners are not real parties in interest. More importantly, it is contended
that R.A. No. 8528 merely reclassified Santiago City from an independent component city to a
component city. It allegedly did not involve any creation, division, merger, abolition, or substantial
alteration of boundaries of local government units, hence, a plebiscite of the people of Santiago is
unnecessary.

A third Comment similar in tone was submitted by intervenor Giorgidi B. Aggabao,3 a member of the
provincial board of Isabela.4 He contended that both the Constitution and the Local Government Code of
1991 do not require a plebiscite to approve a law that merely allowed qualified voters of a city to vote in
provincial elections. The rules implementing the Local Government Code cannot require a plebiscite. He
also urged that petitioners lacked locus standi.

Petitioners filed a Reply to meet the arguments of the respondents and the intervenor. They defended
their standing. They also stressed the changes that would visit the city of Santiago as a result of its
reclassification.

We find merit in the petition.

First. The challenge to the locus standi of petitioners cannot succeed. It is now an ancient rule that the
constitutionality of law can be challenged by one who will sustain a direct injury as a result of its
enforcement.5 Petitioner Miranda was the mayor of Santiago City when he filed the present petition in
his own right as mayor and not on behalf of the city, hence, he did not need the consent of the city
council of Santiago City. It is also indubitable that the change of status of the city of Santiago from
independent component city to a mere component city will affect his powers as mayor, as will be shown
hereafter. The injury that he would sustain from the enforcement of R.A. No. 8528 is direct and
immediate and not a mere generalized grievance shared with the people of Santiago City. Similarly, the
standing of the other petitioners rests on a firm foundation. They are residents and voters in the city of
Santiago. They have the right to be heard in the conversion of their city thru a plebiscite to be
conducted by the COMELEC. The denial of this right in R.A. No. 8528 gives them proper standing to
strike the law as unconstitutional.

Second. The plea that this court back off from assuming jurisdiction over the petition at bar on the
ground that it involves a political question has to be brushed aside. This plea has long lost its appeal
especially in light of Section 1 of Article VIII of the 1987 Constitution which defines judicial power as
including the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government. To be sure, the cut between a political and justiciable issue has been made by this Court in
many cases and need no longer mystify us. In Taada v. Cuenco,6 we held:
xxx

The term political question connotes what it means in ordinary parlance, namely, a question of policy. It
refers to those questions which under the Constitution are to be decided by the people in their
sovereign capacity; or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.

In Casibang v. Aquino,7 we defined a justiciable issue as follows:

A purely justiciable issue implies a given right, legally demandable and enforceable, an act or omission
violative of such right, and a remedy granted and sanctioned by law, for said breach of right.

Clearly, the petition at bar presents a justiciable issue. Petitioners claim that under Section 10, Article X
of the 1987 Constitution they have a right to approve or disapprove R.A. No. 8528 in a plebiscite before
it can be enforced. It ought to be self-evident that whether or not petitioners have the said right is a
legal not a political question. For whether or not laws passed by Congress comply with the requirements
of the Constitution pose questions that this Court alone can decide. The proposition that this Court is
the ultimate arbiter of the meaning and nuances of the Constitution need not be the subject of a prolix
explanation.

Third. The threshold issue is whether R.A. No. 8528 is unconstitutional for its failure to provide that the
conversion of the city of Santiago from an independent component city to a component city should be
submitted to its people in a proper plebiscite. We hold that the Constitution requires a
plebiscite. Section 10, Article X of the 1987 Constitution provides:

No province, city, municipality, or barangay may be created, or divided, merged, abolished, or its
boundary substantially altered except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.

This constitutional requirement is reiterated in Section 10, Chapter 2 of the Local Government Code
(R.A. No. 7160), thus:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.

The power to create, divide, merge, abolish or substantially alter boundaries of local government
units belongs to Congress.8 This power is part of the larger power to enact laws which the Constitution
vested in Congress.9 The exercise of the power must be in accord with the mandate of the
Constitution. In the case at bar, the issue is whether the downgrading of Santiago City from an
independent component city to a mere component city requires the approval of the people of Santiago
City in a plebiscite. The resolution of the issue depends on whether or not the downgrading falls within
the meaning of creation, division, merger, abolition or substantial alteration of boundaries of
municipalities per Section 10, Article X of the Constitution. A close analysis of the said constitutional
provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries
of local government units involve a common denominator - - - material change in the political and
economic rights of the local government units directly affected as well as the people therein. It is
precisely for this reason that the Constitution requires the approval of the people in the political units
directly affected. It is not difficult to appreciate the rationale of this constitutional requirement. The
1987 Constitution, more than any of our previous Constitutions, gave more reality to the sovereignty of
our people for it was borne out of the people power in the 1986 EDSA revolution. Its Section 10, Article
X addressed the undesirable practice in the past whereby local government units were created,
abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the
people. Thus, the consent of the people of the local government unit directly affected was required to
serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing,
merging or altering the boundaries of local government units. It is one instance where the people in
their sovereign capacity decide on a matter that affects them - - - direct democracy of the people as
opposed to democracy thru peoples representatives. This plebiscite requirement is also in accord with
the philosophy of the Constitution granting more autonomy to local government units.

The changes that will result from the downgrading of the city of Santiago from an independent
component city to a component city are many and cannot be characterized as insubstantial. For one, the
independence of the city as a political unit will be diminished. The city mayor will be placed under the
administrative supervision of the provincial governor. The resolutions and ordinances of the city council
of Santiago will have to be reviewed by the Provincial Board of Isabela.Taxes that will be collected by the
city will now have to be shared with the province. Petitioners pointed out these far reaching changes on
the life of the people of the city of Santiago, viz:10

Although RESPONDENTS would like to make it appear that R.A. No. 8528 had merely re-
classified Santiago City from an independent component city into a component city, the effect when
challenged (sic) the Act were operational would be, actually, that of conversion. Consequently, there
would be substantial changes in the political culture and administrative responsibilities of Santiago City,
and the Province of Isabela. Santiago City from an independent component city will revert to the
Province of Isabela, geographically, politically and administratively. Thus, the territorial land area of
Santiago City will be added to the land area comprising the province of Isabela. This will be to the
benefit or advantage of the Provincial Government of Isabela on account of the subsequent increase of
its share from the internal revenue allotment (IRA) from the National Government (Section 285, R.A. No.
7160 or the Local Government Code of 1991). The IRA is based on land area and population of local
government units, provinces included.

The nature or kinds, and magnitude of the taxes collected by the City Government, and which taxes shall
accrue solely to the City Government, will be redefined (Section 151, R.A. No. 7160), and may be shared
with the province such as taxes on sand, gravel and other quarry resources (Section 138, R.A. No. 7160),
professional taxes (Section 139, R.A. No. 7160), or amusement taxes (Section 140, R.A. No. 7160). The
Provincial Government will allocate operating funds for the City. Inarguably, there would be a (sic)
diminished funds for the local operations of the City Government because of reduced shares of the IRA
in accordance with the schedule set forth by Section 285 of the R.A. No. 7160. The City Governments
share in the proceeds in the development and utilization of national wealth shall be diluted since certain
portions shall accrue to the Provincial Government (Section 292, R.A. No.7160).
The registered voters of Santiago City will vote for and can be voted as provincial officials (Section 451
and 452 [c], R.A. No. 7160).

The City Mayor will now be under the administrative supervision of the Provincial Governor who is
tasked by law to ensure that every component city and municipality within the territorial jurisdiction of
the province acts within the scope of its prescribed powers and functions (Section 29 and 465 (b) (2) (i),
R.A. No. 7160), and to review (Section 30, R.A. No. 7160) all executive orders submitted by the former
(Section 455 (b) (1) (xii), R.A. No. 7160) and (R)eportorial requirements with respect to the local
governance and state of affairs of the city (Section 455 (b) (1) (xx), R.A. No. 7160). Elective city officials
will also be effectively under the control of the Provincial Governor (Section 63, R.A. No. 7160). Such will
be the great change in the state of the political autonomy of what is now Santiago City where by virtue
of R.A. No. 7720, it is the Office of the President which has supervisory authority over it as an
independent component city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987 Constitution).

The resolutions and ordinances adopted and approved by the Sangguniang Panlungsod will be subject to
the review of the Sangguniang Panlalawigan (Sections 56, 468 (a) (1) (i), 468 (a) (2) (vii), and 469 (c) (4),
R.A. No. 7160). Likewise, the decisions in administrative cases by the former could be appealed and
acted upon by the latter (Section 67, R.A. No. 7160).

It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality to an
independent component city, it required the approval of its people thru a plebiscite called for the
purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the
will of the people of Santiago City when R.A. No. 8528 downgrades the status of their city. Indeed, there
is more reason to consult the people when a law substantially diminishes their right. Rule II, Article 6,
paragraph (f) (1) of the Implementing Rules and Regulations of the Local Government Code is in accord
with the Constitution when it provides that:

(f) Plebiscite - (1) no creation, conversion, division, merger, abolition, or substantial alteration of
boundaries of LGUS shall take effect unless approved by a majority of the votes cast in a plebiscite called
for the purpose in the LGU or LGUs affected. The plebiscite shall be conducted by the Commission on
Elections (COMELEC) within one hundred twenty (120) days from the effectivity of the law or ordinance
prescribing such action, unless said law or ordinance fixes another date.

x x x.

The rules cover all conversions, whether upward or downward in character, so long as they result in a
material change in the local government unit directly affected, especially a change in the political and
economic rights of its people.

A word on the dissenting opinions of our esteemed brethren. Mr. Justice Buena justifies R.A. No. 8528
on the ground that Congress has the power to amend the charter of Santiago City. This power of
amendment, however, is limited by Section 10, Article X of the Constitution. Quite clearly, when an
amendment of a law involves the creation, merger, division, abolition or substantial alteration of
boundaries of local government units, a plebiscite in the political units directly affected is mandatory. He
also contends that the amendment merely caused a transition in the status of Santiago as a
city. Allegedly, it is a transition because no new city was created nor was a former city dissolved by R.A.
No. 8528. As discussed above, the spirit of Section 10, Article X of the Constitution calls for the people of
the local government unit directly affected to vote in a plebiscite whenever there is a material change in
their rights and responsibilities. They may call the downgrading of Santiago to a component city as a
mere transition but they cannot blink away from the fact that the transition will radically change its
physical and political configuration as well as the rights and responsibilities of its people.

On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits the theory that "only if the
classification involves changes in income, population, and land area of the local government unit is there
a need for such changes to be approved by the people x x x."

With due respect, such an interpretation runs against the letter and spirit of section 10, Article X of the
1987 Constitution which, to repeat, states: "No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria
established in the Local Government Code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected." It is clear that the Constitution imposes two
conditions - - - first, the creation, division, merger, abolition or substantial alteration of boundary of a
local government unit must meet the criteria fixed by the Local Government Code on income,
population and land area and second, the law must be approved by the people "by a majority of the
votes cast in a plebiscite in the political units directly affected."

In accord with the Constitution, sections 7, 8, and 9 of the Local Government Code fixed the said criteria
and they involve requirements on income, population and land area. These requirements, however, are
imposed to help assure the economic viability of the local government unit concerned. They were not
imposed to determine the necessity for a plebiscite of the people. Indeed, the Local Government Code
does not state that there will be no more plebiscite after its requirements on income, population and
land area have been satisfied. On the contrary, section 10, Chapter 2 of the Code provides: "No creation,
division, merger, abolition, or substantial alteration of boundaries of local government units shall take
effect unless approved by a majority of the votes casts in a plebiscite called for the purpose in the
political unit or units directly affected. Said plebiscite shall be conducted by the COMELEC within one
hundred twenty (120) days from the date of the effectivity of the law or ordinance effecting such action,
unless said law or ordinance fixes another date."11 Senator Aquilino Pimentel, the principal author of
the Local Government Code of 1991, opines that the plebiscite is absolute and mandatory. 12

It cannot be overstressed that the said two requirements of the Constitution have different
purposes. The criteria fixed by the Local Government Code on income, population and land area are
designed to achieve an economic purpose. They are to be based on verified indicators, hence, section 7,
Chapter 2 of the Local Government Code requires that these "indicators shall be attested by the
Department of Finance, the National Statistics Office, and the Lands Management Bureau of the
Department of Environment and Natural Resources." In contrast, the people's plebiscite is required to
achieve a political purpose --- to use the people's voice as a check against the pernicious political
practice of gerrymandering. There is no better check against this excess committed by the political
representatives of the people themselves than the exercise of direct people power. As well-observed by
one commentator, as the creation, division, merger, abolition, or substantial alteration of boundaries
are "xxx basic to local government, it is also imperative that these acts be done not only by Congress but
also be approved by the inhabitants of the locality concerned. xxx By giving the inhabitants a hand in
their approval, the provision will also eliminate the old practice of gerrymandering and minimize
legislative action designed for the benefit of a few politicians. Hence, it promotes the autonomy of local
government units."13

The records show that the downgrading of Santiago City was opposed by certain segments of its
people. In the debates in Congress, it was noted that at the time R.A. No. 8528 was proposed, Santiago
City has been converted to an independent component city barely two and a half (2 1/2) years ago and
the conversion was approved by a majority of 14,000 votes. Some legislators expressed surprise for the
sudden move to downgrade the status of Santiago City as there had been no significant change in its
socio-economic-political status. The only reason given for the downgrading is to enable the people of
the city to aspire for the leadership of the province. To say the least, the alleged reason is unconvincing
for it is the essence of an independent component city that its people can no longer participate or be
voted for in the election of officials of the province. The people of Santiago City were aware that they
gave up that privilege when they voted to be independentfrom the province of Isabela. There was an
attempt on the part of the Committee on Local Government to submit the downgrading of Santiago City
to its people via a plebiscite. The amendment to this effect was about to be voted upon when a recess
was called. After the recess, the chairman of the Committee anounced the withdrawal of the
amendment "after a very enlightening conversation with the elders of the Body." We quote the
debates, viz:14

"BILL ON SECOND READING

H.B. No. 8729 - City of Santiago

"Senator Tatad. Mr. President, I move that we consider House Bill No. 8729 as reported out under
Committee Report No. 971.

"The President. Is there any objection? [Silence] there being none, the motion is approved.

"Consideration of House Bill No. 8729 is now in order. With the permission of the Body, the Secretary
will read only the title of the bill without prejudice to inserting in the Record the whole text thereof.

"The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled

AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720 ENTITLED "AN ACT CONVERTING THE
MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF
SANTIAGO

_______________________________________________________

The following is the full text of H.B. No. 8729

Insert

_______________________________________________________

"Senator Tatad. Mr. President, for the sponsorship, I ask that the distinguished Chairman of the
Committee on Local Government be recognized.

"The President. Senator Sotto is recognized.

SPONSORSHIP SPEECH OF SENATOR SOTTO


"Mr. President. House Bill No. 8729, which was introduced in the House by Congressman Antonio M.
Abaya as its principal author, is a simple measure which merely seeks to convert the City of Santiago into
a component city of the Province of Isabela.

"The City of Santiago is geographically located within, and is physically an integral part of the Province of
Isabela. As an independent component city, however, it is completely detached and separate from the
said province as a local political unit. To use the language of the Explanatory Note of the proposed bill,
the City of Santiago is an island in the provincial milieu.

"The residents of the city no longer participate in the elections, nor are they qualified to run for any
elective positions in the Province of Isabela.

"The Province of Isabela, on the other hand, is no longer vested with the power and authority of general
supervision over the city and its officials, which power and authority are now exercised by the Office of
the President, which is very far away from Santiago City.

Being geographically located within the Province of Isabela, the City of Santiago is affected, one way or
the other, by the happenings in the said province, and is benefited by its progress and
development. Hence, the proposed bill to convert the City of Santiago into a component city of Isabela.

"Mr. President, it is my pleasure, therefore, to present for consideration of this august Body Committee
Report No. 971 of the Committee on Local Government , recommending approval, with our proposed
committee amendment, of House Bill No. 8729.

"Thank you, Mr. President.

"The President. The Majority Leader is recognized.

"Senator Tatad. Mr. President, I moved (sic) that we close the period of interpellations.

"The President. Is there any objection? [Silence] There being none, the period of interpellations is
closed.

"Senator Tatad. I move that we now consider the committee amendments.

"Senator Roco. Mr. President.

"The President. What is the pleasure of Senator Roco?

"Senator Roco. Mr. President, may I ask for a reconsideration of the ruling on the motion to close the
period of interpellations just to be able to ask a few questions?

"Senator Tatad. May I move for a reconsideration of my motion, Mr. President.

"The President. Is there any objection to the reconsideration of the closing of the period of
interpellations? [Silence] There being none, the motion is approved.

"Senator Roco is recognized.

"Senator Roco. Will the distinguished gentleman yield for some questions?

"Senator Sotto. Willingly, Mr. President.


"Senator Roco. Mr. President, together with the Chairman of the Committee on Local Government, we
were with the sponsors when we approved this bill to make Santiago a City. That was about two and a
half years ago. At that time, I remember it was the cry of the city that it be independent. Now we are
deleting that word independent.

"Mr. President, only because I was a co-author and a co-sponsor, for the Record, I want some
explanation on what happened between then and now that has made us decide that the City of
Santiago should cease to be independent and should now become a component city.

"Senator Sotto. Mr. President, the officials of the province said during the public hearing that they are
no longer vested with the power and authority of general supervision over the city. The power and
authority is now being exercised by the Office of the President and it is quite far from the City of
Santiago.

"In the public hearing, we also gathered that there is a clamor from some sectors that they want to
participate in the provincial elections.

"Senator Roco. Mr. President, I did not mean to delay this. I did want it on record, however. I think there
was a majority of 14,000 who approved the charter, and maybe we owe it to those who voted for that
charter some degree of respect. But if there has been a change of political will, there has been a change
of political will, then so be it.

"Thank you, Mr. President.

"Senator Sotto. Mr. President, to be very frank about it, that was a very important point raised by
Senator Roco, and I will have to place it on the Record of the Senate that the reason why we are
proposing a committee amendment is that, originally, there was an objection on the part of the local
officials and those who oppose it by incorporating a plebiscite in this bill. That was the solution. Because
there were some sectors in the City of Santiago who were opposing the reclassification or reconversion
of the city into a component city.

"Senator Roco. All I wanted to say, Mr. President -- because the two of us had special pictures (sic) in
the city -- is that I thought it should be put on record that we have supported originally the proposal to
make it an independent city. But now if it is their request, then, on the manifestation of the Chairman,
let it be so.

"Thank you.

"Senator Drilon. Mr. President.

"Senator Drilon. Will the gentleman yield for a few questions, Mr. President?

"Senator Sotto. Yes, Mr. President.

"Senator Drilon. Mr. President, further to the interpellation of our good friend, the Senator from Bicol,
on the matter of the opinion of the citizens of Santiago City, there is a resolution passed by the
Sanggunian on January 30, 1997 opposing the conversion of Santiago from an independent city.
"This opposition was placed on records during the committee hearings. And that is the reason why, as
mentioned by the good sponsor, one of the amendments is that a plebiscite be conducted before the
law takes effect.

"The question I would like to raise-- and I would like to recall the statement of our Minority Leader --
is that, at this time we should not be passing it for a particular politician.

"In this particular case, it is obvious that this bill is being passed in order that the additional territory
be added to the election of the provincial officials of the province of Isabela.

"Now, is this for the benefit of any particular politician, Mr. President.

"Senator Sotto. If it is, I am not aware of it, Mr. President.

"Senator Alvarez. Mr. President.

"The President. With the permission of the two gentlemen on the Floor, Senator Alvarez is recognized.

"Senator Alvarez. As a born inbred citizen of this city, Mr. President, may I share some information.

"Mr. President, if we open up the election of the city to the provincial leadership, it will not be to the
benefit of the provincial leadership, because the provincial leadership will then campaign in a bigger
territory.

"As a matter of fact, the ones who will benefit from this are the citizens of Santiago who will now be
enfranchised in the provincial electoral process, and whose children will have the opportunity to grow
into provincial leadership. This is one of the prime reasons why this amendment is being put forward.

"While it is true that there may have been a resolution by the city council, those who signed the
resolution were not the whole of the council. This bill was sponsored by the congressman of that district
who represents a constituency, the voice of the district.

"I think, Mr. President, in considering which interest is paramount, whose voice must be heard, and if
we have to fathom the interest of the people, the law which has been crafted here in accordance with
the rules should be given account, as we do give account to many of the legislations coming from the
House on local issues.

"Senator Drilon. Mr. President, the reason why I am raising this question is that, as Senator Roco said,
just two-and-a-half years ago we passed a bill which indeed disenfranchized--if we want to use that
phrase-- the citizens of the City of Santiago in the matter of the provincial election. Two-and-a-half
years after, we are changing the rule.

"In the original charter, the citizens of the City of Santiago participated in a plebiscite in order to
approve the conversion of the city into an independent city. I believe that the only way to resolve this
issue raised by Senator Roco is again to subject this issue to another plebiscite as part of the provision
of this proposed bill and as will be proposed by the Committee Chairman as an amendment.

"Thank you very much, Mr. President.

"Senator Alvarez. Mr. President, the Constitution does not require that the change from an independent
to a component city be subjected to a plebiscite.
Sections 10, 11, 12 of Article X of the 1987 Constitution provides as follows:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.

This change from an independent city into a component city is none of those enumerated. So the
proposal coming from the House is in adherence to this constitutional mandate which does not require a
plebiscite.

Senator Sotto. Mr. President, the key word here is conversion. The word conversion appears in that
provision wherein we must call a plebiscite. During the public hearing, the representative of
Congressman Abaya was insisting that this is not a conversion; this is merely a reclassification. But it is
clear in the bill.

We are amending a bill that converts, and we are converting it into a component city. That is how the
members of the committee felt. That is why we have proposed an amendment to this, and this is to
incorporate a plebiscite in as much as there is no provision on incorporating a plebiscite. Because we
would like not only to give the other people of Santiago a chance or be enfranchised as far as the
leadership of the province is concerned, but also we will give a chance to those who are opposing
it. To them, this is the best compromise. Let the people decide, instead of the political leaders of
Isabela deciding for them.

"Senator Tatad. Mr. President.

"The President. The Majority Leader is recognized.

"Senator Tatad. At this point, Mr. President, I think we can move to close the period of interpellations.

"The President. Is there any objection? [Silence] There being none, the motion is approved.

"Senator Tatad. I move that we now consider the committee amendments, Mr. President.

"The President. Is there any objection? Silence] There being none, the motion is approved.

"Senator Sotto. On page 2, after line 13, insert a new Section 3, as follows:

"SEC. 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY AMENDED BY DELETING THE ENTIRE
SECTION AND IN ITS STEAD SUBSTITUTE THE FOLLOWING:

"SEC. 49. PLEBISCITE. - THE CONVERSION OF THE CITY OF SANTIAGO INTO A COMPONENT CITY OF THE
PROVINCE OF ISABELA SHALL TAKE EFFECT UPON THE RATIFICATION OF THIS ACT BY A MAJORITY OF
THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE WITHIN SIXTY (60)
DAYS FROM THE APPROVAL OF THIS ACT. THE COMMISSION ON ELECTIONS SHALL CONDUCT AND
SUPERVISE SUCH PLEBISCITE.

"The President. Is there any objection?

"Senator Enrile. Mr. President.


"The President. Senator Enrile is recognized.

"Senator Enrile. I object to this committee amendment, Mr. President.

"SUSPENSION OF SESSION

"Senator Tatad. May I ask for a one-minute suspension of the session.

"The President. The session is suspended for a few minutes if there is no objection. [There was none]

"It was 7:54 p.m.

"RESUMPTION OF SESSION

"At 7:57 p.m., the session was resumed.

"The President. The session is resumed.

"Senator Sotto is recognized.

"Senator Sotto. Mr. President, after a very enlightening conversation with the elders of the Body, I
withdraw my amendment.

"The President. The amendment is withdrawn.

"Senator Maceda. Mr. President.

"The President. Senator Maceda is recognized.

"Senator Maceda. We wish to thank the sponsor for the withdrawal of the amendment.

"Mr. President, with due respect to the Senator from Isabela -- I am no great fan of the Senator from
Isabela -- but it so happens that this is a local bill affecting not only his province but his own city
where he is a resident and registered voter.

"So, unless the issue is really a matter of life and death and of national importance, senatorial courtesy
demands that we, as much as possible, accommodate the request of the Senator from Isabela as we
have done on matters affecting the district of other senators. I need not remind them.

"Thank you anyway, Mr. President.

"Senator Alvarez. Mr. President.

"The President. Senator Alvarez is recognized.

"Senator Alvarez. Mr. President, may I express my deepest appreciation for the statement of the
gentleman from Ilocos and Laguna. Whatever he may have said, the feeling is not mutual. At least for
now, I have suddenly become his great fan for the evening.

"May I put on record, Mr. President, that I campaigned against the cityhood of Santiago not because I do
not want it to be a city but because it had disenfranchised the young men of my city from aspiring for
the leadership of the province. The town is the gem of the province. How could we extricate the town
from the province?
"But I would like to thank the gentleman, Mr. President, and also the Chairman of the Committee.

"Senator Tatad. Mr. President.

"The President. The Majority Leader is recognized.

"Senator Tatad. There being no committee amendments, I move that the period of committee
amendments be closed.

"The President. Shall we amend the title of this bill by removing the word independent preceding
component city?

"Senator Sotto. No, Mr. President. We are merely citing the title. The main title of this House Bill No.
8729 is An Act Amending Certain Sections of Republic Act 7720. The title is the title of Republic Act
7720. So, I do not think that we should amend that anymore.

"The President. What is the pending motion? Will the gentleman kindly state the motion?

"Senator Tatad. I move that we close the period of committee amendments.

"The President. Is there any objection? [Silence] There being none, the motion is approved.

"Senator Tatad. Unless there are any individual amendments, I move that we close the period of
individual amendments.

"The President. Is there any objection? [Silence] There being none, the period of individual amendments
is closed.

"APPROVAL OF H.B. NO. 8729 ON SECOND READING

"Senator Tatad. Mr. President, I move that we vote on Second Reading on House Bill No. 8729.

"The President. Is there any objection? [Silence] There being none, we shall now vote on Second
Reading on House Bill No. 8729.

"As many as are in favor of the bill, say aye.

"Several Members. Aye

As many as are against the bill, say nay. [Silence]

"House Bill No. 8729 is approved on Second Reading."

The debates cannot but raise some quizzical eyebrows on the real purpose for the downgrading of the
city of Santiago. There is all the reason to listen to the voice of the people of the city via a plebiscite.

In the case of Tan, et al. vs. COMELEC,15 BP 885 was enacted partitioning the province of Negros
Occidental without consulting its people in a plebiscite. In his concurring opinion striking down the law
as unconstitutional, Chief Justice Teehankee cited the illicit political purpose behind its enactment, viz:

"The scenario, as petitioners urgently asserted, was to have the creation of the new Province a fait
accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so
that the new Governor and other officials shall by then have been installed in office, ready to function
for purposes of the election for President and Vice-President. Thus, the petitioners reported after the
event: With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by
President Marcos as in existence; a new set of government officials headed by Governor Armando
Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political
machinery was in place to deliver the solid North to ex-President Marcos. The rest is history. What
happened in Negros del Norte during the elections - the unashamed use of naked power and resources -
contributed in no small way to arousing peoples power and steel the ordinary citizen to perform deeds
of courage and patriotism that makes one proud to be a Filipino today.

"The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts
complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the
appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the
proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the
remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago
and La Carlota and the Municipalities of Las Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran,
Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and
Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing
1973 Constitution that no province may be created or divided or its boundary substantially altered
without the approval of a majority of the votes in a plebiscite in the unit or units affected. It is plain
that all the cities and municipalities of the province of Negros Occidental, not merely those of the
proposed new province, comprise the units affected. It follows that the voters of the whole and entire
province of Negros Occidental have to participate and give their approval in the plebiscite, because the
whole province is affected by its proposed division and substantial alteration of its boundary. To limit
the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as
absurd and illogical as allowing only the secessionists to vote for the secession that they demanded
against the wishes of the majority and to nullify the basic principle of majority rule.

Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when allegedly independent
component cities were downgraded into component cities without need of a plebiscite. They cite the
City of Oroquieta, Misamis Occidental,16 and the City of San Carlos, Pangasinan17 whose charters were
amended to allow their people to vote and be voted upon in the election of officials of the province to
which their city belongs without submitting the amendment to a plebiscite.With due respect, the cities
of Oroquieta and San Carlos are not similarly situated as the city of Santiago. The said two cities then
were not independent component cities unlike the city of Santiago. The two cities were chartered but
were not independent component cities for both were not highly urbanized cities which alone were
considered independent cities at that time. Thus, when the case of San Carlos City was under
consideration by the Senate, Senator Pimentel explained:18

"x x x Senator Pimentel. The bill under consideration, Mr. President, merely empowers the voters of San
Carlos to vote in the elections of provincial officials. There is no intention whatsoever to downgrade
the status of the City of San Carlos and there is no showing whatsoever that the enactment of this bill
will, in any way, diminish the powers and prerogatives already enjoyed by the City of San Carlos. In
fact, the City of San Carlos as of now, is a component city. It is not a highly urbanized city. Therefore,
this bill merely, as we said earlier, grants the voters of the city, the power to vote in provincial
elections, without in any way changing the character of its being a component city. It is for this reason
that I vote in favor of this bill.
It was Senator Pimentel who also sponsored the bill19 allowing qualified voters of the city of Oroquieta
to vote in provincial elections of the province of Misamis Occidental. In his sponsorship speech, he
explained that the right to vote being given to the people of Oroquieta City was consistent with its
status as a component city.20 Indeed, during the debates, former Senator Neptali Gonzales pointed out
the need to remedy the anomalous situation then obtaining xxx where voters of one component city
can vote in the provincial election while the voters of another component city cannot vote simply
because their charters so provide.21 Thus, Congress amended other charters of component cities
prohibiting their people from voting in provincial elections.

IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is declared unconstitutional and the
writ of prohibition is hereby issued commanding the respondents to desist from implementing said law.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Pardo, Gonzaga-Reyes, and Ynares-Santiago,
JJ., concur.

Vitug, J., see separate opinion.

Mendoza, J., see dissenting opinion.

Quisumbing, and Purisima, JJ., joins J. Mendoza in his dissenting opinion.

Buena, J., see dissenting opinion.

1
See Section 4 of R.A. No. 7720.
2
See Section 10, Article X of the 1987 Constitution.
3
The intervention was granted on June 30, 1998.
4
After R.A. No. 8528 was enacted, COMELEC reallocated the seats for the provincial board in Isabela. It
added one (1) seat to the 4th district where Santiago City belongs. The intervenor won the additional
seat in the May 11, 1998 elections.
5
Sanidad vs. COMELEC, 73 SCRA 333 (1976).
6
100 Phil. 1101 (1957).
7
92 SCRA 642 (1979).
8
Mendenilla v. Onandia, 115 Phil. 534 (1962).
9
Section 1, Article VI of the 1987 Constitution.
10
Reply of Petitioners, pp. 7-9.
11
See also Rule II, Article 6, par. F(1) of the Implementing Rules of the Local Government Code.
12
Pimentel, The Local Government Code of 1991, The Key to National Development, p. 36.
13
Hector S. de Leon, Philippine Constitutional Law, Vol. 2, 1991 ed., p. 509.
14
Journal of the Senate, 10th Congress, 3rd Regular Session, Session No. 55, February 3, 1998, pp. 92-
100.
15
142 SCRA 727, 753-754 (1986).
16
See R.A. No. 6720 which amended R.A. No. 5518.
17
See R.A. No. 6843 which amended R.A. No. 4487.
18
Record of the Senate, October 20, 1989, p. 795.
19
House Bill No. 1881; Committee Report Nos. 73 and 76 in the Senate.
20
Record of the Senate, November 25, 1988, p. 763.
21
Ibid., p. 764. See Record of the Senate, October 6, 1989, p. 506 where the cases of the cities of Naga
and Ormoc were cited as examples.

38. Sang. Bayan Ng Taguig vs. Judge Estrella, A.M. No. 01-1608-RJT (January 16,2001)

[A.M. No. 01-1608-RTJ. January 16, 2001]

SANGGUNIANG BAYAN OF TAGUIG, M. Mla., complainant, vs. Judge SANTIAGO G.


ESTRELLA, respondent.

R E SO L U T I O N

MELO, J.:

At bar is a sworn letter-complaint dated October 20, 1997 filed by 10 members of the Sangguniang
Bayan of Taguig, Metro Manila charging Judge Santiago G. Estrella of Branch 68 of the Regional Trial
Court of the National Capital Judicial Region stationed in Pasig City with serious misconduct relative to
Election Protest No. 144, entitled Ricardo D. Papa, Jr. vs. Isidro B. Garcia.

The present controversy stems from an election protest filed by then mayoral candidate Ricardo D.
Papa, Jr. against Isidro B. Garcia, the candidate proclaimed mayor of Taguig, Metro Manila in the May 8,
1995 elections. In his protest, Papa impugned the results of all 713 precincts in the municipality. This
was filed with the Regional Trial Court of Pasig and eventually raffled to the sala of respondent wherein
it was docketed as Election Protest No. 144.

Garcia filed his answer with counter-protest and after the rejoinder of issues, Papa filed a Motion to
Withdraw First, Second, Fourth, and Fifth Causes of Action, thereby limiting his cause of action to only
one: the determination of the number of the plain Garcia votes which should be considered stray and
their number deducted from votes credited to protestee Garcia, there having been another candidate
surnamed Garcia.
The motion was granted and forthwith, the revision committee opened 712 questioned ballot boxes,
examined the contents, and revised the ballots.

On March 14, 1996, after the revision of ballots was completed, Papa filed a Motion for Technical
Examination, wherein he objected to more than 5,000 ballots, the same allegedly having been Written
By One (WBO) or Written By Two (WBT) persons. Respondent judge granted the motion. However, on
March 25, 1996, Papa withdrew this motion.

On April 10, 1996, a final revision report was submitted to respondent judge by Atty. Katherine A. Go,
the over-all chairperson of the Revision Committee. The report stated that Papa actually objected to a
total of 11,290 ballots for Garcia, over 5,000 of which were objected to by reason of the same having
been written by one person (WBO) or written by two (WBT). The said report also mentioned that Garcia
had 3,049 plain Garcia votes.

Thereafter, both parties offered their respective exhibits, which were all admitted by respondent judge.

On February 11, 1997, respondent issued an order directing the National Bureau of Investigation (NBI)
to examine the contested ballots in the presence of a representative of both parties. The pertinent
portion of the order provided that so as to enable the court to get a complete overview of the matter, it
was better to have a handwriting expert examine the questioned ballots to settle once and for all the
questions and objections relative to the ballots.

After the NBI finished its examination of the contested ballots and upon the determination by
respondent that he had no further need of the ballot boxes, he issued an order dated May 19, 1997
directing the removal of the ballot boxes and election paraphernalia from his courtroom. On May 27,
1997, respondent ordered the immediate transfer of all the ballot boxes and election paraphernalia to
the sala of Judge Vivencio Baclig, Branch 157 of the Regional Trial Court of Pasig City, so that Judge
Baclig may proceed with the trial of the vice-mayoralty election protest of the same municipality. On
June 5, 1997, all the ballot boxes which contained both contested and uncontested ballots were
removed from the custody of respondent and transferred to RTC, Branch 157. On June 26, 1997, the NBI
Report was submitted to respondent.

On July 22, 1997, Garcia filed a Manifestation and Formal Motion with Formal Query, praying that an
order be issued to the Branch Clerk of Court to be furnished a copy of the NBI Reports and/or allow him
to copy or review or at least to read said reports. Respondent judge denied the motion on the same day,
proclaiming that the examination of contested ballots by the NBI was ordered, upon the instance of the
court, and not by the parties, hence, only the court was given copies of the NBI Reports.

On the same day that Garcias motion was denied, respondent also set the date of promulgation of
judgment for July 31, 1997. This prompted Garcia to file a Manifestation and Most Urgent Motion to
Defer and/or Cancel Scheduled Promulgation of Judgment premised on respondents refusal to furnish
him a copy of the NBI Reports, and Garcias physical impossibility of examining the contested ballots
because (a) the report was submitted on June 26, 1997, and (b) the contested ballots and other election
paraphernalia had been transferred to the sala of Judge Vivencio Baclig in RTC, Branch 157. Respondent
judge denied Garcias motion on July 28, 1997, explaining that:

. . . To allow parties at this stage to secure copies of the NBI report and to comment on the same before
promulgating the decision would be opening the floodgates for undue delay.
Thereafter, Garcia filed a petition for certiorari, prohibition, and mandamus, with a prayer for
restraining order and preliminary injunction with the COMELEC on July 29, 1997. The very next day or on
July 30, 1997, the COMELEC issued a Temporary Restraining Order (TRO) enjoining respondent judge
from proceeding with the scheduled promulgation of judgment set on July 31, 1997.

On August 21, 1997, after the expiration of the TRO, Papa filed a Motion for Immediate Promulgation of
Judgment, requesting that the same be heard on August 25, 1997. This was, however, granted by
respondent judge the very next day, three days ahead of the date set for hearing of the motion, with
respondent setting August 27, 1997 as the promulgation date. Forthwith, Garcia filed with the COMELEC
an Urgent Manifestation and Motion Reiterating Prayer for Preliminary Injunction.

One day before the scheduled promulgation of judgment, or on August 26, 1997, the COMELEC issued
an order directing respondent to allow both parties or their counsel to have access to the NBI reports
and to give the parties copies thereof before the promulgation of the decision.

On the day of the promulgation of judgment (August 27, 1997), respondent gave Garcias counsel 5
minutes to go over Questioned Documents Report No. 152-297 which consisted of 53 pages, and
Questioned Document Report No. 152-297(A), which consisted of 17 pages.

Thereafter, judgment was promulgated, disposing:

WHEREFORE, and all the forgoing considered, the Court resolves to SUSTAIN as it hereby SUSTAINS the
Protest lodged by Ricardo D. Papa, Jr., and accordingly renders judgment DECLARING the aforenamed
Protestant the duly elected mayor of the Municipality of Taguig, Metro Manila.

The Counter-Protest filed by protestee Isidro B. Garcia is ordered DISMISSED.

No pronouncement as to damages as no proof was presented by either party.

Complainants further claim that it was only after the promulgation of judgment that Garcia was able to
secure copies of the NBI Reports.

It must be noted that Papa filed an Urgent Motion for Execution Pending Appeal on August 26, 1997, a
day before the scheduled promulgation of judgment lending credibility to the claim of Garcia that Papa
had prior knowledge of respondents decision. Despite Garcias opposition, respondent granted said
motion on September 2, 1997. That same day, respondent also issued the Writ of Execution.

Complainants now allege that respondent judge, together with Papa and the NBI officials concerned,
violated Section 3(e) of Republic Act 3019 or the Anti-Graft and Corrupt Practices Act, which provides
that:

Sec. 3. In addition to acts or omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officers and are hereby declared to be unlawful:

xxx

xxx

xxx
(e) Causing undue injury to any party, including the government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. . . .

Complainants claim that: respondent gave unwarranted benefits to Papa and caused, on the other hand,
undue injury to Mayor Garcia as well as to the people of Taguig by depriving the latter of their duly
elected mayor, and giving Papa unwarranted benefits; the decision and reports were prepared, issued,
and executed with manifest partiality, evident bad faith, and gross inexcusable negligence; that
respondent conspired, confederated, and confabulated with the NBI officials concerned and Papa to
make the NBI Reports and the decision favorable to Papa; that respondent did not bother to check the
figures and to analyze the data contained in the reports, allegedly because a careful perusal of said
reports would have led to the discovery of flaws and mistakes; and that the hasty transfer of ballot
boxes from respondents sala to that of Judge Vivencio Baclig violated Section 255 of the Omnibus
Election Code which requires the examination and appreciation of the ballots to be done by the judge
himself rather than mere reliance on the work of the Revision Committee.

In his Comment dated December 10, 1997, respondent vehemently denied the allegations in the
complaint by addressing complainants two main issues: (1) whether it was proper for respondent to
have designated the NBI to conduct the necessary handwriting examination and to submit reports on
the results thereof to the court and not to the parties considering that said reports were the sole basis
of the decision rendered by the court, and (2) whether it was proper for respondent to have granted the
Motion for Execution Pending Appeal filed by the declared winner Ricardo D. Papa, Jr., allowing him to
take his oath notwithstanding the pendency of an appeal filed with the Commission on Elections
concerning the decision rendered by respondent.

In addressing the first issue, respondent claimed that the examination conducted by the NBI, which
included the segregation, photocopying, and photographing of the contested ballots was in fact done in
the presence of the court and the representatives of the parties. Respondent also alleged that the NBI
gave one copy each of the reports only to the court since the request therefor did not emanate from the
parties. He further claimed that the reports were made available to the parties as early as August 25,
1997, but that neither party took the time to reproduce the same.

Concerning the second issue, respondent asserted that he acted in accordance with the Rules of Civil
Procedure which provide that upon motion of the prevailing party with notice to the adverse party, the
court may, in its discretion and upon good reasons, order the execution of a judgment or final order
even before the expiration of the period to appeal. Respondent further contended that Papa, the
rightful winner of the May 1995 elections, had been deprived of his right to sit as the duly elected mayor
of the Municipality of Taguig and that his constituents had been equally deprived of his services as their
duly elected municipal head.

In the letter-reply dated August 12, 1998, complainants informed this Court that the COMELEC had
promulgated an En Banc resolution in SPR No. 42-97 entitled, Isidro B. Garcia vs. Hon. Santiago G.
Estrella, Judge, RTC, Branch 68, Pasig City and Ricardo D. Papa, Jr., nullifying the September 2, 1997
order of respondent directing execution pending appeal of his July 21, 1997 decision and the
corresponding Writ of Execution, and ordering (a) Papa to cease and desist from performing or
continuing to perform the duties and functions of Mayor of the Municipality of Taguig pending the final
resolution of the appeal, and (b) to immediately relinquish the position of Mayor of Taguig in favor
Garcia.

Both complainants and respondent were required by the Court on April 12, 2000 to manifest whether
they were willing to submit the case for resolution on the basis of the record. Respondent did manifest
that he was so willing, while complainants, despite proper service of the notice, failed to respond. They
are, therefore, deemed to be likewise willing to submit the case for resolution without further pleadings
and arguments.

In the previous report and recommendation dated February 29, 2000 submitted by Court Administrator
Alfredo L. Benipayo, it was pertinently observed that respondent gravely abused his discretion in
deciding the case and in issuing the questioned order since grave abuse of discretion amounting to lack
of jurisdiction occurs when a board, tribunal or officer exercising judicial functions exercises its
judgment in a capricious, whimsical, arbitrary or despotic manner, or fails to consider the evidence
adduced by the parties. The Office of the Court Administrator echoed the COMELECs finding that
respondents action showed utter disregard of the appropriate procedure required of him, resulting in
the disenfranchisement of thousands of voters.

No less than the Code of Judicial Conduct mandates that a judge should be the embodiment of
competence, integrity, and independence (Rule 1.01, Canon 1).Indeed, in every case, a judge shall
endeavor diligently to ascertain the facts and applicable laws unswayed by partisan interests, public
opinion, or fear of criticism (Rule 3.02, Canon 3, Code of Judicial Conduct). Thus, this Court has
continually reminded members of the bench that:

The Judge should always be imbued with a high sense of duty and responsibility in the discharge of his
obligation to promptly and properly administer justice. He must view himself as a priest for the
administration of justice is akin to a religious crusade. Thus, exerting the same devotion as a priest in the
performance of the most sacred ceremonies of religious liturgy, the judge must render service with
impartiality commensurate with public trust and confidence reposed in him. (Dimatulac vs. Villon, 297
SCRA 679 [1998])

In the case at bar, respondents demeanor during the entirety of the trial is clearly wanting. From the
outset, it must be noted that Garcia obtained a total of 41,900 votes as compared to Papas
36,539. However, respondent based his decision to proclaim Papa the winner of the 1995 elections on
the basis of the NBI reports which recommended the deduction of 12,734 votes from Garcia's total
votes of 41,900 (per revision report), and 3,809 votes from Papas total votes of 36, 539 (per revision
report). Deducting 12,734 votes from Garcias votes would give him a total of 29,166; while deducting
3,809 votes from Papas votes would result in him getting a total of 32,730 votes. This will wipe out
Garcias edge of 5,361 and give Papa a judge-made plurality of 3,564 votes.

A more careful perusal of the data contained in the NBI reports would have shown a different
outcome. Upon analyzing the NBI report, it should have been apparent to respondent that the actual
count of the listed Garcia-manufactured ballots (GMB) to be deducted is 12,388 votes. This would have
resulted in a total of 29,512 votes for Garcia as compared to 32,730 for Papa. It must also be noted that
there were 3,049 votes for Garcia which were not counted because these were considered stray votes,
there having been another candidate surnamed Garcia. This other candidate was, however, declared a
nuisance candidate. Upon adding these 3,049 alleged stray Garcia votes to Garcias 29,512, we get a total
of 32,561 votes for Garcia as compared to 32,730 for Papa. This would have given Papa only a margin of
169 votes. This close margin between the two candidates should have given respondent reason enough
to subject the NBI Reports to closer scrutiny. It should be noted that respondent had already transferred
the questioned ballot boxes to another RTC sala on June 5, 1997, 21 days before he received the reports
and recommendation of the NBI. This fact made it impossible for him to form a proper basis for his
decision, as clearly, there was no way for him to ascertain the veracity of the NBI Reports. Section 255 of
the Omnibus Election Code requires that, where allegations in a protest or counter-protest so warrant,
or whenever in the opinion of the court the interests of justice so require, it shall immediately order the
book of voters, ballot boxes and their keys, ballots and other documents used in the election be brought
before it and that the ballots be examined and the votes recounted.

In this case, respondent was remiss in examining the questioned ballots despite the wrong figures,
computations, and typographical errors and mistakes present in the NBI Reports. Notwithstanding these
errors, respondent based his decision solely on the conclusions and findings of the NBI.

Respondents obvious partiality for Papa is further bolstered by his acts during the promulgation of
judgment on August 27, 1997. The facts show that respondent did not set the NBI Reports for hearing,
nor was Garcia allowed to confront the NBI officials concerned. He did not even allow Garcia to get
copies of the reports until after the promulgation of the decision on August 27, 1997, and this, only after
the COMELEC had ordered respondent to do so on August 26, 1997. In fact, the only time Garcias
counsel was able to study the two reports of the NBI consisting of 53 and 17 pages, respectively, was
five minutes before the promulgation of judgment. Respondents justification that he alone should have
copies of the reports since these were court-sponsored and the request did not emanate from either of
the parties, is an explanation which this Court finds hard to accept.

Judge Estrellas obvious bias became even more apparent when he granted the motion for execution
pending appeal filed by Papa on the day of promulgation of judgment, August 27, 1997. What is
disturbing is that said motion was dated August 26, 1997, a day before the scheduled promulgation,
indicating that Papa had prior knowledge of a decision favorable to him.

On this score, we find pertinent our ruling in the recent case of Evelyn Agpalasin vs. Judge Ernesto M.
Agcaoili, (A.M. No. RTJ-95-1308, April 12, 2000), that:

A judge should, in pending or prospective litigation before him, be scrupulously careful to avoid such
action as may reasonably tend to waken the suspicion that his social or business relations or friendships
constitute an element in determining his judicial course. He must not only render a just, correct and
impartial decision but should do so in such a manner as to be free from any suspicion as to his fairness,
impartiality and integrity. A decision which correctly applies the law and jurisprudence will nevertheless
be subject to questions of impropriety when rendered by a magistrate or tribunal believed to be less
than impartial and honest.

We also find credence in the COMELEC resolution promulgated on January 5, 1998 which observed that
it was physically impossible for the NBI document examiners to have examined over 16,000 ballots and
to have come out with an accurate finding. Declared thus the COMELEC:

In the case at bench, the NBI necessarily examined xerox copies of 14,664 ballots from 713 precincts and
without the guidance of objections from revisors, the NBI document examiner, on his own initiative and
determination, sorted out as written by one person 12,274 ballots in six (6) groups. This was done in a
record time of less than two (2) months, from March 31, 1997 to May 19, 1997.

As we know, standard document examination procedure requires the examination of original


documents (ballots, in this case) not photocopies. Other than this, invalidating ballots not objected to by
the revisors in the revision report, as pointed out, is not sanctioned by the rules on revision and
appreciation of ballots.

To conduct this kind of examination, involving enormous number of ballots, is almost impossible to
accomplish. One would have to spread the 14,664 ballots from 713 precincts beside each other, in a
floor or table space bigger than the size of a basketball court, and by going over those thousands of
ballots, pick at random groups of ballots six groups in all and, by examining them, reach a conclusion
that the ballots in each of these groups were written by one person. Common sense dictates that this is
simply an impossible procedure. And we are not convinced that through this method, the NBI could
correctly and with scientific precision invalidate 12,724 ballots of the protestee.

Indubitably, the foregoing have raised the suspicion of partiality on the part of respondent. Verily, a
judge must promote public confidence in the integrity and impartiality of the judiciary. These stringent
standards are intended to assure parties of just and equitable decisions and of a judiciary that is capable
of dispensing impartial justice in every issue in every trial (Abundo vs. Manio, Jr., 312 SCRA 1 [1999]).

WHEREFORE, Judge Santiago G. Estrella is hereby found guilty of serious misconduct, partiality, and
inexcusable negligence, and is ordered to pay a fine in the amount of Twenty Thousand Pesos
(P20,000.00), with the stern warning that any similar misconduct on his part in the future will be dealt
with more severely.

SO ORDERED.

Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

39. Meralco vs. Pasay Transportations Co., 57 Phil. 600 (1932)

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-37878 November 25, 1932

MANILA ELECTRIC COMPANY, petitioner,


vs.
PASAY TRANSPORTATION COMPANY, INC., ET AL., respondents.

Ross, Lawrence & Selph for petitioner.


Rivera & Francisco for respondent Pasay Transportation Co.
P. A. Remigio for respondent E. B. Gutierrez. A. M. Zarate for respondent Raymundo Transportation Co.
Vicente Ampil for respondent J. Ampil.

MALCOLM, J.:

The preliminary and basic question presented by the petition of the Manila Electric Company,
requesting the members of the Supreme Court, sitting as a board of arbitrators, to fix the terms upon
which certain transportation companies shall be permitted to use the Pasig bridge of the Manila Electric
Company and the compensation to be paid to the Manila Electric Company by such transportation
companies, relates to the validity of section 11 of Act No. 1446 and to the legal right of the members of
the Supreme Court, sitting as a board of arbitrators, to act on the petition. Act No. 1446 above referred
to is entitled. "An Act granting a franchise to Charles M. Swift to construct, maintain, and operate an
electric railway, and to construct, maintain, and operate an electric light, heat, and power system from a
point in the City of Manila in an easterly direction to the town of Pasig, in the Province of Rizal." Section
11 of the Act provides: "Whenever any franchise or right of way is granted to any other person or
corporation, now or hereafter in existence, over portions of the lines and tracks of the grantee herein,
the terms on which said other person or corporation shall use such right of way, and the compensation
to be paid to the grantee herein by such other person or corporation for said use, shall be fixed by the
members of the Supreme Court, sitting as a board of arbitrators, the decision of a majority of whom
shall be final."

When the petition of the Manila Electric Company was filed in this court, it was ordered that the
petitioner be required to serve copies on the Attorney-General and the transportation companies
affected by the petition. Thereafter, the Attorney-General disclaimed any interest in the proceedings,
and opposition was entered to the petition by a number of public utility operators. On the submission of
memoranda after an oral hearing, the petition was made ready for resolution.

Examining the statutory provision which is here invoked, it is first noted that power is attempted to be
granted to the members of the Supreme Court sitting as a board of arbitrators and to the Supreme
Court as an entity. It is next seen that the decision of a majority of the members of the Supreme Court is
made final. And it is finally observed that the franchise granted the Manila Electric Company by the
Government of the Philippine Islands, although only a contract between the parties to it, is now made to
effect the rights of persons not signatories to the covenant.

The law calls for arbitration which represents a method of the parties' own choice. A submission to
arbitration is a contract. The parties to an arbitration agreement may not oust the courts of jurisdiction
of the matters submitted to arbitration. These are familiar rules which find support in articles 1820 and
1821 of the Civil Code. Citation of authority is hardly necessary, except that it should be recalled that in
the Philippines, and in the United States for that matter, it has been held that a clause in a contract,
providing that all matters in dispute between the parties shall be referred to arbitrators and to them
alone, is contrary to public policy and cannot oust the courts of jurisdiction (Wahl and
Wahl vs. Donaldson, Sims & Co. [1903], 2 Phil., 301; Puentebella vs. Negros Coal Co. [1927], 50 Phil., 69;
Vega vs. San Carlos Milling Co. [1924], 51 Phil., 908; District of Columbia vs. Bailey [1897], 171 U. S.,
161.)
We would not be understood as extending the principles governing arbitration and award too far.
Unless the arbitration agreement is such as absolutely to close the doors of the courts against the
parties, the courts should look with favor upon such amicable arrangements. We can also perceive a
distinction between a private contract for submission to arbitration and agreements to arbitrate falling
within the terms of a statute enacted for such purpose and affecting others than the parties to a
particular franchise. Here, however, whatever else may be said in extenuation, it remains true that the
decision of the board of arbitrators is made final, which if literally enforced would leave a public utility,
not a party to the contract authorized by Act No. 1446, without recourse to the courts for a judicial
determination of the question in dispute.

Counsel for the petitioner rely principally on the case of Tallassee Falls Mfg. Co. vs. Commissioner's
Court [1908], 158 Ala., 263. It was there held that an Act of a state legislature authorizing the
commissioners' court of a certain county to regulate and fix the rate of toll to be charged by the owners
of a bridge is not unconstitutional as delegating legislative power to the courts. But that is not the
question before us. Here the question is not one of whether or not there has been a delegation of
legislative authority to a court. More precisely, the issue concerns the legal right of the members of the
Supreme Court, sitting as a board of arbitrators the decision of a majority of whom shall be final, to act
in that capacity.

We run counter to this dilemma. Either the members of the Supreme Court, sitting as a board of
arbitrators, exercise judicial functions, or the members of the Supreme Court, sitting as board of
arbitrators, exercise administrative or quasi judicial functions. The first case would appear not to fall
within the jurisdiction granted the Supreme Court. Even conceding that it does, it would presuppose the
right to bring the matter in dispute before the courts, for any other construction would tend to oust the
courts of jurisdiction and render the award a nullity. But if this be the proper construction, we would
then have the anomaly of a decision by the members of the Supreme Court, sitting as a board of
arbitrators, taken therefrom to the courts and eventually coming before the Supreme Court, where the
Supreme Court would review the decision of its members acting as arbitrators. Or in the second case, if
the functions performed by the members of the Supreme Court, sitting as a board of arbitrators, be
considered as administrative or quasi judicial in nature, that would result in the performance of duties
which the members of the Supreme Court could not lawfully take it upon themselves to perform. The
present petition also furnishes an apt illustration of another anomaly, for we find the Supreme Court as
a court asked to determine if the members of the court may be constituted a board of arbitrators, which
is not a court at all.lawphil.net

The Supreme Court of the Philippine Islands represents one of the three divisions of power in our
government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just as
the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any
other department of the government, so should it as strictly confine its own sphere of influence to the
powers expressly or by implication conferred on it by the Organic Act. The Supreme Court and its
members should not and cannot be required to exercise any power or to perform any trust or to assume
any duty not pertaining to or connected with the administering of judicial functions.

The Organic Act provides that the Supreme Court of the Philippine Islands shall possess and exercise
jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by
law (sec. 26). When the Organic Act speaks of the exercise of "jurisdiction" by the Supreme Court, it
could not only mean the exercise of "jurisdiction" by the Supreme Court acting as a court, and could
hardly mean the exercise of "jurisdiction" by the members of the Supreme Court, sitting as a board of
arbitrators. There is an important distinction between the Supreme Court as an entity and the members
of the Supreme Court. A board of arbitrators is not a "court" in any proper sense of the term, and
possesses none of the jurisdiction which the Organic Act contemplates shall be exercised by the
Supreme Court.lawph!l.net

In the last judicial paper from the pen of Chief Justice Taney, it was said:

The power conferred on this court is exclusively judicial, and it cannot be required or authorized to
exercise any other. . . . Its jurisdiction and powers and duties being defined in the organic law of the
government, and being all strictly judicial, Congress cannot require or authorize the court to exercise
any other jurisdiction or power, or perform any other duty. . . . The award of execution is a part, and an
essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the
legal sense of the term, without it. Without such an award the judgment would be inoperative and
nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would
remain a dead letter, and without any operation upon the rights of the parties, unless Congress should
at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such
is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the
whole power that the court is allowed to exercise under this act of Congress. . . . And while it executes
firmly all the judicial powers entrusted to it, the court will carefully abstain from exercising any power
that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution. . . .
(Gordon vs. United States [1864], 2 Wall., 561; 117 U. S., 697 Appendix.)

Confirming the decision to the basic question at issue, the Supreme Court holds that section 11 of Act
No. 1446 contravenes the maxims which guide the operation of a democratic government
constitutionally established, and that it would be improper and illegal for the members of the Supreme
Court, sitting as a board of arbitrators, the decision of a majority of whom shall be final, to act on the
petition of the Manila Electric Company. As a result, the members of the Supreme Court decline to
proceed further in the matter.

Avanceña, C.J., Street, Villamor, Ostrand, Villa-Real, Abad Santos, Hull, Vickers, Imperial and Butte, JJ.,
concur.

40. Garcia vs. Macaraig, 39 SCRA 106 (1971)

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

A.M. No. 198-J May 31, 1971


PAZ M. GARCIA, complainant,
vs.
HON. CATALINO MACARAIG, JR., respondent.

RESOLUTION

BARREDO, J.:

Administrative complaint filed by one Paz M. Garcia against the Honorable Catalino Macaraig, Jr.,
formerly Judge of the Court of First Instance of Laguna, Branch VI, now Undersecretary of Justice, in his
former capacity as judge, for alleged "dishonesty, violation of his oath of office as judge ... gross
incompetence, violation of Republic Act 296 or the Judiciary Act of 1948, as amended, (particularly)
Sections 5, 55 and 58 thereof, committed (allegedly) as follows:

2. That from July 1, 1970 up to February 28, 1971 inclusive, as such incumbent Judge, respondent
herein, has not submitted his monthly reports containing the number of cases filed, disposed of, decided
and/or resolved, the number of cases pending decisions for one month, two months to over three
months, together with the title, number, number of hours of court session held a day, etc., as evidenced
by the certificate issued by Hon. Eulalio D. Pichay, Judicial Superintendent, Dept. of Justice, copy of
which is hereto attached as Annex "A", Item No. 1, in violation of Circular No. 10 of the Dept. of Justice
dated February 6, 1952, copy of which is hereto attached as Annex "B";

3. That he has not submitted his certificate of service (New Judicial Form No. 86, Revised 1966) from July
to December, 1970 and from January to February, 1971 inclusive as evidenced by the certificate issued
by Judge Pichay, Judicial Superintendent, Dept. of Justice Annex "A", Item No. 2 thereof;

4. That as incumbent Judge of Branch VI, Court of First Instance of Laguna and San Pablo and knowing
fully well that he has never performed his official duties or discharged the duties appertaining to his
office, he has collected and was paid his salaries from July to December, 1970 and from January to
February 1971 as evidenced by the certificate issued by the cashier Mrs. Santos of the Department of
Justice hereto attached as Annex "C" and the certificate of Mr. Pichay Annex "A", last paragraph thereof,
aggravated by his repeated failure to submit the certificate of service in flagrant violation of action 5 of
the Judiciary Act of 1948 as amended which provides as follows:

... District judges, judges of City Courts, and municipal Judges shall certify on their application for leave,
and upon salary vouchers presented by them for payment, or upon the payrolls upon which their
salaries are paid, that all special proceedings, applications, petitions, motions, and all civil and criminal
cases which have been under submission for decision or determination for a period of ninety days or
more have been determined and decided on or before the date of making the certificate and ... no
salary shall be paid without such certificate' (Emphasis supplied).

5. That his deliberate failure to submit the monthly reports from July to December, 1970 and from
January, 1971 to February, 1971 stating therein the number of hours of session that the Court holds
daily, the accomplishments of the Court constitutes a clear violation of Sections 55 and 58 of the
Judiciary Act of 1948, as amended.
6. That by his deliberate violation of his Oath of Office as a District Judge of the Court of First Instance of
Laguna and San Pablo, Branch VI he has manifested such moral bankruptcy as to deny his fitness to
perform or discharge official duties in the administration of justice.

7. That on June 29, 1970, respondent Judge wrote to the Honorable Secretary of Justice informing him
that he was entering upon the performance of his duties, which letter of his reads in full:

'I have the honor to inform you that I am entering upon the performance of the duties of the office of
Judge of the Court of First Instance of Laguna and San Pablo City (Branch VI) today, June 29, 1970.'

That such actuation of deliberately telling a deliberate falsehood aggravates his moral bankruptcy
incompatible to the requirements of the highest degree of honesty, integrity and good moral character
appertaining to holding the position of Judge in the administration of justice.

Upon being so required, in due time, respondent filed an answer alleging pertinently that:

THE FACTS

Respondent took his oath as Judge of the Court of First Instance of Laguna and San Pablo City with
station at Calamba on June 29, 1970. The court, being one of the 112 newly created CFI branches, had to
be organized from scratch. After consultations with the officials of the province of Laguna, the
municipality of Calamba and the Department of Justice, respondent decided to accept the offer of the
Calamba Municipal Government to supply the space for the courtroom and offices of the court; to utilize
the financial assistance promised by the Laguna provincial government for the purchase of the
necessary supplies and materials; and to rely on the national government for the equipment needed by
the court (Under Section 190 of the Revised Administrative Code, all these items must be furnished by
the provincial government. The provincial officials of Laguna, however, informed the respondent that
the province was not in a position to do so).

As to the space requirements of the court, the Municipal Mayor of Calamba assured the respondent that
the court could be accommodated in the west wing of the Calamba municipal building as soon as the
office of the municipal treasurer and his personnel are transferred to another location. When the
projected transfer of the municipal treasurer's office was about to be effected, the treasurer and several
municipal councilors objected. The municipal mayor then requested the respondent to look over some
of the office spaces for rent in Calamba, with the commitment that the municipal government will
shoulder the payment of the rentals. Respondent's first choice was the second floor of the Republic
Bank branch in Calamba, but the negotiations failed when the owner of the building refused to reduce
the rent to P300 a month. The next suitable space selected by respondent was the second floor of the
Laguna Development Bank. After a month's negotiations, the municipality finally signed a lease
agreement with the owner on October 26, 1970. Another month passed before the municipal
government could release the amount necessary for the improvements to convert the space that was
rented, which was a big hall without partitions, into a courtroom and offices for the personnel of the
court and for the assistant provincial fiscal. Thereafter, upon respondent's representations, the
provincial government appropriated the amount of P5,000 for the purchase of the supplies and
materials needed by the court. Early in December, 1970 respondent also placed his order for the
necessary equipment with the Property Officer of the Department of Justice but, unfortunately, the
appropriation for the equipment of courts of first instance was released only on December 23, 1970 and
the procurement of the equipment chargeable against this allotment is still under way (please see
enclosed certification of the Financial Officer of the Department of Justice marked Annex "A").

"When respondent realized that it would be sometime before he could actually preside over his court,
he applied for an extended leave (during the 16 years he had worked in the Department of Justice,
respondent had, due to pressure of duties, never gone on extended leave, resulting in his forfeiting all
the leave benefits he had earned beyond the maximum ten months allowed by the law). The Secretary
of Justice, however, prevailed upon respondent to forego his leave and instead to assist him, without
being extended a formal detail, whenever respondent was not busy attending to the needs of his court.

"Charges Have No Basis -- .

"Complainant has charged respondent with dishonesty, violation of his oath of office, grave
incompetence and violation of Sections 5, 55 and 58 of the Judiciary Act.

"It is respectfully submitted that -- .

"A. Respondent's inability to perform his judicial duties under the circumstances mentioned above does
not constitute incompetence. Respondent was like every lawyer who gets his first appointment to the
bench, eager to assume his judicial duties and rid himself of the stigma of being 'a judge without a sala',
but forces and circumstances beyond his control prevented him from discharging his judicial duties.

"B. Respondent's collection of salaries as judge does not constitute dishonesty because aside from the
time, effort and money he spent in organizing the CFI at Calamba, he worked in the Department of
Justice (please see enclosed certification of Undersecretary of Justice Guillermo S. Santos marked Annex
'B'). Indeed, even if respondent did no more than exert efforts to organize his court, he could, as other
judges have done, have collected his salaries as judge without being guilty of dishonesty.

"Incidentally, when respondent took his oath as CFI judge which position then carried a salary of
P19,000 per annum, he automatically ceased to be Chief of the Technical Staff of the Department of
Justice and Member of the Board of Pardons and Parole, positions from which he was receiving P16,200
and P8,000 per annum, respectively. Also, in anticipation of the judicial duties which he was about to
assume, respondent took a leave of absence from his professorial lecturer's duties in the U.P. College of
Law where he was receiving approximately P600 a month.

"C. Sections 5, 55 and 58 of the Judiciary Act and Circular No. 10 dated February 6, 1952 of the
Department of Justice are not applicable to a Judge not actually discharging his judicial duties.

"The Department of Justice has never required judges who have not actually started, to perform their
judicial duties to comply with the abovementioned statutory-provisions and circular (please see
enclosed certification of Judge Eulalio D. Pichay, Judicial Superintendent, marked Annex 'C').

"Moreover, a reading of these sections and circular makes evident the folly of requiring a judge who has
not entered into the Performance of his judicial duties to comply with them. Taking Section 5, how could
a judge who has not started to discharge his judicial duties certify that 'all special proceedings,
applications, petitions, motions, and all civil and criminal cases, which have been under submission for
decision or determination for a period of ninety days or more have been determined and decided on or
before the date of making the certificate.' And bow could such a judge hold court in his place of
permanent station as required by Section 55; observe the hours of daily sessions of the court as
prescribed by Section 58; and render the reports required by Circular No. 10 when his court is not yet in
physical existence Clearly, therefore, Sections 5, 55 and 58 of the Judiciary Act and Circular No. 10
cannot apply to such a judge." .

In view of the nature of the allegations of complainant and respondent in their respective complaint and
answer and considering, in the light thereof, that the material facts are more or less undisputed, the
Court feels that this case can be disposed of without any further proceeding.

After mature study and deliberation, the Court is convinced that the complaint must be dismissed. To
begin with, We cannot discern any tinge of dishonesty in the actuations for the respondent complained
of. As We see it, the situation is not exactly as complainant has attempted to portray it. Complainant's
theory is that respondent collected or received salaries as judge when in fact he has never acted as such,
since the date he took his oath up to the filing of the complaint. In the sense that respondent has not yet
performed any judicial function, it may be admitted that respondent has not really performed the duties
of judge. What is lost sight of, however, is that after taking his oath and formally assuming this position
as judge, respondent had a perfect right to earn the salary of a judge even in the extreme supposition
that he did not perform any judicial function for he could, while preparing himself for his new job or for
any good reason, take a leave, as in fact, he had planned to do, were it not for the request of the
Secretary of Justice for him to forego the idea and, instead, help the Department in whatever way
possible which would not, it must be presumed, impair his position as a judge. This is more so, when, as
in this case, the government officials or officers in duty bound to furnish him the necessary place and
facilities for his court and the performance of his functions have failed to provide him therewith without
any fault on his part. That respondent took it upon himself to personally work for early action on the
part of the corresponding officials in this direction and, in his spare time, made himself available to the
Department of Justice to assist the Secretary, what with his vast experience, having worked therein for
sixteen years, is, far from being dishonesty, to his credit. In the circumstances, it was certainly not
improper that he rendered some kind of service to the government, since he was receiving salaries,
while being unable to perform his regular duties as judge without any fault on, his part. As to whether or
not in doing so he, placed in jeopardy the independence of the judiciary and failed to act according to
the correct norm of conduct which a judge should observe vis-a-vis service to the other departments of
the government will be discussed a non. At this juncture, the only point We settle is that complainant's
theory of dishonesty cannot hold water.

Admittedly respondent has not prepared and submitted any of the reports of accomplishments and
status of cases in his sala which are usually required of judges under existing laws as well as the
corresponding circulars of the Department of Justice. The reason is simple. He has not yet started
performing any judicial functions. None of those laws and circulars apply to him for all of them
contemplate judges who are actually holding trials and hearings and making decisions and others. On
the other hand, respondent Could not be blamed for taking his oath as he did, for he had a valid
confirmed appointment in his favor. In other words, he simply made himself available for the purpose
for which he was appointed. That he could not actually hold office in the court to which he was
appointed was not of his making. The other officials in charge of providing him therewith seem to have
been caught unprepared and have not had enough time to have it read. Conceivably, under the law,
with the permission of this Court, respondent could have been assigned to another court pending all
these preparations, but that is something within the initiative control of the Secretary of Justice and nor
of the respondent.
Of course, none of these is to be taken as meaning that this Court looks with favor at the practice of long
standing to be sure, of judges being detailed in the Department of Justice to assist the Secretary even if
it were only in connection with his work of exercising administrative authority over the courts. The line
between what a judge may do and what he may not do in collaborating or working with other offices or
officers under the other great departments of the government must always be kept clear and jealously
observed, least the principle of separation of powers on which our government rests by mandate of the
people thru the Constitution be gradually eroded by practices purportedly motivated by good intentions
in the interest of the public service. The fundamental advantages and the necessity of the independence
of said three departments from each other, limited only by the specific constitutional precepts a check
and balance between and among them, have long been acknowledged as more paramount than the
serving of any temporary or passing governmental conveniences or exigencies. It is thus of grave
importance to the judiciary under our present constitutional scheme of government that no judge or
even the lowest court in this Republic should place himself in a position where his actuations on matters
submitted to him for action or resolution would be subject to review and prior approval and, worst still,
reversal, before they can have legal effect, by any authority other than the Court of Appeals or this
Supreme Court, as the case may be. Needless to say, this Court feels very strongly that, it is best that this
practice is discontinued.

WHEREFORE, the herein administrative complaint is hereby dismissed. Let a copy of this resolution be
furnished the Secretary of Justice.

Concepcion, Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Villamor, JJ., concur.

Castro and Teekankee, JJ., took no part.

Fernando, J., concurs fully and in addition submits a brief separate opinion. Makasiar, J., concurs with
the opinion Mr. Justice Fernando.

FERNANDO, J., concurring: .

I join the rest of my brethren in yielding concurrence to the ably-written opinion of Justice Barredo.
Respondent Judge clearly should be exculpated of the charge filed against him. What is more the
opinion of the Court possesses the merit of setting forth in forthright and unequivocal language the
disapproval of the practice hitherto followed of having members of the judiciary perform non-judicial
functions. There is no doubt to my mind of its repugnancy to the fundamental concept of separation of
power. It is to that aspect of the question as well as what, to my mind, is the doubtful constitutionality
of allowing the Secretary of Justice to exercise supervisory authority over lower court judges that this
brief concurring opinion addresses itself.

1. The doctrine of separation of powers, a basic concept under our Constitution, 1 embodies the
principle of a tripartite division of governmental authority entrusted to Congress, the President, and the
Supreme Court as well as such inferior courts as may be created by law. Three departments of
government are thus provided for, the legislative vested with the lawmaking function, the executive
with the enforcement of what has been thus enacted, and the judiciary with the administration of
justice, deciding cases according to law. 2 The reason for such a doctrine is to assure liberty, no one
branch being enabled to arrogate unto itself the whole power to govern and thus in a position to impose
its unfettered will. If it were so, the rights of the individual could with impunity be disregarded; he could
be placed at its mercy. The three departments are coordinate and co-equal, each having exclusive
cognizance of matters within its jurisdiction and supreme in its own sphere. That is to guarantee
independence, no interference being allowed on matters left to the exclusive concern of each. Much
less is control by only one of the three departments of any or both of the others permissible. 3 .

It is to be admitted that the realities of government preclude the independence of each of the
departments from the other being absolute. This is so especially as between the legislative and
executive departments. What the former enacts, the latter implements. To paraphrase Roosevelt, the
letter of the Constitution requires a separation, but the impulse of a common purpose compels
cooperation. It could be carried to the extent of such powers being blended, without undue danger to
liberty as proved by countries having the parliamentary forms of government. This is especially so in
England and in Switzerland, where the tradition of freedom possesses strength and durability. It does
not admit of doubt, however, that of the three branches, the judiciary is entrusted with a function the
most sensitive and delicate. It passes upon controversies and disputes not only between citizens but
between citizens and government, the limits of whose authority must be respected. In a system like
ours, every exercise of governmental competence, whether coming from the President or from the
lowest official, may be challenged in court in an appropriate legal proceeding. This is an aspect of the
theory of cheeks and balance likewise provided for in the Constitution. 4 It is thus indispensable that
judicial independence should, by all means, be made secure. Not only that. The feeling that judges are
not in any way subject to the influence of the executive and legislative branches must be pervasive;
otherwise, there would be loss of confidence in the administration of justice. With that gone, the rule of
law is placed in dire peril.

Nor is the force, to my mind, of the preceeding observation blunted by the recognition that there could
be no precise delineation of the respective competence alloted the legislative, the executive and the
judicial departments under the Constitution. Necessarily, overlapping and interlacing of functions could
not entirely be avoided. For as observed by Justice Holmes in his famous dissent in a case of Philippine
origin, "The great ordinances of the Constitution do not establish and divide fields of black and white.
Even the more specific of them are found to terminate in a penumbra shading gradually from one
extreme to the other... When we come to the fundamental distinctions it is still more obvious that they
must be received with a certain latitude or our government could not go on." 6 Further on, he added: "It
does not seem to need argument to show that however we may disguise it by veiling words we do not
and cannot carry out the distinction between legislative and executive action with mathematical
precision and divide the branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires." 7 .

2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor,
the practical demands of government precluding its doctrine application, it cannot justify a member of
the judiciary being requited to assume a position or perform a duty non-judicial in character. That is
implicit in the principle. Otherwise there is a plain departure from its command. The essence of the trust
reposed in him is to decide. Only a higher court, as was emphasized by Justice Barredo, can pass on his
actuation. He is not a subordinate of an executive or legislative official, however eminent. It is
indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be
confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance of
respect for the judiciary can be satisfied with nothing less.
It is opposite to quote from an opinion of Justice Cardozo, as Chief Judge of "the New York Court of
Appeals," when that Court nullified a section of a New York statute that would vest in a justice of its
Supreme Court the power to investigate at the instance of its governor. His opinion explained why: "He
is made the delegate Of the Governor in aid of an executive act, the removal of a public officer... At the
word of command he is give over the work of judging, and set himself to other work, the work of
probing and advising. His findings when made will have none of the authority of a judgment. To borrow
Bacon's phrase, they will not 'give the rule or sentence.' They will not be preliminary or ancillary to any
rule or sentence to be pronounced by the judiciary in any of its branches. They will be mere advice to
the Governor, who may adopt them, or modify them, or reject them altogether. From the beginnings of
our history, the Principle has been enforced that there is no inherent power in Executive or Legislature
to charge the judiciary with administrative functions except when reasonably incidental to the
fulfillment of judicial duties... The exigencies of government have made it necessary to relax as merely
doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible
approximation, as that of the separation of powers. Elasticity has not meant that what is of the essence
of the judicial function may be destroyed by turning the power to decide into a pallid opportunity to
consult and recommend ..." 9.

Our holding today has been foreshadowed in Noblejas v. Teehankee," 10 a 1968 decision, Justice J.B.L.
Reyes, who penned the opinion, first referred to the above Richardson decision as well as to Federal
Radio Commission v. General Electric Co.",. It went on to state: "In this spirit, it has been held that the
Supreme Court of the Philippines and its members should not and cannot be required to exercise any
power or to perform any trust or to assume any duty not pertaining to or connected with the
administration of judicial functions; and a law requiring the Supreme Court to arbitrate disputes
between public utilities was pronounced void in Manila Electric Co. vs. Pasay Transportation Co. (57 Phil.
600)." 12 It is clear from the above Noblejas decision that even prior to the motion there was a
commitment to the principle that a member of the judiciary cannot be asked non-judicial functions. For
in Manila Electric Co. vs. Pasay Transportation Co., 13 mentioned therein, Justice Malcolm , speaking for
this Court, was quite explicit. Thus Supreme Court and its members cannot be required to exercise any
power any trust or to assume any duty not pertaining to or connected with the administering of judicial
functions." 14 .

3. Nonetheless, as now decided, respondent Judge Macaraig should not be held in any wise
accountable. No taint of bad faith can be attached to his conduct. What he was required to do was in
accordance with the practice herefore followed by the Department of Justice. He is, under the statute in
force, under the administrative supervision of its head. Nor can the good faith of Secretary of Justice
Abad Santos be impugned. What was done by him was likewise in accordance with what previous
secretaries of justice were accustomed to do. The root of the evil then is the statutory authority of the
Department of Justice over Court of first instance and other inferior courts.15 While a distinction could
be made between the performance of judicial functions which in no way could be interfered with by the
Department and the task of administration which is executive in character, still the conferment of such
competence to a department head, an alter ego of the President, is, to my mind, only unwise but of
doubtful constitutionality. For in issuing administrative rules and regulations over matters deemed non-
judicial, they may trench upon the discretion of judges which should be exercised according to their
conscience alone. What is more, the influence that the Secretary has over them, is magnified. It is
already unavoidable under our scheme of government that they court his goodwill; their promotion may
at times depend on it. With this grant of authority, the assertion of independence becomes even more
difficult. It is thus objectionable in principle and pernicious in operation. That certainly is not the way to
reduce to the minimum any participation of the executive in judicial affairs arising from the power to
appoint. As it is, even when the government as the adverse party in criminal cases, tax suits, and other
litigations is in the right, a favorable decision from the lower courts could be looked upon with suspicion.
The judiciary must not only be independent; it must appear to be so.

The presence in the statute books of such power of administrative oversight then, is, to my mind,
anomalous. More specifically, were it not for such power granted the department head, respondent
Judge in this case could not have been called upon to assist the Secretary of Justice. Considering that the
Constitutional Convention is about to meet, it is to be hoped that it be made clear that the judiciary is to
be totally freed from any supervisory authority of an executive department.

1 Cf. "The separation of powers is a fundamental principle in our system of government." Angara v.
Electoral Commission, 63 Phil. 139, 156 (1936) per Laurel, J.

2 Law covers not only statutes but likewise, treaties, executive orders to implement statutes, and
ordinances, municipal corporations being delegated with the competence of legislating over local affairs.

3 Cf. Luzon Stevedoring Corp. v. Social Security Commission, L-26175, July 31, 1970, 34 SCRA 178.

4 As pointed out by Justice Laurel in the previously cited Angara decision, the President may approve or
disapprove legislation, his veto however being subject to be overriden; he may convene the legislative
body in special sessions. Congress may confirm or reject Presidential appointments; it may apportion
the jurisdiction of the courts and determine what funds to appropriate for their support; it may impeach
certain officials; and lastly as far as the judiciary is concerned, it has the power of judicial review
enabling it to annul executive or legislative acts.

5 Springer v. Government of the Philippine Islands, 277 US 189 (1928).

6 Ibid., pp. 209-210..

7 Ibid., p. 211.

8 In re Richardson, 160 NE 655 (1928).

9 Cf. Hayburns Case, 2 Dall 409 (1792); United States v. Ferreira 13 How. 40 (1851); Gordon v. United
States, 117 US 697 (1865); Matter of Sanborn 148 US 222b (1893); Interstate Commerce Commission v.
Brimson, 154 US 447 (1894); Muskrat v. United states, 219 US 346 (1911); Tutun v. United States, 270 US
738 (1926); Liberty Warehouse Co. v. Grannis 273 US 70 (1927).

10 L-28790, April 29, 1968, 23 SCRA 405.

11 281 US 469 (1930).

12 Noblejas v. Teehankee, L-28790, April 29, 1968, 23 SCRA 405, 409-410.

13 57 Phil. 600 (1932).

14 Ibid., p. 605.
15 Section 83, Administrative Code of 1917, as amended, reads as follows: Bureaus and offices under
the Department of Justice. The Department of Justice shall have executive supervision over the Office of
the Solicitor General, the Courts of First Instance and the Inferior Courts, the Public Service Commission,
the Bureau of Prisons, the General Land Registration Office, the Court of Industrial Relations, the
National Bureau of Investigation, the Bureau of Immigration, the Board of Pardons and Parole, the
Deportation Board and the Code Commission. The Office of the Government Corporate Counsel shall be
merged with the Office of the Solicitor General..."

41. Nitafan vs. Commissioner of Internal Revenue, 152 SCRA 284 (1987)

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 78780 July 23, 1987

DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., petitioners,


vs.
COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME COURT OF THE
PHILIPPINES, respondents.

RESOLUTION

MELENCIO-HERRERA, J.:

Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53, respectively,
of the Regional Trial Court, National Capital Judicial Region, all with stations in Manila, seek to prohibit
and/or perpetually enjoin respondents, the Commissioner of Internal Revenue and the Financial Officer
of the Supreme Court, from making any deduction of withholding taxes from their salaries.

In a nutshell, they submit that "any tax withheld from their emoluments or compensation as judicial
officers constitutes a decrease or diminution of their salaries, contrary to the provision of Section 10,
Article VIII of the 1987 Constitution mandating that "(d)uring their continuance in office, their salary
shall not be decreased," even as it is anathema to the Ideal of an independent judiciary envisioned in
and by said Constitution."

It may be pointed out that, early on, the Court had dealt with the matter administratively in response to
representations that the Court direct its Finance Officer to discontinue the withholding of taxes from
salaries of members of the Bench. Thus, on June 4, 1987, the Court en banc had reaffirmed the Chief
Justice's directive as follows:

RE: Question of exemption from income taxation. — The Court REAFFIRMED the Chief Justice's previous
and standing directive to the Fiscal Management and Budget Office of this Court to continue with the
deduction of the withholding taxes from the salaries of the Justices of the Supreme Court as well as from
the salaries of all other members of the judiciary.

That should have resolved the question. However, with the filing of this petition, the Court has deemed
it best to settle the legal issue raised through this judicial pronouncement. As will be shown hereinafter,
the clear intent of the Constitutional Commission was to delete the proposed express grant of
exemption from payment of income tax to members of the Judiciary, so as to "give substance to equality
among the three branches of Government" in the words of Commissioner Rigos. In the course of the
deliberations, it was further expressly made clear, specially with regard to Commissioner Joaquin F.
Bernas' accepted amendment to the amendment of Commissioner Rigos, that the salaries of members
of the Judiciary would be subject to the general income tax applied to all taxpayers.

This intent was somehow and inadvertently not clearly set forth in the final text of the Constitution as
approved and ratified in February, 1987 (infra, pp. 7-8). Although the intent may have been obscured by
the failure to include in the General Provisions a proscription against exemption of any public officer or
employee, including constitutional officers, from payment of income tax, the Court since then has
authorized the continuation of the deduction of the withholding tax from the salaries of the members of
the Supreme Court, as well as from the salaries of all other members of the Judiciary. The Court hereby
makes of record that it had then discarded the ruling in Perfecto vs. Meer and Endencia vs. David,
infra, that declared the salaries of members of the Judiciary exempt from payment of the income tax
and considered such payment as a diminution of their salaries during their continuance in office. The
Court hereby reiterates that the salaries of Justices and Judges are properly subject to a general income
tax law applicable to all income earners and that the payment of such income tax by Justices and Judges
does not fall within the constitutional protection against decrease of their salaries during their
continuance in office.

A comparison of the Constitutional provisions involved is called for. The 1935 Constitution provided:

... (The members of the Supreme Court and all judges of inferior courts) shall receive such compensation
as may be fixed by law, which shall not be diminished during their continuance in office ... 1 (Emphasis
supplied).

Under the 1973 Constitution, the same provision read:

The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of judges of
inferior courts shall be fixed by law, which shall not be decreased during their continuance in office.
... 2 (Emphasis ours).

And in respect of income tax exemption, another provision in the same 1973 Constitution specifically
stipulated:

No salary or any form of emolument of any public officer or employee, including constitutional officers,
shall be exempt from payment of income tax. 3

The provision in the 1987 Constitution, which petitioners rely on, reads:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower
courts shall be fixed by law. During their continuance in office, their salary shall not
be decreased. 4(Emphasis supplied).
The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973
Constitution, for which reason, petitioners claim that the intent of the framers is to revert to the original
concept of "non-diminution "of salaries of judicial officers.

The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII, negate such
contention.

The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:

Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court and of judges
of the lower courts shall be fixed by law. During their continuance in office, their salary shall not be
diminished nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief
Justice shall receive an annual salary of _____________ and each Associate Justice ______________
pesos. 5(Emphasis ours)

During the debates on the draft Article (Committee Report No. 18), two Commissioners presented their
objections to the provision on tax exemption, thus:

MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does this not violate
the principle of the uniformity of taxation and the principle of equal protection of the law? After all, tax
is levied not on the salary but on the combined income, such that when the judge receives a salary and
it is comingled with the other income, we tax the income, not the salary. Why do we have to give special
privileges to the salary of justices?

MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or decrease of their
salary during their term. This is an indirect way of decreasing their salary and affecting the
independence of the judges.

MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the special privilege
on taxation might, in effect, be a violation of the principle of uniformity in taxation and the equal
protection clause. 6

xxx xxx xxx

MR. OPLE. x x x

Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto Concepcion,
for whom we have the highest respect, to surround the Supreme Court and the judicial system as a
whole with the whole armor of defense against the executive and legislative invasion of their
independence. But in so doing, some of the citizens outside, especially the humble government
employees, might say that in trying to erect a bastion of justice, we might end up with the fortress of
privileges, an island of extra territoriality under the Republic of the Philippines, because a good number
of powers and rights accorded to the Judiciary here may not be enjoyed in the remotest degree by other
employees of the government.

An example is the exception from income tax, which is a kind of economic immunity, which is, of course,
denied to the entire executive department and the legislative. 7

And during the period of amendments on the draft Article, on July 14, 1986, Commissioner Cirilo A.
Rigos proposed that the term "diminished" be changed to "decreased" and that the words "nor
subjected to income tax" be deleted so as to "give substance to equality among the three branches in
the government.

Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the original
draft and referred to the ruling of this Court in Perfecto vs. Meer 8 that "the independence of the judges
is of far greater importance than any revenue that could come from taxing their salaries." Commissioner
Rigos then moved that the matter be put to a vote. Commissioner Joaquin G. Bernas stood up "in
support of an amendment to the amendment with the request for a modification of the amendment,"
as follows:

FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it is not enough
to drop the phrase "shall not be subjected to income tax," because if that is all that the Gentleman will
do, then he will just fall back on the decision in Perfecto vs. Meer and in Dencia vs. David [should be
Endencia and Jugo vs. David, etc., 93 Phil. 696[ which excludes them from income tax, but rather I would
propose that the statement will read: "During their continuance in office, their salary shall not be
diminished BUT MAY BE SUBJECT TO GENERAL INCOME TAX."IN support of this position, I would say that
the argument seems to be that the justice and judges should not be subjected to income tax because
they already gave up the income from their practice. That is true also of Cabinet members and all other
employees. And I know right now, for instance, there are many people who have accepted employment
in the government involving a reduction of income and yet are still subject to income tax. So, they are
not the only citizens whose income is reduced by accepting service in government.

Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner Rustico F.
de los Reyes, Jr. then moved for a suspension of the session. Upon resumption, Commissioner Bernas
announced:

During the suspension, we came to an understanding with the original proponent, Commissioner Rigos,
that his amendment on page 6,. line 4 would read: "During their continuance in office, their salary shall
not be DECREASED."But this is on the understanding that there will be a provision in the Constitution
similar to Section 6 of Article XV, the General Provisions of the 1973 Constitution, which says:

No salary or any form of emolument of any public officer or employee, including constitutional officers,
shall be exempt from payment of income tax.

So, we put a period (.) after "DECREASED" on the understanding that the salary of justices is subject to
tax.

When queried about the specific Article in the General Provisions on non-exemption from tax of salaries
of public officers, Commissioner Bernas replied:

FR BERNAS. Yes, I do not know if such an article will be found in the General Provisions. But at any rate,
when we put a period (.) after "DECREASED," it is on the understanding that the doctrine in Perfecto vs.
Meer and Dencia vs. David will not apply anymore.

The amendment to the original draft, as discussed and understood, was finally approved without
objection.

THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will be a provision
under the Article on General Provisions. Could Commissioner Rosario Braid kindly take note that the
salaries of officials of the government including constitutional officers shall not be exempt from income
tax? The amendment proposed herein and accepted by the Committee now reads as follows: "During
their continuance in office, their salary shall not be DECREASED"; and the phrase "nor subjected to
income tax" is deleted.9

The debates, interpellations and opinions expressed regarding the constitutional provision in question
until it was finally approved by the Commission disclosed that the true intent of the framers of the 1987
Constitution, in adopting it, was to make the salaries of members of the Judiciary taxable. The
ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect.10 The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution.11it may
also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.12 1avvphi1

Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is again
reproduced hereunder:

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower
courts shall be fixed by law. During their continuance in office, their salary shall not be decreased.
(Emphasis supplied).

it is plain that the Constitution authorizes Congress to pass a law fixing another rate of compensation of
Justices and Judges but such rate must be higher than that which they are receiving at the time of
enactment, or if lower, it would be applicable only to those appointed after its approval. It would be a
strained construction to read into the provision an exemption from taxation in the light of the discussion
in the Constitutional Commission.

With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of income
tax upon the salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto vs.
Meer,13 as affirmed in Endencia vs. David 14 must be declared discarded. The framers of the fundamental
law, as the alter ego of the people, have expressed in clear and unmistakable terms the meaning and
import of Section 10, Article VIII, of the 1987 Constitution that they have adopted

Stated otherwise, we accord due respect to the intent of the people, through the discussions and
deliberations of their representatives, in the spirit that all citizens should bear their aliquot part of the
cost of maintaining the government and should share the burden of general income taxation equitably.

WHEREFORE, the instant petition for Prohibition is hereby dismissed.

Teehankee, C.J., Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Yap, J., is on leave.

Footnotes
1
Section 9,Articie VIII.
2
Section 10, Article X.
3
Section 6, Article XV, General Provisions.
4
Section 10, Article VIII.
5
Record of the Constitutional Commission, Vol. I, p. 433.
6
Record of the Constitutional Commission, p. 460.
7
Ibid., at page 467,
8
85 Phil. 552 (1950).
9
Record of the Constitutional Commission, Vol. 1, p. 506.
10
Gold Creek Mining Co. vs. Rodriguez, 66 Phil. 259 (1938).
11
J.M. Tuason & Co., Inc. vs. Land Tenure Administration, No. L-21064, February 18, 1970, 31 SCRA 413.
12
Tanada, Fernando, Constitution of the Philippines, Fourth Ed., Vol. 1, p. 21.
13
85 Phil. 552 (1950).
14
93 Phil. 696 (1953).

42. In RE Gonzales, A.M. Nos. 88-4-5433 (April 15, 1988)

EN BANC

[A.M. Nos. 88-4-5433. April 15, 1988.]

IN RE FIRST INDORSEMENT FROM HONORABLE RAUL M. GONZALEZ DATED 16 MARCH 1988


REQUESTING HONORABLE JUSTICE MARCELO B. FERNAN TO COMMENT ON AN ANONYMOUS LETTER-
COMPLAINT.

SYLLABUS

1. CONSTITUTIONAL LAW; IMPEACHMENT; PUBLIC OFFICERS REQUIRED TO BE MEMBERS OF THE


PHILIPPINE BAR CAN BE REMOVED FROM OFFICE BY IMPEACHMENT. — A public officer who under the
Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him
and who may be removed from office only by impeachment, cannot be charged with disbarment during
the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be
charged criminally before the Sandiganbayan or any other court with any offense which carries with it
the penalty of removal from office, or any penalty service of which would amount to removal from
office.

2. ID.; ID.; ID.; RULE APPLIES TO MEMBERS OF THE SUPREME COURT. — A Member of the Supreme
Court must first be removed from office via the constitutional route of impeachment under Sections 2
and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus
terminated by impeachment, he may then be held to answer either criminally or administratively (by
disbarment proceedings) for any wrong or misbehaviour that may be proven against him in appropriate
proceedings.

3. ID.; ID.; ID.; ID.; RATIONALE. — The above rule rests on the fundamental principles of judicial
independence and separation of powers. The rule is important because judicial independence is
important. Without the protection of this rule, Members of the Supreme Court would be vulnerable to
all manner of charges which might be brought against them by unsuccessful litigants or their lawyers or
by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by
the Court.

RESOLUTION

PER CURIAM:

The Court CONSIDERED the 1st Indorsement dated 16 March 1988 from Mr. Raul M. Gonzalez,
"Tanodbayan/Special Prosecutor" forwarding to Mr. Justice Marcelo B. Fernan a "letter-complaint,
dated 14 December 1987 with enclosure of the Concerned Employees of the Supreme Court," together
with a telegram of Miguel Cuenco, for "comment within ten (10) days from receipt hereof." Mr. Justice
Fernan had brought this 1st Indorsement to the attention of the Court en banc in view of the important
implications of policy raised by said 1st Indorsement.

The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by "Concerned
Employees of the Supreme Court" addressed to Hon. Raul M. Gonzalez referring to charges for
disbarment brought by Mr. Miguel Cuenco against Mr. Justice Marcelo B. Fernan and asking Mr.
Gonzalez "to do something about this." The second attachment is a copy of a telegram from Mr. Miguel
Cuenco addressed to Hon. Raul M. Gonzalez, where Mr. Cuenco refers to pleadings he apparently filed
on 29 February 1988 with the Supreme Court in Administrative Case No. 3135, which, in the opinion of
Mr. Cuenco, made improper any "intervention" by Mr. Raul Gonzalez. Mr. Cuenco, nonetheless,
encourages Mr. Gonzalez "to file responsive pleading Supreme Court en banc to comply with Petition
Concerned Employees Supreme Court asking Tanodbayan’s intervention.

The Court DIRECTED the Clerk of Court to FURNISH Mr. Raul M. Gonzalez a copy of the per curiam
Resolution, dated 17 February 1988 of the Court in Administrative Case No. 3135 entitled "Miguel
Cuenco v. Honorable Marcelo B. Fernan" in which Resolution, the Court Resolved to dismiss the charges
made by complainant Cuenco against Mr. Justice Fernan for utter lack of merit. In the same Resolution,
the Court Resolved to require complainant Cuenco to show cause why he should not be administratively
dealt with for making unfounded serious accusations against Mr. Justice Fernan. Upon request of Mr.
Cuenco, the Court had granted him an extension of up to 30 March 1988 within which to file his Motion
for Reconsideration of the Resolution of this Court of 17 February 1988. On 28 March 1988, Mr. Cuenco
filed a pleading which appears to be an omnibus pleading relating to, inter alia, Administrative Case No.
3135. Insofar as Administrative Case No. 3135 is concerned, the Court treated this pleading as a Motion
for Reconsideration. By a per curiam Resolution dated 15 April 1988, the Court denied with finality Mr.
Cuenco’s Motion for Reconsideration.chanrobles virtual lawlibrary

It is important to underscore the rule of constitutional law here involved. This principle may be
succinctly formulated in the following terms: A public officer who under the Constitution is required to
be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed
from office only by impeachment, cannot be charged with disbarment during the incumbency of such
public officer. Further, such public officer, during his incumbency, cannot be charged criminally before
the Sandiganbayan or any other court with any offense which carries with it the penalty of removal from
office, or any penalty service of which would amount to removal from office.

The Court dealt with this matter in its Resolution of 17 February 1988 in Administrative Case No. 3135 in
the following terms:jgc:chanrobles.com.ph

"There is another reason why the complaint for disbarment here must be dismissed. Members of the
Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and
may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for
disbarment of a Member of the Court during the Member’s incumbency, would in effect be to
circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be
removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of
the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies
(Article XI [8] in relation to Article XI [2], id.), a majority of the members of the Commission on Elections
(Article XI [C] [1] [1] in relation to Article XI [2], id. and the members of the Commission on Audit who
are not certified public accountants (Article XI [D] [1] [1], id.), all of whom are constitutionally required
to be members of the Philippine Bar." (Italics supplied)

This is not the first time the Court has had occasion to rule on this matter. In Lecaroz v. Sandiganbayan,
1 the Court said:jgc:chanrobles.com.ph

"The broad power of the New Constitution vests the respondent court with jurisdiction over ‘public
officers and employees, including those in government-owned or controlled corporations.’ There are
exceptions, however, like constitutional officers, particularly those declared to be removed by
impeachment. Section 2, Article XIII of the 1973 Constitution provides:chanrob1es virtual 1aw library

‘Sec. 2. The President, the Members of the Supreme Court, and the Members of the Constitutional
Commissions shall be removed from office on impeachment for, and conviction of, culpable violation of
the Constitution, treason, bribery, other high crimes, or graft and corruption.’

Thus, the above provision proscribes removal from office of the aforementioned constitutional officers
by any other method; otherwise, to allow a public officer who may be removed solely by impeachment
to be charged criminally while holding his office with an offense that carries the penalty of removal from
office, would be violative of the clear mandate of the fundamental law.

Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New Constitution, states that
‘judgment in cases of impeachment shall be limited to removal from office and disqualification to hold
any office of honor, trust, or profit under the Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution trial, and punishment, in accordance with law. The
above provision is a reproduction of what was found in the 1935 Constitution. It is quite apparent from
the explicit character of the above provision that the effect of impeachment is limited to the loss of
position and disqualification to hold any office of honor, trust or profit under the Republic. It is equally
manifest that the party thus convicted may be proceeded against, tried and thereafter punished in
accordance with law. There can be no clearer expression of the constitutional intent as to the scope of
the impeachment process (The Constitution of the Philippines, pp. 465-466).’ The clear implication is,
the party convicted in the impeachment proceeding shall nevertheless be liable and subject to
prosecution, trial and punishment according to law; and that if the same does not result in a conviction
and the official is not thereby removed, the filing of a criminal action ‘in accordance with law’ may not
prosper." 2

The provisions of the 1973 Constitution we referred to above in Lecaroz v. Sandiganbayan are
substantially reproduced in Article XI of the 1987 Constitution:jgc:chanrobles.com.ph

"Sec. 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment.chanrobles lawlibrary : rednad

Sec. 3 . . .

(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution, trial and punishment according to law."cralaw
virtua1aw library

It is important to make clear that the Court is not here saying that its Members or the other
constitutional officers we referred to above are entitled to immunity from liability for possibly criminal
acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehaviour. What the
Court is saying is that there is a fundamental procedural requirement that must be observed before such
liability may be determined and enforced. A Member of the Supreme Court must first be removed from
office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987
Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he
may then be held to answer either criminally or administratively (by disbarment proceedings) for any
wrong or misbehaviour that may be proven against him in appropriate proceedings.

The above rule rests on the fundamental principles of judicial independence and separation of powers.
The rule is important because judicial independence is important. Without the protection of this rule,
Members of the Supreme Court would be vulnerable to all manner of charges which might be brought
against them by unsuccessful litigants or their lawyers or by other parties who, for any number of
reasons might seek to affect the exercise of judicial authority by the Court.

It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu proprio
dismiss any charges brought against a Member of this Court. The remedy of a person with a legitimate
grievance is to file impeachment proceedings.

The Clerk of Court is hereby DIRECTED to serve a copy of this Resolution upon Hon. Raul M. Gonzalez
and Mr. Miguel Cuenco.chanrobles law library : red

Teehankee, (C.J.), Yap, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Fernan, J., no part.

Gutierrez, Jr., J., was absent.

43. Tirol vs. COA, G.R. No. 133954 (August 3, 2000)

EN BANC

[G.R. No. 133954. August 3, 2000]

VICTORIANO B. TIROL, JR. petitioner, vs. COMMISSION ON AUDIT, Region VIII, represented by its
DIRECTOR, Leyte Government Center, Candahug, Palo, Leyte, respondent.

DECISION

DAVIDE, JR., C.J.:

In this petition for review on certiorari under Section 27 of R.A. No. 6770, otherwise known as the
Ombudsman Act of 1989, in relation to Rule 45 of the Revised Rules of Court, petitioner seeks the
reversal of the Resolution[1] of 20 March 1997 and the Order[2] of 5 March 1998 of the Office of the
Ombudsman which, respectively, found petitioner and his co-respondents in OMB-Visayas-Crim-94-0836
criminally culpable for violation of Section 3(g) of R.A. No. 3019,[3] as amended, and denied petitioners
motion for reconsideration of the said Resolution.

Petitioner is the incumbent Regional Director of the Department of Education, Culture and Sports
(DECS), Region V. Prior to such assignment he was the DECS Regional Director of Region VIII. In the latter
capacity, he and some officials of the Lalawigan National High School, Lalawigan, Borongan, Eastern
Samar, were charged with the violation of Section 3(g) of Republic Act No. 3019, as amended, for
entering into a contract alleged to be manifestly and grossly disadvantageous to the government. The
charge originated from a complaint filed by the schools Teachers and Employees Union alleging
overpricing of various school equipment for the Lalawigan National High School. Specifically, petitioners
participation consisted in approving the Requisition and Issue Voucher (RIV) and the check in connection
with the transaction.

On the strength of the complaint, Region VIII of respondent Commission on Audit (COA) audited the
operations and accounts of the Lalawigan National High School. The audit covered the period from 1
January 1990 to 30 April 1993.

Per the audit report,[4] COA found that there was malversation of public funds. It cited the purchase of
certain supplies and equipment which was done through a negotiated contract and not through a
competitive public bidding, contrary to COA Circular No. 85-55A. The circular requires public bidding in
the purchase of supplies, materials and equipment in excess of P50,000, unless the law or agency
charter provides otherwise. In the questioned purchase the agency failed to ascertain the
reasonableness of the contract prices, resulting in an overprice of P35,100 in comparison with COAs
actual canvass of prices, thus:

Per Voucher Per Canvass

Quantity Description Unit Price Total Unit Price Total Price Variance
Amount Amount

2 Singer Sewing
P7,850 P15,700 P4,450 P8,900 P6,800
machine

4 16" Hitachi /
3,800 15,200 1,200 4,800 10,400
Union Coiling Fan

3 Molodione 3,675 11,025 1,850 5,550 5,475

2 Xylophone 1,750 3,500 560 1,120 2,380

2 Makita Electric
Planer Model No.
8,837.50 17,675 8,500 17,200 475
19008 3 in. 82
mm

1 Makita Electric
Circular Saw
16,900 16,900 7,330 7,330 9,570
Model No. 5601
N 160 mm

TOTAL P80,000 P44,900 P35,100


In its letter[5] to the Deputy Ombudsman for the Visayas, the COA recommended the filing of both
criminal and administrative cases against the persons liable therefor, including petitioner for his
approval of the RIV for the assailed purchase and signing of the check in payment therefor. This
complaint was docketed as OMB-Visayas-Crim-94-0836.

In his counter-affidavit,[6] petitioner alleged that the aforesaid documents were previously reviewed by
his subordinates. He approved them only upon the certification and representation of the said
subordinates that everything was in order. Accordingly, his approval was purely a ministerial act.

In her Resolution of 20 March 1997,[7]Virginia Palanca Santiago, Graft Investigation Officer III of the
Office of the Ombudsman-Visayas, rejected petitioners defense because had he carefully scrutinized the
documents he would have discovered that the purchases were made without competitive public bidding
and the magnitude of the amount involved would prevent a reasonable mind from accepting the claim
that petitioner was merely careless or negligent in the performance of his functions.

Santiago gave credence to COAs detailed report which clearly showed an overpriced value of the
supplies and materials purchased, to the great disadvantage of the government. Had the proper bidding
procedure been observed, no such damage would have occurred. Moreover, petitioners co-respondents
did not dispute the charge of overpricing. Their main defense was that the purchase was emergency in
nature. The Office of the Ombudsman-Visayas, however, ruled that emergency purchases could only
refer to those which were urgent such that failure to make them would endanger the lives of the
students. It held that the doubtful purchase did not qualify as an emergency purchase.

Accordingly, Santiago recommended that petitioner and his co-respondents be indicted for violation of
Section 3(g) of R.A. No. 3019, as amended, for entering into a contract or transaction manifestly and
grossly disadvantageous to the Government.

The Resolution was recommended for approval by Deputy Ombudsman for the Visayas, Arturo C.
Mojica. Ombudsman Aniano A. Desierto approved the Resolution on 21 June 1997.

In an Information[8] filed with the Sandiganbayan and docketed as SB Criminal Case No.
23785,[9] petitioner and two other co-respondents were charged with the aforementioned offense
allegedly committed as follows:

That on or about the 21st day of October, 1992, at Tacloban City, Philippines, and within the jurisdiction
of this Honorable Court, above-named accused, all public officers, having been appointed and qualified
as such public positions above-mentioned, in such capacity and committing the offense in relation to
office, conniving and confederating together and mutually helping with each other, with deliberate
intent, did then and there willfully, unlawfully and feloniously enter into a transaction or contract for
and in behalf of Lalawigan National High School, Lalawigan, Borongan, Eastern Samar, for the purchase
of the following:

2 pcs. Singer Sewing Machine P 15,700.00

4 pcs. 16" Hitachi Union Ceiling Fan 15,200.00


3 pcs. Meodione 11,025.00

2 pcs. Xylophone 3,500.00

2 pcs. Makita Elect. Planor Model No. 19008 3 17,675.00


in. 82 mm

1 pc. Makita Elect. Circular Saw Model No. 5601 16,900.00


N 160 mm

TOTAL P 80,000.00

in the total amount of P80,000.00, Philippine Currency, with Fairchild Marketing and Construction,
based at Tacloban City, without following the procedures of competitive public bidding as required by
law, which transaction was manifestly and grossly disadvantageous to the government, particularly the
Lalawigan National High School, as the value of above-mentioned items were overpriced in the total
amount of P35,100.00, Philippine Currency, to the damage and prejudice of the government.[10]

Petitioner filed a Motion for Reconsideration[11] of the Resolution of the Office of the Ombudsman-
Visayas. He insisted that his act of approving the RIV arose from the need of the requesting school, and
matters pertaining to the price and mode of purchase were not yet considered at that stage. It was only
after the approval of the RIV that these matters were deliberated upon, not by him, but by the officials
of the requesting school. As to the check, he asserted that the supporting documents had been acted
upon and approved by his subordinates and the concerned school officials, and since there was no
indication of any patent irregularity, he signed the check. Finally, petitioner assailed the finding of
conspiracy since there was no direct proof therefor other than a mere allegation imputing the same.

In the Order of 5 March 1998,[12] the Office of the Special Prosecutor recommended that petitioners
Motion for Reconsideration be dismissed for lack of merit. The Ombudsman approved the
recommendation on 22 May 1998.

Petitioner then filed the instant petition. In the meantime, the proceeding before the Sandiganbayan
continued. Upon arraignment on 24 August 1998, petitioners co-accused pleaded not guilty to the
offense charged. On 2 September 1998, petitioner filed a motion to reset the scheduled hearing on 17
and 18 September citing the pendency of the instant petition. The Sandiganbayan denied petitioners
motion as well as his subsequent motion for reconsideration. Consequently, he filed a petition
for certiorari under Rule 65 of the Rules of Court claiming that the Sandiganbayan gravely abused its
discretion in denying his motions. That action, entitled Tirol v. Sandiganbayan and docketed as G.R. No.
135913, was decided on 4 November 1999 adversely against petitioner.

In the instant petition, petitioner seeks the reversal of the assailed Resolution and Order of the Office of
the Ombudsman, which, according to him, erred in concluding that he was culpably liable for alleged
overpricing of the questioned purchase of supplies and materials. He argues that the acts directly
resulting in the overprice were committed by the following officials: (1) co-respondent Conchita C.
Devora, Principal 1, who approved the transaction, countersigned the checks and requisitioned the
items; (2) co-respondent Maria A. Alvero, Bookkeeper, who affixed her signature in the voucher; and (3)
Salome G. Germana, Designated Storekeeper, who signed Box No. 4 of the voucher. His participation
was limited to signing the RIV and the check as a matter of routine. Moreover, the RIV did not involve
the determination of the price of the supplies and materials to be purchased, and his signing the check
was done in compliance with the DECS policy which limited the signing authority of the principal,
Conchita C. Devora, to checks not exceeding P50,000. In such case the signing authority was vested in
him as the DECS Regional Director.

In maintaining his innocence, petitioner asserts that the presumption of regularity in the performance of
public functions by public officers should apply in his favor. He had no ground to doubt the preparation,
processing and verification of his subordinates prior to his act of approving the RIV and signing the
check. His position required the signing of voluminous documents and it would be unreasonably
cumbersome if he were to scrutinize every document that required his signature.

In support of his arguments, petitioner cites the cases of Arias v. Sandiganbayan[13] and Magsuci v.
Sandiganbayan,[14] where this Court held that heads of office may rely to a reasonable extent on their
subordinates and on the good faith of those who prepare bids, purchase supplies or enter into
negotiations. He likewise disputes the allegation of conspiracy for the acts imputed against him were
functions discharged in the performance of his official duty. He did not overstep or exceed said
functions. For conspiracy to exist, it is essential that there must be a conscious design to commit an
offense.

In the Comment for the public respondent, the Office of the Solicitor General contends that conspiracy
need not be proved by direct evidence; it may be established by circumstantial evidence. It avers that
what prevails in the instant case is a conspiracy of silence and inaction. Petitioner should have been
vigilant in protecting the interest of the government. The magnitude of the amount involved should
have cautioned him to verify the truthfulness of the documents presented for his signature. Petitioner
ignored this telling warning and in so doing he was guilty of negligence. His reliance on his subordinates
is no excuse, otherwise his position would be a mere rubber stamp for the said subordinates.

As a final argument, the Office of the Solicitor General asseverates that it is beyond the ambit of this
Courts authority to review the power of the Ombudsman in prosecuting or dismissing a complaint filed
before it. The Ombudsman is constitutionally mandated to investigate and prosecute matters falling
within his jurisdiction.

In his Reply petitioner states that the nature of the petition does not involve a review of the factual
finding of the Office of the Ombudsman but rather its conclusion based on undisputed facts. The issue is
a question of law and may, therefore, be reviewed by this Court.

A meticulous review and re-evaluation of the pleadings in this case, as well as G.R. No. 135913 leads this
Court to a conclusion unfavorable to petitioner.

Petitioner is indicted for violation of Section 3(g) of R.A. No. 3019, which provides:
Section 3. Corrupt Practices of Public Officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:

xxx

(g) Entering into a contract or transaction manifestly and grossly disadvantageous to the government.

There is no dispute that the Office of the Ombudsman included him as a respondent because of his
participation in signing the RIV and issuing a check pertaining to the questioned purchase. Whether, on
the one hand, the said acts were done in good faith as to exonerate him from any liability, and on the
other, whether there was conspiracy among petitioner and his co-respondents, involve questions of
fact. These are matters of evidence to be weighed and appreciated by the Sandiganbayan, which has
original exclusive jurisdiction over the case.[15]

Only questions of law may be appealed to us by way of certiorari. This Court is not ordinarily a trier of
facts, its jurisdiction being limited to errors of law. There is a question of law in any given case when the
doubt or difference arises as to what the law is on a certain state of facts. A question of fact arises when
the doubt or difference arises as to the truth or falsehood of alleged facts.[16]

From the pleadings it is clear to this Court that, contrary to the representations of petitioner, what he
wants us to do is review the evidence and determine whether in fact he acted in good faith and that no
conspiracy existed among the accused.

The rulings in Arias v. Sandiganbayan[17] and Magsuci v. Sandiganbayan[18] are inapplicable to petitioner.
It must be emphasized that the petitioners therein were indicted and submitted themselves to trial
before the Sandiganbayan, which convicted them of the offenses charged. In short the Sandiganbayan
had, in due course, received the evidence of the parties and weighed its probative value. Unsatisfied
with the findings of fact and conclusion of law of the Sandiganbayan, petitioners therein appealed to
this Court.

In Arias this Court set aside the judgment against the petitioner because there was no evidence that the
Government suffered undue injury. As stated by the Solicitor General which recommended Arias
acquittal, (a) the "P80.00 per square meter acquisition cost is just, fair and reasonable," and (b) "the
prosecution likewise has not shown any positive and convincing evidence of conspiracy between the
petitioners and their co-accused."

In Magsuci, the reversal by this Court of the judgment of conviction was based on a finding that Magsuci
acted in good faith and that "there has been no intimation at all that he had foreknowledge of any
irregularity committed by either or both Engr. Enriquez and Acla."

In both Arias and Magsuci, there was paucity of evidence on conspiracy.

In this case, there is only the claim of petitioner that he had acted in good faith and that there was no
conspiracy. The Ombudsman believes otherwise. It is settled that this Court ordinarily does not interfere
with the discretion of the Ombudsman to determine whether there exists reasonable ground to believe
that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file
the corresponding information with the appropriate courts.[19] This rule is based not only upon respect
for the investigatory and prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise the functions of the courts will be grievously
hampered by immeasurable petitions assailing the dismissal of investigatory proceedings conducted by
the Office of the of the Ombudsman with regard to complaints filed before it, in as much the same way
that the courts would be extremely swamped if they would be compelled to review the exercise of
discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information
in court or dismiss a complaint by a private complainant.[20]

Petitioner has not convinced this Court that his case falls within any of the exemptions, enumerated
in Brocka v. Enrile,[21] to the rule that criminal prosecution may not be restrained either through a
preliminary or final injunction or a writ of prohibition.

There is yet another basic reason for dismissing the instant petition. This is an appeal under Section 27
of the Ombudsman Act of 1989 in relation to Rule 45 of the 1997 Rules of Civil Procedure. We have
declared Section 27 to be unconstitutional in Fabian v. Desierto[22] for increasing the appellate
jurisdiction of the Supreme Court as provided in the Constitution without its advice and consent.
Moreover, even if said provision had not been declared unconstitutional, it still does not grant a right of
appeal to parties aggrieved by orders and decisions of the Ombudsman in criminal cases[23]as in fact said
Section mentions only appeals from "all administrative disciplinary cases, orders, directives or decisions
of the Office of the Ombudsman."

Even if we were to brush aside technicality which action we would ordinarily reserve for cases having
transcendental importance to the public[24] and considered the instant petition one for certiorari under
Rule 65 of the Rules of Court, it would still suffer from a failure to denominate the proper party. A
petition for certiorari under Rule 65 has for its object the review of an action of a tribunal, board or
officer exercising quasi-judicial functions made without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction. In the instant petition, the tribunal
whose action is sought to be reviewed is the Office of the Ombudsman yet, petitioner impleaded the
Commission on Audit as respondent, and not the Office of the Ombudsman.

Additionally, the totality of petitioners and his counsels acts, including that in the other case he filed
with us in G.R. No. 135913,[25] manifests a scheme to frustrate the ends of justice by using court
procedures to delay the resolution of a pending case. It is with much regret that we must reiterate to
petitioners counsel our command laid down some thirty years ago that a lawyer, as an officer of the
court, should never induce a court to act contrary to the dictates of justice and equity nor should he
befuddle the issues. These and similar maneuvers are not only unethical, they also almost always betray
the weakness of the clients cause.[26]

The actions filed by petitioner before this Court, specifically G.R. No. 135913 and the instant petition,
were in fact a modified form of forum shopping. Perhaps realizing that this instant petition could be
dismissed in light of Fabian, which was promulgated on 16 September 1998, petitioner instituted GR.
No. 135913 on 3 November 1998. The two petitions could have created havoc to the judicial system had
petitioner succeeded with his ploy. Petitioners counsel is hereby warned that a repetition of his dilatory
tactics or some other similar scheme to thwart justice will be dealt with more severely.

WHEREFORE, the petition for certiorari in this case is hereby DENIED and the Resolution of 20 March
1997 and Order of 5 March 1998 of the Office of the Ombudsman in OMB-Visayas-Crim-94-0836 are
AFFIRMED.
Double costs against petitioner.

SO ORDERED.

Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Bellosillo, J., on official leave.

[1]
Rollo, 52-59.
[2]
Id., 67-69.
[3]
Also known as the Anti-Graft and Corrupt Practices Act.
[4]
Rollo, 29-49.
[5]
Rollo, 27.
[6]
Id., 50-51.
[7]
Supra note 1.
[8]
Rollo, 60-61.
[9]
Entitled, People of the Philippines v. Victoriano B. Tirol, Jr., Director III of the Department of Culture,
Education and Sports, Region VIII now designated at DECS, Region V, Legaspi City), Conchita C. Devora,
Secondary School Principal I, Maria A. Alvero, Bookkeeper, all of Lalawigan National High School,
Lalawigan, Borongan, Eastern Samar.
[10]
Rollo, 60-61.
[11]
Id., 63-66.
[12]
Supra note 2.
[13]
180 SCRA 309 (1989)
[14]
240 SCRA 13 (1995)
[15]
Presidential Decree No. 1861, Section 4; Republic v. Asuncion, 231 SCRA 211, 228 (1994); Subido, Jr.
v. Sandiganbayan, 266 SCRA 379, 387, 388 (1997)
[16]
Ramos v. Pepsi-Cola Bottling Co. of the P. I., 19 SCRA 289, 292 (1987); Commissioner of Internal
Revenue v. Court of Appeals, 298 SCRA 83, 91 (1998); Dela Torre v. Pepsi Cola Products Phils., Inc., 298
SCRA 363, 373 (1998)
[17]
Supra note 13.
[18]
Supra note 14.
[19]
Ocampo IV v. Ombudsman, 225 SCRA 725, 730 (1993); Cruz, Jr. v. People, 233 SCRA 439, 459 (1994);
Paredes, Jr. v. Sandiganbayan, 252 SCRA 641, 659-660 (1996); Alba v. Nitorreda, 254 SCRA 753, 765
(1996)
[20]
Ocampo v. Ombudsman, supra note 19.
[21]
192 SCRA 183, 188-189 (1990). See also Venus v. Desierto, 298 SCRA 196, 214-215 (1998)
[22]
295 SCRA 470 (1998)
[23]
Tirol v. Sandiganbayan, G.R. No. 135913, 4 November 1999.
[24]
See for example Santiago v. COMELEC, 270 SCRA 106, 134-135 (1997)
[25]
Supra note 23.
[26]
Lim Tanhu v. Remolete, 66 SCRA 425 (1975); Ledesma Overseas Shipping Corp. v. Avelino, 82 SCRA
396 (1978); Ruben Agpalo, Legal Ethics (Fourth ed., 1989), 124-125.

44. People vs. Ramos, 88 SCRA 466 (1979)

EN BANC

[G.R. No. 142577. December 27, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUPERTO RAMOS y DELA CRUZ, accused-appellant.

DECISION

CALLEJO, SR., J.:

This is an automatic review of the Decision dated November 19, 1999 of the Regional Trial Court (RTC) of
Malolos, Bulacan, Branch 21 in Criminal Case No. 659-M-98 finding accused-appellant Ruperto Ramos y
dela Cruz guilty beyond reasonable doubt of the crime of rape and likewise imposing upon him the
supreme penalty of death. Accused-appellant was ordered to pay private complainant the amount of
P75,000.00 as moral damages.

Upon the complaint of the victim, Jocelyn Ramos, an Information charging accused-appellant of rape
was filed before the RTC of Malolos, Bulacan. The Information states:

The undersigned Asst. Provincial Prosecutor, on complaint of the offended party, accuses Ruperto
Ramos y dela Cruz of the crime of Rape, penalized under the provisions of Art. 335 of the Revised Penal
Code, as amended by R.A. 8353, committed as follows:

That on or about the 14th day of December, 1997, in the municipality of Sta. Maria, province of Bulacan,
Philippines and within the jurisdiction of this Honorable Court, the said accused, Ruperto Ramos y dela
Cruz, being an uncle of complainant Jocelyn Ramos, a 16 year old mentally retarded minor, and knowing
of her mental condition, did then and there wilfilly, unlawfully and feloniously, by means of threats or
intimidation and with lewd designs, have carnal knowledge of said complainant against her will and
without her consent.
Contrary to law.[1]

During the arraignment, accused-appellant, with the assistance of counsel, pleaded not guilty to the
charge.

At the trial, the prosecution adduced evidence that the spouses Efren Ramos and Fortunata Ramos have
two children, namely, Jocelyn, then fifteen years old at the time of the commission of the crime, and
Mary Grace, who was then six years old. Fortunata and her children resided in a compound in Partida
Pulong Buhangin, Sta. Maria, Bulacan. Accused-appellant, the older brother of Efren, resided in the same
compound. His house was about twenty meters away from the house of Efren and Fortunata. Efren
worked abroad. He had been away from home for several years already.

On December 14, 1997, at around noontime, Jocelyn was outside the house playing with her younger
sister Mary Grace and their seven-year old neighbor Joel Santiago. While the children were busy playing,
accused-appellant, then wearing an undershirt and shorts, waved his hand to Jocelyn and motioned for
her to come to his house. Jocelyn dutifully approached accused-appellant and entered his house
through the kitchen. Once Jocelyn was inside the house, accused-appellant locked the door to the
kitchen. He then led her to his bedroom. Once they were inside, accused-appellant locked the bedroom
door. He undressed Jocelyn and made her lie down on the bed. Accused-appellant placed himself on top
of her. He spread her legs apart while he mashed her breast and sucked her nipples. Thereafter,
accused-appellant inserted his penis into her sexual organ. Jocelyn felt pain as he made the pumping
motion while inserting his private part into hers. Jocelyn could not do anything but cry. Accused-
appellant threatened her by gnashing his teeth and ordered her not to tell anyone else. According to
Jocelyn, that was not the first that accused-appellant had sexually abused her.

Unknown to accused-appellant, Mary Grace and Joel saw Jocelyn enter the house of accused-appellant
that day. They went to the window of the house of accused-appellant and propped themselves up
alternately on each others shoulder to be able to peep through the window. Joel saw Jocelyn lying on
the bed totally naked, with accused-appellant on top of her. Joel saw accused-appellant inserting his
penis into her vagina. Mary Grace in turn saw accused-appellant fondle the breasts of Jocelyn while she
was lying down and thereafter insert his hand into Jocelyns underwear.

At about 4:00 p.m. that day, Mary Grace told her mother Fortunata about what transpired between
accused-appellant and Jocelyn. When Fortunata confronted Jocelyn about it, the latter confirmed what
Mary Grace had told their mother. Since her husband was abroad, Fortunata went to Rafael Ramos, the
older brother of Efren and accused-appellant, for guidance. Rafael advised her to file a criminal
complaint against accused-appellant for his dastardly acts.

Following her brother-in-laws advice, Fortunata, on behalf of Jocelyn, filed a criminal complaint against
accused-appellant for rape with the Municipal Trial Court (MTC) of Sta. Maria, Bulacan on December 15,
1997. The complaint was signed by Fortunata. Jocelyn affixed her thumbmark thereto.[2] Jocelyn was 16
years old at the time. In her sworn statement, Fortunata claimed that accused-appellant raped
Jocelyn.[3]

Dr. Manuel Aves, medico-legal of the Bulacan Provincial Crime Laboratory, conducted a genital
examination of Jocelyn on December 17, 1997.He found multiple healed lacerations at 9 and 11 oclock
positions on Jocelyns hymen. He opined that the lacerations could have been caused by sexual
intercourse. Dr. Aves likewise declared that Jocelyn was suffering from moderate mental retardation,
and placed her mental capacity equivalent to that of a six- or seven-year old child.[4]

After a series of psychiatric examinations conducted on her by Dr. Bernadette Arcena of the National
Center for Mental Health, the latter confirmed that Jocelyn was indeed a mental retardate whose
mental age was equivalent to that of a six-year old child.[5]

For his part, accused-appellant denied having any carnal knowledge of Jocelyn. He admitted that Jocelyn
is his niece, being the daughter of Efren, his younger brother. Accused-appellant claimed that he was in
his house on December 14, 1997 with his brother-in-law Victor Gamboa, his niece Mildred Ramos who
was the wife of his nephew Roland Ramos, his five-year old son Ryan, and Rolands and Mildreds
daughter, Ranyamae Ramos. Accused-appellant asserted that Jocelyn never went to his house on
December 14, 1997.

Mildred Ramos corroborated accused-appellants claim and testified that both of them were in their
house the whole day on December 14, 1997, and that she did not see Jocelyn inside the house or enter
accused-appellants bedroom on that day.

Victor Gamboa testified that his sister and accused-appellant were married. The couple had a son
named Ryan. They resided in Dagupan City until accused-appellants wife died in 1996. By then, Ryan was
already four years old. After his wifes death, accused-appellant left Dagupan City and resided in the
house of Roland Ramos and Mildred Ramos, leaving Ryan Ramos in the custody of Victor Gamboa. On
December 13, 1997, at about 3:00 p.m., Victor Gamboa and Ryan arrived in Sta. Maria, Bulacan to visit
accused-appellant. Victor Gamboa and Ryan stayed in the house of Roland Ramos and Mildred Ramos
the whole day on December 14, 1997. He and Ryan left at about 6:00 p.m. and returned to Dagupan
City. He never saw Jocelyn in said house the whole day on December 14, 1997.

Accused-appellant further testified that Fortunata was just envious of him because his (accused-
appellants) inheritance was still intact while that of Fortunatas family had already been depleted. He
further claimed that Fortunata bore a grudge against him because she borrowed P500.00 or P300.00
from him but he refused to lend her any amount; and that he caused the removal of the illegal
electricity connection in Fortunatas house.Accused-appellant claimed that while he was in prison,
Fortunatas driver Domingo came to him and demanded the payment of half a million pesos as
settlement of the case but accused-appellant refused to pay as he did not have such amount of
money. Accused-appellant also asserted that Jocelyn was always out of the house with her barkadas,
implying that she could have been sexually abused while with them.

The trial court rendered judgment finding appellant guilty beyond reasonable doubt of raping his niece
Jocelyn and sentencing him to suffer the supreme penalty of death. The dispositive portion of the trial
courts decision reads:

WHEREFORE, this Court finds and so holds accused RUPERTO RAMOS to be GUILTY beyond reasonable
doubt, of the crime of Rape as defined and penalized under Article 335 of the Revised Penal Code, as
amended by R.A. 8353 with the attendant aggravating circumstances that the victim is under eighteen
years of age and the offender is a x x x relative by consanguinity or affinity within the the (sic) third civil
degree. x x x.
Relative thereto, this Court cannot find a way to differ from the High Courts impression that of all the
so-called heinous crimes, none perhaps more clearly provokes feelings of outrage, detestation and
disgust than incestuous rape. (People vs. Baculi, 246 SCRA 756) Accordingly, absent any circumstances
that would mitigate the commission thereof, he is hereby sentenced to suffer the supreme penalty of
DEATH by lethal injection.

In line with established jurisprudence, the said accused is also ordered to indemnify the offended party
Jocelyn Ramos, in the sum of P75,000.00 for moral damages.

With costs against the accused.

SO ORDERED.[6]

In his appeal brief, accused-appellant assails the decision of the trial court, alleging that:

THE COURT A QUO GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION
WITNESSES AND IN TOTALLYIGNORING/DISREGARDING THE VERSION OF THE DEFENSE.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED.[7]

The issues raised by appellant shall be resolved jointly as they are interrelated.

We agree with accused-appellants pose that, in reviewing rape cases, the court has always been guided
by three (3) well-entrenched principles:(1) an accusation of rape can be made with facility and while the
accusation is difficult to prove, it is even more difficult for accused, though innocent, to disprove; (2)
considering that in the nature of things, only two persons are usually involved in the crime of rape, the
testimony of the complainant should be scrutinized with great caution; and (3) the evidence for the
prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the
weakness of the evidence for the defense.[8] The primordial consideration in a determination concerning
the crime of rape is the credibility and probative weight of complainants testimony.[9]

The legal aphorism is that the findings of the trial court, its conclusions culled from said findings, its
calibration of the testimonial evidence of the parties and the probative weight thereof are accorded,
great respect, if not conclusive effect, by the appellate court because of the unique advantage of the
trial court of monitoring and observing at close range the demeanor, deportment and conduct of said
witnesses as they regale the trial court with their testimonies. In contrast, the appellate courts must
contend itself only with the mute pages of the original records and the evidence adduced by the parties
elevated by the trial court.[10]

In this case, the trial court found Jocelyn credible and gave full probative weight to her testimony thus:

More so, as herein observed, when Jocelyn has been able to communicate her experience in a manner
that was clear as well as consistent. Neither was her testimony attended by material flaws in the cross-
examination. On the contrary, more details were extracted of her regarding the incident in
question. Hence, we find no valid reason to disregard or discredit her testimony.[11]
Indeed, the findings of the trial court are buttressed by the testimony of Jocelyn as she vividly recalled
how accused-appellant defiled her, with tears welling from her eyes, her sex organ throbbing with pain
caused by penile penetration:

Atty. Bernabe:

Q Madam Witness do you know the accused in this case Ruperto Ramos?

A Yes, sir.

Q If he is inside the court room will you please point him to us?

A (The witness is pointing to a man in handcuff.)

Court:

Q Why do you know the accused?

A He is the brother of my father, Your Honor.

Q Who is older Ruperto or your father?

A Ruperto, Your Honor.

Q What is the name of your father?

A Efren Ramos, Your Honor.

Atty. Bernabe:

Q Sometime in December 14, 1997, do you recall if you have met your uncle Ruperto Ramos?

A Yes, sir.

Q How did you come to see and meet the accused Ruperto Ramos?

A He kept on looking at me, Sir.

Q And when he was looking at you on that date of December 14, 1997, what happened next?

A He was undressing me, Sir.

Q In what place that you were being undressed by the accused?

A Inside his bedroom, Sir.

Q How come that you were at the bedroom on your uncle on that day?

A He was calling me, Sir.

Court:

Q What time of the day is that?

A Noon time, Your Honor.


Atty. Bernabe:

Q Where were you when you were being called by your uncle?

A I was in the house of Ka Nene, Sir.

Q Why were you there in the house of Ka Nene?

A I was playing with Grace, Sir.

Q Who is this Grace?

A My sister, Sir.

Q Aside from Grace who else those you were playing with?

A Joel, Sir.

Q How far is this house of Ka Nene to the house of Ruperto Ramos?

A Further than this wall, Sir.

Court:

Q How about that door?

A That is, Your Honor, (about 6 meters.)

Atty. Bernabe:

Q As you were called by your uncle, was he shouting or how were you called?

A He was waving his hand at me, Sir.

Q After he waved his hand, what did you do?

A I approached him, Sir.

Q Did he say anything when you approached him?

A Yes, Sir.

Q What was that?

A He asked me to enter the house, Sir.

Q After entering the house, what happened next?

A He went to the kitchen and locked the doorknob, Sir.

Q What happened after?

A He made me enter his bedroom and locked the doorknob, Sir.

Q And when the two of you were already inside his bedroom and locked the doorknob what happened?

A He undressed me and made me lie down on his bed, sir.


Q Before you were made to lie down on the bed, what did you do?

A He placed himself on top of me, sir.

Q When you were already lying down what did Ruperto Ramos do to you?

A He placed on top of me. He was doing the pumping, "kumakantot sa akin" sir.

Q How did he do that?

A My legs were spread, sir.

Q What else?

A He was sucking my nipples, sir.

Q What else did he do?

A He was biting my breast, sir.

Q What else did he do aside from those you have already said?

A (The witness is hesitating.) No, sir.

Court:

Q What was the attire of the accused when he was calling you?

A Sando and shorts, Your Honor.

Q And what was his attire when he placed on top of you?

A He was wearing long maong and sando, Your Honor.

Q Was it short or long pants?

A Short, Your Honor.

Atty. Bernabe:

Q How about you when you were already lying down and your nipple being sucked by the accused?

A I was naked, Sir.

Q How about at the time when you said the accused was pumping on top of you, did you wear anything?

A I was cloth, Sir.

Q How about the accused was he wearing anything when he pumped on you?

Atty. Balagtas:

Already answered.

Court:
Q What about you when you were lying, what was your position was (sic) you pacing (sic) down or
pacing (sic) up?

A Pacing (sic) me, Your Honor.

Atty. Bernabe:

Q You made mention a while ago that your legs were spread.

Atty. Balagtas:

Already answered, Your Honor.

Court:

Q In this information it alleges here that the accused knowingly the mental condition of the complainant
did then and there willfully and feloniously by means of threats or intimidation and with lewd designs
have carnal knowledge with the said complainant against her will and without consent, what can you
say about it?

A Yes, Your Honor, he threatened me.

Atty. Bernabe:

Q How did he threaten you?

A He was (witness demonstrating clenching her teeth).

Court:

Q Did he say anything when he clenched his teeth?

A Yes, Your Honor.

Q What did he say?

A Not to tell anybody, Your Honor.

Atty. Bernabe:

Q What did you feel when the accused place on top of you?

A I was hurt, sir.

Q Why?

A It was painful, sir.

Court:

Q What part of your body?

A (Witness pointing to her private part.)

Atty. Bernabe:
Q Why did you feel pain?

A Because I was crying, sir. My tears rolled down my cheeks.

Q You said that your private part was painful, can you tell the Honorable Court.

Court:

Q Are you ashame[d] to tell everything? Because of the number of men inside the Courtroom?

A Yes, Your Honor.

Q Will you be able to tell us more details if we exclude the audience?

A Yes, Your Honor.

(Audience is ordered to move outside.)

Atty. Bernabe:

Q Your answer to the last question, what did Ruperto Ramos do to you?

A He inserted his penis to my private part, sir, ang titi niya ipinasok sa pepe ko.

Q Madam Witness how many times did your uncle, you said he inserted his penis inside your private
part?

A Often, sir.[12]

Jocelyns testimony, standing alone, is conclusive proof of the guilt of accused-appellant for the crime of
rape. Nonetheless, as found by the trial court, Joel and Mary Grace substantially corroborated Jocelyns
testimony on its material points. Mary Grace testified seeing accused-appellant mashing the breast of
Jocelyn and sucking her nipples:

Q As you and Joel were playing then, did you observe any unusual incident?

A Yes, sir.

Q Please tell the Court what was that?

A We went inside the room of the house of Ruping, the room owned by Ruping and while we were
viewing TV, we saw Ruping inserting his hands to the private part of my sister. He is inserting his hands
inside the party (sic) of Josylyn (sic).

Q And after seeing that, what happened next?

A We went outside and we reported the incident to the mother of Joel.

Q Madam witness, your playmate Joel testified that you and him went by the window and by stepping
on your shoulder that he saw Ruping doing something to your sister, is it not a fact that Joel stepped on
your shoulder on that particular day?

A Yes, sir.
Q After Joel had stepped on your shoulder you also testified that you stepped on his shoulder and you
were the one saw something going on inside the room. What is that something that you have seen?

A There was sir, he mashed her brest (sic) and he sucked her nipples.

Q Aside from that, what else?

A While my sister is lying down, the accused is inserting his finger to the private part of my sister.
(referring to Josylyn)

Q And what else transpired aside from those?

A That is all, sir.[13]

Joel testified seeing accused-appellant and Jocelyn lying in bed naked, accused-appellant on top of her
and inserting his penis into her vagina:

Atty. Bernabe:

Mister witness, sometime in December, 1997, did you have occasion to see accused Ruperto Ramos?

A. Yes, sir.

Q. Where did you see him?

A. In the room, sir.

Q. Who was with him in the room?

A. Jocelyn, sir.

Q. Who is Jocelyn?

A. Our neighbor, sir.

Q. And you made mention that you saw Jocelyn and Ruperto Ramos inside the room. Who is the owner
of that house if you know?

A. Rupin, sir.

Q. When you made mention of Ruping, you are referring to the accused Ruperto Ramos?

A. Yes, sir.

Q. When you said you saw them, what were they doing?

A. Ruperto was lying on top of Jocelyn, sir.

Q. How did you come to know about that matter?

A. We went to the back window and we used an object to step on to see them, sir.

Q. You made mention of Grace. Who is Grace?

A. My playmate, sir.
Q. How is she related to Jocelyn?

A. They are sisters, sir.

Q. Please tell the Honorable Court what exactly did you see when you said Ruperto Ramos was on top of
Jocelyn?

A. Binuburat ang titi.

Q. And were they wearing anything?

A. None, sir.

Court:

Who in particular had no clothing?

A. Both of them, sir.

Q. And for how long did you see Ruperto Ramos on top of Jocelyn?

A. It was long but I could not estimate, sir.

Atty. Bernabe:

Now, when Ruperto Ramos was on top of Jocelyn, what specifically was Ruperto Ramos doing?

Atty. Balagtas:

Already answered.

Atty. Bernabe:

How about Jocelyn, what was she doing at that time?

A. Jocelyn was lying front (nakadapa), sir.

Q. Aside from the fact that you claim that Ruperto . . . . (interrupted)

Court:

Just a minute. You just stated that Jocelyn was lying front and Ruperto Ramos was lying on top of
her. Was Ruperto Ramos lying front on top of Jocelyn?

A. He was lying on top of the back of Jocelyn, sir.

Atty. Bernabe:

Aside from that, you claim that Ruperto was binuburat ang titi. Are there other acts which you have
seen during that time?

A. The eggplant was inserted inside the private part of Jocelyn, sir.

Q. By whom?

A. Ruping, sir.[14]
Dr. Aves findings based on his medical examination of Jocelyn that her hymen had multiple healed
lacerations at 9 and 11 oclock positions further buttressed Jocelyns testimony that appellant had carnal
knowledge of her. Laceration of the hymen, whether fresh or healed, is the best physical evidence of
defloration.[15]

Appellants imputation of ill motive on Fortunata, Jocelyns mother, was an act of utter desperation. His
claims that Fortunata accused him of raping her daughter only out of envy because his inheritance was
still intact while Fortunatas had already been depleted, and that he rebuffed Fortunata when she
borrowed P500.00 or P300.00 from him and when he removed the illegal electrical connection installed
in the house of Fortunata, are preposterous and outrageous. In the first place, it is highly inconceivable
that Jocelyn, a nave girl, would concoct a tale of defloration, allow the examination of her private parts
and undergo the expense, tribulation and inconvenience, not to mention the trauma of a public trial,
unless she was in fact raped by accused-appellant.[16] Accused-appellant failed to prove his assertion and
relied only on his own self-serving testimony. Moreover, mothers are so protective of their children that
they would give up their lives and fortune to protect their children from any threat or peril to their lives
or limb and shield them from embarassment, ridicule and any taint on their reputation. It is unthinkable
that Fortunata will use Jocelyn as an instrument of malice, even for the purpose of avenging a personal
slight, especially if it will subject Jocelyn to the embarrassment, trauma and stigma attendant to a rape
trial unless accused-appellant indeed raped Jocelyn.[17] It must be pointed out that Fortunata first sought
the advice of Rafael Ramos, the older brother of Efren and accused-appellant, before she assisted the
private complainant in filing a complaint for rape against accused-appellant.

Ranged against the overwhelming evidence of the prosecution, accused-appellants curt denial of the
charge against him must necessarily fail.Case law has it that denial of the crime charged is but self-
serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of
credible witnesses who testify on affirmative matters.[18] It bears stressing that accused-appellants
denial of the charge is corroborated only by his close kins, his niece and brother-in-law.

In fine, we find that the trial court did not err in finding accused-appellant guilty beyond reasonable
doubt of raping Jocelyn.

Accused-appellant contends that the trial court committed an error in imposing the penalty of death on
him on its finding that private complainant was a minor at the time of the commission of the crime and
that she was a relative of accused-appellant by consanguinity within the third civil degree.Accused-
appellant contends that the prosecution failed to adduce conclusive evidence independent of the
testimony of private complainant to prove the latters minority. Neither did the prosecution allegedly
prove that private complainant was a mental retardate. The Solicitor General on the other hand
contends that the testimonies of private complainant and her mother constitute proof of minority of
Jocelyn.

Articles 266-A and 266-B of the Revised Penal Code, as amended, provide in part that:

Article 266-A. Rape; When and How Committed. Rape is committed:

1) By a man who have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation;


b) When the offended party is deprived of reason or otherwise consciousness;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of the
circumstances mentioned above be present.

xxx

Article 266-B. Penalties. -

xxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law
spouse of the parent of the victim;

xxx

10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of
the offended party at the time of the commission of the crime.[19]

In the appeal at bar, the information alleged two sets of special qualifying circumstances attendant to
the commission of the crime of rape, namely, (a) the minority of private complainant and her
relationship to accused-appellant; (b) her mental retardation and knowledge thereof by accused-
appellant. Proof of only one of these special qualifying circumstances is sufficient to justify the
imposition of the supreme penalty on death of accused-appellant.

In the prosecution of criminal cases, especially those involving the extreme penalty of death, nothing
but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an
accused is charged must be established. Qualifying circumstances or special qualifying circumstances
must be proved with equal certainty and clearness as the crime itself, otherwise, there can be no
conviction of the crime in its qualified form.[20]

As a special qualifying circumstance of the crime of rape, the concurrence of the victims minority and
her relationship to the accused must be both alleged and proven beyond reasonable doubt. To prove
the minority of Jocelyn, the prosecution was burdened to adduce in evidence her birth certificate as it is
the best evidence to prove her age at the time of the commission of the crime. Substitutionary
evidence, absent proof of loss or destruction of the original of her birth certificate or the unavailability
thereof without fault of the prosecution, including the testimony of Jocelyn and of her mother, will not
suffice. Neither can the relationship of the accused to the victim be established by mere testimony, not
even if the same was admitted by the accused. In People vs. Tabanggay,[21] we categorically declared:

x x x Jurisprudence dictates that when the law specifies certain circumstances that will qualify an offense
and thus attach to it a greater degree of penalty, such circumstances must be both alleged and proven in
order to justify the imposition of the graver penalty. Recent rulings of the Court relative to the rape of
minors invariably state that in order to justify the imposition of death, there must be independent
evidence proving the age of the victim, other than the testimonies of prosecution witnesses and the
absence of denial of the accused. A duly certified certificate live birth accurately showing the
complainants age, or some other official document or record such as a school record, has been
recognized as competent evidence.

In the instant case, we find insufficient the bare testimony of private complainants and their mother as
to their ages as well as their kinship to the appellant. x x x [We] cannot agree with the solicitor general
that appellants admission of his relationship with his victims would suffice. Elementary is the doctrine
that the prosecution bears the burden of proving all the elements of a crime, including the qualifying
circumstances. In sum, the death penalty cannot be imposed.

In this case, the prosecution failed to adduce in evidence the original of the certificate of birth of
Jocelyn. There is no evidence that said certificate of birth was lost or destroyed or was unavailable
without the fault of the prosecution. Hence, substitutionary evidence was inadmissible. The testimony
of Jocelyn as to her age, even if corroborated by her mother, is not sufficient proof of minority.

The prosecution adduced testimonial evidence inclusive of the admission of accused-appellant that he
was the uncle of Jocelyn. However, under the Information, accused-appellant was merely declared to be
the uncle of Jocelyn. We have held that if the offender is merely a relation not a parent, ascendant, step-
parent, or guardian or common-law spouse of the mother of the victim, the information must allege
that he is a relative by consanguinity or affinity (as the case may be) within the third civil degree. It is not
enough for the information to merely allege that accused-appellant is the uncle of private
complainant. Even if the prosecution proved that accused-appellant was in fact the uncle of Jocelyn, the
death penalty cannot be meted on accused-appellant on account of said relationship. Consequently,
accused-appellant can only be held liable for simple rape even if it was proven during the trial that he
was the uncle of the victim and thus a relative by affinity of the victim within the third civil degree.[22]

On the second set of special qualifying circumstances, the prosecution was burdened to prove that (a)
Jocelyn was a mental retardate and that(b) accused-appellant knew her mental condition. Knowledge by
accused-appellant of the mental condition of Jocelyn may be proved by direct and/or circumstantial
evidence. In this case, the prosecution adduced sufficient proof that Jocelyn was a mental
retardate. However, the prosecution failed to adduce incontrovertible evidence to prove that accused-
appellant knew of the mental retardation of Jocelyn.

The barefaced facts that private complainant was the niece of accused-appellant and that they were
neighbors before and at the time of the commission of the crime do not constitute conclusive proof that
accused-appellant had knowledge of the mental retardation of private complainant absent evidence of
external manifestations of her mental condition. The penalty of death is so severe that nothing but
proof beyond reasonable doubt is required before the said penalty can be imposed. In sum then,
accused-appellant is guilty of simple rape defined in Article 266-A of the Revised Penal Code as amended
by Republic Act 7659 and should be meted the penalty of reclusion perpetua. In light of the reduction of
the penalty imposed upon accused-appellant, the award of civil indemnity (erroneously designated as
moral damages by the trial court) must likewise be reduced from P75,000.00 to P50,000.00. Civil
indemnity in the amount of P75,000.00 is awarded only where the crime of rape was effectively
qualified by any of the circumstances under which the death penalty is authorized by the present
law.[23] In addition, accused-appellant is also liable for moral damages in the amount of P50,000.00. In
rape cases, the victim is assumed to have suffered moral injuries, hence, entitling her to an award of
moral damages even without proof thereof.[24]

IN LIGHT OF ALL THE FOREGIONG, the Decision dated November 19, 1999 of the Regional Trial Court,
Branch 21 of Malolos, Bulacan in Criminal Case No. 659-M-98
is AFFIRMED with MODIFICATION. Accused-appellant is hereby found guilty beyond reasonable doubt
of simple rape under Article 266-A of the Revised Penal Code and is hereby meted the penalty
of reclusion perpetua. He is ordered to pay the victim, Jocelyn Ramos, the amount of P50,000.00 as civil
indemnity and the amount of P50,000.00 as moral damages.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Morales, and Azcuna, JJ., concur.

[1]
Records, p. 2.
[2]
Ibid., Exhibit A.
[3]
Ibid., Exhibit B, p. 115.
[4]
Ibid., Exhibit C, p. 116.
[5]
Ibid., Exhibit D, p. 117.
[6]
Ibid., p. 159.
[7]
Rollo, p. 48.
[8]
People of the Philippines vs. Norberto Del Mundo, Sr., 356 SCRA 45, 50 (2001).
[9]
People of the Philippines vs. Rodegelio Turco, Jr., 337 SCRA 714, 722 (2000).
[10]
People of the Philippines vs. Aurelio Delovino, 247 SCRA 637 (1995).
[11]
RTC Decision, November 19, 1999, p. 5; Rollo, p. 27.
[12]
TSN, November 6, 1998, pp. 3-9.
[13]
TSN, October 14, 1998, pp. 4-5.
[14]
TSN, September 9, 1998, pp. 3-5.
[15]
People of the Philippines vs. Reyes, G.R. Nos. 140642-46, August 7, 2002, p. 21.
[16]
People of the Philippines vs. Jaquilmac, G.R. No. 139787, September 17, 2002, p. 10.
[17]
Ibid.
[18]
People of the Philippines vs. Castro Geraban, 358 SCRA 213 (2001).
[19]
Supra.
[20]
People of the Philippines vs. Sitao, G.R. No. 146790, August 22, 2002, p. 7.
[21]
334 SCRA 575 (2000).
[22]
People of the Philippines vs. Ben Libo-on, 358 SCRA 152, 176 (2001).
[23]
People of the Philippines vs. Sitao, supra., p. 9.
[24]
Ibid.

45. People vs. Mateo, G.R. No. 147678 (July 7, 2004)

477 Phil. 752

VITUG, J.:

On 30 October 1996, ten (10) informations, one for each count of rape, allegedly committed on ten
different dates - 07 October 1995, 14 December 1995, 05 January 1996, 12 January 1996, 29 February
1996, 08 May 1996, 02 July 1996, 18 July 1996, 16 August 1996 and 28 August 1996 - were filed against
appellant EFREN MATEO. Except for the variance in dates, the ten informations, later docketed Criminal
Cases No. 9351 to No. 9360, inclusive, in the Regional Trial Court of Tarlac, uniformly read -

"The undersigned OIC Provincial Prosecutor upon preliminary investigation conducted by the MTC,
Tarlac, Tarlac, Branch 1, accuses Efren Mateo of Brgy. Buenavista, Tarlac, Tarlac of the crime of Rape,
committed as follows:

"That on or about January 12, 1996, in the Municipality of Tarlac, Province of Tarlac, Philippines and
within the jurisdiction of this Honorable Court, the said accused Efren Mateo y Garcia, who is the
guardian of the complaining witness, did then and there willfully, unlawfully and feloniously and by
means of force and intimidation have carnal knowledge with said Imelda C. Mateo in their house against
her consent."[1]

The trial ensued following a plea of "not guilty" entered by appellant to all the charges.

According to Imelda Mateo, she was born on 11 September 1980 to the spouses Dan Icban and
Rosemarie Capulong. Rosemarie Capulong and appellant started to live together without the benefit of
marriage when private complainant was only two years old. Imelda stayed with her mother and
appellant in a house in Buenavista, Tarlac, and adopted the surname of appellant when she started
schooling.

Imelda recalled that each time the ten rape incidents occurred her mother, Rosemarie, was not at
home. On 07 October 1995, the date of the first rape, Rosemarie went to Bamban and returned home
only the next day. The second rape was said to have occurred on 14 December 1995, while her mother
was attending a seminar for day-care workers. Imelda recalled the third rape to have been committed
on 05 January 1996, the same day her mother resigned from her job and left for Manila. The fourth
rape, she said, happened a week later, on 12 January 1996, when Rosemarie Capulong was attending
yet another seminar for day-care workers. The fifth incident was on 29 February 1996, when Rosemarie
left for Manila to follow-up her application for an overseas job. The sixth rape took place on 08 May
1996 when Rosemarie was once again in Manila to attend to her application papers. On 01 July 1996,
Rosemarie and appellant left for Manila as Rosemarie was scheduled to depart for Jeddah. Appellant
returned home in the evening of the next day, 02 July 1996, the same day the job recruiter relayed the
news that Rosemarie Capulong could not yet leave for Jeddah. During the night, appellant again
molested Imelda. With Rosemarie finally away, appellant frequented his nocturnal visits. On the night
of 18 July 1996, appellant went into her room and abused her while her siblings were sleeping in
the sala. The same incident was repeated on the night of 16 August 1996 when appellant, already
naked, entered the room and sexually assaulted Imelda. The last rape was committed on 28 August
1996. According to private complainant, she never reported any of the ten incidents to anybody
because the accused had threatened to kill her and her mother if she were to disclose the matter to
anyone.

Imelda stated that each of the ten rape incidents were committed in invariably the same fashion. All
were perpetrated inside the house in Buenavista, Tarlac, during the night and, each time, she would try
to ward off his advances by kicking him but that he proved to be too strong for her. These incidents
occurred in the presence of her three sleeping siblings who failed to wake up despite the struggles she
exerted to fend off the advances. She recalled that in all ten instances, appellant had covered her
mouth with a handkerchief to prevent her from shouting. Subsequently, however, she changed her
statement to say that on two occasions, particularly the alleged sexual assaults on 02 July 1996 and 18
July 1996, appellant had only covered her mouth with his hands. Still much later, Imelda testified that
he had not covered her mouth at all.

The predictable pattern of the rape incidents testified to by Imelda prompted the defense to ask her
whether she had, at any one time, taken any protective measure in anticipation of the rape
incidents. She replied that once she had requested her brothers and sister to keep her company in the
bedroom at night but appellant had scolded them. On the night of the fourth rape, she narrated that
she armed herself with a knife but, when appellant entered her room that night, she was not able to
retrieve the bladed weapon from under the bed as appellant was sitting right on top of it.

Dr. Rosario Fider, the second witness for the prosecution, stated that she had physically examined
private complainant on 14 October 1996 and found superficially healed lacerations at 3:00, 6:00 and
9:00 positions on her private organ that could have been caused by an insertion of an instrument or by
sexual intercourse. According to Dr. Fider, the lacerations pointed to possibly one or two, and at most
three, incidents of rape, which had happened not earlier than two weeks before the date of the physical
examination.

Appellant denied each of the charges. On 07 October 1995, the date of the first rape, he claimed that he
was in Barangay Talaga, Capas, to pick up newly hatched ducklings, numbering about a thousand, which
had to be properly fed, kept warm and constantly cared for that required him to be around the entire
day and night for two weeks. The fowls had then to be brought into an open field located one and a half
kilometers away which could be traversed by foot. He continued to tend to the animals from 20
October 1995 until sometime in February 1996. During the period, he was able to go home only once
a week or three times a month.

On 14 December 1995, the supposed date of the second rape, appellant admitted that he had
temporarily left the care of his ducks to go caroling with his wife, their daughter Imelda and some
friends. He immediately returned to care for his ducks, located some 500 meters from their residence,
that kept him busy and away from home when the third, fourth and fifth rape incidents were said to
have taken place on the 5th and 12th of January and 29th of February of 1996. While he admitted to
leaving occasionally the animals in order to go home, these visits, however, were said to be brief and
mainly for getting some food and fresh clothes. Appellant could not recall when exactly he sold the
ducks but it was definitely prior to 08 May 1996, the day he was accepted and reported for work at the
LA Construction of Hacienda Luisita, Tarlac, located some three kilometers away. On 08 May 1996, the
date of the sixth rape, he was at work from seven o'clock in the morning until the following day to finish
a rush job.

On 01 July 1996, he accompanied his wife, Rosemarie, to Manila who was scheduled to leave for Jeddah
the following day. Upon being advised that her flight was postponed, the couple stayed in the house of
one Luding Sevilla in Caloocan. On 03 July, he returned to Tarlac. From 15 July to September, 1996, he
was given the nightshift at the LA Construction. Appellant asserted that it was impossible for him to
have raped private complainant on 28 August 1996 because at six o'clock that evening, his friends Boy
Botio, Boy Pineda, Marvin Dalangin and Nelson Castro had picked him up at his house to attend
the fiesta at Barangay Murcia, Concepcion, Tarlac, where they spent the night.

Appellant dismissed the charges against him as being the malicious "retribution" of a vengeful
stepdaughter. Allegedly, on 11 October 1996, he took private complainant to task after his son, Marlon
Mateo, who had reported seeing her engaged in sexual intercourse with one Pikong Navarro inside the
room of their house. Earlier, on 05 August 1996, he also learned that Sharon Flores, a neighbor and a
friend of private complainant, had caught his stepdaughter and Navarro in a very compromising
position. In anger, he hit Imelda twice with a piece of bamboo. He then forbade her from going out at
night and leaving her siblings alone in the house.

Rosemarie Capulong, the mother of private complainant, rose to testify in defense of her common-law
husband. Capulong asserted that she had not at any time, prior to her departure for Jeddah, spent any
night outside their house. Rosemarie said that she was a day-care teacher from June 1990 until June
1996. On 07 October 1995, the date of the supposed first rape, she was at home and did not go to
Bamban as so claimed by private complainant. Capulong disputed the claim of private complainant that
she attended a seminar for day-care workers on 12 January 1996 since her job did not require her to
attend seminars except for regular meetings held on the last Friday of every month, with each meeting
lasting for only half a day. The last seminar she had attended was in June of 1990 in Tarlac. On 29
February 1996, Rosemarie was also certain that she spent the night at home as she had to report for
work the following day. She started obtaining documents for her planned employment abroad only on
12 February 1996, when she secured her birth certificate in Bamban as so attested by the date
appearing on the certification from the Municipal Civil Registrar of Bamban. On 08 May 1996, she
admitted being away from home while attending a general assembly of day-care workers in
Zambales. On that day, appellant was likewise not at home due to his overtime work up until about
three or four o'clock in the early morning. Imelda herself, Capulong testified, had attended on that
day the San Miguel fiesta. Contrary to the allegation of private complainant, the witness was not in
Manila on the 5th and 12th of January 1996 because, at that time, she had yet no plans of working
overseas. She denied the assertions of private complainant that Capulong had resigned from her day-
care work on 05 January 1996, saying it was actually months later, or in June of 1996, when she quit her
job. It was on 13 February 1996 when she went to Manila for the first time to attend to her application
for a possible overseas work. She made subsequent trips to the city, that is, on the 3rd, 5th, 8th and
24th of the month of June, to follow-up her employment papers and to submit herself to a medical
check-up. All these visits only took a day, and she would always be home in Buenavista at nightfall. On
01 July 1996, appellant accompanied her to Manila but, upon learning that her flight was postponed,
they spent the night in Caloocan. The couple stayed together in Manila until 03 July 1996, when
appellant decided to return to Tarlac. Rosemarie worked in Jeddah, Saudi Arabia, until 11 November
1996 when she decided to return home.

Rosemarie Capulong corroborated the testimony of appellant regarding his whereabouts from October
1995, when the ducks were first brought to the field, until 15 December 1995, when appellant had
joined her and their friends caroling. Capulong believed that the charges may have been fabricated by
her relatives who were "jealous" of appellant because it was he, not they, who had been receiving the
remittances of her earnings from Saudi Arabia.

Sharon Flores, a neighbor, testified that, about noontime on 05 August 1996, she repaired to the house
of private complainant to investigate rumors regarding a man seen entering the Capulong
residence. When she went in, she saw private complainant and Pikong Navarro lying on the bed,
embracing each other under a blanket.

Anselmo Botio, a friend of appellant, and Marlon Mateo, a brother of private complainant, corroborated
appellant's alibi. Botio said that on 28 August 1996, at six o'clock in the evening, he, together with
appellant and some friends, went to attend the fiesta in Barangay Murcia upon the invitation of one
Ruben Santos. The group arrived in Murcia at seven o'clock that evening and promptly had dinner and a
drinking spree which lasted until the morning of the next day.

Marlon Mateo testified that one day in October 1996, while his mother was working overseas, he
arrived home from school, and saw Pikong Navarro and private complainant, both naked, on the
bed. Navarro was on top of private complainant and was making thrusting motions. Marlon Mateo
hurriedly left to report the incident to his father.

At the conclusion of the trial, the court a quo issued its decision, dated 23 January 2001, finding
appellant guilty beyond reasonable doubt of ten (10) counts of rape -

"WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of ten (10) counts of rape
and is hereby sentenced to suffer the penalty of reclusion perpetua for each count of rape and to
indemnify the complainant the sum of P50,000.00 as actual damages and P50,000.00 as moral damages
for each count of rape."[2]

More often than not, the Court has deemed it sufficient to convict an accused for rape solely on the
basis of the testimony of the victim.[3] The heavy reliance normally given by the Court on the narration
of the victim finds justification on the fact that, generally, she would be the sole witness to the incident
and the shy and demure character of the typical Filipina would preclude her from fabricating that
crime. It is imperative, nonetheless, that the testimony must be convincing and straightforward in order
to avoid any serious doubt from being cast on the veracity of the account given.

Relative to the first supposed rape incident, private complainant categorically stated that she had slept
in the lone bedroom of the house while her siblings and her stepfather slept in the sala

"Q. How did (sic) he able to remove your t-shirt and shorts?

"A. He brought me to the sala and in that place when he undressed me, sir.

"x x x xxx xxx

"Q. How did (sic) he able to take you out from the room? In what way?

"A. She (sic) lifted me and still my mouth was covered, my hands were stocked and I

cannot move, sir.

"Q. She (sic) lifted you by his two hands, is that right?

"A. Yes, sir."[4]

"Q. You testified on direct examination that there is only one room in your house, is that

right?

"A. Yes, sir.

"Q. And you were then sleeping inside your house in that one room, is that right?

"A. Yes, sir.

"Q. While your brothers as well as your stepfather were then sleeping outside your

room, you [were] also sleeping, is that right?

"A. Yes, sir."[5]


In the next breath, however, she testified that all her three siblings were sleeping with her on the night
of 07 October 1995 -

"Q. How did (sic) he able to remove your t-shirt and shorts?

"A. He brought me to the sala and in that place when he undressed me, sir.

"Q. Do you want to tell this Honorable Court that he brought you to the sala where your

brothers Ryan and Marlon and your sister Iris were then sleeping?

"A. My brothers and sister were sleeping in the room, sir.

"Q. Is it not a fact that there was only one room in your house?

"A. But they slept there on that night, sir.

"Q. In other words, Madam Witness, you were sleeping together with Ryan, Marlon,

and Iris by that time in one room together in one bed?

"A. Yes, sir."[6]

Still, later, Imelda changed her testimony and said that her brothers were in the sala and that it was only
her sister Iris who was with her in the bedroom when the rape incidents were committed -

"Q. How about your brother Ryan where did he sleep on October 7, 1995?

"A. At the sala, sir.

"Q. Who was with him in the sala?

"A. He [was] sleeping with my stepfather and my brother Marlon, sir.

"Q. How about Iris, where was she sleeping?

"A. She was with me, sir.

"Q. You mean to imply to the Court that according to you the accused abused you on

October 7, 1995, Iris [was] with you in the room?

"A. Yes, sir.

"Q. Are you sure of that?


"A. Yes, sir.

"x x x xxx xxx

"Q. You stated in your direct testimony that on October 7, 1995 your father entered

your room where you were sleeping, covering your mouth and forced you to go to the sala, do you recall
that statement?

"A. No, sir.

"Q. Do you not remember that you have testified that he was able to take you to the

sala?

"A. No, sir.

"Q. And then when you reached the sala, you stated that the accused criminally abused

you?

"A. No, sir.

"Q. Do you not remember having been asked by the prosecutor examining you, and

now I cite to you your statement; `Q - Public Prosecutor Llobrera, `Now, let us make it clear. You said
you were brought to the sala and your answer, `Yes, sir.''' Do you not remember having made that
statement?

"A. No, sir.

"Q. And another question, `When you reached the sala what were the first things he did

to you and your answer, `He kissed me, sir.'' Do you remember that?

"A. No, sir. The first time he abused me was in the room, sir."[7]

The Solicitor General would posit that the claim of private complainant that she had the sole privilege of
sleeping in the lone bedroom of their house while the rest of the family, namely both her parents and
her three siblings, had to squeeze themselves in the sala strained credulity, and that the testimony of
her mother, Rosemarie Capulong, to the effect that the couple were the occupants of the single
bedroom while their children stayed in the sala where the television was located, made more sense.
Imelda testified that her three siblings - Marlon, Ryan and Iris - were sleeping inside the house every
time the rape incidents were committed. The identical testimony of everyone else in the Mateo
household, including her mother Rosemarie Capulong and brother Marlon Mateo, exposed such
assertions to be a blatant lie and categorically stated that Ryan himself had never stayed in the Mateo
residence because he was living with his grandparents since childhood.

Private complainant testified that during the rape incidents she was gagged with a handkerchief which
rendered her unable to shout for help. Later on, however, she gave different versions on whether
appellant covered her mouth with his hand or with a handkerchief during the rape incidents occurring
on 07 October 1995, 05 January 1996, 12 January 1996, 18 July 1996, 16 August 1996 and 28 August
1996. Eventually, she repudiated her earlier testimony by stating that appellant had never covered her
mouth, either with a handkerchief or with his hand -

"Q. Both the incidents of July 2 and July 18, according to you, he only covered your

mouth on both occasions?

"A. Yes, sir.

"Q. He did not tie your mouth with anything?

"A. No, sir.

"Q. Miss Witness, in your statement also on August 20, 1997, you stated that the

accused covered your mouth and tied your mouth with a handkerchief on both occasions. Do you
remember having given that statement?

"A. No, sir.

"Q. So, you do not remember having made that statement?

"A. No, sir.

"Q. Recalling your testimony you gave on August 20, 1997, for the July 2 occasion and

the testimony that you gave as appearing on page 18 of the transcript of stenographic notes. These
questions and answers were given and answered by you. `Q. While he was doing all these things to
you, did you call for help? A. I cannot shout because my mouth was covered with a handkerchief,
sir. Q. Was he holding that handkerchief? A. It was tied, sir.' On July 17, 1997, you said that the
accused tied your mouth on July 2, 1996, and you said that you cannot shout because your mouth was
tied with a handkerchief. Do you remember having stated that?
"A. No, sir.

"x x x xxx xxx

"Q. On the July 18 occasion, you also stated in your direct testimony on August 29,

1997, when asked these following questions appearing on page 21 of the transcript of stenographic
notes. `Q. Tell the Court how did he rape you on that night? A. On that night while I was sleeping in my
room, he tied a handkerchief in my mouth so I could not shout, sir.' Do you remember having stated
that?

"A. No, sir.

"Q. And also you were asked this question: `Q. After tying this handkerchief to your

mouth, what did he do to you?' You said that he raped you. Do you remember having given this
statement?

"A. No, sir."[8]

Also quite telling were some discrepancies in the testimony of private complainant regarding the
whereabouts of her mother Rosemarie Capulong on the dates of the incidents. According to private
complainant, it was when her mother Rosemarie was not at home when appellant would commit the
dastardly crimes. Not only did the account of Imelda contradict that of Rosemarie but that Imelda
herself would appear to have made irreconcilable statements. According to her, on 07 October 1995,
the date of the first rape, Rosemarie had gone to Bamban to visit her mother. Subsequently, however,
she said that Rosemarie went to Bamban because she worked there, only to later say that, at that time,
Rosemarie had already resigned from work. Imelda would further change her story by stating that
Rosemarie Capulong did not report for work that day; then, in a quick turnaround, she remarked that
her mother did go to Bamban not to work but to get her birth certificate. Interestingly, Imelda said that
07 October 1995 was a working day, and that she had gone to school the following day. Judicial notice
could be taken of the fact, however, that 07 October 1995 was a Saturday and that the following day, a
Sunday, could not have been a school day. With respect to the rape committed on 12 January 1996,
Imelda testified that Rosemarie was attending a seminar; yet, when cross-examined, she told the trial
court that on that day Rosemarie went to Manila to borrow money from her cousin.

The subsequent conduct of a victim could also either confirm or negate her claim of rape.[9] The human
nature, characterized by an instinct for self-preservation and an aversion to humiliation, would dictate
that a typical victim of rape could display changes in behavior, erratic mood swings and an alteration in
her daily routine. No such changes were observed in the case of private complainant. She testified that
on the day after the first incident on 07 October 1995, she woke up at six o'clock in the morning, washed
her face, and went to school. There was no apparent attempt on her part to run away from home
despite every chance to escape from her tormentor or to exercise every means available to ensure that
the incidents would not be repeated. At fifteen years old, already old enough to think of her safety and
well-being, Imelda Mateo went about her usual business as if nothing unusual had occurred. She
continued to sleep in the same bedroom with nary any precaution against the bestiality she was sure
would come everytime her mother was away.

While it may be argued that appellant's moral ascendancy over Imelda was enough to intimidate her to
suffer in silence; still, it could well be improbable for a victim who had been raped no less than ten times
not to make a simple outcry against her unarmed rapist when she had every opportunity to do so.

The Solicitor General assails the factual findings of the trial court and recommends an acquittal of
appellant.

The records would disclose that the first half of the trial, from 17 July 1997 until 15 October 1997, was
conducted by Judge Lino L. Diamsay. Judge Edgardo F. Sundiam conducted the trial from 14 January
1999 until 24 February 1999. From 11 May 1999 until the day of the last hearing, it was Judge Arsenio P.
Adriano who heard the case. While this change of the presiding judges would not invalidate the
proceedings, it did deny to the deciding magistrate the opportunity to observe in entirety the demeanor
of the witnesses which could well be vital to the decision-making process, particularly where credibility
would, by and large, constitute the singular issue.

The law demands that only proof of guilt beyond reasonable doubt can justify a verdict of guilt.

Up until now, the Supreme Court has assumed the direct appellate review over all criminal cases in
which the penalty imposed is death, reclusion perpetua or life imprisonment (or lower but involving
offenses committed on the same occasion or arising out of the same occurrence that gave rise to the
more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is
imposed). The practice finds justification in the 1987 Constitution

Article VIII, Section 5. The Supreme Court shall have the following powers:

"(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

"x x x xxx xxx

"(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher."

The same constitutional article has evidently been a thesis for Article 47 of the Revised Penal Code, as
amended by Section 22 of Republic Act No. 7659,[10] as well as procedural rules contained in Section 3 of
Rule 122,[11]Section 10 of Rule 122,[12] Section 13 of Rule 124[13] and Section 3 of Rule 125[14] of the Rules
of Court. It must be stressed, however, that the constitutional provision is not preclusive in character,
and it does not necessarily prevent the Court, in the exercise of its rule-making power, from adding an
intermediate appeal or review in favor of the accused.
In passing, during the deliberations among the members of the Court, there has been a marked absence
of unanimity on the crucial point of guilt or innocence of herein appellant. Some are convinced that the
evidence would appear to be sufficient to convict; some would accept the recommendation of acquittal
from the Solicitor General on the ground of inadequate proof of guilt beyond reasonable doubt. Indeed,
the occasion best demonstrates the typical dilemma, i.e., the determination and appreciation of
primarily factual matters, which the Supreme Court has had to face with in automatic review cases; yet,
it is the Court of Appeals that has aptly been given the direct mandate to review factual issues.

While the Fundamental Law requires a mandatory review by the Supreme Court of cases where the
penalty imposed is reclusion perpetua, life imprisonment, or death, nowhere, however, has it proscribed
an intermediate review. If only to ensure utmost circumspection before the penalty of death, reclusion
perpetua or life imprisonment is imposed, the Court now deems it wise and compelling to provide in
these cases a review by the Court of Appeals before the case is elevated to the Supreme Court. Where
life and liberty are at stake, all possible avenues to determine his guilt or innocence must be accorded
an accused, and no care in the evaluation of the facts can ever be overdone. A prior determination by
the Court of Appeals on, particularly, the factual issues, would minimize the possibility of an error of
judgment. If the Court of Appeals should affirm the penalty of death, reclusion perpetua or life
imprisonment, it could then render judgment imposing the corresponding penalty as the circumstances
so warrant, refrain from entering judgment and elevate the entire records of the case to the Supreme
Court for its final disposition.[15]

Statistics would disclose that within the eleven-year period since the re-imposition of the death penalty
law in 1993 until June 2004, the trial courts have imposed capital punishment in approximately
1,493,[16] out of which 907 cases[17] have been passed upon in review by the Court. In the Supreme
Court, where these staggering numbers find their way on automatic review, the penalty has been
affirmed in only 230 cases comprising but 25.36% of the total number. Significantly, in more than half or
64.61% of the cases, the judgment has been modified through an order of remand for further
proceedings, by the application of the Indeterminate Sentence Law or by a reduction of the
sentence. Indeed, the reduction by the Court of the death penalty to reclusion perpetua has been made
in no less than 483 cases or 53.25% of the total number. The Court has also rendered a judgment of
acquittal in sixty-five (65) cases. In sum, the cases where the judgment of death has either been
modified or vacated consist of an astounding 71.77% of the total of death penalty cases directly
elevated before the Court on automatic review that translates to a total of six hundred fifty-one (651)
out of nine hundred seven (907) appellants saved from lethal injection.

Under the Constitution, the power to amend rules of procedure is constitutionally vested in the
Supreme Court -

Article VIII, Section 5. The Supreme Court shall have the following powers:

"(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts."
Procedural matters, first and foremost, fall more squarely within the rule-making prerogative of the
Supreme Court than the law-making power of Congress. The rule here announced additionally allowing
an intermediate review by the Court of Appeals, a subordinate appellate court, before the case is
elevated to the Supreme Court on automatic review, is such a procedural matter.

Pertinent provisions of the Revised Rules on Criminal Procedure, more particularly Section 3 and Section
10 of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125, and any other rule insofar as they provide
for direct appeals from the Regional Trial Courts to the Supreme Court in cases where the penalty
imposed is death, reclusion perpetua or life imprisonment, as well as the resolution of the Supreme
Court en banc, dated 19 September 1995, in "Internal Rules of the Supreme Court" in cases similarly
involving the death penalty, are to be deemed modified accordingly.

WHEREFORE, the instant case is REMANDED, and all pertinent records thereof ordered to be
FORWARDED, to the Court of Appeals for appropriate action and disposition, consistent with the
discussions hereinabove set forth. No costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

[1]
Records, p. 1.

[2]
Rollo, p. 53.

[3]
People v. Paranzo, G.R. No. 107800, 26 October 1999 (317 SCRA 367).

[4]
TSN, Imelda Mateo, Cross-examination, 16 September 1997, pp. 17-19.

[5]
TSN, Imelda Mateo, Cross-examination, 16 September 1997, pp. 4-5.

[6]
TSN, Imelda Mateo, Cross-examination, 16 September 1997, pp. 17-18.

[7]
TSN, Imelda Mateo, Cross-examination, 14 January 1999, pp. 5-12.

[8]
TSN, Imelda Mateo, Cross-examination, 11 May 1999, pp. 22-25.

[9]
People v. Bayron, G.R. No. 122732, 07 September 1999 (313 SCRA 727); People v. Ablaneda, G.R. No.
128075, 14 September 1999 (314 SCRA 334).
[10]
ART. 47. In what cases the death penalty shall not be imposed; Automatic Review of death penalty
cases. - x x x

In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the
Supreme Court for automatic review and judgment by the court en banc, within twenty (20) days but
not earlier than fifteen (15) days after promulgation of the judgment or notice of denial of any motion
for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the
filing thereof by the stenographic reporter.
[11]
Sec. 3. How appeal taken.

xxx xxx xxx

(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court
is reclusion perpetua or life imprisonment, or where a lesser penalty is imposed but for offenses
committed on the same occasion or which arose out of the same occurrence that gave rise to the more
serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed,
shall be by filing a notice of appeal in accordance with paragraph (a) of this Section.

(d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial
Court. The same shall be automatically reviewed by the Supreme Court as provided in section 10 of this
Rule.
[12]
Sec. 10. Transmission of records in case of death penalty. - In all cases where the death penalty is
imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review
and judgment within five (5) days after the fifteenth (15th) day following the promulgation of the
judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be
forwarded within ten (10) days after the filing thereof by the stenographic reporter.

[13]
Sec. 13. Quorum of the court; certification or appeal of cases to Supreme Court. - Three (3) Justices
of the Court of Appeals shall constitute a quorum for the sessions of a division. The unanimous vote of
the three (3) Justices of a division shall be necessary for the pronouncement of a judgment or final
resolution, which shall be reached in consultation before the writing of the opinion by a member of the
division. In the event that the three (3) Justices can not reach a unanimous vote, the Presiding Justice
shall direct the raffle committee of the Court to designate two (2) additional Justices to sit temporarily
with them, forming a special division of five (5) members and the concurrence of a majority of such
division shall be necessary for the pronouncement of a judgment or final resolution. The designation of
such additional Justices shall be made strictly by raffle and rotation among all other Justices of the Court
of Appeals.

Whenever the Court of Appeals finds that the penalty of death, reclusion perpetua, or life imprisonment
should be imposed in a case, the court, after discussion of the evidence and the law involved, shall
render judgment imposing the penalty of death, reclusion perpetua, or life imprisonment as the
circumstances warrant. However, it shall refrain from entering the judgment and forthwith certify the
case and elevate the entire record thereof to the Supreme Court for review..
[14]
Sec. 3. Decision if opinion is equally divided. - When the Supreme Court en banc is equally divided in
opinion or the necessary majority cannot be had on whether to acquit the appellant, the case shall again
be deliberated upon and if no decision is reached after re-deliberation, the judgment of conviction of
the lower court shall be reversed and the accused acquitted.

[15]
In this instance, then, the Supreme Court may exercise its "exclusive appellate jurisdiction" over all
cases where the penalty of death, reclusion perpetua or life imprisonment is imposed by lower courts,
under applicable laws like Republic Act No. 296 and Batas Pambansa Blg. 129.

[16]
As of 06 July 2004, the total number of cases pending in the Supreme Court are as follows:

Death Penalty ------------------------------------------------------------------- 586

Life Imprisonment ------------------------------------------------------------------- 375


[1320]
Reclusion Perpetua -------------------------------------------------------------------

2281

The total number of cases certified by the Court of Appeals to the Supreme Court for review are as
follows:

Death Penalty ------------------------------------------------------------------- 1

Life Imprisonment ------------------------------------------------------------------- 3


[28]
Reclusion Perpetua -------------------------------------------------------------------

32

[17]
As per report from the Judicial Records Office of the Supreme Court, the following are the data as of
08 June 2004:

DISMISSED due to death of the Accused-Appellants ----------------- 26

AFFIRMED --------------------------------------------------------- 230

MODIFIED:

a. FURTHER PROCEEDINGS ------------------------------ 31

b. RECLUSION PERPETUA ------------------------------- 483

c. INDETERMINATE SENTENCE ------------------------- 72

ACQUITTED -------------------------------------------------------- 65
907

46. Santiago vs. Bautista, 32 SCRA 188 (1970)

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-25024 March 30, 1970

TEODORO C. SANTIAGO, JR. Minor, Represented by his Mother, Mrs. Angelita C. Santiago, petitioner-
appellant,
vs.
MISS JUANITA BAUTISTA, ROSALINDA ALPAS, REBECCA MATUGAS, MILKITA INAMAC, ROMEO
AGUSTIN, AIDA CAMINO, LUNA SARMAGO, AURORA LORENA, SOLEDAD FRANCISCO and MR. FLOR
MARCELO, respondents-appellees.

Teodoro M. Santiago for petitioner-appellant.

Ramon C. Carag for respondent-apellees.

BARREDO, J.:

Appeal from the order of the Court of First Instance of Cotabato dismissing, on a motion to dismiss, its
Civil Case No. 2012 — for certiorari, injunction and damages — on the ground that the complaint therein
states no cause of action, and from the subsequent order of the court a quo denying the motion for the
reconsideration of the said order of dismissal.

The record shows that at the time Civil Case No. 2012 was commenced in the court below, appellant
Teodoro Santiago, Jr. was a pupil in Grade Six at the public school named Sero Elementary School in
Cotabato City. As the school year 1964-1965 was then about to end, the "Committee On The Rating Of
Students For Honor" was constituted by the teachers concerned at said school for the purpose of
selecting the "honor students" of its graduating class. With the school Principal, Mrs. Aurora Lorena, as
chairman, and Juanita Bautista, Rosalinda Alpas, Rebecca Matugas, Milkita Inamac, Romeo Agustin, Aida
Camino and Luna Sarmago, as members, the above-named committee deliberated and finally adjudged
Socorro Medina, Patricia Liñgat and Teodoro C. Santiago, Jr. as first, second and third honors,
respectively. The school's graduation exercises were thereafter set for May 21, 1965; but three days
before that date, the "third placer" Teodoro Santiago, Jr., represented by his mother, and with his father
as counsel, sought the invalidation of the "ranking of honor students" thus made, by instituting the
above-mentioned civil case in the Court of First Instance of Cotabato, against the above-named
committee members along with the District Supervisor and the Academic Supervisor of the place.
The corresponding complaint filed alleged, inter alia: that plaintiff-petitioner Teodoro C. Santiago, Jr. is a
sixth grader at the Sero Elementary School in Cotabato City scheduled to be graduated on May 21st,
1965 with the honor rank of third place, which is disputed; that the teachers of the school had been
made respondents as they compose the "Committee on the Rating of Student for Honor", whose grave
abuse of official discretion is the subject of suit, while the other defendants were included as Principal,
District Supervisor and Academic Supervisor of the school; that Teodoro Santiago, Jr. had been a
consistent honor pupil from Grade I to Grade V of the Sero Elementary School, while Patricia Liñgat
(second placer in the disputed ranking in Grade VI) had never been a close rival of petitioner before,
except in Grade V wherein she ranked third; that Santiago, Jr. had been prejudiced, while his closest
rival had been so much benefited, by the circumstance that the latter, Socorro Medina, was coached
and tutored during the summer vacation of 1964 by Mrs. Alpas who became the teacher of both pupils
in English in Grade VI, resulting in the far lead Medina obtained over the other pupil; that the committee
referred to in this case had been illegally constituted as the same was composed of all the Grade VI
teachers only, in violation of the Service Manual for Teachers of the Bureau of Public Schools which
provides that the committee to select the honor students should be composed of all teachers in Grades
V and VI; that there are direct and circumstantial matters, which shall be proven during the trial,
wherein respondents have exercised grave abuse of discretion and irregularities, such as the changing of
the final ratings on the grading sheets of Socorro Medina and Patricia Liñgat from 80% to 85%, and some
teachers giving petitioner a starting grade of 75% in Grade VI, which proves that there has already an
intention to pull him to a much lower rank at the end of the school year; that several district
examinations outside of teachers' daily units and other than periodical tests were given, ratings in which
were heavily considered in the determination of periodical ratings, whereas according to the Academic
Supervisor and Acting Division Superintendent of schools of the place such district examinations were
not advisable; that there was a unanimous agreement and understanding among the respondent
teachers to insult and prejudice the second and third honors by rating Socorro Medina with a perfect
score, which is very unnatural; that the words "first place" in petitioner's certificate in Grade I was
erased and replaced with the words "second place", which is an instance of the unjust and
discriminating abuses committed by the respondent teachers in the disputed selection of honor pupils
they made; that petitioner personally appealed the matter to the School Principal, to the District
Supervisor, and to the Academic Supervisor, but said officials "passed the buck to each other" to delay
his grievances, and as to appeal to higher authorities will be too late, there is no other speedy and
adequate remedy under the circumstances; and, that petitioner and his parents suffered mental and
moral damages in the amount of P10,000.00. They prayed the court, among others, to set aside the final
list of honor students in Grade VI of the Sero Elementary School for that school year 1964-1965, and,
during the pendency of the suit, to enjoin the respondent teachers from officially and formally
publishing and proclaiming the said honor pupils in Grade VI in the graduation exercises the school was
scheduled to hold on the 21st of May of that year 1965. The injunction prayed for was denied by the
lower court in its order of May 20, 1965, the said court reasoning out that the graduation exercises were
then already set on the following day, May 21, 1965, and the restraining of the same would be shocking
to the school authorities, parents, and the community who had eagerly looked forward to the coming of
that yearly happy event. As scheduled, the graduation exercises of the Sero Elementary School for the
school year 1964-1965 was held on May 21, with the same protested list of honor students.

Having been required by the above-mentioned order to answer the petition within ten (10) days,
respondents moved for the dismissal of the case instead. Under date of May 24, 1965, they filed a
motion to dismiss, on the grounds (1) that the action for certiorari was improper, and (2) that even
assuming the propriety of the action, the question brought before the court had already become
academic. This was opposed by petitioner.

In an order dated June 4, 1965, the motion to dismiss of respondents was granted, the court reasoning
thus:

The respondents now move to dismiss the petition for being improper and for being academic. In order
to resolve the motion to dismiss, the Court has carefully examined the petition to determine the
sufficiency of the alleged cause of action constituting the special civil action of certiorari.

The pertinent portions of the petition alleging 'grave abuse of discretion' are found in paragraphs 3, 4, 5,
6, 7, 8, 9 and 10. These allegations may be substantially summarized as follows: Paragraph 3 alleges that
since grades one to six, the students closely contending for class honors were Socorro Medina, Teodoro
Santiago, Jr., Dolores Dalican and Patricia Liñgat.

Socorro Medina obtained first honor thrice (grades I, V and VI); once second honor (grade IV), and twice
third place (grades II and III).

Teodoro Santiago, Jr. obtained first place once (grade IV); four times second place (grades I, II, III, and V)
and once third place (grade VI).

Dolores Dalican obtained twice first place (grades II, III); once third place (grade I).

Patricia Liñgat once third place (grade V); and once second place (grade VI).

That as now ranked in the graduation Liñgat is given second place while Teodoro Santiago, Jr., is given
the third place only. This is the ranking now disputed by petitioner, Teodoro Santiago, Jr.

Paragraph 4 alleges that Socorro Medina was tutored in the summer of 1964 by Mrs. Rosalinda Alpas
who became her English teacher in the sixth grade; that as such, Mrs. Alpas unjustly favored Socorro
against her rivals.

Paragraph 5 alleges that the teachers who composed the committee on honor students are all grade six
teachers while the Service Manual For Teachers provides that the committee shall be composed of the
teachers from the fifth and sixth grades.

Paragraph 6 alleges that there are direct and circumstantial evidence showing the change of ratings of
Socorro Medina and Patricia Liñgat from 80% to 85% and the intention to junk petitioner to a lower
rank.

Paragraph 7 alleges that the giving of district examinations upon which ratings were partly based were
not advisable.

Paragraph 8 alleges that the teachers rated Socorro Medina a perfect pupil which is unnatural.

Paragraph 9 alleges that on the first grade certificate of the petitioner the word "First Place" was erased
and changed to "Second Place".

Paragraph 10 alleges that petitioner personally appealed to the school authorities but they only 'passed
the buck to each other.'
SECOND PARAGRAPH VIOLATED

Rule 65, Section 1 of the Rules of Court provides:

'Section 1. Petition for certiorari. — When any tribunal, board, or officer exercising judicial functions, has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no
appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings, as the law requires, of such tribunal,
board or officer.'

'The petition shall be accompanied by a certified true copy of the judgment or order subject thereof,
together with copies of all pleadings and documents relevant and pertinent thereto.'

It is striking, indeed, that this petition has not been accompanied by a certified true copy of the
judgment or order complained of, together with all pleadings and documents which are relevant
thereto, as required by the second, paragraph of the aforequoted rule. This violation renders the
petition extremely indefinite and uncertain. There is no written formal judgment or order of
respondents that is submitted for revision or correction of this Court. This violation is fatal to the
petition.

ADMINISTRATIVE REMEDIES NEGLECTED

All that the petition alleges is that the petitioner personally appealed to the school authorities who only
'passed the buck to each other.' This allegation does not show that petitioner formally availed of and
exhausted the administrative remedies of the Department of Education. The petition implies that this is
the first formal complaint of petitioner against his teachers. The administrative agencies of the
Department of Education could have investigated the grievances of the petitioner with dispatch and give
effective remedies, but petitioner negligently abandoned them. Petitioner cannot now claim that he
lacked any plain, speedy and adequate remedy.

NO GRAVE ABUSE OF DISCRETION

Allegations relating to the alleged 'grave abuse of discretion' on the part of teachers refer to errors,
mistakes, or irregularities rather than to real grave abuse of discretion that would amount to lack of
jurisdiction. Mere commission of errors in the exercise of jurisdiction may not be corrected by means
of certiorari.

In view of the foregoing, the Court is of the opinion, and so holds, that the petition states no cause of
action and should be, as it is hereby dismissed.

Upon receipt of a copy of the above-quoted order, the petitioner moved for the reconsideration
thereof, but the same proved to be futile, hence, this appeal.

Appellant here assails the holding of the lower court that his petition states no cause of action on the
grounds — discussed by the court a quo in the appealed order above-quoted — (1) that the petition
does not comply with the second paragraph of Sec. 1 of Rule 65 because it has not been accompanied
by a certified true copy of the judgment or order subject thereof, together with copies of all pleadings
and documents relevant and pertinent thereto; (2) that administrative remedies were not first
exhausted; and (3) that there was no grave abuse of discretion on the part of the teachers who
constituted the committee referred to. On the other hand, appellees maintain that the court below did
not err in dismissing the case on said grounds. Further, they argue in favor of the questioned order of
dismissal upon the additional ground that the "committee on the ratings of students for honor" whose
actions are here condemned by appellant is not the "tribunal, board or officer exercising judicial
functions" against which an action for certiorari may lie under Section 1 of Rule 65.

The last point raised by appellees deserves first consideration, for if really the said committee of
teachers does not fall within the category of the tribunal, board, or officer exercising judicial
functions contemplated by Rule 65, further discussion of the issues raised by appellant may no longer be
necessary. To resolve this problem the following tests may be employed:

In this jurisdiction certiorari is a special civil action instituted against 'any tribunal, board, or officer
exercising judicial functions.' (Section 1, Rule 67.) A judicial function is an act performed by virtue of
judicial powers; the exercise of a judicial function is the doing of something in the nature of the action of
the court (34 C.J. 1182). In order that a special civil action of certiorari may be invoked in this jurisdiction
the following circumstances must exist: (1) that there must be a specific controversy involving rights of
persons or property and said controversy is brought before a tribunal, board or officer for hearing and
determination of their respective rights and obligations.

'Judicial action is an adjudication upon the rights of parties who in general appear or are brought before
the tribunal by notice or process, and upon whose claims some decision or judgment is rendered. It
implies impartiality, disinterestedness, a weighing of adverse claims, and is inconsistent with discretion
on the one hand — for the tribunal must decide according to law and the rights of the parties — or with
dictation on the other; for in the first instance it must exercise its own judgment under the law, and not
act under a mandate from another power. ... The character of its action in a given case must decide
whether that action is judicial, ministerial, or legislative, or whether it be simply that of a public agent of
the country or State, as in its varied jurisdictions it may by turns be each.' (In Re Saline County
Subscription, 100 Am. Dec. 337, 338, cited in Southeastern Greyhound Lines v. Georgia Public Service
Commission, 181 S. E. 836-837.)

'It may be said generally that the exercise of judicial function is to determine what the law is, and what
the legal rights of parties are, with respect to a matter in controversy; and whenever an officer is
clothed with that authority, and undertakes to determine those questions, he acts judicially.' (State ex
rel. Board of Commissioners of St. Louis County, et al. v. Dunn, 90 N. W. 772-773.)

(2) the tribunal, board or officer before whom the controversy is brought must have the power and
authority to pronounce judgment and render a decision on the controversy construing and applying the
laws to that end.

'The phrase "judicial power" is not capable of a precise definition which would be applicable to all cases.
The term has been variously defined as the authority to determine the rights of persons or property by
arbitrating between adversaries in specific controversies at the instance of a party thereto; the authority
exercised by that department of government which is charged with the declaration of what the law is
and its construction so far as it is written law; the authority or power vested in the judges or in the
courts; the authority vested in some court, officer, or persons to hear and determine when the rights of
persons or property or the propriety of doing an act is the subject matter of adjudication; the power
belonging to or emanating from a judge as such; the power conferred upon a public officer, involving the
exercise of judgment and discretion in the determination of questions of right in specific cases affecting
the interest of persons or property, as distinguished from ministerial power or authority to carry out the
mandates of judicial power or the law; the power exercised by courts in hearing and determining cases
before them, or some matter incidental thereto, and of which they have jurisdiction; the power of a
court to decide and pronounce a judgment; the power which adjudicates upon and protects the rights
and interests of individual citizens, and to that end construes and applies the law. "Judicial power"
implies the construction of laws and the adjudication of legal rights. It includes the power to hear and
determine but not everyone who may hear and determine has judicial power. The term "judicial power"
does not necessarily include the power to hear and determine a matter that is not in the nature of a suit
or action between the parties.' (34 C.J. 1183-1184.) .

(3) the tribunal, board or officer must pertain to that branch of the sovereign power which belongs to
the judiciary, or at least, which does not belong to the legislative or executive department.

... the distinction between legislative or ministerial functions and judicial functions is difficult to point
out. What is a judicial function does not depend solely upon the mental operation by which it is
performed or the importance of the act. In solving this question, due regard must be had to the organic
law of the state and the division of power of government. In the discharge of executive and legislative
duties, the exercise of discretion and judgment of the highest order is necessary, and matters of the
greatest weight and importance are dealt with. It is not enough to make a function judicial that it
requires discretion, deliberation, thought, and judgment. It must be the exercise of discretion and
judgment within that subdivision of the sovereign power which belongs to the judiciary, or, at least,
which does not belong to the legislative or executive department. If the matter, in respect to which it is
exercised, belongs to either of the two last-named departments of government, it is not judicial. As to
what is judicial and what is not seems to be better indicated by the nature of a thing, than its definition.'
(Whealing & Elm Grove Railroad Co. Appt. v. Town of Triadelphia, et al., 4 L.R.A. (N. S.) pp. 321, 328-
329.) [Emphasis supplied]1

'WHAT ARE JUDICIAL OR QUASI JUDICIAL ACTS. It is difficult, if not impossible, precisely to define what
are judicial or quasi judicial acts, and there is considerable conflict in the decisions in regard thereto, in
connection with the law as to the right to the writ of certiorari. It is clear, however, that it is the nature
of the act to be performed, rather than of the office, board, or body which performs it, that determines
whether or not it is the discharge of a judicial or quasi-judicial function. It is not essential that the
proceedings should be strictly and technically judicial, in the sense in which that word is used when
applied to the courts of justice, but it is sufficient if they are quasi judicial. It is enough if the officers act
judicially in making their decision, whatever may be their public character. ...' "In State ex rel. Board of
Commrs. vs. Dunn (86 Minn. 301, 304), the following statements were made:

'The precise line of demarkation between what are judicial and what are administrative or ministerial
functions is often difficult to determine. The exercise of judicial functions may involve the performance
of legislative or administrative duties, and the performance of administrative or ministerial duties, may,
in a measure, involve the exercise of judicial functions. It may be said generally that the exercise of
judicial functions is to determine what the law is, and what the legal rights of parties are, with respect to
a matter in controversy; and whenever an officer is clothed with that authority, and undertakes to
determine those questions, he acts judicially.'2
It is evident, upon the foregoing authorities, that the so called committee on the rating of students for
honor whose actions are questioned in this case exercised neither judicial nor quasi judicial functions in
the performance of its assigned task. From the above-quoted portions of the decision cited, it will be
gleaned that before tribunal board, or officer may exercise judicial or quasi judicial acts, it is necessary
that there be a law that give rise to some specific rights of persons or property under which adverse
claims to such rights are made, and the controversy ensuing therefrom is brought, in turn, before the
tribunal, board or officer clothed with power and authority to determine what that law is and thereupon
adjudicate the respective rights of the contending parties. As pointed out by appellees,3 however, there
is nothing on record about any rule of law that provides that when teachers sit down to assess the
individual merits of their pupils for purposes of rating them for honors, such function involves the
determination of what the law is and that they are therefore automatically vested with judicial or quasi
judicial functions. Worse still, this Court has not even been appraised by appellant of the pertinent
provisions of the Service Manual of Teachers for Public Schools appellees allegedly violated in the
composition of the committee they constituted thereunder, and, in the performance of that
committee's duties.

At any rate, the situation brought before Us in this case, the seemingly one of first impression, is not
without substantial parallel. In the case of Felipe vs. Leuterio, etc., et al.,4 the issue presented for
determination was whether or not the courts have the authority to reverse the award of the board of
judges of an oratorical contest, and this Court declared that the judiciary has no power to reverse the
award of the board of judges of that contest and, for that matter, it would not interfere in literary
contests, beauty contests and similar competitions. It was reasoned out thus:

For more than thirty years oratorical tilts have been held periodically by schools and colleges in this
islands. Inter-collegiate oratorical competitions are of more recent origin. Members of this court have
taken part in them either as contestants in their school days (In the College of Law, U.P. annual
oratorical contest, first prize was awarded to Justice Montemayor in 1914 and to Justice Labrador in
1916), or as members of the board of judges afterwards. They know some few verdicts did not reflect
the audience's preference and that errors have sometimes been ascribed to the award of the judges. Yet
no party ever presumed to invoke judicial intervention; for it is unwritten law in such contests that the
board's decision is final and unappealable.

Like the ancient tournaments of the Sword, these tournaments of the Word apply the highest tenets of
sportsmanship: finality of referee's verdict. No alibis, no murmurs of protest. The participants are
supposed to join the competition to contribute to its success by striving their utmost: the prizes are
secondary.

No rights to the prizes may be asserted by the contestants, because theirs was merely the privilege to
compete for the prize, and that privilege did not ripen into a demandable right unless and until they
were proclaimed winners of the competition by the appointed arbiters or referees or judges.

Incidentally, these school activities have been imported from the United States. We found in American
jurisprudence no litigation questioning the determination of the board of judges.

Now, the fact that a particular action has had no precedent during a long period affords some reason for
doubting the existence of the right sought to be enforced, especially where occasion for its assertion
must have often arisen; and courts are cautious before allowing it, being loath to establish a new legal
principle not in harmony with the generally accepted views thereon. (See C.J.S. Vol. 1, p. 1012.)

We observe that in assuming jurisdiction over the matter, the respondent judge reasoned out that
where there is a wrong there is a remedy and that courts of first instance are courts of general
jurisdiction.

The flaw in his reasoning lies in the assumption that Imperial suffered some wrong at the hands of the
board of judges. If at all, there was error on the part of one judge, at most. Error and wrong do not mean
the same thing. 'Wrong' as used in the aforesaid principle is the deprivation or violation of a right. As
stated before, a contestant has no right to the prize unless and until he or she is declared winner by the
board of referees or judges.

Granting that Imperial suffered some loss or injury, yet in law there are instances of 'damnum absque
injuria'. This is one of them. If fraud or malice had been proven, it would be a different proposition. But
then her action should be directed against the individual judge or judges who fraudulently or maliciously
injured her. Not against the other judges.

But even were We to assume for the moment, as the court below apparently did, that judicial
intervention might be sought in cases of this nature, still, We are inclined to sustain the order of
dismissal appealed from for failure on the part of appellant to comply with the requirements of Section
1 of Rule 65. To be sure, the lower court's holding that appellant's failure to accompany his petition with
a copy of the judgment or order subject thereof together with copies of all pleadings and documents
relevant and pertinent thereto "is fatal to his cause" is supported not only by the provision of that Rule
but by precedents as well. In the case of Alajar, et al. vs. Court of Industrial Relations,5where it was
claimed by therein petitioners that the respondent court had acted with grave abuse of discretion in
estimating certain rice harvests involved in the case in terms of cavans instead of cans, allegedly in
complete disregard of the decision of the Court of First Instance of Batangas in Expropriation
Proceedings No. 84 and of this Court in G.R. No.
L-6191,6 and in ordering thereafter the division of the said rice harvests on the ratio of 70-30 in favor of
the tenants, this Court denied the petition for certiorari on the ground, among others, of failure on the
part of said petitioners to attach to their petition copies of the decisions allegedly violated. Speaking
thru Mr. Justice J.B.L. Reyes then, this Court held:

The petition is patently without merit. In the first place, it is not even sufficient in form and substance to
justify the issuance of the writ of certiorari prayed for. It charges that the Court of Industrial Relations
abused its discretion in disregarding the decision of the Court of First Instance of Batangas in
Expropriation Proceedings No. 84 and of this Court in G.R. No. L-6191; yet it does not attach to the
petition the decisions allegedly violated by the Court below and point out which particular portion or
portions thereof have been disregarded by the respondent Court.

The same principle was applied in the more recent case of NAWASA vs. Municipality of Libmanan, et
al.,7 wherein this Court dismissed (by Resolution) the petition for certiorari and mandamus filed by the
National Waterworks and Sewerage Authority against the Court of First Instance of Camarines Sur, and
the municipality of Libmanan. In the following language, this Court emphasized the importance of
complying with the said requirement of Rule 65:
While paragraph 3 of the petition speaks of the complaint filed by the respondent municipality with the
respondent court for recovery of property with damages (Civil Case No. L-161) no copy thereof is
attached to the petition.

Similarly, paragraph 4 of the petition mentions the decision rendered by the respondent court on
December 10, 1965, but no copy thereof is attached to the petition.

Again, paragraph 5 of the petition speaks of the order of default entered by the respondent court and of
the motion for reconsideration filed by petitioner in the case above-mentioned, but no copy of the order
of default is attached to its petition.

Bearing in mind that the petition under consideration was filed for the purpose of enjoining the
respondent court from executing the decision rendered in Civil Case No. L-161, the importance of the
missing pleadings is obvious.

Moreover, the petition is also for the purpose of securing an order commanding the respondent court to
approve either the original or the amended record on appeal filed petition, but no copy of either is
attached to its petition.

In view of the foregoing, the petition under consideration is dismissed.

It might be true, as pointed out by appellant, that he received a copy of the programme of the
graduation exercises held by the Sero Elementary School in the morning of the very day of that
graduation exercises, implying that he could not have attached then a copy thereof (to show the
decision of the committee of teachers in the ranking of students complained of) to his petition. The
stubborn fact remains, however, that appellant had known of such decision of the said committee of
teachers much earlier, as shown by the circumstance that according to him, even before the filing of his
petition with the lower court on the 19th of May, 1965, he had personally appealed the said
committee's decision with various higher authorities of the above-named school, who merely passed
the buck to each other. Moreover, appellant mentions in his petition various other documents or papers
— as the Service Manual for Teachers allegedly violated by appellees in the constitution of their
committee; altered grading sheets; and erasures in his Grade I certificate — which appellant never
bothered to attach to his petition. There could be no doubt then that he miserably failed to comply with
the requirement of Rule 65 above-mentioned. With this conclusion, it is no longer necessary to pass
upon the other two errors assigned by appellant.

FOR THE FOREGOING CONSIDERATIONS, the judgment appealed from is affirmed, with costs against
appellant.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee and Villamor, JJ.,
concur.

Footnotes

1 Ruperto vs. Torres, et al., L-8785, February 25, 1957, (Unreported).

2 Municipal Council of Lemery vs. Provincial Board of Batangas, 56 Phil. 260, 268.
3 See pp. 5-6, Brief for Appellees.

4 91 Phil. 482 (May 30, 1952).

5 G.R. Nos. L-8174 and L-8280-86, October 8, 1955, 97 Phil. 675.

6 Republic of the Philippines vs. Baylosis, et al., 96 Phil. 461.

7 L-27197, May 31, 1967, 20 SCRA 337.

47. Felipe vs. Leuterio, 91 Phil. 482 (1952)

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-4606 May 30, 1952

RAMON B. FELIPE, SR., as Chairman, Board of Judges, petitioner,


vs.
HON. JOSE N. LEUTERIO, Judge, Court of First Instance of Camarines Sur, EMMA IMPERIAL,
represented by her guardian-ad-litem JUSTO V. IMPERIAL, and SOUTHERN LUZON
COLLEGE, respondents.

Ramon Felipe, Jr., and L. B. Karingal for petitioner.


Ezequiel S. Grageda and Victoriano Yamson for respondents Judge Leuterio and Emma Imperial.
Padilla and San Juan for respondent Southern Luzon College.

BENGZON, J.:

Statement of the case. The issue in the litigation is whether the courts have the authority to reverse the
award of the board of judges of an oratorical competition.

In an oratorical contest held in Naga, Camarines Sur, first honor was given by the board of five judges to
Nestor Nosce, and second honor to Emma Imperial. Six days later, Emma asked the court of the first
instance of that province to reversed that award, alleging that one of the judges had fallen to error in
grading her performance. After a hearing, and over the objection of the other four judges of the contest,
the court declared Emma Imperial winner of the first place. Hence this special civil action challenging the
court's power to modify the board's verdict.

The facts. There is no dispute about the facts:

1. On March 12, 1950 a benefit inter-collegiate oratorical contest was held in Naga City. The contestants
were eight, among them Nestor Nosce, Emma Imperial, and Luis General, Jr.

2. There were five judges of the competition, the petitioner Ramon B. Felipe, Sr. being the Chairman.
3. After the orators had delivered their respective pieces, and after the judges had expressed their
votes, the Chairman publicly announced their decision awarding first price to Nestor Nosce, second price
to Emma Imperial, third price to Menandro Benavides and fourth place to Luis General, Jr.

4. Four days afterwards, Emma Imperial addressed a letter to the Board of Judges protesting the verdict,
and alleging that one of the Judges had committed a mathematical mistake, resulting in her second
place only, instead of the first, which she therefore claimed.

5. Upon refusal of the Board to amend their award, she filed a complaint in the court of first instance.

6. At the contest the five judges were each furnished a blank form wherein he give the participants
grades according to his estimate of their abilities, giving number 1 to the best, number 2 to the second
best etc., down to number 8. Then the grades were added, and the contestant receiving the lowest
number got first prize, the next second prize, etc.

7. The sums for the first four winners were: Nosce 10; Imperial 10; Benevides 17, General 17, the Board
of judges having voted as follows:

Judge Nosce Imperial Buenavides General

Felipe Sr. ......... 3 1 2 4

Obias .............. 1 2 4 3

Rodriguez .......... 1 4 5 3

Prado .............. 3 2 1 3

Moll ............... 2 1 5 4

10 10 17 17

8. It appearing that Nestor Nosce and Emma Imperial had tied for the first place, the Chairman,
apparently with the consent of the board, broke the tie awarding first honors to Nosce and second
honors to Imperial.

9. For the convenience of the judges the typewritten forms contained blank spaces in which, after the
names of the rival orators and their respective orations, the judge could not jot down the grades he
thought the contestants deserved according to "Originality", "Timeliness", "English", "Stage Personality",
"Pronunciation and Enunciation" and "Voice". From such data he made up his vote.

10. It was discovered later that the form filed by Delfin Rodriguez, one of the Judges, gave Imperial and
General the following ratings under the above headings; Imperial 19-15-15-18-14-14 Total 94-Place 4th
General 19-15-15 or 14-19-14-14 Total 95-Place 3rd.

11. Imperial asserts that her total should be 95 instead of 94 and therefore should rank 3rd place in
Rodriguez' vote. And if she got 3 from Rodriguez, her total vote should have been 9 instead of ten, with
the result that she copped first place in the speaking joust.
12. Rodriguez testified that he made a mistake in adding up Imperial's ratings; that she should have
been given a total of 95, or placed No. 3, the same as General; that he was not disposed to break the tie
between her and General and insisted that he wanted to give rank 3 to Imperial and rank 3 also to
General.

Discussion. Although it would seem anomalous for one judge to give the same rank to two contestants,
we will concede for the moment that Delfin Rodriguez could have given 3 to Imperial to General.

However if deductions are to be made from his recorded vote (Exhibit 3) one may infer that after the
contest and before submitting his vote he decided to give General an edge over Imperial. How? Under
the caption "English" General was given by himself at first "14", later increased to "15". Evidently
because after he had added the ratings of Imperial and (erroneously) reached the sum of 94, he added
the ratings of General (which were the same as Imperial with 14 under "English") and (mistakenly)
reached 94 also. So what did he also? He raised the 14 to 15 and thus gave general 95 to place him over
Imperial's 94. (Mistakingly again, because with 15 General got 96 instead of 95).

But to us the important thing is Rodriguez' vote during and immediately after the affair. His vote in
Exhibit 3 definitely gave General place No. 3 and Imperial place No. 4. His calculations recorded on
Exhibit 3 were not material. In fact the Chairman did not bother to fill out the blank spaces in his own
form, and merely set down his conclusions giving one to Imperial, 2 to Benavides etc. without specifying
the ratings for "Voice", "English", "Stage Personality" etc. In other words what counted was the vote.

Probably for the above reasons the board refused to "correct" the alleged error.

The situation then is this: Days after a contest has been conducted and the winners announced, one of
the judges confesses he made a mistake, that the ratings he gave the second place winner should have
been such as would entitle her to first place. The other judges refuse to alter their verdict. May the
matter be brought to the court to obtain a new award, reversing the decision of the board of judges?

For more than thirty years oratorical tilts have been held periodically by schools and colleges in these
islands. Inter-collegiate oratorical competitions are of more recent origin. Members of this court have
taken part in them either as contestants in their school days1, or as members of the board of judges
afterwards. They know some (few) verdicts did not reflect the audience's preference and that errors
have sometimes been ascribed to the award of the judges. Yet no party ever presumed to invoke judicial
intervention; for it is unwritten law in such contests that the board's decision is final and unappealable.

Like the ancient tournaments of the Sword, these tournaments of the Word apply the highest tenets of
sportmanship: finally of the referee's verdict. No alibis, no murmurs of protest. The participants are
supposed to join the competition to contribute to its success by striving their utmost: the prizes are
secondary.

No rights to the prizes may be asserted by the contestants, because their's was merely the privilege to
compete for the prize, and that privilege did not ripen into a demandable right unless and until they
were proclaimed winners of the competition by the appointed arbiters or referees or judges.

Incidentally, these school activities have been imported from the United States. We found in American
jurisprudence no litigation questioning the determination of the board of judges.
Now, the fact that a particular action has had no precedent during a long period affords some reason for
doubting the existence of the right sought to be enforced, especially where occasion for its assertion
must have often arisen; and courts are cautious before allowing it, being loath to establish a new legal
principle not in harmony with the generally accepted views thereon. (See C.J.S. Vol. 1, p. 1012).

We observe that in assuming jurisdiction over the matter, the respondent judge reasoned out that
where there is a wrong there is a remedy and that courts of first instance are courts of general
jurisdiction.

The flaw in his reasoning lies in the assumption that Imperial suffered some wrong at the hands of the
board of judges. If at all, there was error on the part of one judge, at most. Error and wrong do not mean
the same thing. "Wrong" as used in the aforesaid legal principle is the deprivation or violation of a right.
As stated before, a contestant has no right to the prize unless and until he or she is declared winner by
the board of referees or judges.

Granting that Imperial suffered some loss or injury, yet in law there are instances of "damnum absque
injuria". This is one of them. If fraud or malice had been proven, it would be a different proposition. But
then her action should be directed against the individual judge or judges who fraudulently or maliciously
injured her. Not against the other judges.

By the way what is here in stated must not be understood as applying to those activities which the
government has chosen to regulate with the creation of the Games and Amusements Board in Executive
Order No. 392, Series 1950.

Judgment. In view of all the foregoing, we are of the opinion and so declare, that the judiciary has no
power to reverse the award of the board of judges of an oratorical contest. For that matter it would not
interfere in literary contests, beauty contests and similar competitions.

Wherefore the order in controversy is hereby set aside. No costs.

Paras, C.J., Pablo, Tuason, Montemayor, Bautista Angelo and Ladrador, JJ., concur.
Feria, J., concurs in the result.

Footnotes
1
In the College of Law U.P. annual oratorical contest, first prize was awarded to Justice Montemayor in
1914 and to Justice Labradorin 1916.

48. Prudential Bank vs. Castro, 158 SCRA 646 (1988)

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

A.M. No. 2756 March 15, 1988

PRUDENTIAL BANK complainant,


vs.
JUDGE JOSE P. CASTRO and ATTY. BENJAMIN M. GRECIA, respondents.

RESOLUTION

PER CURIAM:

Acting on the "Petition for Redress and Exoneration and for Voluntary Inhibition" filed by respondent
Benjamin M. Grecia himself, dated February 8, 1988, praying that the decision of November 12,1987,
and the resolution of the denial of the motion for reconsideration of the said decision be set aside and a
new one entered by this Court dismissing the administrative complaint and exonerating the respondent,
the Court RESOLVED (1) the EXPUNGE said Petition, it being in the nature of a second motion for
reconsideration filed without leave of Court, besides the fact that the first motion for reconsideration
filed by the same respondent had already been denied with finality on January 12, 1988; (2) to STRIKE
OUT Annex "1" of the Petition and its exclosures, Annex "1" being a xerox copy of a letter dated 04
August 1986 written by Judge Dionisio N. Capistrano to an unknown addressee, for being immaterial and
impertinent to this case for disbarment (Sec. 5, Rule 9, Rules of Court). The Court will not allow the filing
of such kinds of Petitions/Annexes that are not only irrelevant to the issue and presented out of time as
hereinafter explained, but are also scurrilous and defamatory.

Certain points raised in the Petition, however, call for separate treatment and determination.

1) The "Petition for Voluntary Inhibition" of Chief Justice Claudio Teehankee and Justice Teodoro R.
Padilla is DENIED there being no legal nor factual basis therefor. It is settled jurisprudence that after a
member has given an opinion on the merits of the case, a motion to disqualify a member of the
Supreme Court cannot be considered because litigant cannot be permitted to speculate upon the action
of the Court and raise an objection of this sort after decision has been rendered (Araneta vs. Dinglasan,
84 Phil. 368, citing Government of the Philippine Islands vs. Heirs of Abelia, 49 Phil. 374).

The decision to disbar respondent lawyer was the collective judgment of the Court, with the exception
of Justice Sarmiento who had inhibited himself, with no member in the least bit attempting to influence
one or the other. In fairness to the Chief Justice, and to disabuse the fears and suspicions of respondent
Grecia, it should be made of record that at no time during the deliberations on the case did the Chief
Justice show any ill will nor any signs of "vindictiveness" much less any attempt to "exact vengeance for
past affront" against respondent lawyer. All discussions were characterized by judicial objectivity
dictated only by the highest interests of the profession and public welfare.

Similarly, the plea for the inhibition of Justice Padilla has to be DENIED for being devoid of any valid
reason. Justice Padilla was counsel for Cityland Development Corporation in the case of Manchester
Development Corporation, et al. vs. Court of Appeals, Cityland Development Corporation, et al. (G.R. No.
75919, May 7,1987,149 SCRA 562), for which reason he took no part in the said suit. Cityland, however,
is not a party in this administrative case.
2) The challenge hurled against this Court's decision as violative of the 1987 Constitution due to lack of
certification by the Chief Justice that the conclusions of the Court were reached in consultation before
the case was assigned to a member for the writing of the opinion of the Court, is bereft of basis. The
certification requirement refers to decisions in judicial, not administrative cases. From the very
beginning, resolutions/decisions of the Court in administrative cases have not been accompanied by.
any formal certification. In fact, such a certification would be a superfluity in administrative cases, which
by their very nature, have to be deliberated upon considering the collegiate composition of this Court.
The certification in AM No. R-510-P entitled "Apolinario de Sarigumba vs. Deputy Sheriff Pasok," cited in
the Petition, is but an oversight.

But even if such a certification were required, it is beyond doubt that the conclusions of the Court in its
decision were arrived at after consultation and deliberation. The signatures of the members who
actually took part in the deliberations and voted attest to that. Besides, being a per curiam decision, or
an opinion of the Court as a whole, there is no ponente although any member of the Court may be
assigned to write the draft. In such cases, a formal certification is obviously not required.

3) No constitutional provision has been disregarded either in the Court's Minute Resolution, dated
January 12,1988, denying the motion for reconsideration "for lack of merit, the issues raised therein
having been previously duly considered and passed upon." It bears repeating that this is an
administrative case so that the Constitutional mandate that "no ... motion for reconsideration of a
decision of the court shall be ... denied without stating the legal basis therefor" is inapplicable. And even
if it were, said Resolution stated the legal basis for the denial and, therefore, adhered faithfully to the
Constitutional requirement. "Lack of merit," which was one of the grounds for denial, is a legal basis (see
Sec. 3, Rule 45).

SO ORDERED.

Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Cortes
and Griño-Aquino, JJ., concur.

Sarmiento, J., took no part.

Separate Opinions

TEEHANKEE, C.J., concurring:

As the Court's unanimous Resolution states, respondents' so-called petition for redress dated February
8, 1988 (in effect a second motion, filed without leave of Court, for reconsideration of the disbarment
decision of November 12,1987 and the Resolution of January 12, 1988 denying reconsideration) has
been filed out of time and has been expunged. Aside from the fact that the petition for my voluntary
inhibition is devoid of factual and legal basis, there is nothing left before the Court for determination on
the merits. Be that as it may, I had refrained from taking part in the deliberation on this incident and had
wanted to abstain even as a beau geste but submitted the question to the judgment of my peers.
Bowing to their collective judgment against my inhibition, I herewith express my fun concurrence with
the Court's action.
PADILLA, J., concurring:

I concur. In addition, I wish to make this brief statement. I do not personally know respondent Benjamin
M. Grecia. As far as my memory can recall, I have not dealt with said respondent, personally or
professionally at any time. There is therefore absolutely no basis for respondent's claim that I have
acted with bias or prejudice against his cause.

In Manchester Development Corporation, et al., petitioners, vs.Court of Appeals, City Land Development
Corporation, et al., respondents, G.R. No. 75919, I took no part simply because I was a retained counsel
of the respondent City Land Development Corporation before my appointment to the Court. In this
administrative case, I have not been related, personally or professionally, with any party or counsel.
There is thus absolutely no reason for me not to take part in this case. In fact, I consider it a part of my
sworn duty to take part therein since there is absolutely no legal, moral or ethical ground which would
justify my inhibition.

Separate Opinions

TEEHANKEE, C.J., concurring:

As the Court's unanimous Resolution states, respondents' so-called petition for redress dated February
8, 1988 (in effect a second motion, filed without leave of Court, for reconsideration of the disbarment
decision of November 12,1987 and the Resolution of January 12, 1988 denying reconsideration) has
been filed out of time and has been expunged. Aside from the fact that the petition for my voluntary
inhibition is devoid of factual and legal basis, there is nothing left before the Court for determination on
the merits. Be that as it may, I had refrained from taking part in the deliberation on this incident and had
wanted to abstain even as a beau geste but submitted the question to the judgment of my peers.
Bowing to their collective judgment against my inhibition, I herewith express my fun concurrence with
the Court's action.

PADILLA, J., concurring:

I concur. In addition, I wish to make this brief statement. I do not personally know respondent Benjamin
M. Grecia. As far as my memory can recall, I have not dealt with said respondent, personally or
professionally at any time. There is therefore absolutely no basis for respondent's claim that I have
acted with bias or prejudice against his cause.

In Manchester Development Corporation, et al., petitioners, vs.Court of Appeals, City Land Development
Corporation, et al., respondents, G.R. No. 75919, I took no part simply because I was a retained counsel
of the respondent City Land Development Corporation before my appointment to the Court. In this
administrative case, I have not been related, personally or professionally, with any party or counsel.
There is thus absolutely no reason for me not to take part in this case. In fact, I consider it a part of my
sworn duty to take part therein since there is absolutely no legal, moral or ethical ground which would
justify my inhibition.

49. Consing vs. Court of Appeals, 177 SCRA 14 (1989)


Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 78272 August 29, 1989

DR. and MRS. MERLIN CONSING, petitioners,


vs.
THE COURT OF APPEALS and CARIDAD SANTOS, respondents.

Sumulong Law Offices for petitioners.

Edgardo B. Arellano for private respondent,

CORTES, J.:

Petitioner Merlin Consing is the registered owner of a 9,643 sq. m. parcel of land covered by Transfer
Certificate of Title (TCT) No. 312970 located in barrio Bayanbayanan, Marikina, Rizal. Sometime in 1971,
Consing caused the subdivision of said parcel of land into thirty-eight (38) lots and submitted a
subdivision plan to the Land Registration Commission (LRC) which was approved on January 25, 1971 as
a simple subdivision plan. Subsequently, Consing filed a petition for segregation of title and the issuance
of separate certificates of title for the 38 lots. In the same petition, Consing likewise informed the
Register of Deeds that he voluntarily grants the right of way in lots 2, 7, 8, 13, 14, 19, 20, 25, 26, 31, 32,
35, 36, and 37 [Exh. "3"]. The petition for segregation was granted and thereafter, doing business under
the name Mearle Homes, the spouses Consing engaged in the sale of these 38 lots.

On October 4, 1971 private respondent Caridad Santos and the Consings entered into an agreement
denominated as a "Contract of Sale" whereby the latter agreed to sell, transfer and convey to the
former a house and lot more particularly described as follows:

A newly constructed 4 bedrooms, two bathrooms, complete with light and water connections bungalow,
fenced on two parcels of land (Lot No. 26 of subdivision plan (LRC) Psd 134075 and Lot No. 25 of
subdivision plan (LRC) Psd 134075, all being a portion of Lot B (LRC) Psd 133634, LRC Rec No. 7672
containing an area of TWO HUNDRED NINETY FOUR (294) SQUARE METERS & TWO HUNDRED NINETY
FIVE (295) SQUARE METERS, respectively more or less including the voluntary right of way, covered by
TCT No. 313386 and TCT 313385, respectively; located at Barrio Bayanbayanan, Municipality of
Marikina, Rizal [Exh."11"].

It is stipulated in said "Contract of Sale" that in consideration of the agreement to sell the buyer will pay
the seller P 110,000.00 with interest at 12% per annum, payable as follows: P25,000.00 upon the signing
of the contract and a monthly installment of P 1,020.14 payable on or before the fifth day of each
month beginning December 1971 without necessity of demand until the amount of the purchase price
and interest shall have been fully paid after which ownership would be transferred to the buyer.

Santos paid her monthly installments to the Consings. Starting May 1972, however, she defaulted in her
payments. Consing sent her several letters of demand to which she did not reply. On June 28, 1974,
counsel for the Consings sent a final demand letter to Santos asking her to settle her obligations which
by then have accrued to Pl 2,818.61, otherwise, they shall be constrained to resort to court litigation.
[Record, p. 12].

Santos, represented by a lawyer, manifested her willingness to settle her obligations on the condition
that the Consings comply with all the laws and regulations on subdivisions and after payment to her of
damages as a consequence of the use of a portion of her lot, more or less 168 sq.m., as a subdivision
road [Record, p. 13].

Subsequently, on July 26, 1974, the Consings filed an ejectment case against Santos. After trial, on
November 4, 1974, judgment was rendered by Judge Gregorio de la Paz of the Municipal Court of
Marikina in favor of the Consings.

It appears, however, that on August 22, 1974, with the ejectment case still pending, Santos filed with
the then Court of First Instance (CFI) a complaint for specific performance with damages against the
Consings. On March 17, 1975, the CFI issued a restraining order enjoining the Municipal Court of
Marikina from resolving the motion for execution filed by the Consings in the ejectment case and from
taking further action in said case until further orders from the CFI [Record, p. 69].

Also borne out by the record is the criminal complaint filed by Santos against Merlin Consing charging
him with the crime of Violation of Municipal Ordinance No. 7, Series of 1964 of Marikina for contracting
to sell to her the two lots in question without first securing the approval of the Municipal Council of
Marikina for his subdivision plan [Exh. "1"]. On May 21, 1975 this complaint was dismissed by the fiscal
on the grounds of lack of a prima facie case and prescription [Exh. "1-b"].

At about the same time, Consing submitted his subdivision plan to the Municipal Council of Marikina for
approval. The council, in turn, referred the same to the Department of Local Government and
Community Development (DLGCD) in compliance with its Memorandum Circular No. 73-41 of
September 7, 1973. The DLGCD in its second endorsement dated March 13, 1975, noted that the
"subdivision plan meets in general the requirements in the subdivision regulations of this Office with
respect to lot areas and lot frontages except the street widths which are not indicated as road lots and
which are below the 10 m. minimum requirement. It is therefore recommended that the existing roads
should be indicated on the plan as road lots and the corresponding areas along the sides of the said
roads as corrected, be reserved for future road widening and annotated in the title as such and should
be excluded from the sale of the corresponding affected lots. . . ." [Exh. "D"]

On August 28, 1981, the CFI rendered judgment finding that although the Consings may have "corrected
the irregularities and/or [have] complied with the legal requirements for the operation of their
subdivision, they cannot escape their liability to [Santos] for having sold to her portions of the roads or
streets denominated as right-of-way. On this ground alone, this Court believes that [Santos] was fully
justified in refusing to pay further her monthly amortizations. In the interest of justice, fair play and
equity, this Court believes that there shall be a proportionate reduction of the purchase price of the two
lots corresponding to the area of 168 square meters, more or less, used as a [right] of way." [Record, p.
485]. The dispositive portion of the CFI decision reads as follows:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff (Santos), ordering the defendants
Consings to allow the plaintiff to continue paying her monthly amortizations of the two lots in question
of the reduced purchase price of P 78,375.68, after deducting whatever amounts were already paid by
her.

Defendants are further ordered to pay the plaintiff the amount of P 10,000.00 as and for attorney's fees.

The restraining order issued against Municipal Judge Gregorio C. de la Paz is made permanent.

Plaintiffs other prayers for relief, as well as defendants' counterclaim, are dismissed, for lack of merit.

With costs against the defendants.

SO ORDERED [Record, p. 486].

The Consings interposed an appeal to the Court of Appeals which affirmed the decision of the CFI with
modification as to the computation of the amount to be deducted from the purchase price. The decretal
portion of the CA decision 1 is as follows:

WHEREFORE, the appealed decision is hereby affirmed with the modification that the reduced purchase
price of the property in question should be, as it is hereby fixed, at P 94,312.16 instead of P 78,375.68.
Costs against appellants.

SO ORDERED [CA Decision, pp. 12-13].

From the decision of the Court of Appeals, petitioner-spouses filed this petition for review citing the
following reasons why the decision of respondent court should be reviewed and their petition allowed:

1. The decision rendered by the respondent Court of Appeals in this case does not comply with the
requirements of Article VIII, section 13, of the New Constitution;

2. It is arbitrary and there is no law to support Judge Pineda and the respondent Court of Appeals in
holding that when the Consings constituted a voluntary right of way on Lots 25 and 26, the portions
subject to the right of way ceased to be owned by the Consings and became streets or road lots which
the Consings have no right to sell;

3. It is arbitrary and contrary to the documented facts for the respondent Court of Appeals to say that
the portions of Lots 25 and 26 subject to a voluntary right of way are actually used as streets or roads
even though it is clearly stated in the lot titles, in the location plans, and in the contract of sale, that said
portions are not streets or roads, but are portions subject to voluntary right of way, and in spite of the
fact that the subdivision was approved by the Land Registration Commissioner as a simple subdivision
plan which clearly shows that there are no streets or road lots in the subdivision.

4. It is arbitrary for Judge Pineda and the respondent Court of Appeals to suppose that the portions of
Lots 25 and 26 subject to right of way are streets or road lots and then compute the value of the said
portions in a careless and erroneous manner, deducting afterwards the value so computed from the P
110,000 purchase price; and

5. There is no legal or factual basis in ordering the Consings to pay P 10,000 attorney's fee to Caridad
[Rollo, pp. 24-25].

Thereafter, private respondent, as required by the Court, filed her Answer/Comment to which
petitioners filed their Reply. On May 2, 1988 the Court, after considering the allegations contained, the
issues raised and the arguments adduced in the pleadings submitted by the parties, gave due course to
the petition [Rollo, p. 84].

Petitioners first raise the issue of the Court of Appeals' non-compliance with the certification
requirement under Art. VIII, Sec. 13 of the 1987 Constitution.

Art. VIII, Sec. 13 of the 1987 Constitution provides that:

Sec. 13. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in
division shall be reached in consultation before the case is assigned to a Member for the writing of the
opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy
thereof attached to the record of the case and served upon the parties. Any Member who took no part,
or dissented, or abstained from a decision or resolution must state the reason therefor. The same
requirements shall be observed by all lower collegiate courts. [Emphasis supplied].

The first sentence of this provision outlining the decision-making process of the Supreme Court is
adopted from both the 1935 2 and 1973 3 Constitutions. The latter Constitution further broadened the
application of the requirement on the decision-making process by mandating that this "shall be
observed by all inferior collegiate courts."

The certification 4 requirement, however, is a new provision introduced by the framers of the 1987
Constitution. Its purpose is to ensure the implementation of the constitutional requirement that
decisions of the Supreme Court and lower collegiate courts, such as the Court of Appeals,
Sandiganbayan and Court of Tax Appeals, are reached after consultation with the members of the court
sitting en banc or in a division before the case is assigned to a member thereof for decision-writing. The
decision is thus rendered by the court as a body and not merely by a member thereof [I Record of the
Constitutional Commission 498-500], This is in keeping with the very nature of a collegial body which
arrives at its decisions only after deliberation, the exchange of views and ideas, and the concurrence of
the required majority vote.

The absence, however, of the certification would not necessarily mean that the case submitted for
decision had not been reached in consultation before being assigned to one member for the writing of
the opinion of the Court since the regular performance of official duty is presumed [Sec. 5 (m) of Rule
131, Rules of Court]. The lack of certification at the end of the decision would only serve as evidence of
failure to observe the certification requirement and may be basis for holding the official responsible for
the omission to account therefor [See I Record of the Constitutional Commission 460]. Such absence of
certification would not have the effect of invalidating the decision.

The second and third assigned errors of petitioners assail the decision of the Court of Appeals finding
that a portion of Lots 25 and 26, although called a voluntary right of way, is a subdivision road which
they have no right to sell. The Consings argue that it is a voluntary easement which they have a right to
constitute by virtue of Art. 619 of the New Civil Code and "[b]y constituting and establishing a voluntary
right of way in said two lots, the portions subject to the voluntary right of way did not become streets or
roads as held by Judge Pineda and the respondent Court of Appeals; they continue to be the property of
the Consings but subject to an encumbrance, i.e. subject to an easement of right of way." [Petition, p.
22; Rollo, p. 27]. Further, the Consings contend that "the portions of Lots 25 and 26 subject to voluntary
right of way can never be used as streets or road lots because [their] subdivision plan was approved by
the Land Registration Commissioner as a simple subdivision plan which means that there are no streets
or road lots in the subdivision, otherwise it would not have been approved as [such]." [Petition, p. 24;
Rollo, p. 29]. In fine, the Consings are alleging that there is no basis for the reduction in the purchase
price of the two lots.

Private respondent Santos on the other hand, avers that the alleged right of way is actually a subdivision
road. This road is included in the two lots sold to her and she is deprived of the use and enjoyment
thereof, hence, a reduction in the purchase price of said lots is in order.

Petitioners' contentions are devoid of merit. The evidence on record negates the Consings' assertion
that the portions subject to the voluntary easement of right of way are not roads. It is undisputed that
the Consings' subdivision plan was approved by the LRC as a simple subdivision which indicated no
streets or roads. However, this does not preclude the need for them within the subdivision. An
examination of the Consings' subdivision plan reveals that the land is subdivided into 38 lots with the so-
called voluntary right of way cutting across lots 2 and 3, 7 and 6, 8 and 9,13 and 12,14 and 15, 19 and 18,
20 and 21, 25 and 24, 26 and 27, 31 and 30, 32 and 33. The relative position of this "right of way" vis-a-
vis the lots shows that it is in fact a road without which the subdivision lot buyers would have no means
of access to and from the subdivision.

Moreover, as heretofore stated, when the Municipal Council referred the Consings subdivision plan to
the DLGCD the latter recommended that the existing roads within the subdivision should be indicated
on the plan as road lots. In turn, the Municipal Council of Marikina passed Resolution No. 70 approving
the subdivision plan of Mearle Homes, Inc. subject, however, to several conditions one of which is the
subdivision owner's compliance with the recommendation of the DLGCD. On May 19, 1975, Merlin
Consing wrote a letter addressed to the Municipal Mayor and Municipal Council of Marikina wherein he
admitted that "the road lots as shown in the plan originally approved by the Land Registration
Commission are the Right-of-way which are annotated in the corresponding transfer Certificate of Titles,
copies of which were supplied or forwarded to your office. These are the road lots mentioned.
..."[Exh."24"].

In this same letter, Merlin Consing stated that "the road lots annotated in their corresponding titles ARE
NOT INCLUDED in the sale of the property." However, the transfer certificates of title covering lot 25 and
lot 26 clearly state the boundaries thereof and when compared to the Consings' subdivision plan would
reveal that the seller sold that portion covered by the right of way to the buyer. Further, the "Contract
of Sale" between the parties is specific that the property sold to Santos includes the voluntary right of
way [See Exh. "11" pertinent portion quoted in p. 2 of this decision].

In Lim v. De los Santos [G.R. No. L-18137, August 31, 1963, 8 SCRA 798] the Court had occasion to state
one duty of a subdivision lot seller. In said case the subdivision lot buyers instituted an action for specific
performance with damages to compel the sellers to construct the necessary roads in the subdivision
that would serve as outlets. The sellers' motion to dismiss on the ground of lack of cause of action was
sustained by the trial court because the contract to sell between the parties mentioned no obligation on
the part of the defendants to construct roads. The case reached this Tribunal and in resolving the issue
of whether or not the complaint stated a cause of action, the Court, speaking through Mr. Justice JBL
Reyes, declared that "[t]he allegations in the complaint that defendant-vendor made representations
that 'she would have constructed (i.e., would cause to be built) adequate outlets' for the lots sold do not
strike us to be so improbable as to justify their being disbelieved de plano. After all, a seller's duty is to
deliver the thing sold in a condition suitable for its enjoyment by the buyer for the purposes
contemplated (Sent. Trib. Supreme of Spain, 17 Nov. 1930), and proper access to a residence is essential
to its enjoyment. . . ." [at 802; Emphasis supplied].

In the case at bar, in including as part of Santos' purchase price the value of the subdivision road,
petitioners have shifted to her the burden of providing for an access to and from the subdivision. The
Consings have thus failed in their duty as subdivision lot sellers and for such failure and consequent
unfairness and injustice to Santos, the latter should be entitled to a proportionate reduction in her
purchase price of the two lots.

Petitioner-spouses also allege that the CA erred in its computation of the amount to be deducted from
the purchase price of the lots. They contend that respondent court had no basis when it made its
computation and it merely assumed the price to be deducted.

The CFI's computation deducted from the total purchase price of P 110,000.00 the price per square
meter of the lots multiplied by the total area covered by the right of way which is 168 sq.m. In arriving at
the price per square meter of the two lots, the trial court divided the total purchase price by the total
area of the two lots, which is 589 sq.m.

On appeal to the Court of Appeals, the Consings took exception to this method of computation alleging
that the trial court failed to take into account the value of the bungalow constructed on the lots and
which is part of the contract. The Court of Appeals found merit in this allegation and re-computed the
price per square meter of the two lots in the following manner:

... There is, however, no evidence showing the price of the land sold, separately from that of the house
erected thereon. Be that as it may, it may be reasonably assumed under the circumstances of the case,
that one-half (1/2) of the price of the property corresponds to the house and the other half to the lot.
Upon this assumption, the price per square meter of the land (with a total area of 589 square meters)
may be placed at P 93.38, and the price of 168 square meters of right of way at P 15,687.84 (instead of
P31,375.68 stated in the appealed decision) which is logically and reasonably deductible from the total
purchase price due from the appellee. In consequence, the total reduced purchase price of the subject
property may be fixed at P 94,312.16 (or P l10,000.00 minus P l5,687.84). [CA Decision, p. 11].

Indeed, the record is bereft of any evidence as regards the price of the two lots sold to Santos separately
from the price of the bungalow constructed thereon. The exhibits presented by the parties and their
testimonies do not reveal separate valuations of the bungalow and the two lots. Evident therefore is the
fact that the purchase price of P110,000.00 is for both the bungalow and the two lots sold
as one property. Further, to require the parties to adduce their respective evidence as to the separate
valuations of the properties in question would only serve to unduly delay the disposition of the case.
Under these circumstances, the Court of Appeals' computation that one-half of the purchase price of P
110,000.00 corresponds to the value of the bungalow and the other half to the two lots is both just and
fair. Accordingly, the Court will not disturb the same.

Finally, petitioners allege that "there is no basis for awarding attorney's fees to (private respondent] in
this case because the Consings have not 'acted in gross and evident bad faith in refusing to satisfy
[Santos'] plainly valid, just and demandable claim' (Art. 2208, para. 5 of the Civil Code of the
Philippines)" [Petition, p. 26; Rollo, p. 31]. The evidence on record, however, proves otherwise. While
the Consings have secured the necessary licenses to operate a subdivision from the Municipal Council of
Marikina and the National Housing Authority they, however, exerted the effort to obtain them only after
private respondent filed a complaint for specific performance against them. Moreover, as heretofore
mentioned, petitioner-spouses constituted an alleged "right of way" over the two lots sold to private
respondent which as the evidence on record reveals was intended to be a subdivision road occupying
168 sq. m. of the total 589 sq. m. of the lots sold. This conduct on the part of the petitioners clearly
shows gross and evident bad faith, not to mention lack of fairness, for which reason affirmance of the
award of P 10,000.00 attorney's fees in favor of private respondent is in order.

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Fernan, (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Footnotes

1 Penned by Justice Cecilio L. Pe with Justices Desiderio P. Jurado and Antonio M. Martinez concurring.

2 Article VIII Sec. 11. The conclusions of the Supreme Court in any case submitted to it for decision shall
be reached in consultation before the case is assigned to a Justice for the writing of the opinion of the
Court. Any Justice dissenting from a decision shall state the reasons for his dissent.

3 Article X Sec. 8. The conclusions of the Supreme Court in any case submitted to it for decision en banc
or in division shall be reached in consultation before the case is assigned to a Member for the writing of
the opinion of the Court. Any Member dissenting from a decision shall state the reasons for his dissent.
The same requirements shall be observed by all inferior collegiate courts.

4 In a letter-query dated June 22, 1987 addressed to the then Chief Justice of the Supreme Court Claudio
Teehankee, the then Presiding Justice of the Court of Appeals Carolina Grino-Aquino manifested that
"[i]n a meeting last week of the chairmen of the present 16 divisions of the Court of Appeals . . . the
majority were for adopting, with slight modification, the forms now used by the Supreme Court for the
"attestation" of the division chairmen, and for the "certification" of the Chief Justice on the decisions of
that Court." The Minutes of the CA en banc session on June 26, 1987reveals that it was only during this
time that the members of the CA agreed that each division can adopt its own certification as long as the
Constitutional requirement is satisfied. In the same meeting the Presiding Justice made known her
intention to comply with the requirement immediately after her letter-query is acted upon by the SC. In
an en banc resolution dated June 23, 1987 (promulgated onJune 29, 1987) the SC approved the CA's
proposed certification. It is evident therefore that not until after June 1987 did the Court of Appeals
begin to make the certification required under the 1987 Constitution. The CA decision in this case was
rendered on April 30, 1987.

50. Cruz vs. Secretary of DENR, G.R. No. 135385 (December 6, 2000)

EN BANC
G.R. No. 135385 December 6, 2000

ISAGANI CRUZ and CESAR EUROPA, petitioners,


vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF BUDGET AND
MANAGEMENT and CHAIRMAN and COMMISSIONERS OF THE NATIONAL COMMISSION ON
INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI
MANSAYANGAN, BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO,
LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI KIRAM-CONNIE SATURNO,
BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU
MANTUMUKAW TEOFISTO SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON
BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING, DATU
SAHAMPONG MALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY
DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN, DATU MAKAPUKAW
ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES D. AMOS, GILBERT
P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON, ROSEMARIE G. PE, BENITO
CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY,
CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO, CONCHITA G.
DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO VALONES, PEPE H.
ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, OSCAR
DALUNHAY, RICO O. SULATAN, RAFFY MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H.
MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S.
LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB,
SALVADOR TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG MALID,
MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL,
FELAY DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA,
NORMA MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P. GERADA, RENATO T. BAGON, JR., SARING
MASALONG, SOLEDAD M. GERARDA, ELIZABETH L. MENDI, MORANTE S. TIWAN, DANILO M.
MALUDAO, MINORS MARICEL MALID, represented by her father CORNELIO MALID, MARCELINO M.
LADRA, represented by her father MONICO D. LADRA, JENNYLYN MALID, represented by her father
TONY MALID, ARIEL M. EVANGELISTA, represented by her mother LINAY BALBUENA, EDWARD M.
EMUY, SR., SUSAN BOLANIO, OND, PULA BATO B'LAAN TRIBAL FARMER'S ASSOCIATION, INTER-
PEOPLE'S EXCHANGE, INC. and GREEN FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF NATURAL
RESOURCES, INC., intervenor.

RESOLUTION

PER CURIAM:

Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as citizens and
taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371 (R.A. 8371),
otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules and
Regulations (Implementing Rules).
In its resolution of September 29, 1998, the Court required respondents to comment.1 In compliance,
respondents Chairperson and Commissioners of the National Commission on Indigenous Peoples (NCIP),
the government agency created under the IPRA to implement its provisions, filed on October 13, 1998
their Comment to the Petition, in which they defend the constitutionality of the IPRA and pray that the
petition be dismissed for lack of merit.

On October 19, 1998, respondents Secretary of the Department of Environment and Natural Resources
(DENR) and Secretary of the Department of Budget and Management (DBM) filed through the Solicitor
General a consolidated Comment. The Solicitor General is of the view that the IPRA is partly
unconstitutional on the ground that it grants ownership over natural resources to indigenous peoples
and prays that the petition be granted in part.

On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors of the
IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constitutional Commission, and the leaders and
members of 112 groups of indigenous peoples (Flavier, et. al), filed their Motion for Leave to Intervene.
They join the NCIP in defending the constitutionality of IPRA and praying for the dismissal of the
petition.

On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene and/or
to Appear as Amicus Curiae. The CHR asserts that IPRA is an expression of the principle of parens patriae
and that the State has the responsibility to protect and guarantee the rights of those who are at a
serious disadvantage like indigenous peoples. For this reason it prays that the petition be dismissed.

On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon
Foundation for the Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to Intervene
with attached Comment-in-Intervention. They agree with the NCIP and Flavier, et al. that IPRA is
consistent with the Constitution and pray that the petition for prohibition and mandamus be dismissed.

The motions for intervention of the aforesaid groups and organizations were granted.

Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their
respective memoranda in which they reiterate the arguments adduced in their earlier pleadings and
during the hearing.

Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing Rules
on the ground that they amount to an unlawful deprivation of the State’s ownership over lands of the
public domain as well as minerals and other natural resources therein, in violation of the regalian
doctrine embodied in Section 2, Article XII of the Constitution:

"(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in
turn, defines ancestral lands;

"(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable
public lands, bodies of water, mineral and other resources found within ancestral domains are private
but community property of the indigenous peoples;

"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains
and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the ancestral
domains;

(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral
lands;

"(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting, extraction,
development or exploration of minerals and other natural resources within the areas claimed to be their
ancestral domains, and the right to enter into agreements with nonindigenous peoples for the
development and utilization of natural resources therein for a period not exceeding 25 years, renewable
for not more than 25 years; and

"(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and
conserve the ancestral domains and portions thereof which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or
reforestation."2

Petitioners also content that, by providing for an all-encompassing definition of "ancestral domains" and
"ancestral lands" which might even include private lands found within said areas, Sections 3(a) and 3(b)
violate the rights of private landowners.3

In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the
NCIP and making customary law applicable to the settlement of disputes involving ancestral domains
and ancestral lands on the ground that these provisions violate the due process clause of the
Constitution.4

These provisions are:

"(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral
domains and which vest on the NCIP the sole authority to delineate ancestral domains and ancestral
lands;

"(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is an ancestral
domain and upon notification to the following officials, namely, the Secretary of Environment and
Natural Resources, Secretary of Interior and Local Governments, Secretary of Justice and Commissioner
of the National Development Corporation, the jurisdiction of said officials over said area terminates;

"(3) Section 63 which provides the customary law, traditions and practices of indigenous peoples shall
be applied first with respect to property rights, claims of ownership, hereditary succession and
settlement of land disputes, and that any doubt or ambiguity in the interpretation thereof shall be
resolved in favor of the indigenous peoples;

"(4) Section 65 which states that customary laws and practices shall be used to resolve disputes
involving indigenous peoples; and

"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving rights of
the indigenous peoples."5

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 administrative relationship of the NCIP to the Office of the
President is characterized as a lateral but autonomous relationship for purposes of policy and program
coordination." They contend that said Rule infringes upon the President’s power of control over
executive departments under Section 17, Article VII of the Constitution.6

Petitioners pray for the following:

"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related provisions
of R.A. 8371 are unconstitutional and invalid;

"(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the NCIP to
cease and desist from implementing the assailed provisions of R.A. 8371 and its Implementing Rules;

"(3) The issuance of a writ of prohibition directing the Secretary of the Department of Environment and
Natural Resources to cease and desist from implementing Department of Environment and Natural
Resources Circular No. 2, series of 1998;

"(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to cease
and desist from disbursing public funds for the implementation of the assailed provisions of R.A. 8371;
and

"(5) The issuance of a writ of mandamus commanding the Secretary of Environment and Natural
Resources to comply with his duty of carrying out the State’s constitutional mandate to control and
supervise the exploration, development, utilization and conservation of Philippine natural resources."7

After due deliberation on the petition, the members of the Court voted as follows:

Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice and
Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of
R.A. 8371. Justice Puno also filed a separate opinion sustaining all challenged provisions of the law with
the exception of Section 1, Part II, Rule III of NCIP Administrative Order No. 1, series of 1998, the Rules
and Regulations Implementing the IPRA, and Section 57 of the IPRA which he contends should be
interpreted as dealing with the large-scale exploitation of natural resources and should be read in
conjunction with Section 2, Article XII of the 1987 Constitution. On the other hand, Justice Mendoza
voted to dismiss the petition solely on the ground that it does not raise a justiciable controversy and
petitioners do not have standing to question the constitutionality of R.A. 8371.

Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate
opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371
are unconstitutional. He reserves judgment on the constitutionality of Sections 58, 59, 65, and 66 of the
law, which he believes must await the filing of specific cases by those whose rights may have been
violated by the IPRA. Justice Vitug also filed a separate opinion expressing the view that Sections 3(a), 7,
and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join
in the separate opinions of Justices Panganiban and Vitug.

As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was
redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant
to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.
Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug,
Kapunan, Mendoza, and Panganiban.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion

Footnotes
1
Rollo, p. 114.
2
Petition, Rollo, pp. 16-23.
3
Id. at 23-25.
4
Section 1, Article III of the Constitution states: "No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal protection of the laws."
5
Rollo, pp. 25-27.
6
Id. at 27-28.
7
Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

PUNO, J.:

PRECIS

A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled "On the Uses
and Disadvantages of History for Life." Expounding on Nietzsche's essay, Judge Richard Posner1 wrote:2

"Law is the most historically oriented, or if you like the most backward-looking, the most 'past-
dependent,' of the professions. It venerates tradition, precedent, pedigree, ritual, custom, ancient
practices, ancient texts, archaic terminology, maturity, wisdom, seniority, gerontocracy, and
interpretation conceived of as a method of recovering history. It is suspicious of innovation,
discontinuities, 'paradigm shifts,' and the energy and brashness of youth. These ingrained attitudes are
obstacles to anyone who wants to re-orient law in a more pragmatic direction. But, by the same
token, pragmatic jurisprudence must come to terms with history."
When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts into
the Philippine legal system which appear to collide with settled constitutional and jural precepts on
state ownership of land and other natural resources. The sense and subtleties of this law cannot be
appreciated without considering its distinct sociology and the labyrinths of its history. This Opinion
attempts to interpret IPRA by discovering its soul shrouded by the mist of our history. After all, the IPRA
was enacted by Congress not only to fulfill the constitutional mandate of protecting the indigenous
cultural communities' right to their ancestral land but more importantly, to correct a grave historical
injustice to our indigenous people.

This Opinion discusses the following:

I. The Development of the Regalian Doctrine in the Philippine Legal System.

A. The Laws of the Indies

B. Valenton v. Murciano

C. The Public Land Acts and the Torrens System

D. The Philippine Constitutions

II. The Indigenous Peoples Rights Act (IPRA).

A. Indigenous Peoples

1. Indigenous Peoples: Their History

2. Their Concept of Land

III. The IPRA is a Novel Piece of Legislation.

A. Legislative History

IV. The Provisions of the IPRA Do Not Contravene the Constitution.

A. Ancestral domains and ancestral lands are the private property of indigenous peoples and do not
constitute part of the land of the public domain.

1. The right to ancestral domains and ancestral lands: how acquired

2. The concept of native title

(a) Cariño v. Insular Government

(b) Indian Title to land

(c) Why the Cariño doctrine is unique

3. The option of securing a torrens title to the ancestral land

B. The right of ownership and possession by the ICCs/IPs to their ancestral domains is a limited form of
ownership and does not include the right to alienate the same.

1. The indigenous concept of ownership and customary law


C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine enshrined in Section 2,
Article XII of the 1987 Constitution.

1. The rights of ICCs/IPs over their ancestral domains and lands

2. The right of ICCs/IPs to develop lands and natural resources within the ancestral domains does not
deprive the State of ownership over the natural resources, control and supervision in their development
and exploitation.

(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of Section 7(a) of
the law on ownership of ancestral domains and is ultra vires.

(b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA is allowed under
Paragraph 3, Section 2, Article XII of the 1987 Consitution.

(c) The large-scale utilization of natural resources in Section 57 of the IPRA may be harmonized with
Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.

V. The IPRA is a Recognition of Our Active Participation in the International Indigenous Movement.

DISCUSSION

I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM.

A. The Laws of the Indies

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 the feudal theory of jura regalia. The "Regalian
Doctrine" or jura regalia is a Western legal concept that was first introduced by the Spaniards into the
country through the Laws of the Indies and the Royal Cedulas. The Laws of the Indies, i.e., more
specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las Indias, set the policy of
the Spanish Crown with respect to the Philippine Islands in the following manner:

"We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not
heretofore ceded away by our royal predecessors, or by us, or in our name, still 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 to us, in order that after reserving before all what to us or to our
viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and
commons in those places which are peopled, taking into consideration not only their present condition,
but also their future and their probable increase, and after distributing to the natives what may be
necessary for tillage and pasturage, confirming them in what they now have and giving them more if
necessary, all the rest of said lands may remain free and unencumbered for us to dispose of as we may
wish.

We therefore order and command that all viceroys and presidents of pretorial courts designate at such
time as shall to them seem most expedient, a suitable period within which all possessors of tracts,
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 are in possession by virtue of proper deeds and
receipts, or by virtue of just prescriptive right shall be protected, and all the rest shall be restored to us
to be disposed of at our will."4
The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands became
the exclusive patrimony and dominion of the Spanish Crown. The Spanish Government took charge of
distributing the lands by issuing royal grants and concessions to Spaniards, both military and
civilian.5 Private land titles could only be acquired from the government either by purchase or by the
various modes of land grant from the Crown.6

The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of 1893.7 The
Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as possessory
claims. The law sought to register and tax lands pursuant to the Royal Decree of 1880. The Royal Decree
of 1894, or the "Maura Law," was partly an amendment of the Mortgage Law as well as the Laws of the
Indies, as already amended by previous orders and decrees.8 This was the last Spanish land law
promulgated in the Philippines. It required the "adjustment" or registration of all agricultural lands,
otherwise the lands shall revert to the state.

Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government of the
United States all rights, interests and claims over the national territory of the Philippine Islands. In 1903,
the United States colonial government, through the Philippine Commission, passed Act No. 926, the first
Public Land Act.

B. Valenton v. Murciano

In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.9

Valenton resolved the question of which is the better basis for ownership of land: long-time occupation
or paper title. Plaintiffs had entered into peaceful occupation of the subject land in 1860. Defendant's
predecessor-in-interest, on the other hand, purchased the land from the provincial 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 administrative sale. Plaintiffs appealed the judgment, asserting that their 30-year
adverse possession, as an extraordinary period of prescription in the Partidas and the Civil Code, had
given them title to the land as against everyone, including the State; and that the State, not owning the
land, could not validly transmit it.

The Court, speaking through Justice Willard, decided the case on the basis of "those special laws which
from earliest time have regulated the disposition of the public lands in the colonies."10 The question
posed by the Court was: "Did these special laws recognize any right of prescription as against the State
as to these lands; and if so, to what extent was it recognized?"

Prior to 1880, the Court said, there were no laws specifically providing for the disposition of land in the
Philippines. However, it was understood that in the absence of any special law to govern a specific
colony, the Laws of the Indies would be followed. Indeed, in the Royal Order of July 5, 1862, it was
decreed that until regulations on the subject could be prepared, the authorities of the Philippine Islands
should follow strictly the Laws of the Indies, the Ordenanza of the Intendentes of 1786, and the Royal
Cedula of 1754.11

Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias, the court
interpreted it as follows:
"In the preamble of this law there is, as is seen, a distinct statement that all those lands belong to the
Crown which have not been granted by Philip, or in his name, or by the kings who preceded him. This
statement excludes the idea that there might be lands not so granted, that did not belong to the king.
It excludes the idea that the king was not still the owner of all ungranted lands, because some private
person had been in the adverse occupation of them. By the mandatory part of the law all the occupants
of the public lands are required to produce before the authorities named, and within a time to be fixed
by them, their title papers. And those who had good title or showed prescription were to be protected
in their holdings. It is apparent that it was not the intention of the law that mere possession for a length
of time should make the possessors the owners of the land possessed by them without any action on
the part of the authorities."12

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 Crown.13 For those lands granted by the king, the decree
provided for a system of assignment of such lands. It also ordered that all possessors of agricultural land
should exhibit their title deed, otherwise, the land would be restored to the Crown.14

The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the Crown's principal
subdelegate to issue a general order directing the publication of the Crown's instructions:

"x x x to the end that any and all persons who, since the year 1700, and up to the date of the
promulgation and publication of said order, shall have occupied royal lands, whether or not x x x
cultivated or tenanted, may x x x appear and exhibit to said subdelegates the titles and patents by virtue
of which said lands are occupied. x x x. Said subdelegates will at the same time warn the parties
interested that in case of their failure to present their title deeds within the term designated, without a
just and valid reason therefor, they will be deprived of and evicted from their lands, and they will be
granted to others."15

On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully occupied" by
private individuals in the Philippine Islands. Valenton construed these regulations together with
contemporaneous legislative and executive interpretations of the law, and concluded that plaintiffs'
case fared no better under the 1880 decree and other laws which followed it, than it did under the
earlier ones. Thus as a general doctrine, the Court stated:

"While the State has always recognized the right of the occupant to a deed if he proves a possession for
a sufficient length of time, yet it has always insisted that he must make that proof before the proper
administrative officers, and obtain from them his deed, and until he did that the State remained the
absolute owner."16

In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in force in these
Islands by which the plaintiffs could obtain the ownership of these lands by prescription, without any
action by the State."17 Valenton had no rights other than those which accrued to mere possession.
Murciano, on the other hand, was deemed to be the owner of the land by virtue of the grant by the
provincial secretary. In effect, Valenton upheld the Spanish concept of state ownership of public land.

As a fitting observation, the Court added that "[t]he policy pursued by the Spanish Government from
earliest times, requiring settlers on the public lands to obtain title deeds therefor from the State, has
been continued by the American Government in Act No. 926."18
C. The Public Land Acts and the Torrens System

Act No. 926, the first Public Land Act, was passed 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
regulations for the homesteading, selling, and leasing of portions of the public domain of the Philippine
Islands, and prescribed the terms and conditions to enable persons to perfect their titles to public lands
in the Islands. It also provided for the "issuance of patents to certain native settlers upon public lands,"
for the establishment of town sites and sale of lots therein, for the completion of imperfect titles, and
for the cancellation or confirmation of Spanish concessions and grants in the Islands." In short, the
Public Land Act operated on the assumption that title to public lands in the Philippine Islands remained
in the government;19 and that the government's title to public land sprung from the Treaty of Paris and
other subsequent treaties between Spain and the United States.20 The term "public land" referred to all
lands of the public domain whose title still remained in the government and are thrown open to private
appropriation and settlement,21 and excluded the patrimonial property of the government and the friar
lands.22

Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This new law was passed
under the Jones Law. It was more comprehensive in scope but limited the exploitation of agricultural
lands to Filipinos and Americans and citizens of other countries which gave Filipinos the same
privileges.23 After the passage of the 1935 Constitution, Act 2874 was amended in 1936
by Commonwealth Act No. 141. Commonwealth Act No. 141 remains the present Public Land Law and it
is essentially the same as Act 2874. The main difference between the two relates to the transitory
provisions on the rights of American citizens and corporations during the Commonwealth period at par
with Filipino citizens and corporations.24

Grants of public land were brought under the operation of the Torrens system under Act 496, or the
Land Registration Law of 1903. Enacted by the Philippine Commission, Act 496 placed all public and
private lands in the Philippines under the Torrens system. The law is said to be almost a verbatim copy
of the Massachussetts Land Registration Act of 1898,25 which, in turn, followed the principles and
procedure of the Torrens system of registration formulated by Sir Robert Torrens who patterned it after
the Merchant Shipping Acts in South Australia. The Torrens system requires that the government issue
an official certificate of title attesting to the fact that the person named is the owner of the property
described therein, subject to such liens and encumbrances as thereon noted or 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 certificate. This system highly facilitates land conveyance and
negotiation.27

D. The Philippine Constitutions

The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and dominating
objectives of the 1935 Constitutional Convention was the nationalization and conservation of the
natural resources of the country.28There was an overwhelming sentiment in the Convention in favor of
the principle of state ownership of natural resources and the adoption of the Regalian
doctrine.29 State ownership of natural resources was seen as a necessary starting point to secure
recognition of the state's power to control their disposition, exploitation, development, or
utilization.30 The delegates to the Constitutional Convention very well knew that the concept of State
ownership of land and natural resources was introduced by the Spaniards, however, they were not
certain whether it was continued and applied by the Americans. To remove all doubts, the Convention
approved the provision in the Constitution affirming the Regalian doctrine.31

Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of Natural
Resources," reads as follows:

"Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the
capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at
the time of the inauguration of the Government established under this Constitution. Natural
resources, with the exception of public agricultural land, shall not be alienated, and no license,
concession, or lease for the exploitation, development, or utilization of any of the natural resources shall
be granted for a period exceeding twenty-five years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, in which cases
beneficial use may be the measure and the limit of the grant."

The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the "National
Economy and the Patrimony of the Nation," to wit:

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to
the State. With the exception of agricultural, industrial or commercial, residential, and resettlement
lands of the public domain, natural resources shall not be alienated, and no license, concession, or
lease for the exploration, development, exploitation, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, renewable for not more than twenty-five
years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit of the
grant."

The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on "National Economy
and Patrimony," to wit:

"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development and utilization of natural resources shall be
under the full control and supervision of the State. The State may directly undertake such activities or
it may enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, or industrial uses other than the development of
water power, beneficial use may be the measure and limit of the grant.

x x x."
Simply stated, all lands of the public domain as well as all natural resources enumerated therein,
whether on public or private land, belong to the State. It is this concept of State ownership that
petitioners claim is being violated by the IPRA.

II. THE INDIGENOUS PEOPLES RIGHTS ACT.

Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of Indigenous
Cultural Communities/ Indigenous Peoples, Creating a National Commission on Indigenous Peoples,
Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It is
simply known as "The Indigenous Peoples Rights Act of 1997" or the IPRA.

The IPRA recognizes the existence of the indigenous cultural communities or indigenous
peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and
possession of their ancestral domains and ancestral lands, and defines the extent of these lands and
domains. The ownership given is the indigenous concept of ownership under customary law which
traces its origin to native title.

Other rights are also granted the ICCs/IPs, and these are:

- the right to develop lands and natural resources;

- the right to stay in the territories;

- the right in case of displacement;

- the right to safe and clean air and water;

- the right to claim parts of reservations;

- the right to resolve conflict;32

- the right to ancestral lands which include

a. the right to transfer land/property to/among members of the same ICCs/IPs, subject to customary
laws and traditions of the community concerned;

b. the right to redemption for a period not exceeding 15 years from date of transfer, if the transfer is to
a non-member of the ICC/IP and is tainted by vitiated consent of the ICC/IP, or if the transfer is for an
unconscionable consideration.33

Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance
and empowerment,34 social justice and human rights,35 the right to preserve and protect their culture,
traditions, institutions and community intellectual rights, and the right to develop their own sciences
and technologies.36

To carry out the policies of the Act, the law created the National Commission on Indigenous Peoples
(NCIP). The NCIP is an independent agency under the Office of the President and is composed of 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 groups including Mindoro, Palawan, Romblon, Panay and
the rest of the Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao; and Central
Mindanao.37 The NCIP took over the functions of the Office for Northern Cultural Communities and the
Office for Southern Cultural Communities created by former President Corazon Aquino which were
merged under a revitalized structure.38

Disputes involving ICCs/IPs are to be resolved under customary laws and practices. When still
unresolved, the matter may be brought to the NCIP, which is granted quasi-judicial powers.39 The NCIP's
decisions may be appealed to the Court of Appeals by a petition for review.

Any person who violates any of the provisions of the Act such as, but not limited to, unauthorized
and/or unlawful intrusion upon ancestral lands and domains shall be punished in accordance with
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

A. Indigenous Peoples

The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities (ICCs)
or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987 Constitution while that of "IPs" is
the contemporary international language in the International Labor Organization (ILO) Convention
16941 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples.42

ICCs/IPs are defined by the IPRA as:

"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a group of people or
homogeneous societies identified by self-ascription and ascription by others, who have continuously
lived as organized community on communally bounded and defined territory, and who have, under
claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing
common bonds of language, customs, traditions and other distinctive cultural traits, or who have,
through resistance to political, social and cultural inroads of colonization, non-indigenous religions and
cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include
peoples who are regarded as indigenous on account of their descent from the populations which
inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-
indigenous religions and cultures, or the establishment of present state boundaries, who retain some or
all of their own social, economic, cultural and political institutions, but who may have been displaced
from their traditional domains or who may have resettled outside their ancestral domains."

Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous


societies who have continuously lived as an organized community on communally bounded and
defined territory. These groups of people have actually occupied, possessed and utilized their territories
under claim of ownership since time immemorial. They share common bonds of language, customs,
traditions and other distinctive cultural traits, or, they, by their resistance to political, social and cultural
inroads of colonization, non-indigenous religions and cultures, became historically differentiated from
the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the country at the
time of conquest or colonization, who retain some or all of their own social, economic, cultural and
political institutions but who may have been displaced from their traditional territories or who may have
resettled outside their ancestral domains.

1. Indigenous Peoples: Their History


Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao,
Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands. They are composed of 110
tribes and are as follows:

1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao, Kalinga,
Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag of Isabela, Cagayan;
Ilongot of Quirino and Nueva Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of
Batanes, Aeta of Cagayan, Quirino and Isabela.

2. In Region III- Aetas.

3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan or Mangyan,
Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental Mindoro; Tadyawan of
Occidental Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato of Palawan.

4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and Kabihug of
Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of Sorsogon; and the
Pullon of Masbate and Camarines Sur.

5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros Occidental;
the Corolano and Sulod.

6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol.

7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the Kalibugan of
Basilan, the Samal, Subanon and Yakat.

8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon, Matigsalog,
Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del Norte, Agusan
del Sur, Bukidnon and Misamis Occidental; the Tigwahanon of Agusan del Sur, Misamis Oriental and and
Misamis Occidental, the Manobo of the Agusan provinces, and the Umayamnon of Agusan and
Bukidnon.

9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon, Mansaka of
Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del Sur; Mamamanua of
Surigao del Sur; Mandaya of the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato;
the Mangguangon of Davao and South Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo,
Tasaday and Ubo of South Cotabato; and Bagobo of Davao del sur and South Cotabato.

10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and Iranon.43

How these indigenous peoples came to live in the Philippines goes back to as early as 25,000 to 30,000
B.C.

Before the time of Western contact, the Philippine archipelago was peopled largely by the Negritos,
Indonesians and Malays.44 The strains from these groups eventually gave rise to common cultural
features which became the dominant influence in ethnic reformulation in the archipelago. Influences
from the Chinese and Indian civilizations in the third or fourth millenium B.C. augmented these ethnic
strains. Chinese economic and socio-cultural influences came by way of Chinese porcelain, silk and
traders. Indian influence found their way into the religious-cultural aspect of pre-colonial society.45
The ancient Filipinos settled beside bodies of water. Hunting and food gathering became supplementary
activities as reliance on them was reduced by fishing and the cultivation of the soil.46 From the
hinterland, coastal, and riverine communities, our ancestors evolved an essentially homogeneous
culture, a basically common way of life where nature was a primary factor. Community life throughout
the archipelago was influenced by, and responded to, common ecology. The generally benign tropical
climate and the largely uniform flora and fauna favored similarities, not differences.47 Life was
essentially subsistence but not harsh.48

The early Filipinos had a culture that was basically Malayan in structure and form. They had languages
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 expression of their literary moods.49 They fashioned concepts
and beliefs about the world that they could not see, but which they sensed to be part of their
lives.50 They had their own religion and religious beliefs. They believed in the immortality of the soul and
life after death. Their rituals were based on beliefs in a ranking deity whom they called Bathalang
Maykapal, and a host of other deities, in the environmental spirits and in soul spirits. The early Filipinos
adored the sun, the moon, the animals and birds, for they seemed to consider the objects of Nature as
something to be respected. They venerated almost any object that was close to their daily life, indicating
the importance of the relationship between man and the object of nature.51

The unit of government was the "barangay," a term that derived its meaning from the Malay word
"balangay," meaning, a boat, which transported them to these shores.52 The barangay was basically a
family-based community and consisted of thirty to one hundred families. Each barangay was different
and ruled by a chieftain called a "dato." It was the chieftain's duty to rule and govern his subjects and
promote their welfare and interests. A chieftain had 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
war.53

Laws were either customary or written. Customary laws were handed down orally from generation to
generation and constituted the bulk of the laws of the barangay. They were preserved in songs and
chants and in the memory of the elder persons in the community.54 The written laws were those that
the chieftain and his elders promulgated from time to time as the necessity arose.55 The oldest known
written body of laws was the Maragtas Code by Datu Sumakwel at about 1250 A.D. Other old codes are
the Muslim Code of Luwaran and the Principal Code of Sulu.56 Whether customary or written, the laws
dealt with various subjects, such as inheritance, divorce, usury, loans, partnership, crime and
punishment, property rights, family relations and adoption. Whenever disputes arose, these were
decided peacefully through a court composed by the chieftain as "judge" and the barangay elders as
"jury." Conflicts arising between subjects of different barangays were resolved by arbitration in which a
board composed of elders from neutral barangays acted as arbiters.57

Baranganic society had a distinguishing feature: the absence of private property in land. The chiefs
merely administered the lands in the name of the barangay. The social order was an extension of the
family with chiefs embodying the higher unity of the community. Each individual, therefore, participated
in the community ownership of the soil and the instruments of production as a member of the
barangay.58 This ancient communalism was practiced in accordance with the concept of mutual sharing
of resources so that no individual, regardless of status, was without sustenance. Ownership of land was
non-existent or unimportant and the right of usufruct was what regulated the development of
lands.59 Marine resources and fishing grounds were likewise free to all. Coastal communities depended
for their economic welfare on the kind of fishing sharing concept similar to those in land
communities.60 Recognized leaders, such as the chieftains and elders, by virtue of their positions of
importance, enjoyed some economic privileges and benefits. But their rights, related to either land and
sea, were subject to their responsibility to protect the communities from danger and to provide them
with the leadership and means of survival.61

Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao. The
Sultanate of Sulu was established and claimed jurisdiction over territorial areas represented today by
Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within this jurisdiction:
Sama, Tausug, Yakan and Subanon.62The Sultanate of Maguindanao spread out from Cotabato toward
Maranao territory, now Lanao del Norte and Lanao del Sur.63

The Muslim societies evolved an Asiatic form of feudalism where land was still held in common but
was private in use. This is clearly indicated in the Muslim Code of Luwaran. The Code contains a
provision on the lease of cultivated lands. It, however, has no provision for the acquisition, transfer,
cession or sale of land.64

The societies encountered by Magellan and Legaspi therefore were primitive economies where most
production was geared to the use of the producers and to the fulfillment of kinship obligations. They
were not economies geared to exchange and profit.65 Moreover, the family basis of barangay
membership as well as of leadership and governance worked to splinter the population of the islands
into numerous small and separate communities.66

When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos living in
barangay settlements scattered along water routes and river banks. One of the first tasks imposed on
the missionaries and the encomenderos was to collect all scattered Filipinos together in
a reduccion.67 As early as 1551, the Spanish government assumed an unvarying solicitous attitude
towards the natives.68 The Spaniards regarded it a sacred "duty to conscience and humanity to civilize
these less fortunate people living in the obscurity of ignorance" and to accord them the "moral and
material advantages" of community life and the "protection and vigilance afforded them by the same
laws."69

The Spanish missionaries were ordered to establish pueblos where the church and convent would be
constructed. All the new Christian converts were required to construct their houses around the church
and the unbaptized were invited to do the same.70 With the reduccion, the Spaniards attempted to
"tame" the reluctant Filipinos through Christian indoctrination using the convento/casa
real/plaza complex as focal point. The reduccion, to the Spaniards, was a "civilizing" device to make the
Filipinos law-abiding citizens of the Spanish Crown, and in the long run, to make them ultimately adopt
Hispanic culture and civilization.71

All lands lost by the old barangays in the process of pueblo organization as well as all lands not
assigned to them and the pueblos, were now declared to be crown lands or realengas, belonging to
the Spanish king. It was from the realengas that land grants were made to non-Filipinos.72

The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept of public
domain were the most immediate fundamental results of Spanish colonial theory and law.73 The
concept that the Spanish king was the owner of everything of value in the Indies or colonies was
imposed on the natives, and the natives were stripped of their ancestral rights to land.74

Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious, classified the
Filipinos according to their religious practices and beliefs, and divided them into three types . First were
the Indios, the Christianized Filipinos, who generally came from the lowland populations. Second, were
the Moros or the Muslim communities, and third, were the infieles or the indigenous communities.75

The Indio was a product of the advent of Spanish culture. This class was favored by the Spaniards and
was allowed certain status although below the Spaniards. The Moros and infieles were regarded as the
lowest classes.76

The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven from Manila and
the Visayas to Mindanao; while the infieles, to the hinterlands. The Spaniards did not pursue them into
the deep interior. The upland societies were naturally outside the immediate concern of Spanish
interest, and the cliffs and forests of the hinterlands were difficult and inaccessible, allowing
the infieles, in effect, relative security.77 Thus, the infieles, which were peripheral to colonial
administration, were not only able to preserve their own culture but also thwarted the Christianization
process, separating themselves from the newly evolved Christian community.78 Their own political,
economic and social systems were kept constantly alive and vibrant.

The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling of
suspicion, fear, and hostility between the Christians on the one hand and the non-Christians on the
other. Colonialism tended to divide and rule an otherwise culturally and historically related populace
through a colonial system that exploited both the virtues and vices of the Filipinos.79

President McKinley, in his instructions to the Philippine Commission of April 7, 1900, addressed the
existence of the infieles:

"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course
followed by Congress in permitting the tribes of our North American Indians to maintain their tribal
organization and government, and under which many of those tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal
government should, however, be subjected to wise and firm regulation; and, without undue or petty
interference, constant and active effort should be exercised to prevent barbarous practices and
introduce civilized customs."80

Placed in an alternative of either letting the natives alone or guiding them in the path of civilization, the
American government chose "to adopt the latter measure as one more in accord with humanity and
with the national conscience."81

The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian Filipinos.
The term "non-Christian" referred not to religious belief, but to a geographical area, and more directly,
"to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart
from settled communities."82

Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they passed Act No. 253
creating the Bureau of Non-Christian Tribes (BNCT). Under the Department of the Interior, the BNCT's
primary task was to conduct ethnographic research among unhispanized Filipinos, including those in
Muslim Mindanao, with a "special view to determining the most practicable means for bringing about
their advancement in civilization and prosperity." The BNCT was modeled after the bureau dealing with
American Indians. The agency took a keen anthropological interest in Philippine cultural minorities and
produced a wealth of valuable materials about them.83

The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The raging issue then
was the conservation of the national patrimony for the Filipinos.

In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid and
complete manner the economic, social, moral and political advancement of the non-Christian Filipinos
or national cultural minorities and to render real, complete, and permanent the integration of all said
national cultural minorities into the body politic, creating the Commission on National
Integration charged with said functions." The law called for a policy of integration of indigenous
peoples into the Philippine mainstream and for this purpose created the Commission on National
Integration (CNI).84 The CNI was given, more or less, the same task as the BNCT during the American
regime. The post-independence policy of integration was like the colonial policy of assimilation
understood in the context of a guardian-ward relationship.85

The policy of assimilation and integration did not yield the desired result. Like the Spaniards and
Americans, government attempts at integration met with fierce resistance. Since World War II, a tidal
wave of Christian settlers from the lowlands of Luzon and the Visayas swamped the highlands and wide
open spaces in Mindanao.86Knowledge by the settlers of the Public Land Acts and the Torrens system
resulted in the titling of several ancestral lands in the settlers' names. With government initiative and
participation, this titling displaced several indigenous peoples from their lands. Worse, these peoples
were also displaced by projects undertaken by the national government in the name of national
development.87

It was in the 1973 Constitution that the State adopted the following provision:

"The State shall consider the customs, traditions, beliefs, and interests of national cultural communities
in the formulation and implementation of State policies."88

For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities" were
addressed by the highest law of the Republic, and they were referred to as "cultural
communities." More importantly this time, their "uncivilized" culture was given some recognition and
their "customs, traditions, beliefs and interests" were to be considered by the State in the formulation
and implementation of State policies. President Marcos abolished the CNI and transferred its functions
to the Presidential Adviser on National Minorities (PANAMIN). The PANAMIN was tasked to integrate
the ethnic groups that sought full integration into the larger community, and at the same time "protect
the rights of those who wish to preserve their original lifeways beside the larger community."89 In short,
while still adopting the integration policy, the decree recognized the right of tribal Filipinos to
preserve their way of life.90

In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands
Decree. The decree provided for the issuance of land occupancy certificates to members of the national
cultural communities who were given up to 1984 to register their claims.91 In 1979, the Commission on
the Settlement of Land Problems was created under E.O. No. 561 which provided a mechanism for the
expeditious resolution of land problems involving small settlers, landowners, and tribal Filipinos.92

Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas and
Bontoks of the Cordillera region were displaced by the Chico River dam project of the National Power
Corporation (NPC). The Manobos of Bukidnon saw their land bulldozed by the Bukidnon Sugar Industries
Company (BUSCO). In Agusan del Sur, the National Development Company was authorized by law in
1979 to take approximately 40,550 hectares of land that later became the NDC-Guthrie plantation in
Agusan del Sur. Most of the land was possessed by the Agusan natives.93 Timber concessions, water
projects, plantations, mining, and cattle ranching and other projects of the national government led not
only to the eviction of the indigenous peoples from their land but also to the reduction and destruction
of their natural environment.94

The Aquino government signified a total shift from the policy of integration to one of
preservation. Invoking her powers under the Freedom Constitution, President Aquino created the Office
of Muslim Affairs, Office for Northern Cultural Communities and the Office for Southern Cultural
Communities all under the Office of the President.95

The 1987 Constitution carries at least six (6) provisions which insure the right of tribal Filipinos to
preserve their way of life.96 This Constitution goes further than the 1973 Constitution by expressly
guaranteeing the rights of tribal Filipinos to their ancestral domains and ancestral lands. By
recognizing their right to their ancestral lands and domains, the State has effectively upheld their right
to live in a culture distinctly their own.

2. Their Concept of Land

Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream. They are
non-Christians. They live in less accessible, marginal, mostly upland areas. They have a system of self-
government not dependent upon the laws of the central administration of the Republic of the
Philippines. They follow ways of life and customs that are perceived as different from those of the rest
of the population.97 The kind of response the indigenous peoples chose to deal with colonial threat
worked well to their advantage by making it difficult for Western concepts and religion to erode their
customs and traditions. The "infieles societies" which had become peripheral to colonial administration,
represented, from a cultural perspective, a much older base of archipelagic culture. The political systems
were still structured on the patriarchal and kinship oriented arrangement of power and authority. The
economic activities were governed by the concepts of an ancient communalism and mutual help. The
social structure which emphasized division of labor and distinction of functions, not status, was
maintained. The cultural styles and forms of life portraying the varieties of social courtesies and
ecological adjustments were kept constantly vibrant.98

Land is the central element of the indigenous peoples' existence. There is no traditional concept of
permanent, individual, land ownership. Among the Igorots, ownership of land more accurately applies
to the tribal right to use the land or to territorial control. The people are the secondary owners or
stewards of the land and that if a member of the tribe ceases to work, he loses his claim of ownership,
and the land reverts to the beings of the spirit world who are its true and primary owners. Under the
concept of "trusteeship," the right to possess the land does not only belong to the present generation
but the future ones as well.99
Customary law on land rests on the traditional belief that no one owns the land except the gods and
spirits, and that those who work the land are its mere stewards.100 Customary law has a strong
preference for communal ownership, which could either be ownership by a group of individuals or
families who are related by blood or by marriage,101 or ownership by residents of the same locality who
may not be related by blood or marriage. The system of communal ownership under customary laws
draws its meaning from the subsistence and highly collectivized mode of economic production. The
Kalingas, for instance, who are engaged in team occupation like hunting, foraging for forest products,
and swidden farming found it natural that forest areas, swidden farms, orchards, pasture and burial
grounds should be communally-owned.102 For the Kalingas, everybody has a common right to a common
economic base. Thus, as a rule, rights and obligations to the land are shared in common.

Although highly bent on communal ownership, customary law on land also sanctions individual
ownership.The residential lots and terrace rice farms are governed by a limited system of individual
ownership. It is limited because while the individual owner has the right to use and dispose of the
property, he does not possess all the rights of an exclusive and full owner as defined under our Civil
Code.103 Under Kalinga customary law, the alienation of individually-owned land is strongly discouraged
except in marriage and succession and except to meet sudden financial needs due to sickness, death in
the family, or loss of crops.104 Moreover, and to be alienated should first be offered to a clan-member
before any village-member can purchase it, and in no case may land be sold to a non-member of
the ili.105

Land titles do not exist in the indigenous peoples' economic and social system. The concept of
individual land ownership under the civil law is alien to them. Inherently colonial in origin, our
national land laws and governmental policies frown upon indigenous claims to ancestral lands.
Communal ownership is looked upon as inferior, if not inexistent.106

III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.

A. The Legislative History of the IPRA

It was to address the centuries-old neglect of the Philippine indigenous peoples that the Tenth
Congress of the Philippines, by their joint efforts, passed and approved R.A. No. 8371, the Indigenous
Peoples Rights Act (IPRA) of 1997. The law was a consolidation of two Bills- Senate Bill No. 1728 and
House Bill No. 9125.

Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No. 1728 was a consolidation of four
proposed measures referred to the Committees on Cultural Communities, Environment and Natural
Resources, Ways and Means, as well as Finance. It adopted almost en toto the comprehensive version of
Senate Bill Nos. 1476 and 1486 which was a result of six regional consultations and one national
consultation with indigenous peoples nationwide.108 At the Second Regular Session of the Tenth
Congress, Senator Flavier, in his sponsorship speech, gave a background on the situation of indigenous
peoples in the Philippines, to wit:

"The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the
dominance and neglect of government controlled by the majority. Massive migration of their Christian
brothers to their homeland shrunk their territory and many of the tribal Filipinos were pushed to the
hinterlands. Resisting the intrusion, dispossessed of their ancestral land and with the massive
exploitation of their natural resources by the elite among the migrant population, they became
marginalized. And the government has been an indispensable party to this insidious conspiracy against
the Indigenous Cultural Communities (ICCs). It organized and supported the resettlement of people to
their ancestral land, which was massive during the Commonwealth and early years of the Philippine
Republic. Pursuant to the Regalian Doctrine first introduced to our system by Spain through the Royal
Decree of 13 February 1894 or the Maura Law, the government passed laws to legitimize the wholesale
landgrabbing and provide for easy titling or grant of lands to migrant homesteaders within the
traditional areas of the ICCs."109

Senator Flavier further declared:

"The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land long
before any central government was established. Their ancestors had territories over which they ruled
themselves and related with other tribes. These territories- the land- include people, their dwelling, the
mountains, the water, the air, plants, forest and the animals. This is their environment in its totality.
Their existence as indigenous peoples is manifested in their own lives through political, economic, socio-
cultural and spiritual practices. The IPs culture is the living and irrefutable proof to this.

Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending on
it. Otherwise, IPs shall cease to exist as distinct peoples."110

To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill based
on two postulates: (1) the concept of native title; and (2) the principle of parens patriae.

According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine reinstated
in Section 2, Article XII of the 1987 Constitution," our "decisional laws" and jurisprudence passed by the
State have "made exception to the doctrine." This exception was first laid down in the case of Cariño v.
Insular Government where:

"x x x the court has recognized long occupancy of land by an indigenous member of the cultural
communities as one of private ownership, which, in legal concept, is termed "native title." This ruling
has not been overturned. In fact, it was affirmed in subsequent cases."111

Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410, P.D. 1529,
R.A. 6734 (the Organic Act for the Autonomous Region of Muslim Mindanao). These laws, explicitly or
implicitly, and liberally or restrictively, recognized "native title" or "private right" and the existence of
ancestral lands and domains. Despite the passage of these laws, however, Senator Flavier continued:

"x x x the executive department of government since the American occupation has not implemented the
policy. In fact, it was more honored in its breach than in its observance, its wanton disregard shown
during the period unto the Commonwealth and the early years of the Philippine Republic when
government organized and supported massive resettlement of the people to the land of the ICCs."

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 of parens patriae inherent in the supreme power of the
State and deeply embedded in Philippine legal tradition. This principle mandates that persons suffering
from serious disadvantage or handicap, which places them in a position of actual inequality in their
relation or transaction with others, are entitled to the protection of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in favor and
none against, with no abstention.112

House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural
Communities. It was originally authored and subsequently presented and defended on the floor by Rep.
Gregorio Andolana of North Cotabato.113

Rep. Andolana's sponsorhip speech reads as follows:

"This Representation, as early as in the 8th Congress, filed a bill of similar implications that would
promote, recognize the rights of indigenous cultural communities within the framework of national
unity and development.

Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and ascertain that
these rights shall be well-preserved and the cultural traditions as well as the indigenous laws that
remained long before this Republic was established shall be preserved and promoted. There is a need,
Mr. Speaker, to look into these matters seriously and early approval of the substitute bill shall bring into
reality the aspirations, the hope and the dreams of more than 12 million Filipinos that they be
considered in the mainstream of the Philippine society as we fashion for the year 2000." 114

Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated in the
Constitution. He also emphasized that the rights of IPs to their land was enunciated in Cariño v. Insular
Government which recognized the fact that they had vested rights prior to the establishment of the
Spanish and American regimes.115

After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was
approved on Second Reading with no objections.

IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.

A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples and Do Not
Constitute Part of the Land of the Public Domain.

The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral
lands.Ancestral lands are not the same as ancestral domains. These are defined in Section 3 [a] and [b]
of the Indigenous Peoples Right Act, viz:

"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all areas generally belonging to
ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a
claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors,
communally or individually since time immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of
government projects or any other voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare.
It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually
owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas,
bodies of water, mineral and other natural resources, and lands which may no longer be exclusively
occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators;
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied, possessed and utilized by
individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves
or through their predecessors-in-interest, under claims of individual or traditional group ownership,
continuously, to the present except when interrupted by war, force majeure or displacement by force,
deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into
by government and private individuals/corporations, including, but not limited to, residential lots, rice
terraces or paddies, private forests, swidden farms and tree lots."

Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or
possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time
immemorial, continuously until the present, except when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a consequence of government projects or any other
voluntary dealings with government and/or private individuals or corporations. Ancestral domains
comprise lands, inland waters, coastal areas, and natural resources therein and includes ancestral
lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable
or not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural
resources. They also include lands which may no longer be exclusively occupied by ICCs/IPs but from
which they traditionally had access to for their subsistence and traditional activities, particularly the
home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.116

Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains 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 individual or traditional group ownership. These lands include
but are not limited to residential lots, rice terraces or paddies, private forests, swidden farms and tree
lots.117

The procedures for claiming ancestral domains and lands are similar to the procedures embodied in
Department Administrative Order (DAO) No. 2, series of 1993, signed by then Secretary of the
Department of Environment and Natural Resources (DENR) Angel Alcala.118 DAO No. 2 allowed the
delineation of ancestral domains by special task forces and ensured the issuance of Certificates of
Ancestral Land Claims (CALC's) and Certificates of Ancestral Domain Claims (CADC's) to IPs.

The identification and delineation of these ancestral domains and lands is a power conferred by the IPRA
on the National Commission on Indigenous Peoples (NCIP).119 The guiding principle in identification and
delineation is self-delineation.120 This means that the ICCs/IPs have a decisive role in determining the
boundaries of their domains and in all the activities pertinent thereto.121

The procedure for the delineation and recognition of ancestral domains is set forth in Sections 51 and
52 of the IPRA. The identification, delineation and certification of ancestral lands is in Section 53 of said
law.

Upon due application and compliance with the procedure provided under the law and upon finding by
the NCIP that the application is meritorious, the NCIP shall issue a Certificate of Ancestral Domain Title
(CADT) in the name of the community concerned.122 The allocation of lands within the ancestral
domain to any individual or indigenous corporate (family or clan) claimants is left to the ICCs/IPs
concerned to decide in accordance with customs and traditions.123 With respect to ancestral lands
outside the ancestral domain, the NCIP issues a Certificate of Ancestral Land Title (CALT).124
CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of Deeds in
the place where the property is situated.125

(1) Right to Ancestral Domains and Ancestral Lands: How Acquired

The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two
modes: (1) by native title over both ancestral lands and domains; or (2) by torrens title under the
Public Land Act and the Land Registration Act with respect to ancestral lands only.

(2) The Concept of Native Title

Native title is defined as:

"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains which, as far back as memory
reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public lands
and are thus indisputably presumed to have been held that way since before the Spanish Conquest."126

Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of private
ownership as far back as memory reaches. These lands are deemed never to have been public lands and
are indisputably presumed to have been held that way since before the Spanish Conquest. The rights of
ICCs/IPs to their ancestral domains (which also include ancestral lands) by virtue of native title shall be
recognized and respected.127 Formal recognition, when solicited by ICCs/IPs concerned, shall be
embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the
concerned ICCs/IPs over the territories identified and delineated.128

Like a torrens title, a CADT is evidence of private 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 domains. The
IPRA categorically declares ancestral lands and domains held by native title as never to have been public
land. Domains and lands held under native title are, therefore, indisputably presumed to have never
been public lands and are private.

(a) Cariño v. Insular Government129

The concept of native title in the IPRA was taken from the 1909 case of Cariño v. Insular
Government.130 Cariñofirmly established a concept of private land title that existed irrespective of any
royal grant from the State.

In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land registration court 146 hectares of
land in Baguio Municipality, Benguet Province. He claimed that this land had been possessed and
occupied by his ancestors since time immemorial; that his grandfather built fences around the property
for the holding of cattle and that his father cultivated some parts of the land. Cariño inherited the land
in accordance with Igorot custom. He tried to have the land adjusted under the Spanish land laws, but
no document issued from the Spanish Crown.131 In 1901, Cariño obtained a possessory title to the land
under the Spanish Mortgage Law.132 The North American colonial government, however, ignored his
possessory title and built a public road on the land prompting him to seek a Torrens title to his property
in the land registration court. While his petition was pending, a U.S. military reservation133 was
proclaimed over his land and, shortly thereafter, a military detachment was detailed on the property
with orders to keep cattle and trespassers, including Cariño, off the land.134
In 1904, the land registration court granted Cariño's application for absolute ownership to the land. Both
the Government of the Philippine Islands and the U.S. Government appealed to the C.F.I. of Benguet
which reversed the land registration court and dismissed Cariño's application. The Philippine Supreme
Court135 affirmed the C.F.I. by applying the Valenton ruling. Cariño took the case to the U.S. Supreme
Court.136 On one hand, the Philippine government invoked the Regalian doctrine and contended that
Cariño failed to comply with the provisions of the Royal Decree of June 25, 1880, which required
registration of land claims within a limited period of time. Cariño, on the other, asserted that he was the
absolute owner of the land jure gentium, and that the land never formed part of the public domain.

In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held:

"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held
from the Crown, and perhaps the general attitude of conquering nations toward people not recognized
as entitled to the treatment accorded to those in the same zone of civilization with themselves. It is
true, also, that in legal theory, sovereignty is absolute, and that, as against foreign nations, the United
States may assert, as Spain asserted, absolute power. But it does not follow that, as against the
inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left
on one side, sovereignty 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 past, and how far it shall recognize
actual facts, are matters for it to decide."137

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 decided under U.S. law.

The Cariño decision largely rested on the North American constitutionalist's concept of "due process" as
well as the pronounced policy "to do justice to the natives."138 It was based on the strong mandate
extended to the Islands via the Philippine Bill of 1902 that "No law shall be enacted in said islands which
shall deprive any person of life, liberty, or property without due process of law, or deny to any person
therein the equal protection of the laws." The court declared:

"The acquisition of the Philippines was not like the settlement of the white race in the United States.
Whatever consideration may have been shown to the North American Indians, the dominant purpose of
the whites in America was to occupy land. It is obvious that, however stated, the reason for our taking
over the Philippines was different. No one, we suppose, would deny that, so far as consistent with
paramount necessities, our first object in the internal administration of the islands is to do justice to the
natives, not to exploit their country for private gain. By the Organic Act of July 1, 1902, chapter 1369,
section 12 (32 Statutes at Large, 691), all the property and rights acquired there by the United States are
to be administered 'for the benefit of the inhabitants thereof.' It is reasonable to suppose that the
attitude thus assumed by the United States with regard to what was unquestionably its own is also its
attitude in deciding what it will claim for its own. The same statute made a bill of rights, embodying the
safeguards of the Constitution, and, like the Constitution, extends those safeguards to all. It provides
that 'no law shall be enacted in said islands which shall deprive any person of life, liberty, or property
without due process of law, or 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 United States was
ready to declare in the next breath that "any person" did not embrace the inhabitants of Benguet, or
that it meant by "property" only that which had become such by ceremonies of which presumably a
large part of the inhabitants never had heard, and that it proposed to treat as public land what they, by
native custom and by long association,- of the profoundest factors in human thought,- regarded as their
own."139

The Court went further:

"Every presumption is and ought to be against the government in a case like the present. It might,
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 claim of private ownership, it will be presumed to have been
held in the same way from before the Spanish conquest, and never to have been public land. Certainly
in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to give the applicant the
benefit of the doubt."140

The court thus laid down the presumption of a certain title held (1) as far back as testimony or memory
went, and (2) under a claim of private ownership. Land held by this title is presumed to "never have
been public land."

Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees upheld in the 1904
decision ofValenton v. Murciano. The U.S. Supreme Court found no proof that the Spanish decrees
did not honor native title. On the contrary, the decrees discussed in Valenton appeared to recognize
that the natives owned some land, irrespective of any royal grant. The Regalian doctrine declared in the
preamble of the Recopilacion was all "theory and discourse" and it was observed that titles were
admitted to exist beyond the powers of the Crown, viz:

"If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it
was bad by that law as to satisfy us that he does not own the land. To begin with, the older decrees
and laws cited by the counsel for the plaintiff in error seem to indicate pretty clearly that the natives
were recognized as owning some lands, irrespective of any royal grant. In other words, Spain did not
assume to convert all the native inhabitants of the Philippines into trespassers or even into tenants at
will. For instance, Book 4, title 12, Law 14 of the the Recopilacion de Leyes de las Indias, cited for a
contrary conclusion in Valenton v. Murciano, 3 Philippine 537, while it commands viceroys and others,
when it seems proper, to call for the exhibition of grants, directs them to confirm those who hold by
good grants or justa prescripcion. It is true that it begins by the characteristic assertion of feudal
overlordship and the origin of all titles in the King or his predecessors. That was theory and discourse.
The fact was that titles were admitted to exist that owed nothing to the powers of Spain beyond this
recognition in their books." (Emphasis supplied).141

The court further stated that the Spanish "adjustment" proceedings never held sway over unconquered
territories. The wording of the Spanish laws were not framed in a manner as to convey to the natives
that failure to register what to them has always been their own would mean loss of such 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 the notion that ancient family possessions were in danger, if he
had read every word of it."

By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton. It was frank
enough, however, to admit the possibility that the applicant might have been deprived of his land under
Spanish law because of the inherent ambiguity of the decrees and concomitantly, the various
interpretations which may be given them. But precisely because of the ambiguity and of the strong
"due process mandate" of the Constitution, the court validated this kind of title.142 This title was
sufficient, even without government administrative action, and entitled the holder to a Torrens
certificate. Justice Holmes explained:

"It will be perceived that the rights of the applicant under the Spanish law present a problem not
without difficulties for courts of a legal tradition. We have deemed it proper on that account to notice
the possible effect of the change of sovereignty and the act of Congress establishing the fundamental
principles now to be observed. Upon a consideration of the whole case we are of the opinion that law
and justice require that the applicant should be granted what he seeks, and should not be deprived of
what, by the practice and belief of those among whom he lived, was his property, through a refined
interpretation of an almost forgotten law of Spain."143

Thus, the court ruled in favor of Cariño and ordered the registration of the 148 hectares in Baguio
Municipality in his name.144

Examining Cariño closer, the U.S. Supreme Court did not categorically refer to the title it upheld as
"native title." It simply said:

"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument,
characterized as a savage tribe that never was brought under the civil or military government of the
Spanish Crown. It seems probable, if not certain, that the Spanish officials would not have granted to
anyone in that province the registration to which formerly the plaintiff was entitled by the Spanish
Laws, and which would have made his title beyond question good. Whatever may have been the
technical position of Spain it does not follow that, in the view of the United States, he had lost all rights
and was a mere trespasser when the present government seized his land. The argument to that effect
seems to amount to a denial of native titles through an important part of the Island of Luzon, at least,
for the want of ceremonies which the Spaniards would not have permitted and had not the power to
enforce."145

This is the only instance when Justice Holmes used the term "native title" in the entire length of
the Cariño decision. It is observed that the widespread use of the term "native title" may be traced to
Professor Owen James Lynch, Jr., a Visiting Professor at the University of the Philippines College of Law
from the Yale University Law School. In 1982, Prof. Lynch published an article in the Philippine Law
Journal entitled Native Title, Private Right and Tribal Land Law.146 This article was made after Professor
Lynch visited over thirty tribal communities throughout the country and studied the origin and
development of Philippine land laws.147 He discussed Cariño extensively and used the term "native title"
to refer to Cariño's title as discussed and upheld by the U.S. Supreme Court in said case.

(b) Indian Title

In a footnote in the same article, Professor Lynch stated that the concept of "native title" as defined by
Justice Holmes in Cariño "is conceptually similar to "aboriginal title" of the American Indians.148 This is
not surprising, according to Prof. Lynch, considering that during the American regime, government
policy towards ICCs/IPs was consistently made in reference to native Americans.149 This was clearly
demonstrated in the case of Rubi v. Provincial Board of Mindoro.150

In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial governor to
remove the Mangyans from their domains and place them in a permanent reservation in Sitio Tigbao,
Lake Naujan. Any Mangyan who refused to comply was to be imprisoned. Rubi and some Mangyans,
including one who was imprisoned for trying to escape from the reservation, filed for habeas corpus
claiming deprivation of liberty under the Board Resolution. This Court denied the petition on the ground
of police power. It upheld government policy promoting the idea that a permanent settlement was the
only successful method for educating the Mangyans, introducing civilized customs, improving their
health and morals, and protecting the public forests in which they roamed.151 Speaking through Justice
Malcolm, the court said:

"Reference was made in the President's instructions to the Commission to the policy adopted by the
United States for the Indian Tribes. The methods followed by the Government of the Philippine Islands
in its dealings with the so-called non-Christian people is said, on argument, to be practically identical
with that followed by the United States Government in its dealings with the Indian tribes. Valuable
lessons, it is insisted, can be derived by an investigation of the American-Indian policy.

From the beginning of the United States, and even before, the Indians have been treated as "in a state
of pupilage." The recognized relation between the Government of the United States and the Indians
may be described as that of guardian and ward. It is for the Congress to determine when and how the
guardianship shall be terminated. The Indians are always subject to the plenary authority of the United
States.152

x x x.

As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly identical.
But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United
States, that Indians have been taken from different parts of the country and placed on these
reservations, without any previous consultation as to their own wishes, and that, when once so located,
they have been made to remain on the reservation for their own good and for the general good of the
country. If any lesson can be drawn from the Indian policy of the United States, it is that the
determination of this policy is for the legislative and executive branches of the government and that
when once so decided upon, the courts should not interfere to upset a carefully planned governmental
system. Perhaps, just as many forceful reasons exist for the segregation of the Manguianes in Mindoro
as existed for the segregation of the different Indian tribes in the United States."153

Rubi applied the concept of Indian land grants or reservations in the Philippines. An Indian reservation is
a part of the public domain set apart by proper authority for the use and occupation of a tribe or tribes
of Indians.154 It may be set apart by an act of Congress, by treaty, or by executive order, but it cannot be
established by custom and prescription.155

Indian title to land, however, is not limited to land grants or reservations. It also covers the
"aboriginal right of possession or occupancy."156 The aboriginal right of possession depends on the
actual occupancy of the lands in question by the tribe or nation as their ancestral home, in the sense
that such lands constitute definable territory occupied exclusively by the particular tribe or nation.157 It
is a right which exists apart from any treaty, statute, or other governmental action, although in
numerous instances treaties have been negotiated with Indian tribes, recognizing their aboriginal
possession and delimiting their occupancy rights or settling and adjusting their boundaries.158
American jurisprudence recognizes the Indians' or native Americans' rights to land they have held and
occupied before the "discovery" of the Americas by the Europeans. The earliest definitive statement
by the U.S. Supreme Court on the nature of aboriginal title was made in 1823 in Johnson & Graham's
Lessee v. M'Intosh.159

In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs of two (2)
Indian tribes. The U.S. Supreme Court refused to recognize this conveyance, the plaintiffs being private
persons. The only conveyance that was recognized was that made by the Indians to the government of
the European discoverer. Speaking for the court, Chief Justice Marshall pointed out that the potentates
of the old world believed that they had made ample compensation to the inhabitants of the new world
by bestowing civilization and Christianity upon them; but in addition, said the court, they found it
necessary, in order to avoid conflicting settlements and consequent war, to establish the principle
that discovery gives title to the government by whose subjects, or by whose authority, the discovery
was made, against all other European governments, which title might be consummated by
possession.160 The exclusion of all other Europeans gave to the nation making the discovery the sole
right of acquiring the soil from the natives and establishing settlements upon it. As regards the natives,
the court further stated that:

"Those relations which were to exist between the discoverer and the natives were to be regulated by
themselves. The rights thus acquired being exclusive, no other power could interpose between them.

In the establishment of these relations, the rights of the original inhabitants were, in no instance,
entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to
be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to
use it according to their own discretion; but their rights to complete sovereignty, as independent
nations, were necessarily diminished, and their power to dispose of the soil at their own will, to
whomsoever they pleased, was denied by the fundamental principle that discovery gave exclusive title
to those who made it.

While the different nations of Europe respected the right of the natives as occupants, they asserted
the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this
ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have
been understood by all to convey a title to the grantees, subject only to the Indian right of
occupancy."161

Thus, the discoverer of new territory was deemed to have obtained the exclusive right to acquire Indian
land and extinguish Indian titles. Only to the discoverer- whether to England, France, Spain or Holland-
did this right belong and not to any other nation or private person. The mere acquisition of the right
nonetheless did not extinguish Indian claims to land. Rather, until the discoverer, by purchase or
conquest, exercised its right, the concerned Indians were recognized as the "rightful occupants of the
soil, with a legal as well as just claim to retain possession of it." Grants made by the discoverer to her
subjects of lands occupied by the Indians were held to convey a title to the grantees, subject only to the
Indian right of occupancy. Once the discoverer purchased the land from the Indians or conquered them,
it was only then that the discoverer gained an absolute title unrestricted by Indian rights.

The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title
paramount to the title of the United States itself to other parties, saying:
"It has never been contended that the Indian title amounted to nothing. Their right of possession has
never been questioned. The claim of government extends to the complete ultimate title, charged with
this right of possession, and to the exclusive power of acquiring that right."162

It has been said that the history of America, from its discovery to the present day, proves the universal
recognition of this principle.163

The Johnson doctrine was a compromise. It protected Indian rights and their native lands without having
to invalidate conveyances made by the government to many U.S. citizens.164

Johnson was reiterated in the case of Worcester v. Georgia.165 In this case, the State of Georgia enacted
a law requiring all white persons residing within the Cherokee nation to obtain a license or permit from
the Governor of Georgia; and any violation of the law was deemed a high misdemeanor. The plaintiffs,
who were white missionaries, did not obtain said license and were thus charged with a violation of the
Act.

The U.S. Supreme Court declared the Act as unconstitutional for interfering with the treaties established
between the United States and the Cherokee nation as well as the Acts of Congress regulating
intercourse with them. It characterized the relationship between the United States government and the
Indians as:

"The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the
supply of their essential wants, and for their protection from lawless and injurious intrusions into their
country. That power was naturally termed their protector. They had been arranged under the protection
of Great Britain; but the extinguishment of the British power in their neighborhood, and the
establishment of that of the United States in its place, led naturally to the declaration, on the part of the
Cherokees, that they were under the protection of the United States, and of no other power. They
assumed the relation with the United States which had before subsisted with Great Britain.

This relation was that of a nation claiming and receiving the protection of one more powerful, not that
of individuals abandoning their national character, and submitting as subjects to the laws of a
master."166

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 lands within their domains. Thus:

"From the commencement of our government Congress has passed acts to regulate trade and
intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm
purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802,
which is still in force, manifestly consider the several Indian nations as distinct political communities,
having territorial boundaries, within which their authority is exclusive, and having a right to all the
lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.

x x x.

"The Indian nations had always been considered as distinct, independent political communities,
retaining their original natural rights, as the undisputed possessors of the soil from time
immemorial, with the single exception of that imposed by irresistible power, which excluded them from
intercourse with any other European potentate than the first discoverer of the coast of the particular
region claimed: and this was a restriction which those European potentates imposed on themselves, as
well as on the Indians. The very term "nation," so generally applied to them, means "a people distinct
from others." x x x.167

The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries
accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia
have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties
and with the acts of Congress. The whole intercourse between the United States and this nation is, by
our Constitution and laws, vested in the government of the United States."168

The discovery of the American continent gave title to the government of the discoverer as against all
other European governments. Designated as the naked fee,169 this title was to be consummated by
possession and was subject to the Indian title of occupancy. The discoverer acknowledged the Indians'
legal and just claim to retain possession of the land, the Indians being the original inhabitants of the
land. The discoverer nonetheless asserted the exclusive right to acquire the Indians' land- either by
purchase, "defensive" conquest, or cession- and in so doing, extinguish the Indian title. Only the
discoverer could extinguish Indian title because it alone asserted ultimate dominion in itself. Thus, while
the different nations of Europe respected the rights of the natives as occupants, they all asserted the
ultimate dominion and title to be in themselves.170

As early as the 19th century, it became accepted doctrine that although fee title to the lands occupied
by the Indians when the colonists arrived became vested in the sovereign- first the discovering
European nation and later the original 13 States and the United States- a right of occupancy in the
Indian tribes was nevertheless recognized. The Federal Government continued the policy of respecting
the Indian right of occupancy, sometimes called Indian title, which it accorded the protection of
complete ownership.171 But this aboriginal Indian interest simply constitutes "permission" from the
whites to occupy the land, and means mere possession not specifically recognized as ownership by
Congress.172 It is clear that this right of occupancy based upon aboriginal possession is not a property
right.173 It is vulnerable to affirmative action by the federal government who, as sovereign, possessed
exclusive power to extinguish the right of occupancy at will.174 Thus, aboriginal title is not the same as
legal title. Aboriginal title rests on actual, exclusive and continuous use and occupancy for a long
time.175 It entails that land owned by Indian title must be used within the tribe, subject to its laws and
customs, and cannot be sold to another sovereign government nor to any citizen.176 Such title as Indians
have to possess and occupy land is in the tribe, and not in the individual Indian; the right of individual
Indians to share in the tribal property usually depends upon tribal membership, the property of the tribe
generally being held in communal ownership.177

As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to designate
such lands as are subject to sale or other disposal under general laws.178 Indian land which has been
abandoned is deemed to fall into the public domain.179 On the other hand, an Indian reservation is a part
of the public domain set apart for the use and occupation of a tribe of Indians.180 Once set apart by
proper authority, the reservation ceases to be public land, and until the Indian title is extinguished, no
one but Congress can initiate any preferential right on, or restrict the nation's power to dispose of,
them.181

The American judiciary struggled for more than 200 years with the ancestral land claims of indigenous
Americans.182 And two things are clear. First, aboriginal title is recognized. Second, indigenous property
systems are also recognized. 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 native title and
aboriginal title, however, there are at present some misgivings on whether jurisprudence on American
Indians may be cited authoritatively in the Philippines. The U.S. recognizes the possessory rights of the
Indians over their land; title to the land, however, is deemed to have passed to the U.S. as successor of
the discoverer. The aboriginal title of ownership is not specifically recognized as ownership by action
authorized by Congress.184 The protection of aboriginal title merely guards against encroachment by
persons other than the Federal Government.185 Although there are criticisms against the refusal to
recognize the native Americans' ownership of these lands,186 the power of the State to extinguish these
titles has remained firmly entrenched.187

Under the IPRA, the Philippine State is not barred form asserting sovereignty over the ancestral domains
and ancestral lands.188 The IPRA, however, is still in its infancy and any similarities between its
application in the Philippines vis-à-vis American Jurisprudence on aboriginal title will depend on the
peculiar facts of each case.

(c) Why the Cariño doctrine is unique

In the Philippines, the concept of native title first upheld in Cariño and enshrined in the IPRA grants
ownership, albeit in limited form, of the land to the ICCs/IPs. Native title presumes that the land is
private and was never public. Cariño is the only case that specifically and categorically recognizes
native title. The long line of cases citing Cariño did not touch on native title and the private character
of ancestral domains and lands. Cariñowas cited by the succeeding cases to support the concept of
acquisitive prescription under the Public Land Act which is a different matter altogether. Under the
Public Land Act, land sought to be registered must be public agricultural land. When the conditions
specified in Section 48 [b] of the Public Land Act are complied with, the possessor of the land is deemed
to have acquired, by operation of law, a right to a grant of the land.189 The land ceases to be part of the
public domain,190 ipso jure,191 and is converted to private property by the mere lapse or completion of
the prescribed statutory period.

It was only in the case of Oh Cho v. Director of Lands192 that the court declared that the rule that all
lands that were not acquired from the government, either by purchase or grant, belong to the public
domain has an exception. This exception would be 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 that
would justify the presumption that the land had never been part of the public domain or that it had
been private property even before the Spanish conquest.193 Oh Cho, however, was decided under the
provisions of the Public Land Act and Cariño was cited to support the applicant's claim of acquisitive
prescription under the said Act.

All these years, Cariño had been quoted out of context simply to justify long, continuous, open and
adverse possession in the concept of owner of public agricultural land. It is this long, continuous, open
and adverse possession in the concept of owner of thirty years both for ordinary citizens194 and
members of the national cultural minorities195 that converts the land from public into private and
entitles the registrant to a torrens certificate of title.

(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is Private.
The private character of ancestral lands and domains as laid down in the IPRA is further strengthened by
the option given to individual ICCs/IPs over their individually-owned ancestral lands. For purposes of
registration under the Public Land Act and the Land Registration Act, the IPRA expressly converts
ancestral land into public agricultural land which may be disposed of by the State. The necessary
implication is that ancestral land is private. It, however, has to be first converted to public agricultural
land simply for registration purposes. To wit:

"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the Land
Registration Act 496- Individual members of cultural communities, with respect to their individually-
owned ancestral lands who, by themselves or through their predecessors-in-interest, have been in
continuous possession and occupation of the same in the concept of owner since time immemorial or
for a period of not less than thirty (30) years immediately preceding the approval of this Act and
uncontested by the members of the same ICCs/IPs shall have the option to secure title to their ancestral
lands under the provisions of Commonwealth Act 141, as amended, or the Land Registration Act 496.

For this purpose, said individually-owned ancestral lands, which are agricultural in character and actually
used for agricultural, residential, pasture, and tree farming purposes, including those with a slope of
eighteen percent (18%) or more, are hereby classified as alienable and disposable agricultural lands.

The option granted under this section shall be exercised within twenty (20) years from the approval of
this Act."196

ICCs/IPs are given the option to secure a torrens certificate of title over their individually-owned
ancestral lands. This option is limited to ancestral lands only, not domains, and such lands must be
individually, not communally, owned.

Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or through their
predecessors-in-interest, have been in continuous possession and occupation of the same in the concept
of owner since time immemorial197 or for a period of not less than 30 years, which claims are
uncontested by the members of the same ICCs/IPs, may be registered under C.A. 141, otherwise known
as the Public Land Act, or Act 496, the Land Registration Act. For purposes of registration, the
individually-owned ancestral lands are classified as alienable and disposable agricultural lands of the
public domain, provided, they are agricultural in character and are actually used for agricultural,
residential, pasture and tree farming purposes. These lands shall be classified as public agricultural lands
regardless of whether they have a slope of 18% or more.

The classification of ancestral land as public agricultural land is in compliance with the requirements of
the Public Land Act and the Land Registration Act. C.A. 141, the Public Land Act, deals specifically with
lands of the public domain.198 Its provisions apply to those lands "declared open to disposition or
concession" x x x "which have not been reserved for public or quasi-public purposes, nor appropriated
by the Government, nor in any manner become private property, nor those on which a private right
authorized and recognized by this Act or any other valid law x x x or which having been reserved or
appropriated, have ceased to be so."199 Act 496, the Land Registration Act, allows registration only of
private lands and public agricultural lands. Since ancestral domains and lands are private, if the ICC/IP
wants to avail of the benefits of C.A. 141 and Act 496, the IPRA itself converts his ancestral land,
regardless of whether the land has a slope of eighteen per cent (18%) or over,200 from private to public
agricultural land for proper disposition.
The option to register land under the Public Land Act and the Land Registration Act has nonetheless a
limited period. This option must be exercised within twenty (20) years from October 29, 1997, the date
of approval of the IPRA.

Thus, ancestral lands and ancestral domains are not part of the lands of the public domain. They are
private and belong to the ICCs/IPs. Section 3 of Article XII on National Economy and Patrimony of the
1987 Constitution classifies lands of the public domain into four categories: (a) agricultural, (b) forest or
timber, (c) mineral lands, and (d) national parks. Section 5 of the same Article XII mentions ancestral
lands and ancestral domains but it does not classify them under any of the said four categories. To
classify them as public lands under any one of the four classes will render the entire IPRA law a
nullity. The spirit of the IPRA lies in the distinct concept of ancestral domains and ancestral lands. The
IPRA addresses the major problem of the ICCs/IPs which is loss of land. Land and space are of vital
concern in terms of sheer survival of the ICCs/IPs.201

The 1987 Constitution mandates the State to "protect the rights of indigenous cultural communities to
their ancestral lands" and that "Congress provide for the applicability of customary laws x x x in
determining the ownership and extent of ancestral domain."202 It is the recognition of the ICCs/IPs
distinct rights of ownership over their ancestral domains and lands that breathes life into this
constitutional mandate.

B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a limited form
of ownership and does not include the right to alienate the same.

Registration under the Public Land Act and Land Registration Act recognizes the concept of ownership
under the civil law. This ownership is based on adverse possession for a specified period, and harkens to
Section 44 of the Public Land Act on administrative legalization (free patent) of imperfect or incomplete
titles and Section 48 (b) and (c) of the same Act on the judicial confirmation of imperfect or incomplete
titles. Thus:

"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twenty-four
hectares and who since July fourth, 1926 or prior thereto, has continuously occupied and cultivated,
either by himself or through his predecessors-in-interest, a tract or tracts of agricultural public lands
subject to disposition, or who shall have paid the real estate tax thereon while the same has not been
occupied by any person shall be entitled, under the provisions of this chapter, to have a free patent
issued to him for such tract or tracts of such land not to exceed twenty-four hectares.

A member of the national cultural minorities who has continuously occupied and cultivated, either by
himself or through his predecessors-in-interest, a tract or tracts of land, whether disposable or not
since July 4, 1955, shall be entitled to the right granted in the preceding paragraph of this
section: Provided, That at the time he files his free patent application he is not the owner of any real
property secured or disposable under the provision of the Public Land Law.203

x x x.

"Sec. 48. The following described citizens of the Philippines, occupying lands of the public domain or
claiming to own any such lands or an interest therein, but whose titles have not been perfected or
completed, may apply to the Court of First Instance of the province where the land is located for
confirmation of their claims and the issuance of a certificate of title therefor, under the Land
Registration Act, to wit:

(a) [perfection of Spanish titles] xxx.

(b) Those who by themselves or through their predecessors-in-interest have been in open, continuous,
exclusive, and notorious possession and occupation of agricultural lands of the public domain, under a
bona fide claim of acquisition or ownership, for at least thirty years immediately preceding the filing of
the application for confirmation of title except when prevented by war or force majeure. These shall be
conclusively presumed to have performed all the conditions essential to a Government grant and shall
be entitled to a certificate of title under the provisions of this Chapter.

(c) Members of the national cultural minorities who by themselves or through their predecessors-in-
interest have been in open, continuous, exclusive and notorious possession and occupation of lands of
the public domain suitable to agriculture, whether disposable or not, under a bona fide claim of
ownership for at least 30 years shall be entitled to the rights granted in sub-section (b) hereof."204

Registration under the foregoing provisions presumes that the land was originally public agricultural
land but because of adverse possession since July 4, 1955 (free patent) or at least thirty years (judicial
confirmation), the land has become private. Open, adverse, public and continuous possession is
sufficient, provided, the possessor makes proper application therefor. The possession has to be
confirmed judicially or administratively after which a torrens title is issued.

A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights of
ownership under the civil law. The Civil Code of the Philippines defines ownership in Articles 427, 428
and 429. This concept is based on Roman Law which the Spaniards introduced to the Philippines through
the Civil Code of 1889. Ownership, under Roman Law, may be exercised over things or 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 to receive from the thing what it produces,205 the right to
consume the thing by its use,206 the right to alienate, encumber, transform or even destroy the thing
owned,207 and the right to exclude from the possession of the thing owned by any other person to
whom the owner has not transmitted such thing.208

1. The Indigenous Concept of Ownership and Customary Law.

Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but to a
Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes the indigenous concept of
ownership of the ICCs/IPs over their ancestral domain. Thus:

"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view that
ancestral domains and all resources found therein shall serve as the material bases of their cultural
integrity. The indigenous concept of ownership generally holds that ancestral domains are the ICCs/IPs
private but community property which belongs to all generations and therefore cannot be sold,
disposed or destroyed. It likewise covers sustainable traditional resource rights."

The right of ownership and possession of the ICCs/IPs to their ancestral domains is held under the
indigenous concept of ownership. This concept maintains the view that ancestral domains are the
ICCs/IPs private but community property. It is private simply because it is not part of the public
domain. But its private character ends there. The ancestral domain is owned in common by the
ICCs/IPs and not by one particular person. The IPRA itself provides that areas within the ancestral
domains, whether delineated or not, are presumed to be communally held.209 These communal rights,
however, are not exactly the same as co-ownership rights under the Civil Code.210 Co-ownership gives
any co-owner the right to demand partition of the property held in common. The Civil Code expressly
provides that "no co-owner shall be obliged to remain in the co-ownership." Each co-owner may
demand at any time the partition of the thing in common, insofar as his share is concerned.211 To allow
such a right over ancestral domains may be destructive not only of customary law of the community but
of the very community itself.212

Communal rights over land are not the same as corporate rights over real property, much less
corporate condominium rights. A corporation can exist only for a maximum of fifty (50) years subject to
an extension of another fifty years in any single instance.213 Every stockholder has the right to
disassociate himself from the corporation.214 Moreover, the corporation itself may be dissolved
voluntarily or involuntarily.215

Communal rights to the land are held not only by the present possessors of the land but extends to all
generations of the ICCs/IPs, past, present and future, to the domain. This is the reason why the
ancestral domain must be kept within the ICCs/IPs themselves. The domain cannot be transferred, sold
or conveyed to other persons. It belongs to the ICCs/IPs as a community.

Ancestral lands are also held under the indigenous concept of ownership. The lands are communal.
These lands, however, may be transferred subject to the following limitations: (a) only to the members
of the same ICCs/IPs; (b) in accord with customary laws and traditions; and (c) subject to the right of
redemption of the ICCs/IPs for a period of 15 years if the land was transferred to a non-member of the
ICCs/IPs.

Following the constitutional mandate that "customary law govern property rights or relations in
determining the ownership and extent of ancestral domains,"216 the IPRA, by legislative fiat, introduces
a new concept of ownership. This is a concept that has long existed under customary law. 217

Custom, from which customary law is derived, is also recognized under the Civil Code as a source of
law.218 Some articles of the Civil Code expressly provide that custom should be applied in cases where
no codal provision is applicable.219 In other words, in the absence of any applicable provision in the Civil
Code, custom, when duly proven, can define rights and liabilities.220

Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies to
ICCs/IPs. Its recognition does not depend on the absence of a specific provision in the civil law. The
indigenous concept of ownership under customary law is specifically acknowledged and recognized, and
coexists with the civil law concept and the laws on land titling and land registration.221

To be sure, the indigenous concept of ownership exists even without a paper title. The CADT is merely
a "formal recognition" of native title. This is clear from Section 11 of the IPRA, to wit:

"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to their ancestral domains by
virtue of Native Title shall be recognized and respected. Formal recognition, when solicited by ICCs/IPs
concerned shall be embodied in a Certificate of Ancestral Domain Title, which shall recognize the title of
the concerned ICCs/IPs over the territories identified and delineated."
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 sprung from the land since time beyond recall, and the
faithful nurture of the land by the sweat of one's brow. This is fidelity of usufructuary relation to the
land- the possession of stewardship through perduring, intimate tillage, and the mutuality of blessings
between man and land; from man, care for land; from the land, sustenance for man.222

C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in Section 2,
Article XII of the 1987 Constitution.

1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands

The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands. Section 7
provides for the rights over ancestral domains:

"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and possession of ICCs/IPs to their
ancestral domains shall be recognized and protected. Such rights include:

a) Right of Ownership.- The right to claim ownership over lands, bodies of water traditionally and
actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains;

b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, the right to develop,
control and use lands and territories traditionally occupied, owned, or used; to manage and conserve
natural resources within the territories and uphold the responsibilities for future generations; to
benefit and share the profits from allocation and utilization of the natural resources found therein;
the right to negotiate the terms and conditions for the exploration of natural resources in the areas
for the purpose of ensuring ecological, environmental protection and the conservation measures,
pursuant to national and customary laws; the right to an informed and intelligent participation in the
formulation and implementation of any project, government or private, that will affect or impact upon
the ancestral domains and to receive just and fair compensation for any damages which they may
sustain as a result of the project; and the right to effective measures by the government to prevent any
interference with, alienation and encroachment upon these rights;"

c) Right to Stay in the Territories.- The right to stay in the territory and not to be removed therefrom. No
ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other
than eminent domain. x x x;

d) Right in Case of Displacement.- In case displacement occurs as a result of natural catastrophes, the
State shall endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have temporary
life support systems: x x x;

e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of migrant settlers and
organizations into their domains;

f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs shall have access to integrated
systems for the management of their inland waters and air space;
g) Right to Claim Parts of Reservations.- The right to claim parts of the ancestral domains which have
been reserved for various purposes, except those reserved and intended for common and public welfare
and service;

h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance with customary laws of the
area where the land is located, and only in default thereof shall the complaints be submitted to
amicable settlement and to the Courts of Justice whenever necessary."

Section 8 provides for the rights over ancestral lands:

"Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of the ICCs/IPs to their
ancestral lands shall be recognized and protected.

a) Right to transfer land/property.- Such right shall include the right to transfer land or property rights
to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community
concerned.

b) Right to Redemption.- In cases where it is shown that the transfer of land/property rights by virtue of
any agreement or devise, to a non-member of the concerned ICCs/IPs is tainted by the vitiated consent
of the ICCs/IPs, or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall
have the right to redeem the same within a period not exceeding fifteen (15) years from the date of
transfer."

Section 7 (a) defines the ICCs/IPs the right of ownership over their ancestral domains which covers (a)
lands, (b) bodies of water traditionally and actually occupied by the ICCs/IPs, (c) sacred places, (d)
traditional hunting and fishing grounds, and (e) all improvements made by them at any time within the
domains. The right of ownership 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 case of displacement; (d)
the right to regulate the entry of migrants; (e) the right to safe and clean air and water; (f) the right to
claim parts of the ancestral domains as reservations; and (g) the right to resolve conflict in accordance
with customary laws.

Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral domains, Section 8
gives the ICCs/IPs also the right to transfer the land or property rights to members of the same ICCs/IPs
or non-members thereof. This is in keeping with the option given to ICCs/IPs to secure a torrens title
over the ancestral lands, but not to domains.

2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains Does Not
Deprive the State of Ownership Over the Natural Resources and Control and Supervision in their
Development and Exploitation.

The Regalian doctrine on the ownership, management and utilization of natural resources is declared
in Section 2, Article XII of the 1987 Constitution, viz:

"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State. The State may directly undertake such activities,
or, it may enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and under such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, water supply, fisheries, or industrial uses other than
the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well
as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays,
and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the state
shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution."223

All lands of the public domain and all natural resources- waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources- are owned by the State. The Constitution provides that in the exploration,
development and utilization of these natural resources, the State exercises full control and supervision,
and may undertake the same in four (4) modes:

1. The State may directly undertake such activities; or

2. The State may enter into co-production, joint venture or production-sharing agreements with Filipino
citizens or qualified corporations;

3. Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens;

4. For the large-scale exploration, development and utilization of minerals, petroleum and other mineral
oils, the President may enter into agreements with foreign-owned corporations involving technical or
financial assistance.

As owner of the natural resources, the State is accorded primary power and responsibility in the
exploration, development and utilization of these natural resources. The State may directly undertake
the exploitation and development by itself, or, it may allow participation by the private sector through
co-production,224joint venture,225 or production-sharing agreements.226 These agreements may be for a
period of 25 years, renewable for another 25 years. The State, through Congress, may allow the small-
scale utilization of natural resources by Filipino citizens. For the large-scale exploration of these
resources, specifically minerals, petroleum and other mineral oils, the State, through the President, may
enter into technical and financial assistance agreements with foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of 1991
(R.A. 7076) the three types of agreements, i.e., co-production, joint venture or production-sharing, may
apply to both large-scale227 and small-scale mining.228 "Small-scale mining" refers to "mining activities
which rely heavily on manual labor using simple implements and methods and do not use explosives or
heavy mining equipment."229

Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over the natural
resources within their ancestral domains. The right of ICCs/IPs in their ancestral domains
includes ownership, but this "ownership" is expressly defined and limited in Section 7 (a) as:

"Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies of water traditionally and
actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains;"

The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and
actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains." It will be noted that this enumeration
does not mention bodies of water not occupied by the
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 places, etc. and all other natural resources found within
the ancestral domains. Indeed, the right of ownership under Section 7 (a) does not cover
"waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, floraand fauna and all other natural resources"
enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the State.

The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a) complies with
the Regalian doctrine.

(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec. 7 (a) of
the IPRA And is Unconstitutional.

The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:

"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands, waters, and natural
resources and all improvements made by them at any time within the ancestral domains/ lands. These
rights shall include, but not limited to, the right over the fruits, the right to possess, the right to use,
right to consume, right to exclude and right to recover ownership, and the rights or interests over land
and natural resources. The right to recover shall be particularly applied to lands lost through fraud or
any form or vitiated consent or transferred for an unconscionable price."

Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters and
natural resources." The term "natural resources" is not one of those expressly mentioned in Section 7
(a) of the law. Our Constitution and jurisprudence clearly declare that the right to claim ownership over
land does not necessarily include the right to claim ownership over the natural resources found on or
under the land.231 The IPRA itself makes a distinction between land and natural resources. Section 7 (a)
speaks of the right of ownership only over the land within the ancestral domain. It is Sections 7 (b)
and 57 of the law that speak of natural resources, and these provisions, as shall be discussed later, do
not give the ICCs/IPs the right of ownership over these resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically and
categorically challenged by petitioners. Petitioners actually assail the constitutionality of the
Implementing Rules in general.232Nevertheless, to avoid any confusion in the implementation of the law,
it is necessary to declare that the inclusion of "natural resources" in Section 1, Part II, Rule III of the
Implementing Rules goes beyond the parameters of Section 7 (b) of the law and is contrary to Section 2,
Article XII of the 1987 Constitution.

(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under
Paragraph 3, Section 2 of Article XII of the Constitution.

Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely grants the
ICCs/IPs the right to manage them, viz:

"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, right to
develop, control and use lands and territories traditionally occupied, owned, or used; to manage and
conserve natural resourceswithin the territories and uphold the responsibilities for future
generations; to benefit and share the profits from allocation and utilization of the natural resources
found therein; the right to negotiate the terms and conditions for the exploration of natural resources in
the areas for the purpose of ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project, government or private, that will
affect or impact upon the ancestral domains and to receive just and fair compensation for any damages
which they may sustain as a result of the project; and the right to effective measures by the
government to prevent any interference with, alienation and encroachment upon these rights;"

The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates the
following rights:

a) the right to develop, control and use lands and territories traditionally occupied;

b) the right to manage and conserve natural resources within the territories and uphold the
responsibilities for future generations;

c) the right to benefit and share the profits from the allocation and utilization of the natural
resources found therein;

d) the right to negotiate the terms and conditions for the exploration of natural resources for the
purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to
national and customary laws;

e) the right to an informed and intelligent participation in the formulation and implementation of any
project, government or private, that will affect or impact upon the ancestral domains and to receive just
and fair compensation for any damages which they may sustain as a result of the project;

f) the right to effective measures by the government to prevent any interference with, alienation and
encroachment upon these rights.233

Ownership over the natural resources in the ancestral domains remains with the State and the
ICCs/IPs are merely granted the right to "manage and conserve" them for future generations, "benefit
and share" the profits from their allocation and utilization, and "negotiate the terms and conditions
for their exploration" for the purpose of "ensuring ecological and environmental protection and
conservation measures." It must be noted that the right to negotiate the terms and conditions over the
natural resources covers only their exploration which must be for the purpose of ensuring ecological and
environmental protection of, and conservation measures in the ancestral domain. It does not extend to
the exploitation and development of natural resources.

Simply stated, the ICCs/IPs' rights over the natural resources take the form of management or
stewardship. For the ICCs/IPs may use these resources and share in the profits of their utilization or
negotiate the terms for their exploration. At the same time, however, the ICCs/IPs must ensure that the
natural resources within their ancestral domains are conserved for future generations and that the
"utilization" of these resources must not harm the ecology and environment pursuant to national and
customary laws.234

The limited rights of "management and use" in Section 7 (b) must be taken to contemplate small-scale
utilization of natural resources as distinguished from large-scale. Small-scale utilization of natural
resources is expressly allowed in the third paragraph of Section 2, Article XII of the Constitution "in
recognition of the plight of forest dwellers, gold panners, marginal fishermen and others similarly
situated who exploit our natural resources for their daily sustenance and survival."235 Section 7 (b) also
expressly mandates the ICCs/IPs to manage and conserve these resources and ensure environmental
and ecological protection within the domains, which duties, by their very nature, necessarily reject
utilization in a large-scale.

(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed Under
Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.

Section 57 of the IPRA provides:

"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall have priority rights in
the harvesting, extraction, development or exploitation of any natural resources within the ancestral
domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and
utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for
not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into
with the ICCs/IPs concerned or that the community, pursuant to its own decision-making process, has
agreed to allow such operation: Provided finally, That the NCIP may exercise visitorial powers and take
appropriate action to safeguard the rights of the ICCs/IPs under the same contract."

Section 57 speaks of the "harvesting, extraction, development or exploitation of natural resources


within ancestral domains" and "gives the ICCs/IPs 'priority rights' therein." The terms "harvesting,
extraction, development or exploitation" of any natural resources within the ancestral domains
obviously refer to large-scale utilization. It is utilization not merely for subsistence but for commercial
or other extensive use that require technology other than manual labor.236 The law recognizes the
probability of requiring a non-member of the ICCs/IPs to participate in the development and utilization
of the natural resources and thereby allows such participation for a period of not more than 25 years,
renewable for another 25 years. This may be done on condition that a formal written agreement be
entered into by the non-member and members of the ICCs/IPs.
Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the natural
resources. Instead, the law only grants the ICCs/IPs "priority rights" in the development or exploitation
thereof. Priority means giving preference. Having priority rights over the natural resources does not
necessarily mean ownership rights. The grant of priority rights implies that there is a superior entity that
owns these resources and this entity has the power to grant preferential rights over the resources to
whosoever itself chooses.

Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of the said doctrine
that all natural resources found within the ancestral domains belong to the State. It incorporates by
implication the Regalian doctrine, hence, requires that the provision be read in the light of Section 2,
Article XII of the 1987 Constitution. Interpreting Section 2, Article XII of the 1987 Constitution237 in
relation to Section 57 of IPRA, the State, as owner of these natural resources, may directly undertake
the development and exploitation of the natural 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 resources are
found by entering into a co-production, joint venture, or production-sharing agreement with them.
The State may likewise enter into any of said agreements with a non-member of the ICCs/IPs, whether
natural or juridical, or enter into agreements with foreign-owned corporations involving either
technical or financial assistance for the large-scale exploration, development and utilization of
minerals, petroleum, and other mineral oils, or allow such non-member to participate in its
agreement with the ICCs/IPs. If the State decides to enter into an agreement with a non-ICC/IP
member, the National Commission on Indigenous Peoples (NCIP) shall ensure that the rights of the
ICCs/IPs under the agreement shall be protected. The agreement shall be for a period of 25 years,
renewable for another 25 years.

To reiterate, in the large-scale utilization of natural resources within the ancestral domains, the State, as
owner of these resources, has four (4) options: (1) it may, of and by itself, directly undertake the
development and exploitation of the natural resources; or (2) it may recognize the priority rights of the
ICCs/IPs by entering into an agreement with them for such development and exploitation; or (3) it may
enter into an agreement with a non-member of the ICCs/IPs, whether natural or juridical, local or
foreign; or (4) it may allow such non-member to participate in the agreement with the ICCs/IPs.

The rights granted by the IPRA to the ICCs/IPs over the natural resources in their ancestral domains
merely gives the ICCs/IPs, as owners and occupants of the land on which the resources are found, the
right to the small-scale utilization of these resources, and at the same time, a priority in their large-
scale development and exploitation. Section 57 does not mandate the State to automatically give
priority to the ICCs/IPs. The State has several options and it is within its discretion to choose which
option to pursue. Moreover, there is nothing in the law that gives the ICCs/IPs the right to solely
undertake the large-scale development of the natural resources within their domains. The ICCs/IPs must
undertake such endeavour always under State supervision or control. This indicates that the State does
not lose control and ownership over the resources even in their exploitation. Sections 7 (b) and 57 of the
law simply give due respect to the ICCs/IPs who, as actual occupants of the land where the natural
resources lie, have traditionally utilized these resources for their subsistence and survival.

Neither is the State stripped of ownership and control of the natural resources by the following
provision:
"Section 59. Certification Precondition.- All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing or granting any concession, license or lease, or
entering into any production-sharing agreement. without prior certification from the NCIP that the area
affected does not overlap with any ancestral domain. Such certification shall only be issued after a field-
based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That
no certification shall be issued by the NCIP without the free and prior informed and written consent of
the ICCs/IPs concerned: Provided, further, That no department, government agency or government-
owned or -controlled corporation may issue new concession, license, lease, or production sharing
agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have
the right to stop or suspend, in accordance with this Act, any project that has not satisfied the
requirement of this consultation process."

Concessions, licenses, lease or production-sharing agreements for the exploitation of natural resources
shall not be issued, renewed or granted by all departments and government agencies without prior
certification from the NCIP that the area subject of the agreement does not overlap with any ancestral
domain. The NCIP certification shall be issued only after a field-based investigation shall have been
conducted and the free and prior informed written consent of the ICCs/IPs obtained. Non-compliance
with the consultation requirement gives the ICCs/IPs the right to stop or suspend any project granted by
any department or government agency.

As its subtitle suggests, this provision requires as a precondition for the issuance of any concession,
license or agreement over natural resources, that a certification be issued by the NCIP that the area
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 State as to determine whether to grant or deny any
concession or license or agreement. It merely gives the NCIP the authority to ensure that the ICCs/IPs
have been informed of the agreement and that their consent thereto has been obtained. Note that the
certification applies to agreements over natural resources that do not necessarily lie within the ancestral
domains. For those that are found within the said domains, Sections 7(b) and 57 of the IPRA apply.

V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE INDIGENOUS INTERNATIONAL


MOVEMENT.

The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to
prehistoric times. The movement received a massive impetus during the 1960's from two sources. First,
the decolonization of Asia and Africa brought into the limelight the possibility of peoples controlling
their own destinies. Second, the right of self-determination was enshrined in the UN Declaration on
Human Rights.238 The rise of the civil rights movement and anti-racism brought to the attention of North
American Indians, Aborigines in Australia, and Maori in New Zealand the possibility of fighting for
fundamental rights and freedoms.

In 1974 and 1975, international indigenous organizations were founded,239 and during the 1980's,
indigenous affairs were on the international agenda. The people of the Philippine Cordillera were the
first Asians to take part in the international indigenous movement. It was the Cordillera People's Alliance
that carried out successful campaigns against the building of the Chico River Dam in 1981-82 and they
have since become one of the best-organized indigenous bodies in the world.240
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 continuing disrespect for indigenous human rights and
the destruction of the indigenous peoples' environment, together with the national governments'
inability to deal with the situation.241Indigenous rights came as a result of both human rights and
environmental protection, and have become a part of today's priorities for the international agenda.242

International institutions and bodies have realized the necessity of applying policies, programs and
specific rules concerning IPs in some nations. The 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 apply
its current policy on IPs to some of its projects in Asia. This policy has provided an influential model for
the projects of the Asian Development Bank.244

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 Philippine category of ICCs with the international category of IPs,246 and is heavily
influenced by both the International Labor Organization (ILO) Convention 169 and the United Nations
(UN) Draft Declaration on the Rights of Indigenous Peoples.247

ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples in
Independent Countries"248 and was adopted on June 27, 1989. It is based on the Universal Declaration of
Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International
Covenant on Civil and Political Rights, and many other international instruments on the prevention of
discrimination.249 ILO Convention No. 169 revised the "Convention Concerning the Protection and
Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries" (ILO
No. 107) passed on June 26, 1957. Developments in international law made it appropriate to adopt new
international standards on indigenous peoples "with a view to removing the assimilationist orientation
of the earlier standards," and recognizing the aspirations of these peoples to exercise control over their
own institutions, ways of life and economic development."250

CONCLUSION

The struggle of the Filipinos throughout colonial history had been plagued by ethnic and religious
differences. These differences were carried over and magnified by the Philippine government 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 the alienation of a large sector of society,
specifically, the indigenous peoples. The histories and cultures of the indigenes are relevant to the
evolution of Philippine culture and are vital to the understanding of contemporary problems.252 It is
through the IPRA that an attempt was made by our legislators to understand Filipino society not in
terms of myths and biases but through common experiences in the course of history. The Philippines
became a democracy a centennial ago and the decolonization process still continues. If the evolution of
the Filipino people into a democratic society is to truly proceed democratically, i.e., if the Filipinos as a
whole are to participate fully in the task of continuing democratization,253 it is this Court's duty to
acknowledge the presence of indigenous and customary laws in the country and affirm their co-
existence with the land laws in our national legal system.

With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous Peoples Rights
Act of 1997.
Footnotes
1
Chief Judge, US Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law
School.
2
The University of Chicago Law Review, Vol. 67, Summer 2000, No. 3, p. 573.
3
Dominium is distinguished from imperium which is the government authority possessed by the state
expressed in the concept of sovereignty- Lee Hong Hok v. David, 48 SCRA 372, 377 [1972].
4
Valenton v. Murciano, 3 Phil. 537, 543 [1904]; See also Florencio D.R. Ponce, The Philippine Torrens
System, p. 13 [1964].
5
Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986]; these grants were better known as
repartimientos and encomiendas. Repartimientos were handouts to the military as fitting reward for
their services to the Spanish crown. The encomiendas were given to Spaniards to administer and
develop with the right to receive and enjoy for themselves the tributes of the natives assigned to them.-
Ponce, supra, p. 12, citing Benitez, History of the Philippines, pp. 125-126.
6
Narciso Pena, Registration of Land Titles and Deeds, p. 2 [1994].
7
The Mortgage Law is a misnomer because it is primarily a law on registration of property and
secondarily a mortgage law- Ponce, supra, at 16.
8
Ponce, supra, at 15.
9
3 Phil. 537 [1904].
10
Id. at 540.
11
Id. at 548.
12
Id. at 543-544.
13
Id. at 543.
14
Id. at 542-543. These comments by the court are clear expressions of the concept that Crown holdings
embraced both imperium and dominium—Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface
Between National Land Law and Kalinga Land Law, 58 P.L.J. 420, 423 [1983].
15
Id. at 545-546.
16
Id. at 543.
17
Id. at 557.
18
Id. at 553-554; Valenton was applied in Cansino v. Valdez, 6 Phil. 320 [1906]; Tiglao v. Insular
Government, 7 Phil. 80 [1906]; and Cariño v. Insular Government, 7 Phil. 132 [1906]; all decided by the
Philippine Supreme Court.
19
Please see Section 70, Act 926.
20
Ponce, supra, at 33.
21
Montano v. Insular Government, 12 Phil. 572 [1909]; also cited in Ponce, supra, at 32.
22
Archbishop of Manila v. Director of Lands, 27 Phil. 245 [1914]; also cited in Ponce, supra, at 32.
23
Antonio H. Noblejas, Land Titles and Deeds, p. 250 [1961].
24
Ponce, supra, at 32.
25
Peña, Registration of Land Titles and Deeds, p. 26 [1982]; Noblejas, supra, at 32.
26
Noblejas, supra, at 32.
27
Ponce, supra, at 123-124; Noblejas, supra, at 33.
28
2 Aruego, The Framing of the Philippine Constitution, p. 592 [1937].
29
Id. at 600.
30
Id. at 600-601.
31
Ibid.
32
Section 7.
33
Section 8.
34
Sections 13 to 20.
35
Sections 21 to 28.
36
Sections 29 to 37.
37
Sections 38 and 40.
38
Sections 74 to 77.
39
Section 69.
40
Section 73.
41
Convention Conerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989.
42
Guide to R.A. 8371, published by the Coalition for Ips Rights and ancestral Domains in cooperation
with the ILO and Bilance-Asia Department, p. 4 [1999]—hereinafter referred to as Guide to R.A. 8371.
43
Taken from the list of IPs sbmitted by Rep. Andolana to the house of Representatives during the
deliberations on H.B. No. 9125—Interpellations of Aug. 20, 1997, pp. 00086-00095. "lost tribes" such as
the Lutangan and Tatang have not been included.
44
How these people came to the Philippines may be explained by two theories. One view, generally
linked to Professor Otley H. Beyer, suggests the "wave theory"—a series of arrivals in the archipelago
bringing in different types and levels of culture. The Negritos, dark-skinned pygmies, came between
25,000 to 30,000 B.C. Their cultural remains are preserved by the Negrito-type Filipinos found in Luzon,
Visayas and Mindanao. Their relatively inferior culture did not enable them to overcome the pressures
from the second wave of people, the Indonesians A and B who came in 5,000 and 3,500 B.C. They are
represented today by the Kalinga, Gaddang, Isneg, Mangyan, Tagbanua, Manobo, Mandaya, Subanon,
and Sama. The first group was pushed inland as the second occupied the coastal and downriver
settlements. The last wave involved Malay migrations between 500 B.C. and 1,500 A.D. they had a more
advanced culture based on metal age technology. They are represented by the Christianized and
Islamized Filipinos who pushed the Indonesian groups inland and occupied much of the coastal, lowland
and downstream areas.

A second view is postulated by Robert Fox, F. Landa Jocana, Alfredo Evangelista, and Jesus Peralta.
Jocano maintains that the Negritos, Indonesians and Malays stand co-equal as ethnic groups without
any one being dominant, racially or culturally. The geographic distribution of the ethno-linguistic groups,
which shows overlapping of otherwise similar racial strains in both upland and lowland cultures or
coastal and inland communities, suggests a random and unstructured advent of different kinds of
groups in the archipelago—Samuel K. Tan, A History of the Philippines, published by the Manila Studies
Association, Inc. and the Philippine National Historical society, Inc., pp. 33-34 [1997]; Teodoro A.
Agoncillo, History of the Filipino People, p. 21 [1990].
45
Tan, supra, at 35-36.
46
Onofre D. Corpuz, The Roots of the Filipino Nation, Philippine Centennial (1898-1998) Edition, vol. 1, p.
13, Aklahi foundation, Inc. [1989]. It was in 800-1,000 A.D. that the Ifugaos of Northern Luzon built the
rice terraces—Id. at 37.
47
Id. at 5-6.
48
Id. at 13.
49
Teodoro A. Agoncillo, History of the Filipino People, p. 54 [1990].
50
Corpuz, supra, at 5.
51
Id. at 44-45.
52
Agoncillo, supra, at 40.
53
Id. at 40-41.
54
Rafael Iriarte, History of the Judicial System, the Philippine Indigenous Era Prior to 1565, unpublished
work submitted as entry to the Centennial Essay-Writing Contest sponsored by the National Centennial
Commission and the Supreme Court in 1997, p. 103, citing Perfecto V. Fernandez, Customs Laws in Pre-
Conquest Philippines, UP Law Center, p. 10 [1976].
55
Agoncillo, supra, at 41.
56
Amelia Alonzo, The History of the Judicial System in the Philippines, Indigenous Era Prior to
1565,unpublished work submitted as entry to the Centennial Essay-Writing Contest sponsored by the
National Centennial Commission and the Supreme Court in 1997.
57
Agoncillo, supra, at 42.
58
Renato Constantino, A Past Revisited , p. 38 [1975].
59
Samuel K. Tan, A History of the Philippines, published by the Manila Studies Ass’n., Inc. and the Phil.
National Historical Society, Inc., p. 43 [1997].
60
Id.
61
Id. at 43-44.
62
Tan, supra, at 47-48.
63
Id. at 48-49.
64
Cacho v. Government of the P.I., 28 Phil. 616, 625-627 [1914]; see also Ponce, The Philippine Torrens
System, pp. 11-12 [1964]. In Philippine pre-colonial history, there was only one recorded transaction on
the purchase of land. The Maragtas Code tells us of the purchase of Panay Island by ten Bornean datus
led by Datu Puti from the Atis under Marikudo in the 13th century. The purchase price for the island was
a gold salakot and a long gold necklace – Agoncillo, supra, at 25.
65
Constantino, supra, at 38.
66
Corpuz, supra, at 39.
67
Resettlement- "bajo el son de la campana" (under the sound of the bell) or "bajo el toque de la
campana"(Under the peal of the bell).
68
People v. Cayat, 68 Phil. 12, 17 [1939].
69
Id. at 17, citing the Decree of the Governor-General of the Philippines, Jan. 14, 1887.
70
Agoncillo, supra, at 80.
71
Id. at 80.
72
Corpuz, supra, at 277-278.
73
Id. at 277.
74
Id., N.B. But see discussion in Cariño v. Insular Government, infra, where the United States Supreme
Court found that the Spanish decrees in the Philippines appeared to recognize that the natives owned
some land. Whether in the implementation of these decrees the natives’ ancestral rights to land
were actually respected was not discussed by the U.S. Supreme Court; see also Note 131, infra.
75
Tan, supra, at 49-50.
76
Id. at 67.
77
Id. at 52-53.
78
Id. at 53.
79
Id. at 55.
80
People v. Cayat, 68 Phil. 12, 17 [1939].
81
Memorandum of the Secretary of the Interior, quoted in Rubi v. Provincial Board of Mindoro, 39 Phil.
660, 714 [1919]; also cited in People v. Cayat, supra, at 17-18.
82
Rubi v. Provincial Board of Mindoro, supra, at 693.
83
Charles Macdonald, Indigenous Peoples of the Philippines: Between Segregation and Integration,
Indigenous Peoples of Asia, p. 348, ed. by R.H. Barnes, A. Gray and B. Kingsburry, pub. by Association for
Asian Studies [1995]. The BNCT made a Bontok and subanon ethnography, a history of Sulu genealogy,
and a compilation on unhispanized peoples in northern Luzon.—Owen J. Lynch, Jr., The Philippine
Colonial Dichotomy: Attraction and Disenfranchisement, 63 P. L. J. 139-140 [1988].
84
R.A. No. 1888 of 1957.
85
See People v. Cayat, supra, at 21; See also Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 694 [1919]
86
MacDonald, Indigenous Peoples of the Philippines, supra, at 351.
87
The construction of the Ambuklao and Binga dams in the 1950’s resulted in the eviction of hundreds
of Ibaloi families – Cerilo Rico S. Abelardo, Ancestral Domain Rights: Issues, Responses, and
Recommendations, Ateneo Law Journal, vol. 38, No. 1, p. 92 [1993].
88
Section 11, Art. XV, 1973 Constitution.
89
Presidential Decrees Nos. 1017 and 1414.
90
The PANAMIN, however, concentrated funds and resources on image-building, publicity, and impact
projects. In Mindanao, the agency resorted to a policy of forced resettlement on reservations,
militarization and intimidation- MacDonald, Indigenous Peoples of the Philippines, supra, at 349-350.
91
No occupancy certificates were issued, however, because the government failed to release the
decree’s implementing rules and regulations- Abelardo, supra, at 120-121.
92
Id., Note 177.
93
Id., at 93-94.
94
MacDonald, Indigenous People of the Philippines, supra, at 351.
95
E.O. Nos. 122-A, 122-B and 122-C. The preamble of E.O. No. 122-B states:

"Believing that the new government is committed to formulate more vigorous policies, plans, programs,
and projects for tribal Filipinos, otherwise known as Indigenous Cultural Communities, taking into
consideration their communal aspirations, customs, traditions, beliefs, and interests, in order to
promote and preserve their rich cultural heritage and insure their participation in the country’s
development for national unity; xxx"
96
Article II, sec. 22; Article VI, sec. 5, par. 2; Article XII, sec. 5; Article XIII, sec. 6; Article XIV, sec. 17; and
Article XVI, sec. 12.
97
MacDonald, Indigenous Peoples of the Philippines, supra, at 345.
98
Samuel K. Tan, A History of the Philippines, p. 54 [1997].
99
Cordillera Studies Program, Land Use and Ownership and Public Policy in the Cordillera, 29-30 [n.d.];
also cited in Dante B. Gatmaytan, Ancestral Domain Recognition in the Philippines: Trends in
Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 47-48 [1992].
100
Abelardo, Ancestral Domain Rights, supra, at 98-99, citing Ponciano L. Bennagen, Indigenous
Attitudes Toward Land and Natural Resources of Tribal Filipinos, 31 National Council of Churches in the
Philippines Newsletter, Oct.-Dec. 1991, at 4-9.
101
Id. at 99, citing June Prill-Brett, Bontok Land Tenure (UP Law library, mimeographed).
102
Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface of National Land Law and Kalinga Law,
58 P.L.J. 420, 440-441 [1983].
103
Ibid.
104
Ibid.
105
Ibid.
106
Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface, supra, at 420.
107
Senate Bill No. 1728 was co-sponsored by Senator Macapagal-Arroyo and co-authored by Senators
Alvarez, Magsaysay, Revilla, Mercado, Enrile, Honasan, Tatad, Maceda, Shahani, Osmena and Romulo.

The Eighth Congress, through Senators Rasul, Estrada and Romulo filed a bill to operationalize the
mandate of the 1987 Constitution on indigenous peoples. The bill was reported out, sponsored an
interpellated but never enacted into law. In the Ninth Congress, the bill filed by Senators Rasul and
Macapagal-Arroyo was never sponsored and deliberated upon in the floor.
108
Sponsorship Speech of Senator Flavier, Legislative History of SBN 1728, Tenth Congress, Second
Regular Session, Senate, Oct. 16, 1996, pp. 15-16.
109
Id. at 12.
110
Id. at 17-18.
111
Id. at 13.
112
Journal of the Tenth Congress of the Philippines, Senate, Session No. 5, Aug. 5-6, 1997, pp. 86-87.
113
Co-authors of the bill were Reps. Ermita, Teves, Plaza, Calalay, Recto, Fua, Luciano, Abad, Cosalan,
Aumentado, de la Cruz, Bautista, Singson, Damasing, Romualdo, Montilla, Germino, Verceles—
Proceedings of Sept. 4, 1997, pp. 00107-00108.
114
Sponsorship speech of Rep. Andolana of House Bill No. 9125, March 20, 1997.
115
Interpellation of Aug. 20, 1997, 6:16 p.m., p. 00061.
116
Section 3 [a], IPRA.
117
Section 3 [b], IPRA.
118
Guide to R.A. 8371, p. 14.
119
Section 44 [e], IPRA.
120
Section 51, IPRA.
121
Guide to R.A. 8371, p. 15.
122
A CADT refers to a title formally recognizing the right of possession and ownership of ICCs/IPs over
their ancestral domains identified and delineated in acordance with the IPRA—Rule II [c], Rules &
Regulations Implementing the IPRA, NCIP Admin. Order No. 1.
123
Section 53 [a], IPRA.
124
A CALT refers to a title formally recognizing the rights of the ICCs/IPs over their ancestral lands- Rule
II [d], Implementing Rules, NCIP A.O. No. 1.
125
Section 52 [k], IPRA.
126
Section 3 [1], IPRA.
127
Section 11, IPRA.
128
Ibid.
129
41 Phil. 935 (1909), 212 U.S. 449, 53 L.Ed. 594.
130
Sponsorship Speech of Senator Juan Flavier, Leg. History of SBN 1728, Tenth Congress, Second
Regular Session, Oct. 16, 1996, p. 13.
131
It was the practice of the Spanish colonial government not to issue titles to Igorots—Owen J. Lynch,
Jr., Invisible Peoples and a Hidden Agenda: The Origins of Contemporary Philippine Land Laws (1900-
1913), 63 P.L.J. 249, 288 [1988], citing the testimony of Benguet Provincial Governnor William F. Pack,
Records at 47, Cariño.
132
Maura Law or the Royal Decree of Feb. 13, 1894.
133
Later named Camp John Hay.
134
Lynch, Invisible Peoples, supra, at 288-289.
135
7 Phil. 132 [1906].
136
In 1901, Cariño had entered into a promissory agreement with a U.S. merchant in Manila. The note
obliged Cariño to sell the land at issue "as soon as he obtains from the Government of the United States,
or its representatives in the Philippines, real and definitive title." See Lynch, Invisible Peoples, supra, at
290, citing Government’s Exhibit G, Records, at 137-138, Cariño.
137
Cariño v. Insular Government, supra, at 939.
138
Ibid.
139
Id. at 940.
140
Id. at 941.
141
Id. at 941-942.
142
Aranal-Sereno and Libarios, The Interface Between Kalinga Land Law, supra at 428-This artcile was
one of those circulated among the Constitutional Commissioners in the formulation of Sec. 5, Article XII
of the 1987 Constitution (4 Record of the Constitutional Commission 33).
143
Id. at 944.
144
Certificate of Title No. 2 covering the 148 hectares of Baguio Municipality was issued not in the name
of Cariño who died on June 6, 1908, but to his lawyers John Hausserman and Charles Cohn and his
attorney-in-fact Metcalf Clarke. Hausserman, Cohn and Clarke sold the land to the U.S. Government in a
Deed of Quitclaim-Richel B. Langit, Igorot Descendants Claim Rights to Camp John Hay, Manila Times, p.
1, Jan. 12, 1998.
145
Id. at 939.
146
57 P.L.J. 268, 293-296 [1982].
147
From 1987 to 1988, Prof. Lynch allowed the P.L.J. to publish parts of his doctoral dissertation at the
Yale Law School entitled "Invisible Peoples: A History of Philippine Land Law." Please see the Legal Bases
of Philippine Colonial Sovereignty: An Inquiry, 62 P.L.J. 279 [1987]; Land Rights, Land Laws and Land
Usurpation: The Spanish Era (1568-1898), 63 P.L.J. 82 [1988]; The Colonial Dichotomy: Attraction and
Disenfranchisement, 63 P.L.J. 112; Invisible Peoples and a Hidden Agenda: The Origins of Contemporary
Philippine Land Laws (1900-1913), 63 P.L.J. 249.
148
"Native title" is a common law recognition of pre-existing aboriginal land interests in Autsralia-
Maureen Tehan, Customary Title, Heritage Protection, and Property Rights in Australia: Emerging
Patterns of Land Use in the Post-Mabo Era, 7 Pacific Rim Law & Policy Journal, No. 3, p. 765 [June 1998].
149
Lynch, Native Titles, supra, Note 164, p. 293.
150
39 Phil. 660 [1919].
151
Id. at 712-713.
152
Id. at 694.
153
Id. at 700.
154
42 C.J.S., Indians, Sec. 29 [1944 ed.].
155
There are 3 kinds of Indian reservations: (a) those created by treaties prior to 1871; (b) those created
by acts of Congress since 1871; and (c) those made by Executive Orders where the President has set
apart public lands for the use of the Indians in order to keep them within a certain territory- 42 C.J.S.,
Indians, Sec. 29 citing Sioux Tribe of Indians v. U.S. 94 Ct. Cl. 150, 170, certiorari granted 62 S. Ct. 631,
315 U.S. 790, 86 L. Ed. 1194, affirmed 62 S. Ct. 1095, 316 U.S. 317, 86 L. Ed. 1501. It is observed that the
first two kinds may include lands possessed by aboriginal title. The last kind covers Indian reservations
proper.
Until 1871, Indian tribes were recognized by the United States as possessing the attributes of nations to
the extent that treaties were made with them. In that year, however, Congress, by statute, declared its
intention thereafter to make the Indian tribes amenable directly to the power and authority of the
United States by the immediate exercise of its legislative power over them, instead of by treaty. Since
then, Indian affairs have been regulated by acts if Congress and by contracts with the Indian tribes
practically amounting to treaties- 41 Am Jur 2d, Indians, Sec. 55 [1995 ed].
156
42 C.J.S. Indians, Sec. 28 [1944 ed.].
157
Ibid.; see also U.S. v. Santa Fe Pac. R. Co., Ariz., 62 S. Ct. 248, 314 U.S. 339, 86 L. Ed. 260 [1941].
158
Ibid.
159
8 Wheat 543, 5 L. Ed. 681 [1823].
160
Id. at 680.
161
Id. at 689.
162
Id. at 696; see also 41 ALR Fed 425, Annotation: Proof and Extinguishment of Aboriginal Title to Indian
Lands, Sec. 2[a] [1979].
163
Buttz v. Northern Pac.R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55, 30 L. Ed. 330, 335 [1886].
164
Lynch, Native Title, supra, at 293-294; Cohen, Original Indian Title, 32 Minn. L.R. 48-49 [1947].
165
6 Pet 515, 8 L.Ed. 483 [1832].
166
Id. at 499.
167
Id. at 500.
168
Id. at 501.
169
The title of the government to Indian lands, the naked fee, is a sovereign title, the government having
no landlord from whom it holds the fee- Shoshone Tribe of Indians of Wind River Reservation in
Wyoming v. U.S., 85 Ct. Cl. 331, certiorari granted U.S. v. Shoshone Tribe of Indians, 58 S. Ct. 609, 303
U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct. 794, 304 U.S. 111, 82 L. Ed. 1213, 1218-1219 [1938].
170
Buttz v. Northern Pac. R. Co., Dak., at 30 L. Ed. 330, 335; Beecher v. Wetherby, Wis., 95 U.S. 517, 24 L.
Ed. 440, 441 [1877]; see also 42 C.J.S., Indians, Sec. 28 [1944 ed.].
171
Annotation, Proof and Extinguishment of Aboriginal title to Indian Lands, 41 ALR Fed 425, Sec. 2 [b]
[1979]- hereinafter cited as Aboriginal Title to Indian Lands.
172
Ibid.; see also Tee Hit Ton Indians v. U.S., 348 U.S. 272, 99 L. Ed. 314, 320, 75 S. Ct. 313 [1955], reh den
348 U.S. 965, 99 L. Ed. 753, 75 S. Ct. 521.
173
Ibid.; Tee Hit Ton Indians v. U.S., at 99 L. Ed. 320.
174
Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 39 L. Ed. 2d 73, 94 S Ct. 772 [1974]; U.S. v.
Alcea Bank of Tillamooks, 329 U.S. 40, 91 L. Ed. 29. 67 S. Ct. 167 [1946].
175
For compensation under the Indian Claims Commission Act, the proof of aboriginal title rests on
actual, exclusive and continuous use and occupancy for a long time prior to the loss of the property.
(The Indian Claims Commission Act awards compensation to Indians whose aboriginal titles were
extinguished by the government through military conquest, creation of a reservation, forced
confinement of Indians and removal of Indians from certain portions of the land an the designation of
Indian land into forest preserve, grazing district, etc.) - Aboriginal Title to Indian Lands, supra, at Secs.
2[a], 3[a], pp. 431, 433, 437.
176
Aboriginal Title to Indian Lands, supra, at Sec. 2[b], p. 435.
177
41 Am Jr 2d, Indians, Sec. 59 [1995 ed.].
178
An allotment of Indian land contains restrictions on alienation of the land. These restrictions extend to
a devise of the land by will- Missouri, K. & T.R. Co. v. U.S., 235 U.S. 37, 59 L. Ed. 116,. 35 S. Ct. 6 [1914]; A
railroad land grant that falls within Indian land is null and void- Northern P. R. Co. v. U.S., 227 U.S. 355,
57 L.Ed. 544,33 S. Ct. 368 [1913]; Portions of Indian land necessary for a railroad right of way were, by
the terms of the treaty, declared "public land," implying that land beyond the right of way was private-
Kindred v. Union P.R. Co., 225 U.S. 582, 56 L. Ed. 1216, 32 S. Ct. 780 [1912]; see also 41 Am Jur 2d,
Indians, Sec. 58 [1995 ed].
179
Aboriginal Title to Indian Lands, supra, at Sec. 2[a], p. 433.
180
42 C.J.S. Indians, Sec. 29 [1944 ed.]
181
Ibid.
182
North American Indians have made much progress in establishing a relationship with the national
government and developing their own laws. Some have their own government-recognized constitutions.
Usually the recognition of Indian tribes depends on whether the tribe has a reservation. North American
tribes have reached such an advanced stage that the main issues today evolve around complex
jurisdictional and litigation matters. Tribes have acquired the status of sovereign nations within another
nation, possessing the right to change and grow- Jose Paulo Kastrup, The Internationalization of
Indigenous Rights from the Environmental and Human Rights Perspective, Texas International Law
Journal, vol. 32: 97, 104 [1997].
183
Lynch, Native Title, supra, at 293.
184
Dante Gatmaytan, Ancestral Domain Recognition in the Philippines: Trends in Jurisprudence and
Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 43, 40 [Aug. 1992]; see also Tee Hit Ton Indians v. U.S., supra,
at 320.
185
Ibid.
186
D. Gatmaytan, supra, citing Churchill, The Earth is Our Mother: Struggles for American Indian Land
and Liberation in the Contemporary United States, The State of Native America: Genocide, Colonization
and Resistance 139 (M. Jaimes 1992); and Indian Law Resource Center, United States Denial of Indian
Property Rights: A Study in Lawless Power and Racial Discrimination, Rethinking Indian Law 15 (National
Lawyers Guild, Committee on Native American Struggles 1982).
187
Id., Note 28, stating that some earlier decisions of the U.S. Supreme Court have held that Congress is
subject to the strictures of the Constitution in dealing with Indians. When an Indian property is taken for
non-Indian use, the U.S. government is liable for payment of compensation, and an uncompensated
taking may be enjoined. F. Cohen, Handbook of Federal Indian Law 217 [1982], citing Shoshone Tribe v.
U.S. 299 U.S. 476 [1937]; Choate v. Trapp, 224 U.S. 665 [1912]; and Lane v. Pueblo of Santa Rosa, 249
U.S. 110 [1919].
188
See Discussion, infra, Part IV (c) (2).
189
Susi v. Razon, 48 Phil. 424 [1925]; Herico v. Dar, 95 SCRA 437 [1980].
190
Ibid.
191
Director of Lands v. Intermediate Appellate Court, 146 SCRA 509 [1986]; Director of Lands v. Buyco,
216 SCRA 78 [1992]; Republic v. Court of Appeals and Lapina, 235 SCRA 567 [1994].
192
75 Phil. 890 [1946].
193
Id. at 892.
194
Sec. 48 [b], C.A. 141.
195
Sec. 48 [c], C.A. 141, as amended. This provision was added in 1964 by R.A. 3872.
196
Section 12, IPRA.
197
"Time immemorial" refers "to a period of time when as far back as memory can go, certain ICCs/Ips
are known to have occupied, possessed in the concept of owner, and utilized a defined territory
devolved to them, by operation of customary law or inherited from their ancestors, in accordance with
their customs and traditions." (Sec. 3 [p], IPRA).
198
Section 2, C.A. 141.
199
Section 8, C.A. 141.
200
The classification of ancestral lands 18% in slope or over as alienable in the IPRA is an exception to
Section 15, P.D. 705, the Revised Forestry Code.
201
Charles MacDonald, Indigenous Peoples of the Philippines: Between Segregation and Integration,
Indigenous Peoples of Asia, supra, at pp. 345, 350.
202
Section 5, Article XII, 1987 Constitution.
203
Words in bold were amendments introduced by R.A. 3872 in 1964.
204
Words in bold were amendments introduced by R.A. 3872 on June 18, 1964. On January 25, 1977,
however, Sec. 48 [b] and 48 [c] were further amended by P.D. 1073 stating that these provisions on
cultural minorities apply only to alienable and disposable lands of the public domain- Please see
Republic v. CA and Paran, 201 SCRA 1, 10-11 [1991].
205
Jus utendi, jus fruendi.
206
Jus abutendi.
207
Jus disponendi.
208
Jus vindicandi. Please see Tolentino, Civil Code, vol. II, pp. 45-46 [1992]; see also Tolentino, vol. I, pp.
12-14.
209
Sec. 55, IPRA provides:

"Sec. 55. Communal rights.- Subject to Section 56 hereof, areas within the ancestral domains, whether
delineated or not, shall be presumed to be communally held: provided, That communal rights under this
Act shall not be construed as co-ownership as provided in Republic Act No. 386, otherwise known as the
New Civil Code."
210
Ibid.
211
Article 494, Civil Code.
212
Antonio M. La Vina, Arguments for Communal Title, Part II, 2 Phil. Nat. Res. L. J. 23 [Dec. 1989].
213
Section 11, Corporation Code.
214
Sections 60-72, Corporation Code.
215
Section 117, Corporation Code. Please see also La Vina, Arguments for Communal Title, Part II, supra,
at 23.
216
Section 5, par. 2, Article XII, 1987 Constitution.
217
Customary law is recognized by the Local Government Code of 1991 in solving disputes among
members of the indigenous communities, viz:

"Sec. 412 (c) Conciliation among members of indigenous cultural communities.- The customs and
traditions of indigenous cultural communities shall be applied in settling disputes between members of
the cultural communities."
218
Law writes custom into contract-Hongkong & Shanghai Bank v. Peters, 16 Phil. 284 [1910].

The Civil Code provides:

"Art. 11. Customs which are contrary to law, public order or public policy shall not be countenanced."

"Art. 12. A custom must be proved as a fact, according to the rules of evidence."
219
Article 78 on marriages between Mohammedans or pagans who live in the non-Christian provinces-
this is now Art. 33 of the Family Code; Art. 118, now Art. 74 of the Family Code on property relations
between spouses; Art. 577 on the usufructuary of woodland; Art. 657 on easement of right of way for
passage of livestock; Arts. 678, 1315, 1376, 1522, 1564 and 1577. Please see Aquino, Civil Code, vol. 1, p.
25.
220
Castle Bros. v. Gutierrez Hermanos, 11 Phil. 629 [1908]; In Re: Firm Name of Ozaeta Romulo, 92 SCRA
1 [1979]; Yao Kee v. Sy-Gonzales, 167 SCRA 736 [1988]; Please see Aquino, Civil Code, vol. 1, p. 26 for a
list of other cases.
221
This situation is analogous to the Muslim code or the Code of Muslim Personal Laws (P.D. 1083)
which took effect on February 4, 1977 despite the effectivity of the Civil Code and the Family Code. P.D.
1083 governs persons, family relations and succession among Muslims, the adjudication and settlement
of disputes, the organization of the Shari’a courts, etc.
222
Mariflor P. Pagusara, The Kalinga Ili: Cultural-Ecological Reflections on Indigenous Theora and Praxis
of Man-Nature Relationship, Dakami Ya Nan Dagami, p. 36, Papers and Proceedings of the 1st Cordillera
Muti-Sectoral Land Congress, 11-14 March 1983, Cordillera Consultative Committee [1984].
223
Section 2, Article XII.
224
A "co-production agreement" is defined as one wherein the government provides input to the mining
operation other than the mineral resource- Section 26 (b), R.A. 7942, the Philippine Mining Act of 1995.
225
A "joint venture agreement" is one where a joint-venture company is organized by the government
and the contractor with both parties having equity shares, and the government entitled to a share in the
gross output- Section 26 (c), R.A. 7942.
226
A mineral "production-sharing agreement" is one where the government grants to the contractor the
exclusive right to conduct mining operations within a contract area and shares in the gross output. The
contractor provides the financing, technology, management and personnel necessary for the
implementation of the agreement- Section 26 (a), R.A. 7942.
227
Section 26, R.A. 7942.
228
Section 3 [d], People's Small-Scale Mining Act of 1991 (R.A. 7076) provides:

"Sec. 3 [d] 'Small-scale mining contract' refers to co-production, joint venture or mineral production
sharing agreement between the State and a small-scale mining contractor for the small-scale utilization
of a plot of mineral land."
229
Section 3 [b], R.A. 7076.
230
NCIP Administrative Order No. 1, Series of 1998.
231
In Republic v. Court of Appeals, 160 SCRA 228, 239 [1988], Cruz, J., ponente, it was declared that if a
person is the owner of a piece of agricultural land on which minerals are discovered, his ownership of
such land does not give him the right to extract or utilize the said minerals without the permission of the
State to which such minerals belong- also cited in H. de Leon, Phil. Constitutional Law, Principles and
Cases, vol. 2, pp. 800-801 [1999].
232
See Ground I, Grounds to Issue Writ of Prohibition, Petition, p. 14.
233
Section 7 (b) is subject to Section 56 of the same law which provides:

"Sec. 56. Existing Property Rights Regimes.- Property rights within the ancestral domains already existing
and/or vested upon effectivity of this Act, shall be recognized and respected."

The law took effect 15 days upon publication in the O.G. or in any 2 newspapers of general circulation
(Sec. 84, IPRA). The IPRA was published in the Chronicle and Malaya on Nov. 7, 1997.
234
Section 9 of the IPRA also gives the ICCs/IPs the ff. responsibilities over their ancestral domains:

(a) Maintain Ecological Balance- To preserve, restore, and maintain a balanced ecology in the ancestral
domain by protecting the flora and fauna, watershed areas, and other reserves;

(b) Restore Denuded Areas.- To actively initiate, undertake and participate in the reforestation of
denuded areas and other development programs and projects subject to just and reasonable
renumeration;

(c) Observe Laws.- To observe and comply with the provisions of this Act and the rules and regulations
for its effective implementation."

Section 58 of the same law also mandates that ancestral domains or portions thereof, which are found
to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas,
forest cover, or reforestation as determined by appropriate agencies with the full participation of the
ICCs/IPs concerned shall be maintained, managed and developed for such purposes. The ICCs/IPs
concerned shall be given the responsibility to maintain, develop, protect and conserve such areas with
the full and effective assistance of government agencies.
235
Hector S. de Leon, Textbook on the New Philippine Constitution pp. 473-474 [1987] citing the 1986
UP Law Constitution Project, The National Economy and Patrimony, p. 11.
236
Under the Small-Scale Mining Act of 1991, "small-scale mining" refers to "mining activities which rely
heavily on manual labor using simple implements and methods and do not use explosives or heavy
mining equipment"- Section 3 [b], R.A. 7076.
237
See infra., pp. 77-79?.
238
Andrew Gray, The Indigenous Movement in Asia, Indigenous Peoples of Asia, ed. By Barnes, Gray and
Kingsbury, pub. By Ass'n. for Asian Studies, at 35, 42 [1995].
239
E.g. International Indian Treaty Council, World Council of IPs.
240
Gray, The Indigenous Movement in Asia, supra, at 44, citing the International Work Group for
Indigenous Affairs, 1988.
241
Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the Environmental and Human
Rights Perspective, 32 Texas International Law Journal 97, 102 [1997].
242
Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach to the
Asian Controversy, The American Journal of International Law, vol. 92: 414, 429 [1998].
243
The World Bank supported the Chico Dam project. Due to the Kalingas' opposition, the WB pulled out
of the project but the conflict between the Philippine government and the natives endured long after-
Marcus Colchester, Indigenous Peoples' Rights and Sustainable Resource Use in South and Southeast
Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-72.
244
Kingsbury, supra, at 417.
245
Section 22, Article II, 1987 Constitution.
246
Interpellation of Senator Flavier on S.B. No. 1728, Deliberation on Second Reading, November 20,
1996, p. 20.
247
Guide to R.A. 8371, Coalition for IPs Rights and Ancestral Domains, the International Labor
Organization, and the ILO-Bilance- Asia Dep't, p. 3 [1999].
248
Also referred to as the "Indigenous and Tribal Peoples Convention, 1989."
249
See Introduction to ILO Convention No. 169, par. 4.
250
Id., pars. 5 and 6.
251
Perfecto V. Fernandez, Towards a Definition of National Policy on Recognition of Ethnic Law within
the Philippine Legal Order, 55 P.L.J. 383, 385 [1980].
252
Samuel K. Tan, A History of the Philippines, Manila Studies Association, Inc. and the Phil. National
Historical Society, Inc., p. 6 [1997].
253
Fernandez, supra, at 385, 391.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

VITUG, J.:

An issue of grave national interest indeed deserves a proper place in any forum and, when it shows
itself in a given judicial controversy, the rules of procedure, like locus standi, the propriety of the
specific remedy invoked, or the principle of hierarchy of courts, that may ordinarily be raised by party-
litigants, should not be so perceived as good and inevitable justifications for advocating timidity, let
alone isolationism, by the Court.

A cardinal requirement, to which I agree, is that one who invokes the Court’s adjudication must have a
personal and substantial interest in the dispute;1 indeed, the developing trend would require a logical
nexus between the status asserted and the claim sought to be adjudicated in order to ensure that one is
the proper and appropriate party to invoke judicial power.2 The rule requires a party to aptly show a
personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable
decision so as to warrant his invocation of the Court’s jurisdiction and to 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 unwieldy by its sheer magnitude and scope to a point that may, in no small measure,
adversely affect its intended essentiality, stability and consequentiality.

Nevertheless, where a most compelling reason exits, such as when the matter is of transcendental
importance and paramount interest to the nation,3 the Court must take the liberal approach that
recognizes the legal standing of nontraditional plaintiffs, such as citizens and taxpayers, to raise
constitutional issues that affect them.4 This Court thus did so in a case5 that involves the conservation of
our forests for ecological needs. Until and exact balance is struck, the Court must accept an eclectic
notion that can free itself from the bondage of legal nicety and hold trenchant technicalities
subordinate to what may be considered to be of overriding concern.

The petition seeks a declaration by the Court of unconstitutionality of certain provisions of Republic Act
No. 8371, a law that obviously is yet incapable of exact equation in its significance to the nation and its
people now and in the generations yet to come. Republic Act No. 8371, otherwise also known as the
Indigenous Peoples Rights Act of 1997 ("IPRA"), enacted into law in 1997 and made 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 framework of national unity and
development"6 and commands the State, "subject to the provisions of this Constitution and national
development policies and programs," to protect the rights of indigenous cultural communities to their
ancestral lands in order to ensure their economic, social, and cultural well-being.7

Among the assailed provisions in IPRA is its Section 3(a) which defines "ancestral domains" to embrace
"all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural
resources" including "ancestral lands, forest, pasture, residential, agricultural, and other lands
individually owned whether alienable and disposable or otherwise," over which indigenous cultural
communities/indigenous peoples ("ICCs/IPs") could exercise virtual ownership and control.

IPRA effectively withdraws from the public domain the so-called ancestral domains covering literally
millions of hectares. The notion of community property would comprehend not only matters of
proprietary interest but also some forms of self-governance over the curved-out territory. This
concept is elaborated in Section 7 of the law which states that the "rights of ownership and possession
of ICCs/IPs to their ancestral domains shall be recognized and protected," subsumed under which would
encompass the right of ownership(paragraph a); the right to develop, control and use lands and
natural resources, including "the right to negotiate the terms and conditions for the exploration of
natural resources in the areas for the purpose of ensuring ecological, environmental protection and the
conservation measures, pursuant to national and customary laws;" (par. b); the right to stay in the
territories (par. c); the right to return to their abandoned lands in case of displacement (par. d); the
right to regulate entry of migrants (par. e); the right to claim parts of ancestral domains previously
reserved (par. g); and the right to resolve land conflicts in accordance primarily with customary law
(par. h). Concurrently, Section 57 states that ICCs/IPs shall be given "priority rights in the harvesting,
extraction, development or exploitation of any natural resources within the ancestral domains." These
provisions of IPRA, in their totality, are, in my view, beyond the context of the fundamental law and
virtually amount to an undue delegation, if not an unacceptable abdication, of State authority over a
significant area of the country and its patrimony.

Article XII of the 1987 Constitution expresses that all "lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forest or timber,
wildlife, flora and fauna, and other natural resources are owned by the State," and, with the exception
of agricultural lands, "shall not be alienated." It ordains that the "exploration, development, and
utilization of natural resources shall be under the full control and supervision of the State."8

These provisions had roots in the 1935 Constitution which, along with some other specific mandates in
the 1935 Constitution, forming Article XII under the title "Conservation and Utilization of Natural
Resources", were derived largely from the report of the Committee on Nationalization and Preservation
of Lands and other Natural Resources.9 According to the Committee report, among the principles upon
which these provisions were based, was "that the land, minerals, forest and other natural resources
constitute the exclusive heritage of the Filipino Nation," and should thereby "be preserved for those
under the sovereign authority of the Nation and for their posterity."10 The delegates to the 1934
Constitutional Convention were of the unanimous view that the "policy on natural resources, being
fundamental to the nation’s survival should not be left to the changing mood of the lawmaking body."11

The 1987 Constitution, like the precursor provisions in the 1935 and 1973 Constitutions, thus expresses
this regalian doctrine of the old, and the domainial doctrine of the new, that all lands and natural
resources belong to the state other than those which it recognizes to be of private ownership. Except
for agricultural lands of the public domain which alone may be alienated, forest or timber, and
mineral lands, as well as all other natural resources, of the country must remain with the state, the
exploration, development and utilization of which shall be subject to its full control and
supervision albeit allowing it to enter into co-production, joint venture or production-sharing
agreements, or into agreements with foreign-owned corporations involving technical or financial
assistance for large-scale exploration, development and utilization.12

The decision of the United States Supreme Court in Cariño vs. Insular Government,13 holding that a
parcel of land held since time immemorial by individuals under a claim of private ownership is presumed
never to have been public land and cited to downgrade the application of the regalian doctrine, cannot
override the collective will of the people expressed in the Constitution. It is in them that sovereignty
resides and from them that all government authority emanates.14 It is not then for a court ruling or any
piece of legislation to be conformed to by the fundamental law, but it is for the former to adapt to the
latter, and it is the sovereign act that must, between them, stand inviolate.

The second paragraph of Section 5 of Article XII of the Constitution allows Congress to provide "for the
applicability of customary laws governing property rights or relations in determining the ownership and
extent of ancestral domains." I do not see this statement as saying that Congress may enact a law that
would simply express that "customary laws shall govern" and end it there. Had it been so, the
Constitution could have itself easily provided without having to still commission Congress to do it. Mr.
Chief Justice Davide has explained this authority of Congress, during the deliberations of the 1986
Constitutional Convention, thus:

"Mr. Davide. x x x Insofar as the application of the customary laws governing property rights or relations
in determining the ownership and extent of the ancestral domain is concerned, it is respectfully
submitted that the particular matter must be submitted to Congress. I understand that the idea of
Comm. Bennagen is for the possibility of the codification of these customary laws. So before these are
codified, we cannot now mandate that the same must immediately be applicable. We leave it 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 short, let us not put the cart ahead of the horse."15

The constitutional aim, it seems to me, is to get Congress to look closely into the customary laws and,
with specificity and by proper recitals, to hew them to, and make them part of, the 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 it is permitted to take force and effect. So, also, customary laws, when
specifically enacted to become part of statutory law, must first undergo that publication to render them
correspondingly binding and effective as such.

Undoubtedly, IPRA has several good points, and I would respectfully urge Congress to re-examine the
law. Indeed, the State is exhorted to protect the rights of indigenous cultural communities to their
ancestral lands, a task that would entail a balancing of interest between their specific needs and the
imperatives of national interest.

WHEREFORE, I vote to grant the petition.

Footnotes
1
People vs. Vera, 65 Phil. 56, 89; Macasiano vs. National Housing Authority, 224 SCRA 236, 244.
2
Am Jur § 189, p. 591, S. vD., 410 US 641, 35 L Ed 2d 536, 93 S Ct 1146.
3
Legaspi vs. Civil Service Commission, 150 SCRA 530, 540; Tañada vs. Tuvera, 136 SCRA 27, 36, 37.
4
Defensor Santiago, Miriam, Constitutional Law, First Edition, 1994, p. 11; see also Rev. Fr. Joaquin
Bernas, S.J., on the 1987 Constitution of the Republic of the Philippines, 1996 Ed., pp. 336-337.
5
Oposa vs. Factoran, Jr., 224 SCRA 792.
6
Art. 11, Sec. 22.
7
Art. XII, Sec. 5.
8
Sec. 2.
9
II Aruego, The Framing of the Philippine Constitution, p. 594.
10
Ibid., p. 595.
11
Ibid., p. 600.
12
CONST., Art. XII, Sec. 2; Miners Association of the Philippines, Inc., vs. Factoran, Jr., 240 SCRA 100.
13
41 Phil. 935.
14
CONST., Art. II, Sec. 1.
15
4 Record of the Constitutional Commission 32.
16
146 SCRA 446.

The Lawphil Project - Arellano Law Foundation


SEPARATE OPINION

KAPUNAN, J.:

You ask if we own the land. . . How can you own that which will outlive you? Only the race own the land
because only the race lives forever. To claim a piece of land is a birthright of every man. The lowly
animals claim their place; how much more man? Man is born to live. Apu Kabunian, lord of us all, gave
us life and placed us in the world to live human lives. And where shall we obtain life? From the land. To
work (the land) is an obligation, not merely a right. In tilling the land, you possess it. And so land is a
grace that must be nurtured. To enrich it and make it fructify is the eternal exhortation of Apu Kabunian
to all his children. Land is sacred. Land is beloved. From its womb springs …life.

- Macli-ing Dulag, Chieftain of the Kalinga Tribe (quoted in Ponciano L. Bennagen, "Tribal Filipinos" in
Indigenous View of Land and the Environment, ed. Shelton H. Davis, the World Bank Discussion Papers,
No. 188, pp. 71-72.)

It is established doctrine that a statute should be construed whenever possible in harmony with, rather
than in violation of, the Constitution.1 The presumption is that the legislature intended to enact a valid,
sensible and just law and one which operates no further than may be necessary to effectuate the
specific purpose of the law.2

The challenged provisions of the Indigenous Peoples Rights Act (IPRA) must be construed in view of such
presumption of constitutionality. Further, the interpretation of these provisions should take into
account the purpose of the law, which is to give life to the constitutional mandate that the rights of the
indigenous peoples be recognized and protected.

The struggle of our indigenous peoples to reclaim their ancestral lands and domains and therefore, their
heritage, is not unique. It is one that they share with the red-skinned "Indians" of the United States, with
the aborigines of Australia, the Maori of New 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 attempt to heal an
oppressive past by the promise of a progressive future. Thus has the international community realized
the injustices that have been perpetrated upon the indigenous peoples. This sentiment among the
family of nations is expressed in a number of documents, the most recent and most comprehensive of
which is the Draft United Nations Declaration on the Rights of Indigenous Peoples which was adopted by
the UN Sub-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 traditionally owned or otherwise occupied
or used, and which have been confiscated, occupied, used or damaged without the free and informed
consent of the indigenous peoples.

A Historical Backdrop on the Indigenous Peoples

The term "indigenous" traces its origin to the Old Latin word indu, meaning "within." In the sense the
term has come to be used, it is nearer in meaning to the Latin word indigenus, which means
"native."3 "Indigenous" refers to that which originated or has been produced naturally in a particular
land, and has not been introduced from the outside.4In international law, the definition of what
constitutes "indigenous peoples" attains some degree of controversy. No definition of the term
"indigenous peoples" has been adopted by the United Nations (UN), although UN practice has been
guided by a working definition in the 1986 Report of UN Special Rapporteur Martinez Cobo:5

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-
invasion and pre-colonial societies that developed on their territories, consider themselves distinct from
other sections of the societies now prevailing in those territories, or parts of them. They form at present
non-dominant sections of society and are determined to preserve, develop and transmit to future
generations their ancestral territories, and their ethnic identity, as the basis of their continued existence
as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

This historical continuity may consist of the continuation, for an extended period reaching into the
present, of one or more of the following factors:

(a) Occupation of ancestral lands, or at least of part of them;

(b) Common ancestry with the original occupants of these lands;

(c) Culture in general, or in specific manifestations (such as religion, living under a tribal system,
membership of an indigenous community, dress, means of livelihood, life-style, etc.);

(d) Language (whether used as the only language, as mother-tongue, as the habitual means of
communication at home or in the family, or as the main, preferred, habitual, general or normal
language);

(e) Residence in certain parts of the country; or in certain regions of the world;

(f) Other relevant facts.6

In Philippine constitutional law, the term "indigenous peoples" pertains to those groups of Filipinos who
have retained a high degree of continuity from pre-Conquest culture.7 Philippine legal history, however,
has not been kind to the indigenous peoples, characterized them as "uncivilized,"8 "backward
people,"9 with "barbarous practices"10and "a low order of intelligence."11

Drawing inspiration from both our fundamental law and international law, IPRA now employs the
politically-correct conjunctive term "indigenous peoples/indigenous cultural communities" as follows:

Sec. 3. Definition of Terms.- For purposes of this Act, the following terms shall mean:

xxx

(h) Indigenous peoples/Indigenous cultural communities. - refer to a group of people or homogenous


societies identified by self-ascription and ascription by others, who have continuously lived as organized
community on communally bounded and defined territory, and who have, under claims of ownership
since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of
language, customs, traditions, and other distinctive cultural traits, or who have, through resistance to
political, social and cultural inroads of colonization, non-indigenous religions and cultures, became
historically differentiated from the majority of Filipinos. Indigenous peoples shall likewise include
peoples who are regarded as indigenous on account of their descent from the populations which
inhabited the country at the time of conquest or colonization, or at the time of inroads of non-
indigenous religions and cultures, or the establishment of present State boundaries, who retain some or
all of their own social, economic, cultural and political institutions, but who may have been displaced
from their traditional domains or who may have resettled outside their ancestral domains x x x.

Long before the Spaniards set foot in these islands, the indigenous peoples were already plowing our
soil and hunting in our forests. The Filipinos of Aeta and Malay stock, who were the original inhabitants
of our archipelago, were, at that time, practicing a native culture. From the time the Spaniards arrived
up to the early part of the American regime,12 these native inhabitants resisted foreign invasion,
relentlessly fighting for their lands. Today, from the remote uplands of Northern Luzon, to Palawan,
Mindoro and Mindanao, the indigenous peoples continue to live on and cultivate their ancestral lands,
the lands of their forefathers.

Though Filipinos today are essentially of the same stock as the indigenous peoples, our national culture
exhibits only the last vestiges of this native culture. Centuries of colonial rule and neocolonial
domination have created a discernible distinction between the cultural majority and the group of
cultural minorities.13 The extant Philippine national culture is the culture of the majority; its indigenous
roots were replaced by foreign cultural elements that are decidedly pronounced, if not
dominant.14 While the culture of the majority reoriented itself to Western influence, the culture of the
minorities has retained its essentially native character.

One of every six Filipinos is a member of an indigenous cultural community. Around twelve million
Filipinos are members of the one hundred and ten or so indigenous cultural communities, 15 accounting
for more than seventeen per centum of the estimated seventy million Filipinos16 in our country. Sadly,
the indigenous peoples are one of the poorest sectors of Philippine society. The incidence of poverty
and malnutrition among them is significantly higher than the national average. The indigenous peoples
are also among the most powerless. Perhaps because of their inability to speak the language of law and
power, they have been relegated to the fringes of society. They have little, if any, voice in national
politics and enjoy the least protection from economic exploitation.

The Constitutional Policies on Indigenous Peoples

The framers of the 1987 Constitution, looking back to the long destitution of our less fortunate brothers,
fittingly saw the historic opportunity to actualize the ideals of people empowerment and social justice,
and to reach out particularly to the marginalized sectors of society, including the indigenous peoples.
They incorporated in the fundamental law several provisions recognizing and protecting the rights and
interests of the indigenous peoples, to wit:

Sec. 22. The State recognizes and promotes the rights of indigenous peoples within the framework of
national unity and development.17

Sec. 5. The State, subject to the provisions of this Constitution and national development policies and
programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure
their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domains.18
Sec. 1. The Congress shall give the highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic and political inequalities,
and remove cultural inequities by equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use and disposition of property and its
increments.19

Sec. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in
accordance with law, in the disposition and utilization of other natural resources, including lands of the
public domain under lease or concession, subject to prior rights, homestead rights of small settlers, and
the rights of indigenous communities to their ancestral lands.20

Sec. 17. The State shall recognize, respect, and protect the rights of indigenous cultural communities to
preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the
formulation of national plans and policies.21

Sec. 12. The Congress may create a consultative body to advise the President on policies affecting
indigenous cultural communities, the majority of the members of which shall come from such
communities.22

IPRA was enacted precisely to implement the foregoing constitutional provisions. It provides, among
others, that the State shall recognize and promote the rights of indigenous peoples within the
framework of national unity and development, protect their rights over the ancestral lands and
ancestral domains and recognize the applicability of customary laws governing property rights or
relations in determining the ownership and extent of the ancestral domains.23 Moreover, IPRA
enumerates the civil and political rights of the indigenous peoples;24 spells out their social and cultural
rights;25 acknowledges a general concept of indigenous property right and recognizes title thereto;26 and
creates the NCIP as an independent agency under the Office of the President.27

Preliminary Issues

A. The petition presents an actual controversy.

The time-tested standards for the exercise of judicial review are: (1) the existence of an appropriate
case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the
plea that the function be exercised at the earliest opportunity; and (4) the necessity that the
constitutional question be passed upon in order to decide the case.28

Courts can only decide actual controversies, not hypothetical questions or cases.29 The threshold issue,
therefore, is whether an "appropriate case" exists for the exercise of judicial review in the present case.

An "actual case or controversy" means an existing case or controversy which is both ripe for resolution
and susceptible of judicial determination, and that which is not conjectural or anticipatory,30 or that
which seeks to resolve hypothetical or feigned constitutional problems.31 A petition raising a
constitutional question does not present an "actual controversy," unless it alleges a legal right or power.
Moreover, it must show that a conflict of rights exists, for inherent in the term "controversy" is the
presence of opposing views or contentions.32 Otherwise, the Court will be forced to resolve issues which
remain unfocused because they lack such concreteness provided when a question emerges precisely
framed from a clash of adversary arguments exploring every aspect of a multi-faceted situation
embracing conflicting and demanding interests.33 The controversy must also be justiciable; that is, it
must be susceptible of judicial determination.34

In the case at bar, there exists a live controversy involving a clash of legal rights. A law has been enacted,
and the Implementing Rules and Regulations approved. Money has been appropriated and the
government agencies concerned have been directed to implement the statute. It cannot be successfully
maintained that we should await the adverse consequences of the law in order to consider the
controversy actual and ripe for judicial resolution. It is precisely the contention of the petitioners that
the law, on its face, constitutes an unconstitutional abdication of State ownership over lands of the
public domain and other natural resources. Moreover, when the State machinery is set into motion to
implement an alleged unconstitutional statute, this Court possesses sufficient authority to resolve and
prevent imminent injury and violation of the constitutional process.

B. Petitioners, as citizens and taxpayers, have the requisite standing to raise the constitutional questions
herein.

In addition to the existence of an actual case or controversy, a person who assails the validity of a
statute must have a personal and substantial interest in the case, such that, he has sustained, or will
sustain, a direct injury as a result of its enforcement.35 Evidently, the rights asserted by petitioners as
citizens and taxpayers are held in common by all the citizens, the violation of which may result only in a
"generalized grievance".36 Yet, 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 power.37

In several cases, the Court has adopted a liberal attitude with regard to standing.38 The proper party
requirement is considered as merely procedural,39 and the Court has ample discretion with regard
thereto.40 As early as 1910, the Court in the case of Severino vs. Governor General 41 held:

x x x When the relief is sought merely for the protection of private rights, the relator must show some
personal or special interest in the subject matter, since he is regarded as the real party in interest and
his right must clearly appear. Upon the other hand, when the question is one of public right and the
object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the
real party in interest, and the relator at whose instigation the proceedings are instituted need not
show that he has any legal or special interest in the result, it being sufficient to show that he is a
citizen and as such interested in the execution of the laws.42

This Court has recognized that a "public right," or that which belongs to the people at large, may also be
the subject of an actual case or controversy. In Severino, we ruled that a private citizen may enforce a
"public right" in behalf of other citizens. We opined therein that:

… The right which [petitioner] seeks to enforce is not greater or different from that of any other
qualified elector in the municipality of Silay. It is also true that the injury which he would suffer in case
he fails to obtain the relief sought would not be greater or different from that of the other electors;
but he is seeking to enforce a public right as distinguished from a private right. The real party in
interest is the public, or the qualified electors of the town of Silay. Each elector has the same right and
would suffer the same injury. Each elector stands on the same basis with reference to maintaining a
petition whether or not the relief sought by the relator should be granted.43
In Tañada v. Tuvera,44 the Court enforced the "public right" to due process and to be informed of
matters of public concern.

In Garcia vs. Board of Investments,45 the Court upheld the "public right" to be heard or consulted on
matters of national concern.

In Oposa v. Factoran,46 the Court recognized the "public right" of citizens to "a balanced and healthful
ecology which, for the first time in our nation’s constitutional history, is solemnly incorporated in the
fundamental law."47 Mr. Justice (now Chief Justice) Hilario G. Davide, Jr., delivering the opinion of the
Court, stated that:

Such a right belongs to a different category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation-aptly and fittingly stressed by petitioners-the advancement of which
may even be said to predate all governments and constitutions. As a matter of fact, these basic rights
need not even be written in the Constitution for they are assumed to exist from the inception of
humankind.48

Petitioners, as citizens, possess the "public right" to ensure that the national patrimony is not alienated
and diminished in violation of the Constitution. Since the government, as the guardian of the national
patrimony, holds it for the benefit of all Filipinos without distinction as to ethnicity, it follows that a
citizen has sufficient interest to maintain a suit to ensure that any grant of concessions covering the
national economy and patrimony strictly complies with constitutional requirements. Thus, the
preservation of the integrity and inviolability of the national patrimony is a proper subject of a citizen’s
suit.

In addition, petitioners, as taxpayers, possess the right to restrain officials from wasting public funds
through the enforcement of an unconstitutional statute. It is well-settled that a taxpayer has the right to
enjoin public officials from wasting public funds through the implementation of an unconstitutional
statute,49 and by necessity, he may assail the validity of a statute appropriating public funds.50 The
taxpayer has paid his taxes and contributed to the public coffers and, thus, may inquire into the manner
by which the proceeds of his taxes are spent. The expenditure by an official of the State for the purpose
of administering an invalid law constitutes a misapplication of such funds.51

The IPRA appropriates funds as indicated in its title: "An Act to Recognize, Protect and Promote the
Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating the National Commission on
Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for
Other Purposes." In the same manner, Section 79 authorizes for the expenditure of public funds by
providing that "the amount necessary to finance [its] initial implementation shall be charged against the
current year's appropriation for the Office for Northern Cultural Communities (the "ONCC") and the
Office for Southern Cultural Communities (the "OSCC"),"52which were merged as organic offices of the
NCIP.53 Thus, the IPRA is a valid subject of a taxpayer’s suit.

C. The petition for prohibition and mandamus is not an improper remedy.

Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or person to desist
from further proceedings when said proceedings are without or in excess of said entity’s or person’s
jurisdiction, or are accompanied with grave abuse of discretion, and there is no appeal or 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 tribunal, corporation, board, officer or person, immediately or at
some other specified time, to do the act required to be done, when said entity or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office,
trust or station, or when said entity or person unlawfully excludes another from the use and enjoyment
of a right or office to which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law.55

In this case, the petitioners pray that respondents be restrained from implementing the challenged
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 disbursing public funds for the implementation of the said
law and rules. They further ask that the Secretary of the DENR be compelled to perform his duty to
control and supervise the activities pertaining to natural resources.

Prohibition will lie to restrain the public officials concerned from implementing the questioned
provisions of the IPRA and from disbursing funds in connection therewith if the law is found to be
unconstitutional. Likewise, mandamus will lie to compel the Secretary of the DENR to perform his duty
to control and supervise the exploration, development, utilization and conservation of the country’s
natural resources. Consequently, the petition for prohibition and mandamus is not an improper remedy
for the relief sought.

D. Notwithstanding the failure of petitioners to observe the hierarchy of courts, the Court assumes
jurisdiction over the petition in view of the importance of the issues raised therein.

Between two courts of concurrent original jurisdiction, it is the lower court that should initially pass
upon the issues of a case. That way, as a particular case goes through the hierarchy of courts, it is shorn
of all but the important legal issues or those of first impression, which are the proper subject of
attention of the appellate court. This is a procedural rule borne of experience and adopted to improve
the administration of justice.

This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this Court has
concurrent jurisdiction with the Regional Trial Courts and the Court of Appeals to issue writs
of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction,56 such concurrence
does not give a party unrestricted freedom of choice of court forum. The resort to this Court’s primary
jurisdiction to issue said writs shall be allowed only where the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling circumstances justify such invocation.57 We
held in People v. Cuaresma58 that:

A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court’s original
jurisdiction to issue these writs should be allowed only where there are special and important reasons
therefor, clearly and specifically set out in the petition. This is established policy. It is a policy necessary
to prevent inordinate demands upon the Court’s time and attention which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court’s docket x x
x.59 (Emphasis supplied.)
IPRA aims to rectify the historical injustice inflicted upon indigenous peoples. Its impact upon the lives
not only of the indigenous peoples but also upon the lives of all Filipinos cannot be denied. The
resolution of this case by the Court at the earliest opportunity is necessary if the aims of the law are to
be achieved. This reason is compelling enough to allow petitioners’ invocation of this Court’s jurisdiction
in the first instance.

Substantive Issues

Primary Issue

The issue of prime concern raised by petitioners and the Solicitor General revolves around the
constitutionality of certain provisions of IPRA, specifically Sections 3(a), 3(b), 5, 6, 7, 8, 57, 58 and 59.
These provisions allegedly violate Section 2, Article XII of the Constitution, which states:

Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces
of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. With the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such activities, or it may enter
into co-production, joint venture, or production-sharing agreements with Filipino citizens, or
corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-
five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress, may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well
as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays
and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution.

Under IPRA, indigenous peoples may obtain the recognition of their right of ownership60 over ancestral
lands and ancestral domains by virtue of native title.61 The term "ancestral lands" under the statute
refers to lands occupied by individuals, families and clans who are members of indigenous cultural
communities, including residential lots, rice terraces or paddies, private forests, swidden farms and tree
lots. These lands are required to have been "occupied, possessed and utilized" by them or through their
ancestors "since time immemorial, continuously to the present".62 On the other hand, "ancestral
domains" is defined as areas generally belonging to indigenous cultural communities, including
ancestral lands, forests, pasture, residential and agricultural lands, hunting grounds, worship areas, and
lands no longer occupied exclusively by indigenous cultural communities but to which they had
traditional access, particularly the home ranges of indigenous cultural communities who are still
nomadic or shifting cultivators. Ancestral domains also include inland waters, coastal areas and natural
resources therein.63 Again, the same are required to have been "held under a claim of ownership,
occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually
since time immemorial, continuously to the present".64 Under Section 56, property rights within the
ancestral domains already existing and/or vested upon effectivity of said law "shall be recognized and
respected."

Ownership is the crux of the issue of whether the provisions of IPRA pertaining to ancestral lands,
ancestral domains, and natural resources are unconstitutional. The fundamental question is, who,
between the State and the indigenous peoples, are the rightful owners of these properties?

It bears stressing that a statute should be construed in harmony with, and not in violation, of the
fundamental law.65The reason is that the legislature, in enacting a statute, is assumed to have acted
within its authority and adhered to the constitutional limitations. Accordingly, courts should presume
that it was the intention of the legislature to enact a valid, sensible, and just law and one which operates
no further than may be necessary to effectuate the specific purpose of the law.66

A. The provisions of IPRA recognizing the ownership of indigenous peoples over the ancestral lands and
ancestral domains are not unconstitutional.

In support of their theory that ancestral lands and ancestral domains are part of the public domain 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 under international law acquired exclusive dominion
over the Philippines by virtue of discovery and conquest. They contend that the Spanish King under the
theory of jura regalia, which was introduced into Philippine law upon Spanish conquest in 1521,
acquired title to all the lands in the archipelago.

Second, petitioners and the Solicitor General submit that ancestral lands and ancestral domains are
owned by the State. They invoke the theory of jura regalia which imputes to the State the ownership of
all lands and makes the State the original source of all private titles. They argue that the Philippine State,
as successor to Spain and the United States, is the source of any asserted right of ownership in land.

Third, petitioners and the Solicitor General concede that the Cariño doctrine exists. However, petitioners
maintain that the doctrine merely states that title to lands of the public domain may be acquired by
prescription. The Solicitor General, for his part, argues that the doctrine applies only to alienable lands
of the public domain and, thus, cannot be extended to other lands of the public domain such as forest or
timber, mineral lands, and national parks.

Fourth, the Solicitor General asserts that even assuming that native title over ancestral lands and
ancestral domains existed by virtue of the Cariño doctrine, such native title was extinguished upon the
ratification of the 1935 Constitution.
Fifth, petitioners admit that Congress is mandated under Section 5, Article XII of the Constitution to
protect that rights of indigenous peoples to their ancestral lands and ancestral domains. However, they
contend that the mandate is subject to Section 2, Article XII and the theory of jura regalia embodied
therein. According to petitioners, the recognition and protection under R.A. 8371 of the right of
ownership over ancestral lands and ancestral domains is far in excess of the legislative power and
constitutional mandate of Congress.

Finally, on the premise that ancestral lands and ancestral domains are owned by the State, petitioners
posit that R.A. 8371 violates Section 2, Article XII of the Constitution which prohibits the alienation of
non-agricultural lands of the public domain and other natural resources.

I am not persuaded by these contentions.

Undue reliance by petitioners and the Solicitor General on the theory of jura regalia is understandable.
Not only is the theory well recognized in our legal system; it has been regarded, almost with reverence,
as the immutable postulate of Philippine land law. It has been incorporated into our fundamental law
and has been recognized by the Court.67

Generally, under the concept of jura regalia, private title to land must be traced to some grant, express
or implied, from the Spanish Crown or its successors, the American Colonial government, and thereafter,
the Philippine Republic. The belief that the Spanish Crown is the origin of all land titles in the Philippines
has persisted because title to land must emanate from some source for it cannot issue forth from
nowhere.68

In its broad sense, the term "jura regalia" refers to royal rights,69 or those rights which the King has by
virtue of his prerogatives.70 In Spanish law, it refers to a right which the sovereign has over anything in
which a subject has a right of property or propriedad.71 These were rights enjoyed during feudal times by
the king as the sovereign.

The theory of the feudal system was that title to all lands was originally held by the King, and while the
use of lands was granted out to others who were permitted to hold them under certain conditions, the
King theoretically retained the title.72 By fiction of law, the King was regarded as the original proprietor
of all lands, and the true and only source of title, and from him all lands were held.73 The theory of jura
regalia was therefore nothing more than a natural fruit of conquest.74

The Regalian theory, however, does not negate native title to lands held in private ownership since time
immemorial. In the landmark case of Cariño vs. Insular Government75 the United States Supreme Court,
reversing the decision76of the pre-war Philippine Supreme Court, made the following pronouncement:

x x x Every presumption is and ought to be taken against the Government in a case like the present. It
might, 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 claim of private ownership, it will be presumed to have
been held in the same way from before the Spanish conquest, and never to have been public land. x x
x.77 (Emphasis supplied.)

The above ruling institutionalized the recognition of the existence of native title to land, or ownership of
land by Filipinos by virtue of possession under a claim of ownership since time immemorial and
independent of any grant from the Spanish Crown, as an exception to the theory of jura regalia.
In Cariño, an Igorot by the name of Mateo Cariño applied for registration in his name of an ancestral
land located in Benguet. The applicant established that he and his ancestors had lived on the land, had
cultivated it, and had used it as far they could remember. He also proved that they had all been
recognized as owners, the land having been passed on by inheritance according to native custom.
However, neither he nor his ancestors had any document of title from the Spanish Crown. The
government opposed the application for registration, invoking the theory of jura regalia. On appeal, the
United States Supreme Court held that the applicant was entitled to the registration of his native title to
their ancestral land.

Cariño was decided by the U.S. Supreme Court in 1909, at a time when decisions of the U.S. Court were
binding as precedent in our jurisdiction.78 We applied the Cariño doctrine in the 1946 case of Oh Cho vs.
Director of Lands,79where we stated that "[a]ll lands that were not acquired from the Government either
by purchase or by grant, belong to the public domain, but [a]n exception to the rule would be any land
that should have been in the possession of an occupant and of his predecessors in interest since time
immemorial, for such possession would justify the presumption that the land had never been part of the
public domain or that it had been private property even before the Spanish conquest."80

Petitioners however aver that the U.S. Supreme Court’s ruling in Cariño was premised on the fact that
the applicant had complied with the requisites of acquisitive prescription, having established that he and
his predecessors-in-interest had been in possession of the property since time immemorial. In effect,
petitioners suggest that title to the ancestral land applied for by Cariño was transferred from the State,
as original owner, to Cariño by virtue of prescription. They conclude that the doctrine cannot be the
basis for decreeing "by mere legislative fiat…that ownership of vast tracts of land belongs to [indigenous
peoples] without judicial confirmation."81

The Solicitor General, for his part, claims that the Cariño doctrine applies only to alienable lands of the
public domain and, as such, cannot be extended to other lands of the public domain such as forest or
timber, mineral lands, and national parks.

There is no merit in these contentions.

A proper reading of Cariño would show that the doctrine enunciated therein applies only to lands which
have always been considered as private, and not to lands of the public domain, whether alienable or
otherwise. A distinction must be made between ownership of land under native title and ownership by
acquisitive prescription against the State. Ownership by virtue of native title presupposes that the land
has been held by its possessor and his predecessors-in-interest in the concept of an owner since time
immemorial. The land is not acquired from the State, that is, Spain or its successors-in-interest, the
United States and the Philippine Government. There has been no transfer of title from the State as the
land has been regarded as private in character as far back as memory goes. In contrast, ownership of
land by acquisitive prescription against the State involves a conversion of the character of the property
from alienable public land to private land, which presupposes a transfer of title from the State to a
private person. Since native title assumes that the property covered by it is private land and is deemed
never to have been part of the public domain, the Solicitor General’s thesis that native title
under Cariño applies only to lands of the public domain is erroneous. Consequently, the classification of
lands of the public domain into agricultural, forest or timber, mineral lands, and national parks under
the Constitution82 is irrelevant to the application of the Cariño doctrine because the Regalian doctrine
which vests in the State ownership of lands of the public domain does not cover ancestral lands and
ancestral domains.

Legal history supports the Cariño doctrine.

When Spain acquired sovereignty over the Philippines by virtue of its discovery and occupation thereof
in the 16th century and the Treaty of Tordesillas of 1494 which it entered into with Portugal,83 the
continents of Asia, the Americas and Africa were considered as terra nullius although already populated
by other peoples.84 The discovery and occupation by the European States, who were then considered as
the only members of the international community of civilized nations, of lands in the said continents
were deemed sufficient to create title under international law.85

Although Spain was deemed to have acquired sovereignty over the Philippines, this did not mean that it
acquired title to all lands in the archipelago. By virtue of the colonial laws of Spain, the Spanish Crown
was considered to have acquired dominion only over the unoccupied and unclaimed portions of our
islands.86

In sending the first expedition to the Philippines, Spain did not intend to deprive the natives of their
property. Miguel Lopez de Legazpi was under instruction of the Spanish King to do no harm to the
natives and to their property. In this regard, an authority on the early Spanish colonial period in the
Philippines wrote:

The government of [the King of Spain] Philip II regarded the Philippines as a challenging opportunity to
avoid a repetition of the sanguinary conquests of Mexico and Peru. In his written instructions for
the Adelantado Legazpi, who commanded the expedition, Philip II envisaged a bloodless pacification of
the archipelago. This extraordinary document could have been lifted almost verbatim from the lectures
of the Dominican theologian, Francisco de Vitoria, delivered in the University of Salamanca. The King
instructed Legazpi to inform the natives that the Spaniards had come to do no harm to their persons or
to their property. The Spaniards intended to live among them in peace and in friendship and "to explain
to them the law of Jesus Christ by which they will be saved." Although the Spanish expedition could
defend themselves if attacked, the royal instructions admonished the commander to commit no
aggressive act which might arouse native hostility.87

Spanish colonial laws recognized and respected Filipino landholdings including native land
occupancy.88 Thus, the Recopilación de Leyes de las Indias expressly conferred ownership of lands
already held by the natives.89 The royal decrees of 1880 and 1894 did not extinguish native title to land
in the Philippines. The earlier royal decree, dated June 25, 1880, provided that all those in "unlawful
possession of royal lands" must legalize their possession by means of adjustment proceedings,90 and
within the period specified. The later royal decree, dated February 13, 1894, otherwise known as the
Maura Law, declared that titles that were capable of adjustment under the royal decree of 1880, but for
which adjustment was 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 be construed as confiscation of title,
but merely as the withdrawal of the privilege of registering such title.91

Neither was native title disturbed by the Spanish cession of the Philippines to the United States,
contrary to petitioners’ assertion that the US merely succeeded to the rights of Spain, including the
latter’s rights over lands of the public 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 time.93 During the American
colonial regime, native title to land was respected, even protected. The Philippine Bill of 1902 provided
that property and rights acquired by the US through cession from Spain were to be administered for the
benefit of the Filipinos.94 In obvious adherence to libertarian principles, McKinley’s Instructions, as well
as the Philippine Bill of 1902, contained a bill of rights embodying the safeguards of the US Constitution.
One of these rights, which served as an inviolable rule upon every division and branch of the American
colonial government in the Philippines,95 was that "no person shall be deprived of life, liberty, or
property without due process of law."96 These vested rights safeguarded by the Philippine Bill of 1902
were in turn expressly protected by the due process clause of the 1935 Constitution. Resultantly,
property rights of the indigenous peoples over their ancestral lands and ancestral domains were firmly
established in law.

Nonetheless, the Solicitor General takes the view that the vested rights of indigenous peoples to their
ancestral lands and domains were "abated by the direct act by the sovereign Filipino people of ratifying
the 1935 Constitution."97 He advances the following arguments:

The Sovereign, which is the source of all rights including ownership, has the power to restructure the
consolidation of rights inherent in ownership in the State. Through the mandate of the Constitutions
that have been adopted, the State has wrested control of those portions of the natural resources it
deems absolutely necessary for social welfare and existence. It has been held that the State may impair
vested rights through a legitimate exercise of police power.

Vested rights do not prohibit the Sovereign from performing acts not only essential to but determinative
of social welfare and existence. To allow otherwise is to invite havoc in the established social system. x x
x

Time-immemorial possession does not create private ownership in cases of natural resources that have
been found from generation to generation to be critical to the survival of the Sovereign and its agent,
the State.98

Stated simply, the Solicitor General’s argument is that the State, as the source of all titles to land, had
the power to re-vest in itself, through the 1935 Constitution, title to all lands, including ancestral lands
and ancestral domains. While the Solicitor General admits that such a theory would necessarily impair
vested rights, he reasons out that even vested rights of ownership over ancestral lands and ancestral
domains are not absolute and may be impaired by the legitimate exercise of police power.

I cannot agree. The text of the provision of the 1935 Constitution invoked by the Solicitor General, while
embodying the theory of jura regalia, is too clear for any misunderstanding. It simply declares that "all
agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to
the State."99 Nowhere does it state that certain lands which are "absolutely necessary for social welfare
and existence," including those which are not part of the public domain, shall thereafter be owned by
the State. If there is any room for constitutional construction, the provision should be interpreted in
favor of the preservation, rather than impairment or extinguishment, of vested rights. Stated otherwise,
Section 1, Article XII of the 1935 Constitution cannot be construed to mean that vested right which had
existed then were extinguished and that the landowners were divested 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 welfare and existence." On the contrary, said Section restated the fundamental rule
against the diminution of existing rights by expressly providing that the ownership of lands of the public
domain and other natural resources by the State is "subject 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 ancestral lands and domains. The words of the law
should be given their ordinary or usual meaning,100 and the term "existing rights" cannot be assigned an
unduly restrictive definition.

Petitioners concede that Congress is mandated under Section 5, Article XII of the 1987 Constitution101to
protect the rights of indigenous peoples to their ancestral lands and ancestral domains. Nonetheless,
they contend that the recognition and protection under IPRA of the right of ownership of indigenous
peoples over ancestral lands and ancestral domains are far in excess of the legislative power and
constitutional mandate of the Congress,102 since such recognition and protection amount to the
alienation of lands of the public domain, which is proscribed under Section 2, Article XII of the
Constitution.

Section 5, Article XII of the Constitution expresses the sovereign intent to "protect the rights of
indigenous peoples to their ancestral lands." In its general and ordinary sense, the term "right" refers to
any legally enforceable claim.103It is a power, privilege, faculty or demand inherent in one person and
incident upon another.104 When used in relation to property, "right" includes any interest in or title to an
object, or any just and legal claim to hold, use and enjoy it.105 Said provision in the Constitution cannot,
by any reasonable construction, be interpreted to exclude the protection of the right of ownership over
such ancestral lands. For this reason, Congress cannot be said to have exceeded its constitutional
mandate and power in enacting the provisions of IPRA, specifically Sections 7(a) and 8, which recognize
the right of ownership of the indigenous peoples over ancestral lands.

The second paragraph of Section 5, Article XII also grants Congress the power to "provide for the
applicability of customary laws governing property rights or relations in determining the ownership and
extent of ancestral domains." In light of this provision, does Congress have the power to decide whether
ancestral domains shall be private property or part of the public domain? Also, does Congress have the
power to determine whether the "extent" of ancestral domains shall include the natural resources
found therein?

It is readily apparent from the constitutional records that the framers of the Constitution did not intend
Congress to decide whether ancestral domains shall be public or private property. Rather, they
acknowledged that ancestral domains shall be treated as private property, and that customary laws shall
merely determine whether such private ownership is by the entire indigenous cultural community, or by
individuals, families, or clans within the community. The discussion below between Messrs. Regalado
and Bennagen and Mr. Chief Justice Davide, then members of the 1986 Constitutional Commission, is
instructive:

MR. REGALADO. Thank you, Madame President. May I seek some clarifications from either
Commissioner Bennagen or Commissioner Davide regarding this phrase "CONGRESS SHALL PROVIDE
FOR THE APPLICABILITY OF CUSTOMARY LAWS GOVERNING PROPERTY RIGHTS OR RELATIONS in
determining the ownership and extent of the ancestral domain," because ordinarily it is the law on
ownership and the extent thereof which determine the property rights or relations arising therefrom.
On the other hand, in this proposed amendment the phraseology is that it is the property rights or
relations which shall be used as the basis in determining the ownership and extent of the ancestral
domain. I assume there must be a certain difference in the customary laws and our regular civil laws on
property.

MR. DAVIDE. That is exactly the reason, Madam President, why we will leave it to Congress to make the
necessary exception to the general law on property relations.

MR. REGALADO. I was thinking if Commissioner Bennagen could give us an example of such a customary
law wherein it is the property rights and relations that determine the ownership and the extent of that
ownership, unlike the basic fundamental rule that it is the ownership and the extent of ownership which
determine the property rights and relations arising therefrom and consequent thereto. Perhaps, these
customary laws may have a different provision or thrust so that we could make the corresponding
suggestions also by way of an amendment.

MR. DAVIDE. That is exactly my own perception.

MR. BENNAGEN. Let me put it this way.

There is a range of customary laws governing certain types of ownership. There would be ownership
based on individuals, on clan or lineage, or on community. And the thinking expressed in the
consultation is that this should be codified and should be recognized in relation to existing national laws.
That is essentially the concept. 106(Emphasis supplied.)

The intention to treat ancestral domains as private property is also apparent from the following
exchange between Messrs. Suarez and Bennagen:

MR. SUAREZ. When we speak of customary laws governing property rights or relations in determining
the ownership and extent of the ancestral domain, are we thinking in terms of the tribal ownership or
community ownership or of private ownership within the ancestral lands or ancestral domain?

MR. BENNAGEN. The concept of customary laws is that it is considered as ownership by private
individuals, clans and even communities.

MR. SUAREZ. So, there will be two aspects to this situation. This means that the State will set aside the
ancestral domain and there is a separate law for that. Within the ancestral domain it could accept more
specific ownership in terms of individuals within the ancestral lands.

MR. BENNAGEN. Individuals and groups within the ancestral domain. 107 (Emphasis supplied.)

It cannot be correctly argued that, because the framers of the Constitution never expressly
mentioned Cariño in their deliberations, they did not intend to adopt the concept of native title to land,
or that they were unaware of native title as an exception to the theory of jura regalia.108 The framers of
the Constitution, as well as the people adopting it, were presumed to be aware of the prevailing judicial
doctrines concerning the subject of constitutional provisions, and courts should take these doctrines
into consideration in construing the Constitution.109

Having thus recognized that ancestral domains under the Constitution are considered as private
property of indigenous peoples, the IPRA, by affirming or acknowledging such ownership through its
various provisions, merely abides by the constitutional mandate and does not suffer any vice of
unconstitutionality.
Petitioners interpret the phrase "subject to the provisions of this Constitution and national development
policies and programs" in Section 5, Article XII of the Constitution to mean "as subject to the provision of
Section 2, Article XII of the Constitution," which vests in the State ownership of all lands of the public
domain, mineral lands and other natural resources. Following this interpretation, petitioners maintain
that ancestral lands and ancestral domains are the property of the State.

This proposition is untenable. Indeed, Section 2, Article XII reiterates the declarations made in the 1935
and 1973 Constitutions on the state policy of conservation and nationalization of lands of the public
domain and natural resources, and is of paramount importance to our national economy and patrimony.
A close perusal of the records of the 1986 Constitutional Commission reveals that the framers of the
Constitution inserted the phrase "subject to the provisions of this Constitution" mainly to prevent the
impairment of Torrens titles and other prior rights in the determination of what constitutes ancestral
lands and ancestral domains, to wit:

MR. NATIVIDAD. Just one question. I want to clear this section protecting ancestral lands. How does this
affect the Torrens title and other prior rights?

MR. BENNAGEN. I think that was also discussed in the committee hearings and we did say that in cases
where due process is clearly established in terms of prior rights, these two have to be respected.

MR. NATIVIDAD. The other point is: How vast is this ancestral land? Is it true that parts of Baguio City are
considered as ancestral lands?

MR. BENNAGEN. They could be regarded as such. If the Commissioner still recalls, in one of the
publications that I provided the Commissioners, the parts could be considered as ancestral domain in
relation to the whole population of Cordillera but not in relation to certain individuals or certain groups.

MR. NATIVIDAD. The Commissioner means that the whole Baguio City is considered as ancestral land?

MR. BENNAGEN. Yes, in the sense that it belongs to Cordillera or in the same manner that Filipinos can
speak of the Philippine archipelago as ancestral land, but not in terms of the right of a particular person
or particular group to exploit, utilize, or sell it.

MR. NATIVIDAD. But is clear that the prior rights will be respected.

MR. BENNAGEN. Definitely. 110

Thus, the phrase "subject to the provisions of this Constitution" was intended by the framers of the
Constitution as a reiteration of the constitutional guarantee that no person shall be deprived of property
without due process of law.

There is another reason why Section 5 of Article XII mandating the protection of rights of the indigenous
peoples to their ancestral lands cannot be construed as subject to Section 2 of the same Article ascribing
ownership of all public lands to the State. The Constitution must be construed as a whole. It is a rule that
when construction is proper, the whole Constitution is examined in order to determine the meaning of
any provision. That construction should be used which would give effect to the entire instrument.111

Thus, the provisions of the Constitution on State ownership of public lands, mineral lands and other
natural resources should be read together with the other provisions thereof which firmly recognize the
rights of the indigenous peoples. These, as set forth hereinbefore,112 include: Section 22, Article II,
providing that the State recognizes and promotes the rights of indigenous peoples within the framework
of national unity and development; Section 5, Article XII, calling for the protection of the rights of
indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural
well-being, and for the applicability of customary laws governing property rights and relations in
determining the ownership and extent of ancestral domains; Section 1, Article XIII, directing the
removal or reduction of social, economic, political and cultural inequities and inequalities by equitably
diffusing wealth and political power for the common good; Section 6, Article XIII, directing the
application of the principles of agrarian reform or stewardship in the disposition and utilization of other
natural resources, subject to prior rights, homestead rights of small settlers, and the rights of indigenous
communities to their ancestral lands; Section 17, Article XIV, decreeing that the State shall recognize,
respect, and protect the rights of indigenous cultural communities to preserve and develop their
cultures, traditions, and institutions; and Section 12, Article XVI, authorizing the Congress to create a
consultative body to advise the President on policies affecting indigenous cultural communities.

Again, as articulated in the Constitution, the first goal of the national economy is the more equitable
distribution of opportunities, income, and wealth.113 Equity is given prominence as the first objective of
national economic development.114 The framers of the Constitution did not, by the phrase "subject to
the provisions of this Constitution and national development policies and programs," intend to establish
a hierarchy of constitutional norms. As explained by then Commissioner (now Chief Justice) Hilario G.
Davide, Jr., it was not their objective to make certain interests primary or paramount, or to create
absolute limitations or outright prohibitions; rather, the idea is towards the balancing of interests:

BISHOP BACANI. In Commissioner Davide’s formulation of the first sentence, he says: "The State,
SUBJECT TO THE provisions of this Constitution AND NATIONAL DEVELOPMENT POLICIES AND
PROGRAMS shall guarantee the rights of cultural or tribal communities to their ancestral lands to insure
their economic, social and cultural well-being." There are at least two concepts here which receive
different weights very often. They are the concepts of national development policies and programs, and
the rights of cultural or tribal communities to their ancestral lands, et cetera. I would like to ask: When
the Commissioner proposed this amendment, which was the controlling concept? I ask this because
sometimes the rights of cultural minorities are precisely transgressed in the interest of national
development policies and programs. Hence, I would like to know which is the controlling concept here.
Is it the rights of indigenous peoples to their ancestral lands or is it national development policies and
programs.

MR. DAVIDE. It is not really a question of which is primary or which is more paramount. The concept
introduced here is really the balancing of interests. That is what we seek to attain. We have to balance
the interests taking into account the specific needs and the specific interests also of these cultural
communities in like manner that we did so in the autonomous regions.115 (Emphasis supplied.)

B. The provisions of R.A. 8371 do not infringe upon the State’s ownership over the natural resources
within the ancestral domains.

Petitioners posit that IPRA deprives the State of its ownership over mineral lands of the public domain
and other natural resources,116 as well as the State’s full control and supervision over the exploration,
development and utilization of natural resources.117 Specifically, petitioners and the Solicitor General
assail Sections 3 (a),118 5,119and 7120 of IPRA as violative of Section 2, Article XII of the Constitution which
states, in part, that "[a]ll lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of 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 declare as
unconstitutional Section 3(a) of IPRA because the inclusion of natural resources in the definition of
ancestral domains purportedly results in the abdication of State ownership over these resources.

I am not convinced.

Section 3(a) merely defines the coverage of ancestral domains, and describes the extent, limit and
composition of ancestral domains by setting forth the standards and guidelines in determining whether
a particular area is to be considered as part of and within the ancestral domains. In other words, Section
3(a) serves only as a yardstick which points out what properties are within the ancestral domains. It
does not confer or recognize any right of ownership over the natural resources to the indigenous
peoples. Its purpose is definitional and not declarative of a right or title.

The specification of what areas belong to the ancestral domains is, to our mind, important to ensure
that no unnecessary encroachment on private properties outside the ancestral domains will result
during the delineation process. The mere fact that Section 3(a) defines ancestral domains to include the
natural resources found therein does not ipso facto convert the character of such natural resources as
private property of the indigenous peoples. Similarly, Section 5 in relation to Section 3(a) cannot be
construed as a source of ownership rights of indigenous people over the natural resources simply
because it recognizes ancestral domains as their "private but community property."

The phrase "private but community property" is merely descriptive of the indigenous peoples’ concept
of ownership as distinguished from that provided in the Civil Code. In Civil Law, "ownership" is the
"independent and general power of a person over a thing for purposes recognized by law and within the
limits established thereby."122 The civil law concept of ownership has the following attributes: jus
utendi or the right to receive from the thing that which it produces, jus abutendi or the right to consume
the thing by its use, jus disponendi or the power to alienate, encumber, transform and even destroy that
which is owned and jus vidicandi or the right to exclude other persons from the possession the thing
owned.123 In contrast, the indigenous peoples’ concept of ownership emphasizes the importance of
communal or group ownership. By virtue of the communal character of ownership, the property held in
common "cannot be sold, disposed or destroyed"124 because it was meant to benefit the whole
indigenous community and not merely the individual member.125

That IPRA is not intended to bestow ownership over natural resources to the indigenous peoples is also
clear from the deliberations of the bicameral conference committee on Section 7 which recites the
rights of indigenous peoples over their ancestral domains, to wit:

CHAIRMAN FLAVIER. Accepted. Section 8126 rights to ancestral domain, this is where we transferred the
other provision but here itself -

HON. DOMINGUEZ. Mr. Chairman, if I maybe allowed to make a very short Statement. Earlier, Mr.
Chairman, we have decided to remove the provisions on natural resources because we all agree that
that belongs to the State. Now, the plight or the rights of those indigenous communities living in forest
and areas where it could be exploited by mining, by dams, so can we not also provide a provision to give
little protection or either rights for them to be consulted before any mining areas should be done in
their areas, any logging done in their areas or any dam construction because this has been disturbing
our people especially in the Cordilleras. So, if there could be, if our lawyers or the secretariat could just
propose a provision for incorporation here so that maybe the right to consultation and the right to be
compensated when there are damages within their ancestral lands.

CHAIRMAN FLAVIER. Yes, very well taken but to the best of my recollection both are already considered
in subsequent sections which we are now looking for.

HON. DOMINGUEZ. Thank you.

CHAIRMAN FLAVIER. First of all there is a line that gives priority use for the indigenous people where
they are. Number two, in terms of the mines there is a need for prior consultation of source which is
here already. So, anyway it is on the record that you want to make sure that the secretariat takes note
of those two issues and my assurance is that it is already there and I will make sure that they cross
check.

HON. ADAMAT. I second that, Mr. Chairman.

CHAIRMAN FLAVIER. Okay, thank you. So we now move to Section 8, there is a Senate version you do
not have and if you agree we will adopt that.127 (Emphasis supplied.)

Further, Section 7 makes no mention of any right of ownership of the indigenous peoples over the
natural resources. In fact, Section 7(a) merely recognizes the "right to claim ownership over lands,
bodies of water traditionally and actually occupied by indigenous peoples, sacred places, traditional
hunting and fishing grounds, and all improvements made by them at any time within the domains."
Neither does Section 7(b), which enumerates certain rights of the indigenous peoples over the natural
resources found within their ancestral domains, contain any recognition of ownership vis-a-vis the
natural resources.

What is evident is that the IPRA protects the indigenous peoples’ rights and welfare in relation to the
natural resources found within their ancestral domains,128 including the preservation of the ecological
balance therein and the need to ensure that the indigenous peoples will not be unduly displaced when
State-approved activities involving the natural resources located therein are undertaken.

Finally, the concept of native title to natural resources, unlike native title to land, has not been
recognized in the Philippines. NCIP and Flavier, et al. invoke the case of Reavies v. Fianza129 in support of
their thesis that native title to natural resources has been upheld in this jurisdiction.130 They insist that
"it is possible for rights over natural resources to vest on a private (as opposed to a public) holder if
these were held prior to the 1935 Constitution."131However, a judicious examination of Reavies reveals
that, contrary to the position of NCIP and Flavier, et al., the Court did not recognize native title to
natural resources. Rather, it merely upheld the right of the indigenous peoples to claim ownership of
minerals under the Philippine Bill of 1902.

While as previously discussed, native title to land or private ownership by Filipinos of land by virtue of
time immemorial possession in the concept of an owner was acknowledged and recognized as far back
during the Spanish colonization of the Philippines, there was no similar favorable treatment as regards
natural resources. The unique value of natural resources has been acknowledged by the State and is the
underlying reason for its consistent assertion of ownership and control over said natural resources from
the Spanish regime up to the present.132 Natural resources, especially minerals, were considered by
Spain as an abundant source of revenue to finance its battles in wars 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 that over minerals which may be found
therein. 133

On the other hand, the United States viewed natural resources as a source of wealth for its nationals. As
the owner of natural resources over the Philippines after the latter’s cession from Spain, the United
States saw it fit to allow both Filipino and American citizens to explore and exploit minerals in public
lands, and to grant patents to private mineral lands. A person who acquired ownership over a parcel of
private mineral land pursuant to the laws then prevailing could exclude other persons, even the State,
from exploiting minerals within his property.134 Although the United States made a distinction between
minerals found in public lands and those found in private lands, title in these minerals was in all cases
sourced from the State. The framers of the 1935 Constitution found it necessary to maintain the State’s
ownership over natural resources to insure their conservation for future generations of Filipinos, to
prevent foreign control of the country through economic domination; and to avoid situations whereby
the Philippines would become a source of international conflicts, thereby posing danger to its internal
security and independence.135

The declaration of State ownership and control over minerals and other natural resources in the 1935
Constitution was reiterated in both the 1973136 and 1987 Constitutions.137

Having ruled that the natural resources which may be found within the ancestral domains belong to the
State, the Court deems it necessary to clarify that the jurisdiction of the NCIP with respect to ancestral
domains under Section 52 [i] of IPRA extends only to the lands and not to the natural resources therein.

Section 52[i] provides:

Turnover of Areas Within Ancestral Domains Managed by Other Government Agencies. - The
Chairperson of the NCIP shall certify that the area covered is an ancestral domain. The secretaries of the
Department of Agrarian Reform, Department of Environment and Natural Resources, Department of
Interior and Local Government, and Department of Justice, the Commissioner of the National
Development Corporation, and any other government agency claiming jurisdiction over the area shall be
notified thereof. Such notification shall terminate any legal basis for the jurisdiction previously claimed.

Undoubtedly, certain areas that are claimed as ancestral domains may still be under the administration
of other agencies of the Government, such as the Department of Agrarian Reform, with respect to
agricultural lands, and the Department of Environment and Natural Resources with respect to timber,
forest and mineral lands. Upon the certification of these areas as ancestral domain following the
procedure outlined in Sections 51 to 53 of the IPRA, jurisdiction of the government agency or agencies
concerned over lands forming part thereof ceases. Nevertheless, the jurisdiction of government
agencies over the natural resources within the ancestral domains does not terminate by such
certification because said agencies are mandated under existing laws to administer the natural
resources for the State, which is the owner thereof. To construe Section 52[i] as divesting the State,
through the government agencies concerned, of jurisdiction over the natural resources within the
ancestral domains would be inconsistent with the established doctrine that all natural resources are
owned by the State.
C. The provisions of IPRA pertaining to the utilization of natural resources are not unconstitutional.

The IPRA provides that indigenous peoples shall have the right to manage and conserve the natural
resources found on the ancestral domains, to benefit from and share in the profits from the allocation
and utilization of these resources, and to negotiate the terms and conditions for the exploration of such
natural resources.138 The statute also grants them priority rights in the harvesting, extraction,
development or exploitation of any natural resources within the ancestral domains.139 Before the NCIP
can issue a certification for the renewal, or grant of any concession, license or lease, or for the
perfection of any production-sharing agreement the prior informed written consent of the indigenous
peoples concerned must be obtained.140 In return, the indigenous peoples are given the responsibility to
maintain, develop, protect and conserve the ancestral domains or portions thereof which are found to
be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest
cover, or reforestation.141

The Solicitor General argues that these provisions deny the State an active and dominant role in the
utilization of our country’s natural resources. Petitioners, on the other hand, allege that under the
Constitution the exploration, development and utilization of natural resources may only be undertaken
by the State, either directly or indirectly through co-production, joint venture, or production-sharing
agreements.142 To petitioners, no other method is allowed by the Constitution. They likewise submit
that by vesting ownership of ancestral lands and ancestral domains in the indigenous peoples, IPRA
necessarily gives them control over the use and enjoyment of such natural resources, to the prejudice of
the State.143

Section 2, Article XII of the Constitution provides in paragraph 1 thereof that the exploration,
development and utilization of natural resources must be under the full control and supervision of the
State, which may directly undertake such activities or enter into co-production, joint venture, or
production-sharing agreements. This provision, however, should not be read in isolation to avoid a
mistaken interpretation that any and all forms of utilization of natural resources other than the
foregoing are prohibited. The Constitution must be regarded as consistent with itself throughout.144 No
constitutional provision is to be separated from all the others, or to be considered alone, all provisions
bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate
the great purposes of the fundamental law.145

In addition to the means of exploration, development and utilization of the country’s natural resources
stated in paragraph 1, Section 2 of Article XII, the Constitution itself states in the third paragraph of the
same section that Congress may, by law, allow small-scale utilization of natural resources by its
citizens.146 Further, Section 6, Article XIII, directs the State, in the disposition and utilization of natural
resources, to apply the principles of agrarian reform or stewardship.147 Similarly, Section 7, Article XIII
mandates the State to protect the rights of subsistence fishermen to the preferential use of marine and
fishing resources.148 Clearly, Section 2, Article XII, when interpreted in view of the pro-Filipino, pro-poor
philosophy of our fundamental law, and in harmony with the other provisions of the Constitution rather
as a sequestered pronouncement,149 cannot be construed as a prohibition against any and all forms of
utilization of natural resources without the State’s direct participation.

Through the imposition of certain requirements and conditions for the exploration, development and
utilization of the natural resources under existing laws,150 the State retains full control over such
activities, whether done on small-scale basis151 or otherwise.
The rights given to the indigenous peoples regarding the exploitation of natural resources under
Sections 7(b) and 57 of IPRA amplify what has been granted to them under existing laws, such as the
Small-Scale Mining Act of 1991 (R.A. 7076) and the Philippine Mining Act of 1995 (R.A. 7942). R.A. 7076
expressly provides that should an ancestral land be declared as a people’s small-scale mining area, the
members of the indigenous peoples living within said area shall be given priority in the awarding of
small-scale mining contracts.152 R.A. 7942 declares that no ancestral land shall be opened for mining
operations without the prior consent of the indigenous cultural community concerned153 and in the
event that the members of such indigenous cultural community give their consent to mining operations
within their ancestral land, royalties shall be paid to them by the parties to the mining to the
contract.154

In any case, a careful reading of Section 7(b) would reveal that the rights given to the indigenous
peoples are duly circumscribed. These rights are limited only to the following: "to manage and
conserve natural resources within territories and uphold it for future generations; to benefit and share
the profits from allocation and utilization of the natural resources found therein; to negotiate the terms
and conditions for the exploration of natural resources in the areas for the purpose of ensuring
ecological, environmental protection and the conservation measures, pursuant to national and
customary laws; to an informed and intelligent participation in the formulation and implementation of
any project, government or private, that will affect or impact upon the ancestral domains and to receive
just and fair compensation for any damages which they may sustain as a result of the project, and the
right to effective measures by the government to prevent any interference with, alienation and
encroachment of these rights."

It must be noted that the right to negotiate terms and conditions granted under Section 7(b) pertains
only to the exploration of natural resources. The term "exploration" refers only to the search or
prospecting of mineral resources, or any other means for the purpose of determining the existence and
the feasibility of mining them for profit.155 The exploration, which is merely a preliminary activity, cannot
be equated with the entire process of "exploration, development and utilization" of natural resources
which under the Constitution belong to the State.

Section 57, on the other hand, grants the indigenous peoples "priority rights" in the utilization of natural
resources and not absolute ownership thereof. Priority rights does not mean exclusive rights. What is
granted is merely the right of preference or first consideration in the award of privileges provided by
existing laws and regulations, with due regard to the needs and welfare of indigenous peoples living in
the area.

There is nothing in the assailed law which implies an automatic or mechanical character in the grant of
concessions. Nor does the law negate the exercise of sound discretion by government entities. Several
factors still have to be considered. For example, the extent and nature of utilization and the consequent
impact on the environment and on the indigenous peoples’ way of life are important considerations.
Moreover, the indigenous peoples must show that they live in the area and that they are in the best
position to undertake the required utilization.

It must be emphasized that the grant of said priority rights to indigenous peoples is not a blanket
authority to disregard pertinent laws and regulations. The utilization of said natural resources is always
subject to compliance by the indigenous peoples with existing laws, such as R.A. 7076 and R.A. 7942
since it is not they but the State, which owns these resources.
It also bears stressing that the grant of priority rights does not preclude the State from undertaking
activities, or entering into co-production, joint venture or production-sharing agreements with private
entities, to utilize the natural resources which may be located within the ancestral domains. There is no
intention, as between the State and the indigenous peoples, to create a hierarchy of values; rather, the
object is to balance the interests of the State for national development and those of the indigenous
peoples.

Neither does the grant of priority rights to the indigenous peoples exclude non-indigenous peoples from
undertaking the same activities within the ancestral domains upon authority granted by the proper
governmental agency. To do so would unduly limit the ownership rights of the State over the natural
resources.

To be sure, the act of the State of giving preferential right to a particular sector in the utilization of
natural resources is nothing new. As previously mentioned, Section 7, Article XIII of the Constitution
mandates the protection by the State of "the rights of subsistence fishermen, especially of local
communities, to the preferential use of communal marine and fishing resources, both inland and
offshore."

Section 57 further recognizes the possibility that the exploration and exploitation of natural resources
within the ancestral domains may disrupt the natural environment as well as the traditional activities of
the indigenous peoples therein. Hence, the need for the prior informed consent of the indigenous
peoples before any search for or utilization of the natural resources within their ancestral domains is
undertaken.

In a situation where the State intends to directly or indirectly undertake such activities, IPRA requires
that the prior informed consent of the indigenous peoples be obtained. The State must, as a matter of
policy and law, consult the indigenous peoples in accordance with the intent of the framers of the
Constitution that national development policies and programs should involve a systematic consultation
to balance local needs as well as national plans. As may be gathered from the discussion of the framers
of the Constitution on this point, the national plan presumably takes into account the requirements of
the region after thorough consultation.156 To this end, IPRA grants to the indigenous peoples the right to
an informed and intelligent participation in the formulation and implementation of any project,
government or private, and the right not to be removed therefrom without their free and prior informed
consent.157 As to non-members, the prior informed consent takes the form of a formal and written
agreement between the indigenous peoples and non-members under the proviso in Section 57 in case
the State enters into a co-production, joint venture, or production-sharing agreement with Filipino
citizens, or corporations. This requirement is not peculiar to IPRA. Existing laws and regulations such as
the Philippine Environmental Policy,158the Environmental Impact System,159 the Local Government
Code160 and the Philippine Mining Act of 1995161already require increased consultation and participation
of stakeholders, such as indigenous peoples, in the planning of activities with significant environment
impact.

The requirement in Section 59 that prior written informed consent of the indigenous peoples must be
procured before the NCIP can issue a certification for the "issuance, renewal, or grant of any concession,
license or lease, or to the perfection of any production-sharing agreement," must be interpreted, not as
a grant of the power to control the exploration, development and utilization of natural resources, but
merely the imposition of an additional requirement for such concession or agreement. The clear intent
of the law is to protect the rights and interests of the indigenous peoples which may be adversely
affected by the operation of such entities or licensees.

Corollary Issues

A. IPRA does not violate the Due Process clause.

The first corollary issue raised by petitioners is whether IPRA violates Section 1, Article III of the
Constitution, which provides that "no person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be deprived the equal protection of the laws."

Petitioners maintain that the broad definition of ancestral lands and ancestral domains under Section
3(a) and 3(b) of IPRA includes private lands. They argue that the inclusion of private lands in the
ancestral lands and ancestral domains violates the due process clause.162 Petitioners’ contention is
erroneous.

Sections 3(a) and 3(b) expressly provide that the definition of ancestral lands and ancestral domains are
"subject to Section 56," which reads:

Sec. 56. Existing Property Rights Regimes. – Property rights within the ancestral domains already existing
and/or vested upon effectivity of this Act, shall be recognized and protected.

Petitioners, however, contend that Section 56 aims to protect only the vested rights of indigenous
peoples, but not those who are not members of such communities. Following their interpretation, IPRA,
under Section 56, recognizes the rights of indigenous peoples to their ancestral lands and ancestral
domains, subject to the vested rights of the same communities to such ancestral lands and ancestral
domains. Such interpretation is obviously incorrect.

The "property rights" referred to in Section 56 belong to those acquired by individuals, whether
indigenous or non-indigenous peoples. Said provision makes no distinction as to the ethnic origins of the
ownership of these "property rights." The IPRA thus recognizes and respects "vested rights" regardless
of whether they pertain to indigenous or non-indigenous peoples. Where the law does not distinguish,
the courts should not distinguish.163 What IPRA only requires is that these "property rights" already exist
and/or vested upon its effectivity.

Further, by the enactment of IPRA, Congress did not purport to annul any and all Torrens titles within
areas claimed as ancestral lands or ancestral domains. The statute imposes strict procedural
requirements for the proper delineation of ancestral lands and ancestral domains as safeguards against
the fraudulent deprivation of any landowner of his land, whether or not he is member of an indigenous
cultural community. In all proceedings for delineation of ancestral lands and ancestral domains, the
Director of Lands shall appear to represent the interest of the Republic of the Philippines.164 With regard
to ancestral domains, the following procedure is mandatory: first, petition by an indigenous cultural
community, or motu proprio by the NCIP; second, investigation and census by the Ancestral domains
Office ("ADO") of the NCIP; third, preliminary report by the ADO; fourth, posting and publication;
and lastly, evaluation by the NCIP upon submission of the final report of the ADO.165 With regard
to ancestral lands, unless such lands are within an ancestral domain, the statute imposes the following
procedural requirements: first, application; second, posting and publication; third, investigation and
inspection by the ADO; fourth, delineation; lastly, evaluation by the NCIP upon submission of a report
by the ADO.166 Hence, we cannot sustain the arguments of the petitioners that the law affords no
protection to those who are not indigenous peoples.

Neither do the questioned sections of IPRA on the composition and powers and jurisdiction of the
NCIP167 and the application of customary law,168 violate the due process clause of the Constitution.

Petitioners point out that IPRA provides that the NCIP shall be composed exclusively of members of
indigenous peoples,169 and that the NCIP shall have jurisdiction over all claims and disputes involving
indigenous peoples,170including even disputes 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 clarify that
they do not claim that the members of the NCIP are incapable of being fair and impartial judges. They
merely contend that the NCIP will not appear to be impartial, because a party who is not a member of
an indigenous cultural community "who must defend his case against [one who is] before judges who
are all members of [indigenous peoples] cannot but harbor a suspicion that they do not have the cold
neutrality of an impartial judge."172

In addition, petitioners claim that IPRA prescribes that customary laws shall be applied first in disputes
involving property, succession and land,173 and that such laws shall likewise be used in disputes involving
indigenous peoples.174 They assert that "[w]hen the dispute involves a member of an [indigenous
cultural community and another who is not], a resolution of such a dispute based on customary laws. . .
would clearly be a denial of due process. . . [because those who are not indigenous peoples] do not
know what these customary laws are."175

Petitioners’ concerns are unfounded. The fact that the NCIP is composed of members of the indigenous
peoples does not mean that it (the NCIP) is incapable, or will appear to be so incapable, of delivering
justice to the non-indigenous peoples. A person’s possession of the trait of impartiality desirable of a
judge has nothing to do with his or her ethnic roots. In this wise, the indigenous peoples are as capable
of rendering justice as the non-indigenous peoples for, certainly, the latter have no monopoly of the
concept of justice.

In any case, there are sufficient checks in the law against any abuse by the NCIP of its quasi-judicial
powers. Section 67 states that the decision of the NCIP shall be appealable to the Court of Appeals by
petition for review. The regular remedies under our rules of procedure are likewise available to any
party aggrieved by the decision of the NCIP.

Anent the use of customary laws in determining the ownership and extent of ancestral domains, suffice
it to say that such is allowed under paragraph 2, Section 5 of Article XII of the Constitution. Said
provision states, "The Congress may provide for the applicability of customary laws governing property
rights and relations in determining the ownership and extent of the ancestral domains." Notably, the
use of customary laws under IPRA is not absolute, for the law speaks merely of primacy of use.176 The
IPRA prescribes the application of such customary laws where these present a workable solution
acceptable to the parties, who are members of the same indigenous group. This interpretation is
supported by Section 1, Rule IX of the Implementing Rules which states:

RULE IX. JURISDICTION AND PROCEDURES FOR ENFORCEMENT OF RIGHTS

Section 1. Primacy of Customary Law. All conflicts related to ancestral domains and lands, involving
ICCs/IPs, such as but not limited to conflicting claims and boundary disputes, shall be resolved by the
concerned parties through the application of customary laws in the area where the disputed ancestral
domain or land is located.

All conflicts related to the ancestral domains or 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 adjudicated in
accordance with the Rules on Pleadings, Practice and Procedures Before the NCIP to be adopted
hereafter. (Emphasis supplied.)

The application of customary law is limited to disputes concerning property rights or relations in
determining the ownership and extent of the ancestral domains,177 where all the parties involved are
members of indigenous peoples,178 specifically, of the same indigenous group. It therefore follows that
when one of the parties to a dispute is a non-member of an indigenous group, or when the indigenous
peoples involved belong to different groups, the application of customary law is not required.

Like any other law, the objective of IPRA in prescribing the primacy of customary law in disputes
concerning ancestral lands and domains where all parties involved are indigenous peoples is justice. The
utilization of customary laws is in line with the constitutional policy of recognizing the application
thereof through legislation passed by Congress.

Furthermore, the recognition and use of customary law is not a novel idea in this jurisdiction. Under the
Civil Code, use of customary law is sanctioned, as long as it is proved as a fact according to the rules of
evidence,179 and it is not contrary to law, public order or public policy.180 Moreover, the Local
Government Code of 1991 calls for the recognition and application of customary laws to the resolution
of issues involving members of indigenous peoples. This law admits the operation of customary laws in
the settling of disputes if such are ordinarily used in barangays where majority of the inhabitants are
members of indigenous peoples.181

B. Section 1, Part II, Rule VII of the Implementing Rules of IPRA does not infringe upon the President’s
power of control over the Executive Department.

The second corollary issue is whether the Implementing Rules of IPRA violate Section 17, Article VII of
the Constitution, which provides that:

The President shall have control of all the executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.

The assailed provision of the Implementing Rules provides:

Rule VII. The National Commission on Indigenous Peoples (NCIP)

xxx

Part II: NCIP as an Independent Agency Under the Office of the President

Section 1. The NCIP is the primary agency of government for the formulation and implementation of
policies, plans and programs to recognize, promote and protect the rights and well-being of indigenous
peoples. It shall be an independent agency under the Office of the President. As such, the
administrative relationship of the NCIP to the Office of the President is characterized as a lateral but
autonomous relationship for purposes of policy and program coordination. This relationship shall be
carried out through a system of periodic reporting. Matters of day-to-day administration or all those
pertaining to internal operations shall be left to the discretion of the Chairperson of the Commission, as
the Chief Executive Officer.

Petitioners asseverate that the aforecited rule infringes upon the power of control of the President over
the NCIP by characterizing the relationship of the NCIP to the Office of the President as "lateral but
autonomous...for purposes of policy and program coordination."

Although both Section 40 of the IPRA and Section 1, Part II, Rule VII of the Implementing Rules
characterize the NCIP as an independent agency under the Office of the President, such characterization
does not remove said body from the President’s control and supervision.

The NCIP has been designated under IPRA as the primary government agency responsible for the
formulation and implementation of policies, plans and programs to promote and protect the rights and
well being of the indigenous peoples and the recognition of their ancestral domain as well as their rights
thereto.182 It has been granted administrative,183 quasi-legislative184 and quasi-judicial powers185 to carry
out its mandate. The diverse nature of the NCIP’s functions renders it impossible to place said agency
entirely under the control of only one branch of government and this, apparently, is the reason for its
characterization by Congress as an independent agency. An "independent agency" is defined as an
administrative body independent of the executive branch or one not subject to a superior head of
department, as distinguished from a "subordinate agency" or an administrative body whose action is
subject to administrative review or revision.186

That Congress did not intend to place the NCIP under the control of the President in all instances is
evident in the IPRA itself, which provides that the decisions of the NCIP in the exercise of its quasi-
judicial functions shall be appealable to the Court of Appeals,187 like those of the National Labor
Relations Commission (NLRC) and the Securities and Exchange Commission (SEC). Nevertheless, the
NCIP, although independent to a certain degree, was placed by Congress "under the office of the
President" and, as such, is still subject to the President’s power of control and supervision granted under
Section 17, Article VII of the Constitution188 with respect to its performance of administrative functions,
such as the following: (1) the NCIP must secure the President’s approval in obtaining loans to finance its
projects;189 (2) it must obtain the President’s approval for any negotiation for funds and for the
acceptance of gifts and/or properties in whatever from and from whatever source;190 (3) the NCIP shall
submit annual reports of its operations and achievements to the President, and advise the latter on all
matters relating to the indigenous peoples;191 and (4) it shall exercise such other powers as may be
directed by the President.192 The President is also given the power to appoint the Commissioners of the
NCIP193 as well as to remove them from office for cause motu proprio or upon the recommendation of
any indigenous community.194

To recapitulate:

(1) The provisions of the IPRA (specifically Sections 3, paragraphs (a) and (b), 5, 6, 7, and 8) affirming the
ownership by the indigenous peoples of their ancestral lands and domains by virtue of native title do not
diminish the State’s ownership of lands of the public domain, because said ancestral lands and domains
are considered as private land, and never to have been part of the public domain, following the doctrine
laid down in Cariño vs. Insular Government;195
(2) The constitutional provision vesting ownership over minerals, mineral lands and other natural
resources in the State is not violated by Sections 3, 5, 7, 56, 57, 58 and 59 of the IPRA which grant
certain 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
priority rights in the harvesting, extraction, development or exploitation thereof. The State retains full
control over the exploration, development and utilization of natural resources even with the grant of
said rights to the indigenous peoples, through the imposition of requirements and conditions for the
utilization of natural resources under existing laws, such as the Small-Scale Mining Act of 1991196and the
Philippine Mining Act of 1995.197 Moreover, the rights granted to indigenous peoples for the utilization
of natural resources within their ancestral domains merely amplify what has been earlier granted to
them under the aforesaid laws;

(3) While the IPRA recognizes the rights of indigenous peoples with regard to their ancestral lands and
domains, it also protects the vested rights of persons, whether indigenous or non-indigenous peoples,
who may have acquired rights of ownership lands or rights to explore and exploit natural resources
within the ancestral lands and domains;198

(4) The Due Process Clause of the Constitution is not violated by the provisions (Sections 40, 51-54, 62,
63, 65 and 66) of the IPRA which, among others, establish the composition of the NCIP, and prescribe
the application of customary law in certain disputes involving indigenous peoples. The fact the NCIP is
composed wholly of indigenous peoples does not mean that it is incapable of being impartial. Moreover,
the use of customary laws is sanctioned by paragraph 2, Section 5 of Article XII of the Constitution; and

(5) The provision of the Implementing Rules characterizing the NCIP as an independent agency under
the Office of the President does not infringe upon the President’s power of control under Section 17,
Article VII of the Constitution, since said provision as well as Section 40 of the IPRA expressly places the
NCIP under the Office of the President, and therefore under the President’s control and supervision with
respect to its administrative functions. However, insofar as the decisions of the NCIP in the exercise of
its quasi-judicial powers are concerned, the same are reviewable by the Court of Appeals, like those of
the NLRC and the SEC.

In view of the foregoing, I vote to DISMISS the petition.

Footnotes
1
Teehankee vs. Rovira, 75 Phil. 634 (1945); San Miguel Corporation vs. Avelino, 89 SCRA 69 (1979); Phil.
Long Distance Telephone Co. vs. Collector of Internal Revenue, 90 Phil 674 (1952).
2
In re Guarina, 24 Phil. 37 (1913).
3
In Philippine Colonial history, the term indio applied to indigenous throughout the vast Spanish empire.
India was a synonym for all of Asia east of the Indus River. Even after it became apparent that the
explorer Christopher Columbus was not able to reach territories lying off the east coast of Asia, the
Spanish persisted in referring to all natives within their empire as los Indios. (Owen J. Lynch, Jr., THE
PHILIPPINE COLONIAL DICHOTOMY: Attraction and Disenfranchisement, 63 PL J 112 [1988] citing R.
BERKHOFER, THE WHITE MAN’S INDIAN: IMAGES OF THE AMERICAN INDIAN FROM COLUMBUS TO THE
PRESIDENT 5 [1979].
4
Webster’s Third New International Dictionary (1976), p. 1151.
5
Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach to the Asian
Controversy, 92 The American Journal of International Law 414, 419 (1998) citing Jose Martinez Cobo,
Study of the Problem of Discrimination against indigenous population, UN Doc. E/CN.4/Sub. 2/1986/ 7/
Add. 4, paras. 379-80.
6
Ibid. This definition is criticized for taking the potentially limited, and controversial view of indigenous
peoples by requiring "historical continuity with pre-invasion and pre-colonial societies that developed
on their territories."
7
4 Record of the Constitutional Commission 34.
8
Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 680 (1919).
9
Hearing before the Committee on the Philippines, United States Senate, Sixty-Third Congress, Third
Session on HR 18459, pp. 346, 351. Quoted in Rubi at 686.
10
United States President McKinleys’ Instruction to the Philippine Commission, April 7, 1900, quoted in
Rubi at 680.
11
US v. Tubban, 29 Phil. 434, 436 (1915).
12
See Owen J. Lynch, Jr., Invisible Peoples And A Hidden Agenda: The Origins of Contemporary
Philippine Land Laws (1900-1913), 63 PLJ 249 (1988).
13
For an introduction to the chasm that exists between Philippine Law and Indigenous Custom Law, see
Owen J. Lynch, Jr., Native Title, Private Right and Tribal Land Law: An Introductory Survey 52 PLJ 268
(1982); and the Philippine Indigenous Law Collection: An Introduction and Preliminary Bibliography, 58
PLJ 457 (1983), by the same author.
14
See Renato Constantino, The Philippines: A Past Revisited (1975), pp. 26-41; Teodoro Agoncillo, A
History of the Filipino People, 8th ed., pp. 5, 74-75.
15
Response of Rep. Gregorio A. Andolana to the interpellation of Rep. John Henry R. Osmeña on ouse
Bill No. 9125, Journal of August 20 and 21, 1997 of the House of Representatives, p.20.
16
Philippines Yearbook (1998 ed.), p. 366.
17
Article II of the Constitution, entitled State Principles and Policies.
18
Article XII of the Constitution, entitled National Economy and Patrimony.
19
Article XIII of the Constitution, entitled Social Justice and Human Rights.
20
Ibid.
21
Article XIV of the Constitution, entitled Education, Science, Technology, Arts, Culture, and Sports.
22
Article XVI of the Constitution, entitled General Provisions.
23
SECTION 2. Declaration of State Policies . - The State shall recognize and promote all the rights of
Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder enumerated within the
framework of the Constitution:

a) The State shall recognize and promote the rights of ICCs/IPs within the framework of national unity
and development;

b) The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure their economic,
social and cultural well being and shall recognize the applicability of customary laws governing property
rights or relations in determining the ownership and extent of ancestral domain;

c) The State shall recognize, respect and protect the rights of ICCs/IPs to preserve and develop their
cultures, traditions and institutions. It shall consider these rights in the formulation of national laws and
policies;

d) The State shall guarantee that members of the ICCs/IPs regardless of sex, shall equally enjoy the full
measure of human rights and freedoms without distinction or discrimination;

e) The State shall take measures, with the participation of the ICCs/IPs concerned, to protect their rights
and guarantee respect for their cultural integrity, and to ensure that members of the ICCs/IPs benefit on
an equal footing from the rights and opportunities which national laws and regulations grant to other
members of the population; and

f) The State recognizes its obligations to respond to the strong expression of the ICCs/IPs for cultural
integrity by assuring maximum ICC/IP participation in the direction of education, health, as well as other
services of ICCs/IPs, in order to render such services more responsive to the needs and desires of these
communities.

Towards these ends, the State shall institute and establish the necessary mechanisms to enforce and
guarantee the realization of these rights, taking into consideration their customs, traditions, values,
beliefs, interests and institutions, and to adopt and implement measures to protect their rights to their
ancestral domains.
24
See Sections 13-20, R.A. 8371.
25
See Sections 21-37, R.A. 8371.
26
See Sections 4-12, R.A. 8371.
27
See Sections 38-50, R.A. 8371.
28
Dumlao v. COMELEC, 95 SCRA 392, 400 (1980), citing People vs. Vera, 65 Phil. 56 (1937).
29
Subic Bay Metropolitan Authority v. COMELEC, 262 SCRA 492, 513 (1996).
30
Board of Optometry v. Colet, 260 SCRA 88, 104 (1996).
31
Muskrat v. United States, 219 US 346, 362 (1913).
32
WEBSTERS’S THIRD NEW INTERNATIONAL DICTIONARY, 1976, p. 497.
33
United States v. Freuhauf, 365 US 146 (1961).
34
Association of Small Landowners v. Secretary of Agrarian Reform, 175 SCRA 343, 364 (1989); Joya v.
PCGG, 225 SCRA 568 (1993).
35
People v. Vera, 65 Phil. 56, 89 (1937).
36
Lozada v. COMELEC, 120 SCRA 337, 342 (1983).
37
US v. Richardson, 418 US 166, 194 S Ct 2940, 41 L Ed 2d 678 (1974).
38
Kilosbayan v. Guingona, 232 SCRA 110, 135 (1994), citing, among others, Philconsa v. Gimenez, 15
SCRA 479 (1965); CLU V. Executive Secretary, 194 SCRA 317 (1991); Guingona v. Carague, 196 SCRA 221
(1991); Osmena v. COMELEC, 199 SCRA 750 (1991); Basco v. PAGCOR, 197 SCRA 52 (1991); Carpio v.
Executive Secretary, 206 SCRA 290 (1992).

In Kilosbayan v. Morato (250 SCRA 130 [1995]) the Court discoursed on the rule on standing as follows:
taxpayers may sue on the claim of illegal disbursement of funds, or to assail the constitutionality of a tax
measure; voters may question the validity of election laws; citizens may raise constitutional questions of
transcendental importance which must be settled early; and, legislators may question the validity of
official acts which infringe their prerogatives.
39
Araneta v. Dinglasan, 84 Phil. 368, 373 (1949).
40
Assn. of Small Landowners in the Philippines v. Secretary of Agrarian Reform, 175 SCRA 343, 364-365
(1989).
41
16 Phil. 366 (1910), citing HIGH, EXTRAORDINARY LEGAL REMEDIES.
42
Id., at 371.
43
Id., at 374-375.
44
136 SCRA 27, 37 (1985).
45
177 SCRA 374, 383 (1989).
46
224 SCRA 792 (1993).
47
Id., at 805.
48
Ibid.
49
Philconsa v. Mathay, 18 SCRA 300, 306 (1966).
50
Philconsa v. Gimenez, 15 SCRA 479, 487 (1965), citing 11 Am Jur 761.
51
Sanidad v. COMELEC, 73 SCRA 333, 358-359 (1976); Pascual v. Secretary of Public Works, 110 Phil. 331
(1960); Tan v. Macapagal, 43 SCRA 677, 680 (1972).
52
Section 79. Appropriations.- The amount necessary to finance the initial implementation of this Act
shall be charged against the current year's appropriation of the ONCC and the OSCC. Thereafter, such
sums as may be necessary for its continued implementation shall be included in the annual General
Appropriations Act.
53
Section 74. Merger of ONCC/OSCC.—The Office for Northern Cultural Communities (ONCC) and the
Office for Southern Cultural Communities (OSCC), created under Executive Order Nos. 122-B and 122-C
respectively, are hereby merged as organic offices of the NCIP and shall continue to function under a
revitalized and strengthened structure to achieve the objectives of the NCIP x x x.
54
Section 2, Rule 65, 1997 RULES OF CIVIL PROCEDURE.
55
Section 3, Rule 65, 1997 RULES OF CIVIL PROCEDURE.
56
Article VIII of the Constitution states:

Sec. 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

xxx

Batas Pambansa Blg. 129 (B.P. 129), as amended, provides:

Sec. 9. Jurisdiction.-The Court of Appeals shall exercise:

(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;

x x x.

Sec. 21. Original jurisdiction in other cases.- Regional Trial Courts shall exercise original jurisdiction:

(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and
injunction which may be enforced in any part of their respective regions; and

(2) In actions affecting ambassadors and other public ministers and consuls.
57
Tano vs. Socrates, 278 SCRA 154, 173-174 (1997).
58
172 SCRA 415 (1989).
59
Id., at 424.
60
Section 7. Rights to Ancestral Domains.—The rights of ownership and possession of ICCs/IPs to their
ancestral domains shall be recognized and protected. Such rights shall include:

(a) Right of Ownership. – The right to claim ownership over lands, bodies of water traditionally and
actually occupied by ICCs/IPs, sacred places, traditional

(b) hunting and fishing grounds, and all improvements made by them at any time within the domains;

xxx
61
Section 3(l) Native Title – refers to pre-conquest rights to lands and domains which, as far back as
memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been public
lands and are thus indisputably presumed to have been held that way since before the Spanish
Conquest; x x x
Section 3(p) Time Immemorial - refers to a period of time when as far back as memory can go, certain
ICCs/IPs are known to have occupied, possessed in the concept of owners, and utilized a defined
territory devolved to them, by operation of customary law or inherited from their ancestors, in
accordance with their customs and traditions.
62
Section 3(b) Ancestral Lands – Subject to Section 56 hereof, refers to land occupied, possessed and
utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by
themselves or through their predecessors-in-interest, under claims of individual or traditional group
ownership, continuously to the present except when interrupted by war, force majeure or displacement
by force, deceit, stealth, or as a consequence of government projects or any other voluntary dealings
entered into by the government and private individuals/corporations, including, but not limited to,
residential lots, rice terraces or paddies, private forests, swidden farms and tree lots;
63
Section 3(a) Ancestral Domains – Subject to Section 56 hereof, refer to all areas generally belonging to
ICCs/IPs comprising lands, inland waters, coastal areas and natural resources therein, held under a claim
of ownership, occupied or possessed by Indigenous peoples, by themselves or through their ancestors,
communally or individually since time immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of
government projects or any other voluntary dealings entered into by the government and private
individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare.
It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually
owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas,
bodies of water, mineral and other resources, and lands which may no longer be exclusively be occupied
by Indigenous peoples but from which they traditionally had access to for their subsistence and
traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting
cultivators.
64
Ibid.
65
Hebron v. Reyes, 104 Phil. 175 (1958); San Miguel Corporation v. Avelino, 89 SCRA 69 (1979).
66
In re Guarina, 24 Phil 37 (1913).
67
See Lee Hong Hok vs. David, 48 SCRA 372 (1972).
68
Peña, Registration of Land Titles and Deeds, 1994 rev. ed., p. 15.
69
1 Bouvier’s Law Dictionary, 3rd revision, p. 1759.
70
Black’s Law Dictionary, 6th ed., p. 1282.
71
76 Corpus Juris Secundum, citing Hart v. Burnett, 15 Cal. 530, 566.
72
Washburn, p. 44; see also Williams, Principles Of The Law On Real Property, 6th ed. (1886), p.2;
Bigelow, p. 2.
73
Warvelle, Abstracts and Examination of Title to Real Property (1907), p.18.
74
1 Dictionary of English Law (Jowitt, ed.), p. 797.
75
41 Phil. 935, 212 U.S. 449, 53 L Ed. 594 (1909).
76
Cariño vs. Insular Government, 7 Phil. 132 (1906). The Philippine Supreme Court in this case held that
in the Philippines, there is no conclusive presumption of a grant of title to land from the Government
founded merely upon long possession of the same by the applicant.
77
Cariño vs. Insular Government, supra note 75, at 941.
78
Section 10, Philippine Bill of 1902.
79
75 Phil 890 (1946).
80
Id., at 892.
81
Memorandum of Petitioners, Rollo, p. 861.
82
Section 3, Article XII, Constitution.
83
Under the Treaty of Tordesillas, the world was divided between Spain and Portugal, with the former
having exclusive power to claim all lands and territories west of the Atlantic Ocean demarcation line
(Lynch, The Legal Bases of Philippine Colonial Sovereignty, 62 Phil L J 279, 283 [1987]).
84
See AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW, 5th ed., 142-143.
85
See Cruz, International Law, 1996 ed., pp. 106-107.
86
Cariño v. Insular Government, supra note 75, at 939.

This point finds significance in light of the distinction between sovereignty and dominion. Sovereignty is
the right to exercise the functions of a State to the exclusion of any other State (Case Concerning the
Island of Las Palmas [1928], UNRIAA II 829, 838). It is often referred to as the power of imperium, which
is defined as the government authority possessed by the State (Bernas, The Constitution of the Republic
of the Philippines: A Commentary Vol. 2, p. 419). On the other hand, dominion, or dominium, is the
capacity of the State to own or acquire property such as lands and natural resources.

Dominium was the basis for the early Spanish decrees embracing the theory of jura regalia. The
declaration in Section 2, Article XII of the 1987 Constitution that all lands of the public domain are
owned by the State is likewise founded on dominium (Ibid.). If dominium, not imperium, is the basis of
the theory of jura regalia, then the lands which Spain acquired in the 16th century were limited to non-
private lands, because it could only acquire lands which were not yet privately-owned or occupied by
the Filipinos. Hence, Spain acquired title only over lands which were unoccupied and unclaimed, i.e.,
public lands.
87
Phelan, The Hispanization of the Philippines: Spanish Aims and Filipinos Responses, 1565-1700 (1959),
pp. 8-9.
88
Cariño vs. Insular Government, supra note 75, at 943.
89
Book 4, Title 12, Law 9, decreed by Philip II, 1 June 1594. We order that grants of farms and lands to
Spaniards be without injury to the Indians and that those which have been granted to their loss and
injury, be returned to the lawful owners.
Book 4, Title 12, Law 14. We having acquired full sovereignty over the Indies, and all lands, territories,
and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still
pertaining 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 according as they belong to us, in order that x x x after distributing
to the natives what may be necessary for tillage and pasteurage, confirming them in what they now
have and giving them more if necessary, all the rest of said lands may remain free and unencumbered
for us to dispose of as we wish. [Quoted in Valenton v. Murciano, 3 Phil. 537, 542-543 (1904).] (Emphasis
supplied.)

Book 6, Title 1, Law 15, decreed by King Philip II, at Madrid, 7 November 1574. We command that in the
Philippine Islands the Indians not be removed from one to another settlement by force and against their
will.

Book 6, Title 1, Law 23, otherwise known as Ordinance 10 of 1609 decreed by Philip III. It is right that
time should be allowed the Indians to work their own individual lands and those of the community.

Book 6, Title 1, Law 32, decreed by Philip II, 16 April 1580. We command the Viceroys, Presidents, and
Audiencias that they see to it that the Indians have complete liberty in their dispositions.

Royal Cedula of October 15, 1754. Where such possessors shall not be able to produce title deeds it shall
be sufficient if they shall show that ancient possession, as a valid title by prescription; x x x. [Quoted in
Valenton v. Murciano, supra, at 546.] (Emphasis supplied.)
90
Article 6 of the royal decree of June 25, 1880, quoted in Valenton v. Murciano, supra note 89 at 549.
91
Cariño v. Insular Government, supra note 75, at 944.
92
Memorandum of Petitioners, par. 3.4, Rollo, pp. 845-846.
93
The Treaty of Paris reads in part:

Article III. Spain cedes to the United States the archipelago known as the Philippine Islands, x x x.

The United States will pay to Spain the sum of twenty million dollars, within three months after the
exchange of the ratifications of the present treaty.

xxx

Article VIII. In conformity with the provisions of Articles One, Two, and Three of this treaty, Spain
relinquishes in Cuba, and cedes in Porto Rico and other islands of the West Indies, in the Island of Guam,
and in the Philippine Archipelago, all the buildings, wharves, barracks, forts, structures, public highways,
and other immovable property which, in conformity with law, belong to the public domain and as such
belong to the Crown of Spain.

And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding
paragraph refers, can not in any respect impair the property or rights which by law belong to the
peaceful possession of property of all kinds, of provinces, municipalities, public or private
establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire
and possess property in the aforesaid territories renounced or ceded, or of private individuals, of
whatsoever nationality such individuals may be.
94
The statute reads in part:

Section 12. That all the property and rights which may have been acquired in the Philippine Islands
under the treaty of peace with Spain, signed December tenth, eighteen hundred and ninety-eight,
except such land or other property as shall be designated by the President of the United States for
military and other reservations of the Government of the United States, are hereby placed under the
control of the Government of said Islands, to be administered for the benefit of the inhabitants thereof,
except as provided by this Act.
95
McKinley’s Instructions to the Second Philippine Commission, in Mendoza, From McKinley’s
Instructions to the New Constitution: Documents on the Philippine Constitutional System (1978) p. 71.
96
Id., at 65-75; Section 5, Philippine Bill of 1902.
97
Solicitor General’s Memorandum, Rollo, p. 668-669.
98
Id, at 668.
99
Section 1, Article XII, 1935 Constitution reads:

All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to
the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of
the Philippines, or to corporations or associations at least sixty per centum of the capital of which is
owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the
inauguration of the Government established under this Constitution. Natural resources, with the
exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another twenty five years, except as to water rights for
irrigation, water supply, fisheries or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and limit of the grant.
100
Central Azucarera Don Pedro v. Central Bank, 104 Phil 598 (1954).
101
Sec. 5, Article XII. The State, subject to the provisions of this Constitution and national development
policies and programs, shall protect the rights of indigenous cultural communities to their ancestral
lands to ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domains.
102
See Memorandum of Petitioners, Rollo, pp. 863-864.
103
Sibal, Philippine Legal Encyclopedia, p. 893.
104
Black's Law Dictionary, 5th ed., p. 1189.
105
Ibid.
106
4 Record of the Constitutional Commission 32.
107
Id., at 37.
108
Solicitor General’s Memorandum, Rollo, p. 665.
109
Torres v. Tan Chim, 69 Phil 518 (1940); CIR v.Guerrero, 21 SCRA 180 (1967).
110
4 Record of the Constitutional Commission 36.
111
See 1 COOLEY, CONST., LIMITATIONS, 8th ed., pp. 127-129.
112
See pp. 8-9 of this Opinion for the full text of the constitutional provisions mentioned.
113
Section 1, Article XII provides:

The goals of the national economy are a more equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit
of the people; and an expanding productivity as the key to raising the quality of life for all, especially the
underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development
and agrarian reform, through industries that make full and efficient use of human and natural resources,
and which are competitive in both domestic and foreign markets. However, the State shall protect
Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given
optimum opportunity to develop. Private enterprises, including corporations, cooperatives and similar
collective organizations, shall be encouraged to broaden the base of their ownership. (Emphasis
supplied.)
114
Bernas, The Intent of the 1986 Constitution Writers, p. 800, citing the sponsorship speech of Dr.
Bernardo Villegas, Chairman of the Committee on National Economy and Patrimony.
115
4 Record of the Constitutional Commission 34.
116
Petition, Rollo, pp.18-19.
117
Id., at 20.
118
Section 3. Definition of Terms. -For Purposes of this Act, the following terms shall mean:

a) Ancestral Domains. -Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs
comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of
ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or
individually since time immemorial, continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government projects or any
other voluntary dealings entered into by government and private individuals/corporations, and which
are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands,
forests, pasture, residential, agricultural, and other lands, individually owned whether alienable and
disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and
other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from
which they traditionally had access to for their subsistence and traditional activities, particularly the
home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.
119
Section 5. Indigenous Concept of Ownership- Indigenous concept of ownership sustains the view that
ancestral domains and all resources found therein shall serve as the material bases of their cultural
integrity. The indigenous concept of ownership generally holds that ancestral domains are the ICCs/IPs
private but community property which belongs to all generations and therefore cannot be sold,
disposed or destroyed. It likewise covers sustainable traditional resource rights.
120
Section 7. Rights to Ancestral Domains.—The rights of ownership and possession of ICCs/IPs to their
ancestral domains shall be recognized and protected. Such rights shall include:

(a) Right of Ownership. – The right to claim ownership over lands, bodies of water traditionally and
actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains;

(b) Right to Develop Lands and Natural Resources. – Subject to Section 56 hereof, right to develop,
control and use lands and territories traditionally occupied, owned, or used; to manage and conserve
natural resources within the territories and uphold the responsibilities for future generations; to benefit
and share the profits from allocation and utilization of the natural resources found therein; the right to
negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose
of ensuring ecological, environmental protection and the conservation measures, pursuant to national
and customary laws; the right to an informed and intelligent participation in the formulation and
implementation of any project, government or private, that will affect or impact upon the ancestral
domains and to receive just and fair compensation for any damages which they may sustain as a result
of the project; and the right to effective measures by the government to prevent any interference with,
alienation and encroachment upon these rights; x x x (Emphasis supplied.)
121
Section 2, Article XII, Constitution.
122
Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. II, p. 42 (1983);
see also Articles 427 and 428, Civil Code.
123
Id., at 43.
124
Section 5, R.A. 8371.
125
Ibid.
126
Should be Section 7. The Transcript of Session Proceedings of the deliberations of the Bicameral
Conference Committee on National Cultural Communities regarding House Bill No. 9125 refers to
Section 8 but the Committee was actually discussing Section 7 on Rights to Ancestral Domains.
127
Transcript of Session Proceedings, Bicameral Conference Committee on National Cultural
Communities, October 9, 1997, XIV-2.
128
Sections 7 (b) and Section 57, R.A. 8371.
129
40 Phil. 1017 (1909), 215 US 16, 54 L Ed 72.
130
Ibid. The facts of the case were discussed in Fianza vs. Reavies, (7 Phil. 610 [1909]) thus: Jose Fianza,
et al., members of the Igorot tribe, claimed that he and his predecessors had, for more than fifty years
prior to 1901, possessed a certain parcel of mineral land on which were found two gold mines. The same
parcel of land was also claimed by an American, J.F. Reavies, who entered the land in 1901 and
proceeded to locate mining claims according to the mining laws of the United States. The Philippine
Supreme Court held that Fianza, et al. were the rightful owners of the mineral lands pursuant to Section
45 of the Philippine Bill of 1902 which in sum states that where a person have held or worked on their
mining claims for a period equivalent to ten years, evidence of such possession and working of the
claims for such period shall be sufficient to establish a right to a patent thereto. On appeal, the United
States Supreme Court affirmed the decision of the Philippine Supreme Court and held that the
indigenous peoples were the rightful owners of the contested parcel of land, stating that the possession
and working by Fianza, et al. of the mining claim in the Philippine Islands for the time required under the
Section 45 of the Philippine Bill of 1902 to establish the right to a patent, need not have been under a
claim of title.
131
Memorandum of Intervenors Flavier, et al., Rollo, p. 918.
132
Article I of the Decree of Superior Civil Government of January 29, 1864 provided that "The supreme
ownership of mines throughout the kingdom belong to the crown and the king. They shall not be
exploited except by persons who obtained special grant from this superior government and by those
who may secure it thereafter, subject to this regulation." (FRANCISCO, PHILIPPINE LAWS ON NATURAL
RESOURCES, 2nd ed. [1956], p. 14, citing the unpublished case of Lawrence v. Garduno, G.R. No. 19042.)

Article 2 of the Royal Decree of May 14, 1867 (the Spanish Mining Law), the law in force at the time of
the cession of the Philippines to the United States contained a similar declaration, thus:

The ownership of the substances enumerated in the preceding article (among them those of
inflammable nature) belongs to the state, and they cannot be disposed of without an authorization
issued by the Superior Civil Governor.

The Spanish Civil Code contained the following analogous provisions affirming the State’s ownership
over minerals:

Art. 339. Property of public dominium is-

xxx

2. That belonging exclusively to the State which, without being of general public use, is employed in
some public service, or in the development of the national wealth, such as walls, fortresses, and other
works for the defense of the territory, and mines, until granted to private individuals.

Art. 350. The proprietor of land is the owner of the surface and of everything under it and may build,
plant or excavate thereon, as he may see fit, subject to any existing easements and to the provisions of
the Laws on Mines and Waters and to police regulations.

After the Philippines was ceded to Spain, the Americans continued to adhere to the concept of State-
ownership of natural resources. However, the open and free exploration, occupation and purchase of
mineral deposits and the land where they may be found were allowed under the Philippine Bill of 1902.
Section 21 thereof stated:
Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and
unsurveyed, are hereby declared to be free and open to exploration, occupation and purchase, and the
land in which they are found, to occupation and purchase, by citizens of the United States, or of said
Islands: Provided, That when on any lands in said Islands entered and occupied as agricultural lands
under the provisions of this Act, but not patented, mineral deposits have been found, the working of
such mineral deposits is hereby forbidden until the person, association, or corporation who or which has
entered and is occupying such lands shall have paid to the Government of said Islands such additional
sum or sums as will make the total amount paid for the mineral claim or claims in which said deposits
are located equal to the amount charged by the Government for the same as mineral claims.

Other natural resources such as water and forests were similarly regarded as belonging to the State
during both the Spanish and American rule in the Philippines, viz:

Article 33 of the Law of Waters of August 3, 1866 defined waters of public ownership as (1) the waters
springing continuously or intermittently from lands of the public domain; (2) the waters of rivers; and (3)
the continuous or intermittent waters of springs and creeks running through their natural channels.

Article 1 of the same law states:

The following are also part of the national domain open to public use:

1. The coasts or maritime frontiers of the Philippine territory with their coves, inlets, creeks, roadsteads,
bays and ports

2. The coast of the sea, that is, the maritime zone encircling the coasts, to the full width recognized by
international law. The state provides for and regulates the police supervision and the uses of this zone
as well as the right of refuge and immunity therein, in accordance with law and international treaties.

With respect to forests, there are references made regarding State-ownership of forest lands in
Supreme Court decisions (See Director of Forestry vs. Munoz, 23 SCRA 1183, 1198-1199 [1968]; Director
of Lands vs. Abanzado, 65 SCRA 5, 11 [1975]; Mapa vs. Insular Government, 10 Phil. 175, 184 [1908];
Montano vs. Insular Government, 12 Phil 572, 584 [1909]).

The State’s ownership over natural resources was embodied in the 1935, 1973 and 1987 Constitutions.
Section 1, Article XII of the 1935 Constitution declared:

All agricultural, timber and mineral lands of the public domain, waters, minerals, coal, petroleum and
other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to
the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of
the Philippines, or to corporations or associations at least sixty per centum of the capital of which is
owned by such citizens, subject to any existing right, grant, lease or concession at the time of the
inauguration of the Government established under this Constitution. Natural resources, with the
exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the
exploitation, or utilization of any of the natural resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty -five years, except as to water rights for irrigation,
water supply, fisheries, or industrial uses other than the development of water power, in which cases
beneficial use may be the measure and the limit of the grant.

Section 8, Article XIV of the 1973 Constitution provided:


All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State.
With the exception of agricultural, industrial or commercial, residential, and resettlement lands of the
public domain, natural resources shall not be alienated, and no license, concession, or lease for the
exploration, development, exploitation, or utilization of any of the natural resources shall be granted for
a period exceeding twenty-five years, renewable for not more than twenty-five years, except as to water
rights for irrigation water supply, fisheries, or industrial uses other than the development of water
power, in which cases, beneficial use may be the measure and limit of the grant.
133
Noblejas, Philippine Law on Natural Resources 1961 Revised Ed., p. 6
134
See Laurel (ed.), Proceedings of the Philippine Constitutional Convention, Vol. VI, pp. 494-495.
135
Explanatory Note of the Committee on Nationalization of Lands and Natural Resources, September
14, 1934, reproduced in Laurel (ed.), Proceedings of the Philippine Constitutional Convention, Vol. VII,
pp. 464-468; see also De Leon and De Leon, Jr., Philippine Constitutional Law: Principles and Cases, Vol.
2, pp. 801-802.
136
Section 8, Article XIV, see note 139 for the full text of the provision.
137
Paragraph 1, Section 2, Article XII of the 1987 Constitution provides:

All lands of the public domain, waters, minerals, coal, petroleum, and other minerals oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are
owned by the State. with the exception of agricultural lands, all other natural resources shall not be
alienated. The exploration, development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such activities, or it may enter
into co-production, joint venture, or production-sharing agreements with Filipino citizens, or
corporations and associations at least sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-
five years, and under such rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
138
Section 7. Rights to Ancestral Domains.—The rights of ownership and possession of ICCs/IPs to their
ancestral domains shall be recognized and protected. Such rights shall include:

xxx

b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, right to develop, control
and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural
resources within the territories and uphold the responsibilities for future generations; to benefit and
share the profits from allocation and utilization of the natural resources found therein; the right to
negotiate the terms and conditions for the exploration of natural resources in the areas for the
purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to
national and customary laws; the right to an informed and intelligent participation in the formulation
and implementation of any project, government or private, that will affect or impact upon the ancestral
domains and to receive just and fair compensation for any damages which they may sustain as a result
of the project; and the right to effective measures by the government to prevent any interference with,
alienation and encroachment upon these rights;
139
Section 57. Natural Resources within Ancestral Domains.-The ICCs/IPs shall have priority rights in the
harvesting, extraction, development or exploitation of any natural resources within the ancestral
domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and
utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for
not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into
with the ICCs/IPs concerned or that the community, pursuant to its own decision making process, has
agreed to allow such operation: Provided, finally, That the NCIP may exercise visitorial powers and take
appropriate action to safeguard the rights of the ICCs/IPs under the same contract.
140
Section 59. Certification Precondition - All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or
entering into any production-sharing agreement, without prior certification from the NCIP that the area
affected does not overlap with any ancestral domain. Such certification shall only be issued after a field-
based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That
no certification shall be issued by the NCIP without the free and prior informed and written consent of
Indigenous peoples concerned: Provided, further, That no department, government agency or
government-owned or controlled corporation may issue new concession, license, lease, or production
sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs
shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the
requirement of this consultation process.
141
Section 58. Environmental Considerations.- Ancestral domains or portions thereof, which are found to
be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest
cover, or reforestation as determined by appropriate agencies with the full participation of the
Indigenous peoples concerned shall be maintained, managed and developed for such purposes. The
Indigenous peoples concerned shall be given the responsibility to maintain, develop, protect and
conserve such areas with the full and effective assistance of government agencies. Should the
Indigenous peoples decide to transfer the responsibility over the areas, said decision must be made in
writing. The consent of the Indigenous peoples should be arrived at in accordance with its customary
laws without prejudice to the basic requirements of existing laws on free and prior informed consent:
Provided, That the transfer shall be temporary and will ultimately revert to the Indigenous peoples in
accordance with the program for technology transfer; Provided, further, That no Indigenous peoples
shall be displaced or relocated for the purpose enumerated under this section without the written
consent of the specific persons authorized to give consent.
142
Citing Section 2, Article XII of the Constitution.
143
Memorandum of Petitioners, Id., at 840-841.
144
State v. Lathrop, 93 Ohio St 79, 112 NE 209, cited in 16 Am Jur 2d, Constitutional Law, § 100.
145
Old Wayne Mutual Life Assn. v. McDonough, 204 US 8, 51 L Ed 345, cited in 16 Am Jur 2d
Constitutional Law, § 100.
146
Third paragraph, Section 2, Article XII, Constitution –
The Congress may, by law, allow small scale-utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays,
and lagoons.
147
Section 6, Article XIII, Constitution –

The State shall apply the principles of agrarian reform or stewardship, whenever applicable in
accordance with law, in the disposition and utilization of other natural resources, including lands of the
public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights
of small settlers, and the rights of the indigenous communities to their ancestral lands.

The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be
distributed to them in the manner provided by law.
148
Section 7, Article XIII, Constitution –

The State shall protect the rights of subsistence fishermen, especially of local communities, to the
preferential use of the communal marine and fishing resources, both inland and offshore. It shall
provide support to such fishermen through appropriate technology and research, adequate financial,
production, and marketing assistance, and other services. The State shall also protect, develop, and
conserve such resources. The protection shall extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the
utilization of marine and fishing resources.
149
Bower v. Big Horn Canal Assn. (Wyo) 307 P2d 593, cited in 16 Am Jur 2d Constitutional Law, § 100.
150
Republic Act No. 7076 (the Small-Scale Mining Act of 1991), Republic Act No. 7942 (the Philippine
Mining Act of 1995).
151
Section 3(b) of R.A. 7076 defines "small-scale mining" as referring to mining activities which rely
heavily on manual labor using simple implements and methods and do not use explosives or heavy
mining equipment.
152
Section 7, R.A. 7076 provides:

Ancestral lands. - No ancestral land may be declared as a people’s small-scale mining area without the
prior consent of the cultural communities concerned: Provided, That, if ancestral lands are declared as
peole’s small-scale mining areas, the members of the cultural communities therein shall be given
priority for the awarding of a people’s small-scale mining contract.
153
Section 16, R.A. 7492.
154
Section 17, R.A. 7942.
155
Sec. 3(q), Chapter 1, Republic Act No. 7942 (the Philippine Mining Act of 1995).
156
4 Record of the Constitutional Commission 37.
157
Sections 7(a) and (b), R.A. 8371.
158
Presidential Decree No. 1151 (1971).
159
Presidential Decree No. 1586 (1978) and DENR Administrative Order No. 37 (1996).
160
Republic Act No. 7160 (1991).
161
Republic Act No. 7942.
162
Petition, Rollo, pp. 23-25.
163
Ramirez v. CA, 248 SCRA 590, 596 (1995).
164
Section 53 (f), R.A. 8371.
165
Section 52, R.A. 8371.
166
Section 53, R.A. 8371.
167
Sections 40, 51, 52, 53, 54, 62 and 66, R.A. No. 8371.
168
Sections 63 and 65, R.A. No. 8371.
169
Section 40. Composition.- The NCIP shall be an independent agency under the Office of the President
and shall be composed of seven (7) Commissioners belonging to the ICCs/IPs, one (1) of whom shall be
the Chairperson. The Commissioners shall be appointed by the President of the Philippines from a list of
recommendees submitted by authentic ICCs/IPs: Provided, That the seven (7) Commissioners shall be
appointed specifically from each of the following ethnographic areas, Region I and the Cordilleras;
Region II, the rest of Luzon; Island Groups including Mindoro, Palawan, Romblon, Panay and the rest of
the Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao; and Central Mindanao:
Provided, That at least two (2) of the seven (7) Commissioners shall be women.
170
Section 66. Jurisdiction of the NCIP.- The NCIP, through its regional offices, shall have jurisdiction over
all claims and disputes involving rights of ICCs/IPs. Provided, however, That no such dispute shall be
brought to the NCIP unless the parties have exhausted all remedies provided under their customary
laws. For this purpose, a certification shall be issued by the Council of Elders/Leaders who participated in
the attempt to settle the dispute that the same has not been resolved, which certification shall be a
condition precedent to the filing of a petition with the NCIP.
171
Section 62. Resolution of Conflicts.- In cases of conflicting interest, where there are adverse claims
within the ancestral domains as delineated in the survey plan, and which can not be resolved, the NCIP
shall hear and decide, after notice to the proper parties, the disputes arising from the delineation of
such ancestral domains: Provided, That if the dispute is between and/or among ICCs/IPs regarding the
traditional boundaries of their respective ancestral domains, customary process shall be followed. The
NCIP shall promulgate the necessary rules and regulations to carry out its adjudicatory functions:
Provided, further, That any decision, order, award or ruling of the NCIP on any ancestral domain dispute
or on any matter pertaining to the application, implementation, enforcement and interpretation of this
Act may be brought for Petition for Review to the Court of Appeals within fifteen (15) days from receipt
of a copy thereof.
172
Memorandum of Petitioners, Rollo ,pp. 873-874.
173
Section 3 (f). Customary Laws - refer to a body of written and/or unwritten rules, usages, customs
and practices traditionally and continually recognized, accepted and observed by respective ICCs/IPs;
xxx

Sec. 63. Applicable Laws. - Customary laws, traditions and practices of the ICCs/IPs of the land where the
conflict arises shall be applied first with respect to property rights, claims and ownerships, hereditary
succession and settlement of land disputes. Any doubt or ambiguity in the application and interpretation
of laws shall be resolved in favor of the ICCs/IPs.
174
Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve ICCs/IPs, customary laws
and practices shall be used to resolve the dispute.
175
Memorandum of Petitioners, Rollo, pp.875-876.
176
R.A. 8371 states:

Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve ICCs/IPs, customary laws and
practices shall be used to resolve the dispute.
177
See Secs. 62 and 63, R.A. 8371.
178
Sec. 65, R.A. 8371.
179
The Civil Code provides:

Article 12. A custom must be proved as a fact, according to the rules of evidence.
180
The Civil Code provides:

Article 11. Customs which are contrary to law, public order or public policy shall not be
countenanced.180
181
R.A. No. 7160 reads:

Sec. 399. Lupong Tagapamayapa. –

xxx

(f) In barangays where majority of the inhabitants are members of indigenous peoples, local systems of
settling disputes of indigenous peoples, local systems of settling disputes through their councils of datus
or elders shall be recognized without prejudice to the applicable provisions of this Code.
182
Sec. 38, R.A. 8371.
183
Secs. 44 (a), (b), (c),(d), (f), (g), (h), (I), (j), (k), (l), (m), (n), (p), (q), R.A. 8371.
184
Sec. 44 (o), R.A. 8371.
185
Secs. 44 (e), 51-54, 62, R.A. 8371.
186
1 Am Jur 2d, Administrative Law, § 55.
187
Sec. 62, R.A. 8371.
188
Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
189
Sec. 44 (f), R.A. 8371.
190
Sec. 44 (g), R.A, 8371.
191
Sec. 44 (j), R.A. 8371.
192
Sec. 44 (p), R.A. 8371.
193
Sec. 40, R.A. 8371.
194
Sec. 42, R.A. 8371.
195
Supra note 75.
196
R.A. 7076.
197
R.A. 7942.
198
Section 56, R.A. 8371.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

MENDOZA, J.:

This suit was instituted to determine the constitutionality of certain provisions of R.A. No. 8371,
otherwise known as the Indigenous Peoples Rights Act. Petitioners do not complain of any injury as a
result of the application of the statute to them. They assert a right to seek an adjudication of
constitutional questions as citizens and taxpayers, upon the plea that the questions raised are of
"transcendental importance."

The judicial power vested in this Court by Art. VIII, §1 extends only to cases and controversies for the
determination of such proceedings as are established by law for the protection or enforcement of rights,
or the prevention, redress or punishment of wrongs.1 In this case, the purpose of the suit is not to
enforce a property right of petitioners against the government and other respondents or to demand
compensation for injuries suffered by them as a result of the enforcement of the law, but only to settle
what they believe to be the doubtful character of the law in question. Any judgment that we render in
this case will thus not conclude or bind real parties in the future, when actual litigation will bring to the
Court the question of the constitutionality of such legislation. Such judgment cannot be executed as it
amounts to no more than an expression of opinion upon the validity of the provisions of the law in
question.2

I do not conceive it to be the function of this Court under Art. VIII, §1 of the Constitution to determine in
the abstract whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the legislative and executive departments in enacting the IPRA. Our
jurisdiction is confined to cases or controversies. No one reading Art. VIII, §5 can fail to note that, in
enumerating the matters placed in the keeping of this Court, it uniformly begins with the phrase "all
cases. . . ."

The statement that the judicial power includes the duty to determine whether there has been a grave
abuse of discretion was inserted in Art. VIII, §1 not really to give the judiciary a roving commission to
right any wrong it perceives but to preclude courts from invoking the political question doctrine in order
to evade the decision of certain cases even where violations of civil liberties are alleged.

The statement is based on the ruling of the Court in Lansang v. Garcia,3 in which this Court, adopting the
submission of the Solicitor General, formulated the following test of its jurisdiction in such cases:

[J]udicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the
Court not that the President’s decision is correct and that public safety was endangered by the rebellion
and justified the suspension of the writ, but that in suspending the writ, the President did not
act arbitrarily.

That is why Art. VII, §18 now confers on any citizen standing to question the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus. It is noteworthy that Chief Justice
Roberto Concepcion, who chaired the Committee on the Judiciary of the Constitutional Commission,
was the author of the opinions of the Court in Lopez v. Roxas and Lansang v. Garcia.

Indeed, the judicial power cannot be extended to matters which do not involve actual cases or
controversies without upsetting the balance of power among the three branches of the government 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 rewrite them. Yet that is exactly what we would be
permitting in this case were we to assume jurisdiction and decide wholesale the constitutional validity of
the IPRA contrary to the established rule that a party can question the validity of a statute only if, as
applied to him, it is unconstitutional. Here the IPRA is sought to be declared void on its face.

The only instance where a facial challenge to a statute is allowed is when it operates in the area of
freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the
validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to
others not before the Court whose activities are constitutionally protected. Invalidation of the statute
"on its face" rather than "as applied" is permitted in the interest of preventing a "chilling" effect on
freedom of expression. But in other cases, even if it is found that a provision of a statute is
unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far inseparable
from the rest of the statute that a declaration of partial invalidity is not possible.

For the Court to exercise its power of review when there is no case or controversy is not only to act
without jurisdiction but also to run the risk that, in adjudicating abstract or hypothetical questions, its
decision will be based on speculation rather than experience. Deprived of the opportunity to observe
the impact of the law, the Court is likely to equate questions of constitutionality with questions of
wisdom and is thus likely to intrude into the domain of legislation. Constitutional adjudication, it cannot
be too often repeated, cannot take place in a vacuum.

Some of the brethren contend that not deciding the constitutional issues raised by petitioners will be a
"galling cop out"4 or an "advocacy of timidity, let alone isolationism."5 To decline the exercise of
jurisdiction in this case is no more a "cop out" or a sign of "timidity" than it was for Chief Justice
Marshall in Marbury v. Madison6 to hold that petitioner had the right to the issuance of his commission
as justice of the peace of the District of 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 the United
States Supreme Court to issue the writ of mandamus, was unconstitutional as the court’s jurisdiction is
mainly appellate.

Today Marbury v. Madison is remembered for the institution of the power of judicial review, and so 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 review can result either in the invalidation of an act of Congress or
in upholding it. Hence, the checking and legitimating functions of judicial review so well mentioned in
the decisions7 of this Court.

To decline, therefore, the exercise of jurisdiction where there is no genuine controversy is not to show
timidity but respect for the judgment of a coequal department of government whose acts, unless shown
to be clearly repugnant to the fundamental law, are presumed to be valid. The polestar of constitutional
adjudication was set forth by Justice Laurel in the Angara case when he said that "this power of judicial
review is limited to actual cases and controversies to be exercised after full opportunity of argument by
the parties, and limited further to the constitutional question raised or the very lis mota,
presented."8 For the exercise of this power is legitimate only in the last resort, and as a necessity in the
determination of real, earnest, and vital controversy between individuals.9 Until, therefore, an actual
case is brought to test the constitutionality of the IPRA, the presumption of constitutionality, which
inheres in every statute, must be accorded to it.

Justice Kapunan, on the other hand, cites the statement in Severino v. Governor General,10 reiterated
in Tanada v. Tuvera,11 that "when the question is one of public right and the object of mandamus to
procure the enforcement of a public duty, the people are regarded as the real party in interest, and the
relator at whose instigation the proceedings are instituted need not show that he has any legal or
special interest in the result, it being sufficient that he is a citizen and as such is interested in the
execution of the laws." On the basis of this statement, he argues that petitioners have standing to bring
these proceedings.12

In Severino v. Governor General,13 the question was whether mandamus lay to compel the Governor
General to call a special election on the ground that it was his duty to do so. The ruling was that he did
not have such a duty. On the other hand, although mandamus was issued in Tanada v. Tuvera, it was
clear that petitioners had standing to bring the suit, because the public has a right to know and the
failure of respondents to publish all decrees and other presidential issuances in the Official Gazette
placed petitioners in danger of violating those decrees and issuances. But, in this case, what public right
is there for petitioners to enforce when the IPRA does not apply to them except in general and in
common with other citizens.

For the foregoing reasons I vote to dismiss the petition in this case.

Footnotes
1
Lopez v. Roxas, 17 SCRA 756, 761 (1966).
2
Muskrat v. United States, 279 U.S. 346, 55 L.Ed. 246 (1911).
3
42 SCRA 448, 481 (1971) (emphasis on the original).
4
Panganiban, J., Separate Opinion, p. 2.
5
Vitug, J., Separate Opinion, p. 1.
6
1 Cranch 137, 2 L.Ed. 60 (1803).
7
Occeña v. Commission on Elections; Gonzales v. The National Treasurer, 104 SCRA 1 (1981); Mitra v.
Commission on Elections, 104 SCRA 59 (1981).
8
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
9
Philippine Association of Colleges and Universities v. Secretary of Education, 97 Phil. 806 (1955).
10
16 Phil. 366 (1913).
11
136 SCRA 27 (1985).
12
Kapunan, J., Separate Opinion, pp. 21-23.
13
Supra note 10.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
(Concurring and Dissenting)

PANGANIBAN, J.:

I concur with the draft ponencia of Mr. Justice Santiago M. Kapunan in its well-crafted handling of the
procedural or preliminary issues. In particular, I agree that petitioners have shown an actual case or
controversy involving at least two constitutional questions of transcendental importance,1 which
deserve judicious disposition on the merits directly by the highest court of the land.2 Further, I am
satisfied that the various aspects of this controversy have been fully presented and impressively argued
by the parties. Moreover, prohibition and mandamus are proper legal remedies3 to address the
problems raised by petitioners. In any event, this Court has given due course to the Petition, heard oral
arguments and required the submission of memoranda. Indeed, it would then be a galling copout for us
to dismiss it on mere technical or procedural grounds.

Protection of Indigenous Peoples’ Rights Must Be Within the Constitutional Framework


With due respect, however, I dissent from the ponencia’s resolution of the two main substantive issues,
which constitute the core of this case. Specifically, I submit that Republic Act (RA) No. 8371, otherwise
known as the Indigenous Peoples’ Rights Act (IPRA) of 1997, violates and contravenes the Constitution
of the Philippines insofar as -

1. It recognizes or, worse, grants rights of ownership over "lands of the public domain, waters, x x x and
other natural resources" which, under Section 2, Article XII of the Constitution, "are owned by the State"
and "shall not be alienated." I respectfully reject the contention that "ancestral lands and ancestral
domains are not public lands and have never been owned by the State." Such sweeping statement
places substantial portions of Philippine territory outside the scope of the Philippine Constitution and
beyond the collective reach of the Filipino people. As will be discussed later, these real properties
constitute a third of the entire Philippine territory; and the resources, 80 percent of the nation's natural
wealth.

2. It defeats, dilutes or lessens the 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 ancestral lands, but such mandate is "subject to the provisions of this Constitution."4 I concede that
indigenous cultural communities and indigenous peoples (ICCs/IPs) may be accorded preferential rights
to the beneficial use of public domains, as well as priority in the exploration, development and
utilization of natural resources. Such privileges, however, must be subject to the fundamental law.

Consistent with the social justice principle of giving more in law to those who have less in life, Congress
in its wisdom may grant preferences and prerogatives to our marginalized brothers and sisters, subject
to the irreducible caveat that the Constitution must be respected. I personally believe in according every
benefit to the poor, the oppressed and the disadvantaged, in order to empower them to equally enjoy
the blessings of nationhood. I cannot, however, agree to legitimize perpetual inequality of access to the
nation's wealth or to stamp the Court's imprimatur on a law that offends and degrades the repository of
the very authority of this Court - the Constitution of the Philippines.

The Constitution Is a Compact

My basic premise is that the Constitution is the fundamental law of the land, to which all other laws
must conform.5 It is the people's quintessential act of sovereignty, embodying the principles upon which
the State and the government are founded.6 Having the status of a supreme and all-encompassing law,
it speaks for all the people all the time, not just for the majority or for the minority at intermittent times.
Every constitution is a compact made by and among the citizens of a State to govern themselves in a
certain manner.7 Truly, the Philippine Constitution is a solemn covenant made by all the Filipinos to
govern themselves. No group, however blessed, and no sector, however distressed, is exempt from its
compass.

RA 8371, which defines the rights of indigenous cultural communities and indigenous peoples,
admittedly professes a laudable intent. It was primarily enacted pursuant to the state policy enshrined
in our Constitution to "recognize and promote the rights of indigenous cultural communities within the
framework of national unity and development."8Though laudable and well-meaning, this statute,
however, has provisions that run directly afoul of our fundamental law from which it claims origin and
authority. More specifically, Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and other related provisions
contravene the Regalian Doctrine - the basic foundation of the State's property regime.

Public Domains and Natural Resources Are Owned by the State and Cannot Be Alienated or Ceded

Jura regalia was introduced into our political system upon the "discovery" and the "conquest" of our
country in the sixteenth century. Under this concept, the entire earthly territory known as the Philippine
Islands was acquired and held by the Crown of Spain. The King, as then head of State, had the supreme
power or exclusive dominion over all our lands, waters, minerals and other natural resources. By royal
decrees, though, private ownership of real property was recognized upon the showing of (1) a title deed;
or (2) ancient possession in the concept of owner, according to which a title could be obtained by
prescription.9 Refusal to abide by the system and its implementing laws meant the abandonment or
waiver of ownership claims.

By virtue of the 1898 Treaty of Paris, the Philippine archipelago was ceded to the United States. The
latter assumed administration of the Philippines and succeeded to the property rights of the Spanish
Crown. But under the Philippine Bill of 1902, the US Government allowed and granted patents to Filipino
and US citizens for the "free and open x x x exploration, occupation and purchase [of mines] and the
land in which they are found."10 To a certain extent, private individuals were entitled to own, exploit and
dispose of mineral resources and other rights arising from mining patents.

This US policy was, however, rejected by the Philippine Commonwealth in 1935 when it crafted and
ratified our first Constitution. Instead, the said Constitution embodied the Regalian Doctrine, which
more definitively declared as belonging to the State all lands of the public domain, waters, minerals and
other natural resources.11 Although respecting mining patentees under the Philippine Bill of 1902, it
restricted the further exploration, development and utilization of natural resources, both as to who
might be entitled to undertake such activities and for how long. The pertinent provision reads:

"SECTION 1 [Art. XIII]. All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the
capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the
time of the inauguration of the Government established under this Constitution. Natural resources, with
the exception of public agricultural land, shall not be alienated, and license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, renewable for another twenty-five years, except as to water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and the limit of the grant."

The concept was carried over in the 1973 and the 1987 Constitutions. Hence, Sections 8 and 9, Article
XIV of the 1973 Constitution, state:

"SEC. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to
the State. With the exception of agricultural, industrial or commercial, residential, and resettlement
lands of the public domain, natural resources shall not be alienated and no license, concession, or lease
for the exploration, development, exploitation, utilization of any of the natural resources shall be
granted for a period exceeding twenty-five years, renewable for not more than twenty-five years, except
as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of
water power, in which cases beneficial use may be the measure and the limit of the grant.

SEC. 9. The disposition, exploration, development, exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens. The National
Assembly, in the national interest, may allow such citizens, corporations, or associations to enter into
service contracts for financial, technical, management, or other forms of assistance with any foreign
person or entity for the exploration, development, exploitation, or utilization of any of the natural
resources. Existing valid and binding service contracts for financial, technical, management, or other
forms of assistance are hereby recognized as such."

Similarly, Section 2, Article XII of the 1987 Constitution, provides:

"SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of natural resources shall be under
the full control and supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture, or production-sharing agreements with Filipino citizen, or
corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-
five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.

"The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

"The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well
as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers, lakes, bays
and lagoons.

"The President may enter into agreements with foreign-owned corporations involving either technical or
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical resources.

"The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution."

The adoption of the Regalian Doctrine by the Philippine Commonwealth was initially impelled by the
desire to preserve the nation's wealth in the hands of the Filipinos themselves. Nationalism was fervent
at the time, and our constitutional framers decided to embody the doctrine in our fundamental law.
Charging the State with the conservation of the national patrimony was deemed necessary for Filipino
posterity. The arguments in support of the provision are encapsulated by Aruego as follows: "[T]he
natural resources, particularly the mineral resources which constituted a great source of wealth,
belonged not only to the generation then but also to the succeeding generation and consequently
should be conserved for them."12

Thus, after expressly declaring that all lands of the public domain, waters, minerals, all forces of energy
and other natural resources belonged to the Philippine State, the Commonwealth absolutely prohibited
the alienation of these natural resources. Their disposition, exploitation, development and utilization
were further restricted only to Filipino citizens and entities that were 60 percent Filipino-owned. The
present Constitution even goes further by declaring that such activities "shall be under the full control
and supervision of the State." Additionally, it enumerates land classifications and expressly states that
only agricultural lands of the public domain shall be alienable. We quote below the relevant provision:13

"SEC. 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and
national parks. Agricultural lands of the public domain may be further classified by law according to the
uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural
lands. Private corporations or associations may not hold such alienable lands of the public domain
except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five
years, and not to exceed one thousand hectares in area. x x x."

Mr. Justice Kapunan upholds private respondents and intervenors in their claim that all ancestral
domains and lands are outside the coverage of public domain; and that these properties - including
forests, bodies of water, minerals and parks found therein - are private and have never been part of the
public domain, because they have belonged to the indigenous people’s ancestors since time
immemorial.

I submit, however, that all Filipinos, whether indigenous or not, are subject to the Constitution. Indeed,
no one is exempt from its all-encompassing provisions. Unlike the 1935 Charter, which was subject to
"any existing right, grant, lease or concession," the 1973 and the 1987 Constitutions spoke in absolute
terms. Because of the State’s implementation of policies considered to be for the common good, all
those concerned have to give up, under certain conditions, even vested rights of ownership.

In Republic v. Court of Appeals,14 this Court said that once minerals are found even in private land, the
State may intervene to enable it to extract the minerals in the exercise of its sovereign prerogative. The
land is converted into mineral land and may not be used by any private person, including the registered
owner, for any other purpose that would impede the mining operations. Such owner would be entitled
to just compensation for the loss sustained.

In Atok Big-Wedge Mining Company v. IAC,15 the Court clarified that while mining claim holders and
patentees have the exclusive right to the possession and enjoyment of the located claim, their rights are
not absolute or strictly one of ownership. Thus, failure to comply with the requirements of pertinent
mining laws was deemed an abandonment or a waiver of the claim.

Verily, as petitioners undauntedly point out, four hundred years of Philippine political history cannot be
set aside or ignored by IPRA, however well-intentioned it may be. The perceived lack of understanding
of the cultural minorities cannot be remedied by conceding the nation’s resources to their exclusive
advantage. They cannot be more privileged simply because they have chosen to ignore state laws. For
having chosen not to be enfolded by statutes on perfecting land titles, ICCs/IPs cannot now maintain
their ownership of lands and domains by insisting on their concept of "native title" thereto. It would be
plain injustice to the majority of Filipinos who have abided by the law and, consequently, deserve equal
opportunity to enjoy the country’s resources.

Respondent NCIP claims that IPRA does not violate the Constitution, because it does not grant
ownership of public domains and natural resources to ICCs/IPs. "Rather, it recognizes and mandates
respect for the rights of indigenous peoples over their ancestral lands and domains that had never been
lands of the public domain."16 I say, however, that such claim finds no legal support. Nowhere in the
Constitution is there a provision that exempts such lands and domains from its coverage. Quite the
contrary, it declares that all lands of the public domain and natural resources "are owned by the State";
and "with the exception of agricultural lands, all other natural resources shall not be alienated."

As early as Oh Cho v. Director of Lands,17 the Court declared as belonging to the public domain all lands
not acquired from the government, either by purchase or by grant under laws, orders or decrees
promulgated by the Spanish government; or by possessory information under Act 496 (Mortgage Law).

On the other hand, Intervenors Flavier et al.18 differentiate the concept of ownership of ICCs/IPs from
that which is defined in Articles 427 and 428 of the Civil Code. They maintain that "[t]here are variations
among ethnolinguistic groups in the Cordillera, but a fair synthesis of these refers to ‘x x x the tribal right
to use the land or to territorial control x x x, a collective right to freely use the particular territory x x x
[in] the concept of trusteeship.'"

In other words, the "owner" is not an individual. Rather, it is a tribal community that preserves the
property for the common but nonetheless exclusive and perpetual benefit of its members, without the
attributes of alienation or disposition. This concept, however, still perpetually withdraws such property
from the control of the State and from its enjoyment by other citizens of the Republic. The perpetual and
exclusive character of private respondents’ claims simply makes them repugnant to basic fairness and
equality.

Private respondents and intervenors trace their "ownership" of ancestral domains and lands to the pre-
Spanish conquest. I should say that, at the time, their claims to such lands and domains was limited to
the surfaces thereof since their ancestors were agriculture-based. This must be the continuing scope of
the indigenous groups’ ownership claims: limited to land, excluding the natural resources found within.

In any event, if all that the ICCs/IPs demand is preferential use - not ownership - of ancestral domains,
then I have no disagreement. Indeed, consistent with the Constitution is IPRA’s Section 5719- without the
too-broad definitions under Section 3 (a) and (b) - insofar as it grants them priority rights in harvesting,
extracting, developing or exploiting natural resources within ancestral domains.

The concerted effort to malign the Regalian Doctrine as a vestige of the colonial past must fail. Our
Constitution vests the ownership of natural resources, not in colonial masters, but in all the Filipino
people. As the protector of the Constitution, this Court has the sworn duty to uphold the tenets of that
Constitution - not to dilute, circumvent or create exceptions to them.

Cariño v. Insular Government Was Modified by the Constitution


In this connection, I submit that Cariño v. Insular Government20 has been modified or superseded by our
1935, 1973 and 1987 Constitutions. Its ratio should be understood as referring only to a means by which
public agricultural land may be acquired by citizens. I must also stress that the claim of Petitioner Cariño
refers to land ownership only, not to the natural resources underneath or to the aerial and cosmic space
above.

Significantly, in Director of Land Management v. Court of Appeals,21 a Decision handed down after our
three Constitutions had taken effect, the Court rejected a cultural minority member's registration of
land under CA 141, Section 48 (c).22 The reason was that the property fell within the Central Cordillera
Forest Reserve. This Court quoted with favor the solicitor general’s following statements:

"3. The construction given by respondent Court of Appeals to the particular provision of law involved, as
to include even forest reserves as susceptible to private appropriation, is to unconstitutionally apply
such provision. For, both the 1973 and present Constitutions do not include timber or forest lands as
alienable. Thus, Section 8, Article XIV of 1973 Constitution states that ‘with the exception of agricultural,
industrial or commercial, residential and resettlement lands of the public domain, natural resources
shall not be alienated.’ The new Constitution, in its Article XII, Section 2, also expressly states that ‘with
the exception of agricultural lands, all other natural resources shall not be alienated’."

Just recently, in Gordula v. Court of Appeals,23 the Court also stated that "forest land is incapable of
registration, and its inclusion in a title nullifies that title. To be sure, the defense of indefeasiblity of a
certificate of title issued pursuant to a free patent does not lie against the state in an action for
reversion of the land covered thereby when such land is a part of a public forest or of a forest
reservation, the patent covering forest land being void ab initio."

RA 8371 Violates the Inalienability of Natural Resources and of Public Domains

The ponencia theorizes that RA 8371 does not grant to ICCs/IPs ownership of the natural resources
found within ancestral domains. However, a simple reading of the very wordings of the law belies this
statement.

Section 3 (a)24 defines and delineates ancestral domains as "all areas generally belonging to ICCs/IPs
comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of
ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or
individually since time immemorial, continuously to the present except when interrupted by war, force
majeure or displacement x x x. It shall include ancestral lands, forests, pasture, residential, agricultural,
and other lands individually owned whether alienable and disposable or otherwise, hunting grounds x x
x bodies of water, mineral and other natural resources x x x." (Emphasis ours.)

Clearly, under the above-quoted provision of IPRA, ancestral domains of ICCs/IPs encompass the natural
resources found therein. And Section 7 guarantees recognition and protection of
their rights of ownership and possession over such domains.

The indigenous concept of ownership, as defined under Section 5 of the law, "holds that ancestral
domains are the ICC’s/IP’s private but community property which belongs to all generations and
therefore cannot be sold, disposed or destroyed." Simply put, the law declares that ancestral domains,
including the natural resources found therein, are owned by ICCs/IPs and cannot be sold, disposed or
destroyed. Not only does it vest ownership, as understood under the Civil Code; it adds perpetual
exclusivity. This means that while ICCs/IPs could own vast ancestral domains, the majority of Filipinos
who are not indigenous can never own any part thereof.

On the other hand, Section 3 (b)25 of IPRA defines ancestral lands as referring to "lands occupied,
possessed and utilized by individuals, families and clans of the ICCs/IPs since time immemorial x x x,
under claims of individual or traditional group ownership, x x x including, but not limited to, residential
lots, rice terraces or paddies, private forests, swidden farms and tree lots." Section 8 recognizes and
protects "the right of ownership and possession of ICCs/IPs to their ancestral lands." Such ownership
need not be by virtue of a certificate of title, but simply by possession since time immemorial.

I believe these statutory provisions directly contravene Section 2, Article XII of the Constitution, more
specifically the declaration that the State owns all lands of the public domain, minerals and natural
resources – none of which, except agricultural lands, can be alienated. In several cases, this Court has
consistently held that non-agricultural land must first be reclassified and converted into alienable or
disposable land for agricultural purposes by a positive act of the government.26 Mere possession or
utilization thereof, however long, does not automatically convert them into private properties.27 The
presumption is that "all lands not appearing to be clearly within private ownership are presumed to
belong to the State. Hence, x x x all applicants in land registration proceedings have the burden of
overcoming the presumption that the land thus sought to be registered forms part of the public domain.
Unless the applicant succeeds in showing by clear and convincing evidence that the property involved
was acquired by him or his ancestors either by composition title from the Spanish Government or by
possessory information title, or any other means for the proper acquisition of public lands, the property
must be held to be part of the public domain. The applicant must present competent and persuasive
proof to substantiate his claim; he may not rely on general statements, or mere conclusions of law other
than factual evidence of possession and title."28

Respondents insist, and the ponencia agrees, that paragraphs (a) and (b) of Sections 3 are merely
definitions and should not be construed independently of the other provisions of the law. But, precisely,
a definition is "a statement of the meaning of a word or word group."29 It determines or settles the
nature of the thing or person defined.30Thus, after defining a term as encompassing several items, one
cannot thereafter say that the same term should be interpreted as excluding one or more of the
enumerated items in its definition. For that would be misleading the people who would be bound by the
law. In other words, since RA 8371 defines ancestral domains as including the natural resources found
therein and further states that ICCs/IPs own these ancestral domains, then it means that ICCs/IPs can
own natural resources.

In fact, Intervenors Flavier et al. submit that everything above and below these ancestral domains, with
no specific limits, likewise belongs to ICCs/IPs. I say that this theory directly contravenes the
Constitution. Such outlandish contention further disregards international law which, by constitutional
fiat, has been adopted as part of the law of the land.31

No Land Area Limits Are Specified by RA 8371

Under Section 3, Article XII of the Constitution, Filipino citizens may acquire no more than 12 hectares of
alienable public land, whether by purchase, homestead or grant. More than that, but not exceeding 500
hectares, they may hold by lease only.
RA 8371, however, speaks of no area or term limits to ancestral lands and domains. In fact, by their mere
definitions, they could cover vast tracts of the nation's territory. The properties under the assailed law
cover everything held, occupied or possessed "by themselves or through their ancestors, communally or
individually since time immemorial." It also includes all "lands which may no longer be exclusively
occupied by [them] but from which they traditionally had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators."

Nomadic groups have no fixed area within which they hunt or forage for food. As soon as they have
used up the resources of a certain area, they move to another place or go back to one they used to
occupy. From year to year, a growing tribe could occupy and use enormous areas, to which they could
claim to have had "traditional access." If nomadic ICCs/IPs succeed in acquiring title to their enlarging
ancestral domain or land, several thousands of hectares of land may yet be additionally delineated as
their private property.

Similarly, the Bangsa Moro people's claim to their ancestral land is not based on compounded or
consolidated title, but "on a collective stake to the right to claim what their forefathers secured for them
when they first set foot on our country."32 They trace their right to occupy what they deem to be their
ancestral land way back to their ancient sultans and datus, who had settled in many islands that have
become part of Mindanao. This long history of occupation is the basis of their claim to their ancestral
lands.33

Already, as of June 1998, over 2.5 million hectares have been claimed by various ICCs/IPs as ancestral
domains; and over 10 thousand hectares, as ancestral lands.34 Based on ethnographic surveys, the
solicitor general estimates that ancestral domains cover 80 percent of our mineral resources and
between 8 and 10 million of the 30 million hectares of land in the country.35 This means that four fifths
of its natural resources and one third of the country's land will be concentrated among 12 million
Filipinos constituting 110 ICCs,36 while over 60 million other Filipinos constituting the overwhelming
majority will have to share the remaining. These figures indicate a violation of the constitutional
principle of a "more equitable distribution of opportunities, income, and wealth" among Filipinos.

RA 8371 Abdicates the State Duty to Take Full Control and Supervision of Natural Resources

Section 2, Article XII of the Constitution, further provides that "[t]he exploration, development, and
utilization of natural resources shall be under the full control and supervision of the State." The State
may (1) directly undertake such activities; or (2) enter into co-production, joint venture or production-
sharing agreements with Filipino citizens or entities, 60 percent of whose capital is owned by
Filipinos.37 Such agreements, however, shall not exceed 25 years, renewable for the same period and
under terms and conditions as may be provided by law.

But again, RA 8371 relinquishes this constitutional power of full control in favor of ICCs/IPs, insofar as
natural resources found within their territories are concerned. Pursuant to their rights of ownership and
possession, they may develop and manage the natural resources, benefit from and share in the profits
from the allocation and the utilization thereof.38 And they may exercise such right without any time
limit, unlike non-ICCs/IPs who may do so only for a period not exceeding 25 years, renewable for a like
period.39 Consistent with the Constitution, the rights of ICCs/IPs to exploit, develop and utilize natural
resources must also be limited to such period.
In addition, ICCs/IPs are given the right to negotiate directly the terms and conditions for the exploration
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 group the State's power of ownership and full control over a
substantial part of the national patrimony, in contravention of our most fundamental law.

I make clear, however, that to the extent that ICCs/IPs may undertake small-scale utilization of natural
resources and cooperative fish farming, I absolutely have no objection. These undertakings are certainly
allowed under the third paragraph of Section 2, Article XII of the Constitution.

Having already disposed of the two major constitutional dilemmas wrought by RA 8371 – (1) ownership
of ancestral lands and domains and the natural resources therein; and (2) the ICCs/IPs' control of the
exploration, development and utilization of such resources – I believe I should no longer tackle the
following collateral issues petitioners have brought up:

1. Whether the inclusion of private lands within the coverage of ancestral domains amounts to undue
deprivation of private property

2. Whether ICCs/IPs may regulate the entry/exit of migrants

3. Whether ancestral domains are exempt from real property taxes, special levies and other forms of
exaction

4. Whether customary laws and traditions of ICCs/IPs should first be applied in the settlements of
disputes over their rights and claims

5. Whether the composition and the jurisdiction of the National Commission of Indigenous Peoples
(NCIP) violate the due process and equal protection clauses

6. Whether members of the ICCs/IPs may be recruited into the armed forces against their will

I believe that the first three of the above collateral issues have been rendered academic or, at least, no
longer of "transcendental importance," in view of my contention that the two major IPRA propositions
are based on unconstitutional premises. On the other hand, I think that in the case of the last three, it is
best to await specific cases filed by those whose rights may have been injured by specific provisions of
RA 8371.

Epilogue

Section 5, Article XII of the Constitution, provides:

"SEC. 5. The State, subject to the provisions of this Constitution and national development policies and
programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure
their economic, social, and cultural well being.

"The Congress may provide for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domain."

Clearly, there are two parameters that must be observed in the protection of the rights of ICCs/IPs: (1)
the provisions of the 1987 Constitution and (2) national development policies and programs.
Indigenous peoples may have long been marginalized in Philippine politics and society. This does not,
however, give Congress any license to accord them rights that the Constitution withholds from the rest
of the Filipino people. I would concede giving them priority in the use, the enjoyment and the
preservation of their ancestral lands and domains.41 But to grant perpetual ownership and 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 present Constitutions, would be not only unjust but also subversive of the
rule of law.

In giving ICCs/IPs rights in derogation of our fundamental law, Congress is effectively mandating
"reverse discrimination." In seeking to improve their lot, it would be doing so at the expense of the
majority of the Filipino people. Such short-sighted and misplaced generosity will spread the roots of
discontent and, in the long term, fan the fires of turmoil to a conflagration of national proportions.

Peace cannot be attained by brazenly and permanently depriving the many in order to coddle the few,
however disadvantaged they may have been. Neither can a just society be approximated by maiming
the healthy to place them at par with the injured. Nor can the nation survive by enclaving its wealth for
the exclusive benefit of favored minorities.

Rather, the law must help the powerless by enabling them to take advantage of opportunities and
privileges that are open to all and by preventing the powerful from exploiting and oppressing them. This
is the essence of social justice – empowering 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.

Footnotes
1
Kilosbayan v. Morato, 250 SCRA 130, 140, November 16, 1995; Association of Small Landowners v.
Secretary of Agrarian Reform, 175 SCRA 343, 365, July 14, 1989; Antonio v. Dinglasan, 84 Phil 368
(1949).
2
Tañada v. Angara, 272 SCRA 18, 46, May 2, 1997; Santiago v. Comelec, 270 SCRA 106, 123-24, March
19, 1997; Basco v. PAGCOR, 197 SCRA 52, 60, May 14, 1991.
3
Tanada v. Angara, ibid.
4
§5, Art. XII, 1987 Constitution.
5
16 CJS §3.
6
16 Am Jur 2d §2.
7
Ibid.
8
§22, Art. II of the Constitution.
9
Abaoag v. Director of Lands, 45 Phil 518 (1923), cited in petitioners' Memorandum.
10
Soledad M. Cagampang-de Castro, "The Economic Policies on Natural Resources Under the 1987
Constitution Revisited," Journal of the Integrated Bar of the Philippines, Vol. XXV, Nos. 3 & 4 (1999), p.
51.
11
In a republican system of government, the concept of jura regalia is stripped of royal overtones;
ownership is vested in the State, instead. (Joaquin G. Bernas, SJ, The Constitution of the Republic of the
Philippines: A Commentary, 1996 ed., p. 1009-1010.)
12
II Aruego, The Framing of the Philippine Constitution 603, quoted in Bernas, supra, p. 1010.
13
§3, Art. XII, 1987 Constitution.
14
160 SCRA 228, 239, April 15, 1988.
15
261 SCRA 528, September 9, 1996.
16
NCIP’s Memorandum, p. 24.
17
75 Phil 890, 892, August 31, 1946.
18
Intervenors’ Memorandum, pp. 33 et seq.
19
"SEC. 57. Natural Resources within Ancestral Domains. – The ICCs/IPs shall have priority rights in the
harvesting, extraction, development or exploitation of any natural resources within the ancestral
domains. x x x."
20
41 Phil 935, February 23, 1909.
21
172 SCRA 455, 463, April 18, 1989, per Gutierrez Jr., J.
22
"(c) Members of the national cultural minorities who by themselves or through their predecessors-in-
interest have been in open, continuous, exclusive and notorious possession and occupation of lands of
the public domain suitable to agriculture, whether disposable or not, under a bona fide claim of
ownership for at least 30 years shall be entitled to the rights granted in subsection (b) hereof. (As
amended by R.A. No. 3872, section 1, approved June 18, 1964)."
23
284 SCRA 617, 633, January 22, 1998, per Puno, J.
24
"a) Ancestral Domains - Subject to Section 56 hereof, refers to all areas generally belonging to ICCs/IPs
comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of
ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or
individually since time immemorial, continuously to the present except when interrupted by
war, force majeureor displacement by force, deceit, stealth or as a consequence of government projects
or any other voluntary dealings entered into by government and private individuals/corporations, and
which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands
individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds,
worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be
exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence
and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting
cultivators."
25
"b) Ancestral Lands - Subject to Section 56 hereof, refers to lands occupied, possessed and utilized by
individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves
or through their predecessors-in-interest, under claims of individual or traditional group ownership,
continuously, to the present except when interrupted by war, force majeure or displacement by force,
deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into
by government and private individuals/corporations, including, but not limited to, residential lots, rice
terraces or paddies, private forests, swidden farms and tree lots."
26
Director of Lands and Director of Forest Development v. Intermediate Appellate Court, March 2,
1993;Director of Lands v. Aquino, 192 SCRA 296, December 17, 1990; Sunbeam Convenience Foods, Inc.
v. Court of Appeals, January 29, 1990.
27
Ibid., Margolles v. Court of Appeals, February 14, 1994; Gordula v. Court of Appeals, supra.
28
Republic v. Sayo, October 31, 1990, per Narvasa, J. (later CJ). See also Republic v. Court of
Appeals,supra.
29
Webster’s Third New International Dictionary; Petitioners’ Memorandum, p. 41.
30
Ibid.
31
§2, Art. II of the Constitution.
32
Cecilio R. Laurente, "The King's Hand: The Regalian Doctrine as a Contributing Factor in the Mindanao
Conflict," Human Rights Agenda, Vol. 5, Issue No. 7, July & August 2000, pp. 6-7.
33
Ibid.
34
Solicitor General's Memorandum, p. 3; rollo, p. 651.
35
Ibid., pp. 4-5.
36
Ibid. See also Datu Vic Saway, "Indigenous Peoples and the Uplands: A Situationer," Proceedings of the
6th Upland NGO Consultative Conference, 23-27 August 1998, p. 30.
37
Or (3) in case of large-scale exploration, development and utilization of minerals, enter – through the
President – into "agreements with foreign-owned corporations involving either technical or financial
assistance." (Miners Association of the Philippines v. Factoran Jr., 240 SCRA 100, January 16, 1995.)
38
§7(b), RA 7381.
39
§57, ibid.
40
§7(b), ibid.
41
As stated earlier, Sec. 57 of IPRA, insofar as it grants them such priority, is constitutional.

51. People vs. Bugarin, 273 SCRA 384 (1997)


Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. 110817-22 June 13, 1997

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
MARCELINO A. BUGARIN, accused-appellant.

MENDOZA, J.:

This is an appeal from the decision, 1 dated February 11, 1993, which the Regional Trial Court, Branch 97
of Quezon City rendered in Criminal Cases Nos. Q-92-28785 to 86 and Q-92-31157 to 31160, finding
accused-appellant Marcelino Bugarin guilty of four counts of consummated rape and one count of
attempted rape and sentencing him as follows:

WHEREFORE, this Court finds the accused GUILTY beyond reasonable doubt as charged of multiple (3
Counts) rape and one count of attempted rape, and in accordance with Article 335 of the Revised Penal
Code sentences him to prison terms as follows:

1) For each of the four counts of the above rape, reclusion perpetua.

2) For the attempted rape, two (2) years and four (4) months in the minimum penalty to four (4) years in
the maximum period and to indemnify the private complainant in the amount of P50,000.00 as moral
damages and exemplary damages of P50,000.00 to deter sexual crimes of the sort committed by
accused.

SO ORDERED.

The complainant, Maryjane Bugarin, is the daughter of accused- appellant. On February 22, 1992,
accompanied by her mother, Regina Bugarin, and her maternal aunt, Nena Padecio, she complained to
the Central Police District Command that she had been repeatedly raped by accused-appellant. In her
sworn statement she related how, on nine different occasions between November 1989 and January 17,
1992, her father entered the common sleeping area of their house in Payatas, Quezon City and, after
holding her knees and spreading her legs, succeeded in inserting his penis into her vagina and kissed her
breasts. She claimed that, on January 17, 1992, her father molested her by "kissing her vagina" and that
only by repeatedly kicking him did he desist from molesting her any further.

Complainant was examined on the same date by Emmanuel I. Aranas, PNP Medico-Legal Officer, who
found that she was "in non-virgin state physically." 2 On February 25, 1992, she returned to the police
station to file formal charges against her father. The case was referred to the Office of the Quezon City
Prosecutor which found probable cause and accordingly filed charges for consummated rape and
attempted rape by means of force and intimidation committed on December 23, 1991 and January 17,
1992 against accused-appellant Marcelino Bugarin. No bail was recommended "considering that the
evidence of guilt of the respondent is strong." The cases were docketed as Criminal Cases Nos. Q-92-
28785 and Q-92-28786 and raffled to Branch 88 of the Quezon City Regional Trial Court.

On May 7, 1992, four more charges for rape by means of force and intimidation committed on
November 1989, May 1990, June 1990 and March 14, 1991 were filed against accused-appellant.
Docketed as Criminal Cases Nos. Q-92-31157 to 31160, the additional cases were raffled to Branch 97 of
the same court. These cases were eventually consolidated and assigned to Branch 88.

The informations in the six cases alleged as follows:

Crim Case No. 92-31157

That on or about the month of June 1990 In Quezon City, Philippines, the said accused by means of force
and intimidation, did then and there, wilfully and feloniously have carnal knowledge of the undersigned
MARY JANE BUGARIN y ASUNCION, a minor, 15 years of age, without her consent and against her will, to
the damage and prejudice of the latter.

The crime was attended by the aggravating circumstance of relationship.

Crim. Case No. 92-31158

That on or about the month of November, 1989 in Quezon City, Philippines, the said accused, by means
of force and intimidation, did then and there, wilfully and feloniously have carnal knowledge with the
undersigned MARY JANE BUGARIN y ASUNCION without her consent and against her will, to the damage
and prejudice of the latter.

The crime was attended by the aggravating circumstance of relationship.

Crim. Case No. 92-31159

That on or about the 14th day of March, 1991 in Quezon City, Philippines, the said accused, by means of
force and intimidation, did then and there, wilfully and feloniously have carnal knowledge of the
undersigned MARYJANE BUGARIN y ASUNCION, a minor, 15 years of age, without her consent and
against her will, to the damage and prejudice of the latter.

The crime was attended by the aggravating circumstance of relationship.

Crim. Case No. 92-31160

That on or about the month of May 1990 in Quezon City, Philippines, the said accused by means of force
and intimidation, did then and there wilfully and feloniously have carnal knowledge of the undersigned
MARYJANE BUGARIN y ASUNCION, a minor, 15 years of age, without her consent and against her will, to
the damage and prejudice of the latter.

The crime was attended by the aggravating circumstance of relationship.

Crim. Case No. 92-28785

That on or about the 17th day of January, 1992, in Quezon City, Metro Manila, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of
force and intimidation, did then and there wilfully, unlawfully and feloniously commence the
commission of the crime of Rape directly by overt acts, by then and there kissing the nipples and the
vagina of the undersigned MARYJANE BUGARIN Y ASUNCION, a minor, and about to lay on top of her, all
against her will, however, the said accused did not perform all the acts of execution which would have
produced the crime of Rape by reason of some causes other than his own spontaneous desistance, that
is, undersigned complainant push him away, to the damage and prejudice of the undersigned in such
amount as may be awarded to her under the provisions of the New Civil Code.

Crim. Case No. 92-28786

That on or about the 23rd day of December, 1991, in Quezon City, Metro Manila, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of
force and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse
with the undersigned MARYJANE BUGARIN Y ASUNCION, a minor, without her consent and against her
will, to her damage and prejudice in such amount as may be awarded to her under the provisions of the
New Civil Code.

Upon arraignment, accused-appellant pleaded not guilty in each case, after which trial ensued. Under
questioning by the prosecutor, Maryjane Bugarin narrated how her father sexually assaulted her in their
family's common sleeping area while no one was at home and threatened her if she told anyone about
what happened.

Accused-appellant denied the charges against him. He claimed to be God fearing and morally upright
and that his wife, Regina Bugarin, must have induced their daughter to file the complaints against him
because his wife blamed him for financially neglecting their family since 1989.

In rebuttal, the prosecution presented Regina Bugarin who testified that a good mother would not
expose her child to humiliation just to get back at her husband. She further claimed that her daughter,
who had been raised properly and taught to be honest, could not have fabricated the charges against
the accused-appellant.

In a two-page decision, promulgated on February 11, 1993, the trial court, after giving a summary of the
testimonies of the complainant and accused-appellant, laconically ruled:

The issue is simple. Is the private complainant credible in her story of how she was raped? The answer of
this Court is an undoubtful and a definite yes.

Accused-appellant questions the trial court's decision on the ground that: (1) the testimony of Maryjane
Bugarin is not credible; (2) the elements of force and intimidation had not been proved; and (3) the
decision of the trial court does not state the facts and law upon which it was based.

On the other hand, the Solicitor General, representing the prosecution, contends that complainant, who
was only 15 years old when she reported the crime, was not likely to concoct charges against her father
and that the moral ascendancy of the father over her took the place of force and intimidation in rape.

We take up first accused-appellant's charge that the decision of the trial court does not state the
grounds therefor. Indeed, the Constitution provides in part in Art. VIII, §14 that "No decision shall be
rendered by any court without expressing therein clearly and distinctly the facts and the law on which it
is based." This requirement is reiterated and implemented by the 1985 Rules of Criminal Procedure
which provides in Rule 120, §2:

Sec. 2. Form and contents of judgment. — The judgment must be written in the official language,
personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a
statement of the facts proved or admitted by the accused and the law upon which the judgment is
based.

If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the
acts committed by the accused, and the aggravating or mitigating circumstances attending the
commission thereof, if there are any; (b) the participation of the accused in the commission of the
offense, whether as principal, accomplice, or accessory after the fact; (c) the penalty imposed upon the
accused; and (d) the civil liability or damages caused by the wrongful act to be recovered from the
accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate
action has been reserved or waived.

In case of acquittal, unless there is a clear showing that the act from which the civil liability might arise
did not exist, the judgment shall make a finding on the civil liability of the accused in favor of the
offended party.

The decision of the trial court falls short of this requirement in at least three respects. First, it does not
contain an evaluation of the evidence of the parties and a discussion of the legal questions involved. It
does not explain why the trial court considered the complainant's testimony credible despite the fact
that, as accused-appellant points out, complainant could not remember the time of the day when she
was allegedly raped. It does not explain why accused-appellant's licking of complainant's genital
constituted attempted rape and not another crime. Second, the complainant testified that she had been
raped five times, to wit, in November 1989, on December 24, 1989, in June 1990, on March 14, 1991,
and on December 23, 1991, and that once, on January 17, 1992, she was molested by her father who
licked her private part, for which reason six informations were filed against him, but the decision found
the accused-appellant guilty of only four counts of rape (which the trial court erroneously said three
counts) and one count of attempted rape, without explaining whether accused-appellant was being
acquitted of one charge of rape. Third, the decision is so carelessly prepared that it finds the accused-
appellant guilty of three counts of consummated rape but sentences him to suffer the penalty
of reclusion perpetua "for each of the four counts of . . . rape."

Maryjane claimed she had been raped on December 24, 1989, but the information in Criminal Case No.
Q-92-31160 is far rape allegedly committed in May 1990. It must be for this reason that the trial court
convicted accused-appellant of only four counts of rape, instead of five. But the trial court should have
explained so, if this was really the reason, and expressly acquitted the accused-appellant of the charge
under this information.

The requirement that the decisions of courts must be in writing and that they must set forth clearly and
distinctly the facts and the law on which they are based serves many functions. It is intended, among
other things, to inform the parties of the reason or reasons for the decision so that if any of them
appeals, he can point out to the appellate court the findings of facts or the rulings on points of law with
which he disagrees. More than that, the requirement is an assurance to the parties that, in reaching
judgment, the judge did so through the processes of legal reasoning. It is, thus, a safeguard against the
impetuosity of the judge, preventing him from deciding by ipse dexit. Vouchsafed neither the sword nor
the purse by the Constitution but nonetheless vested with the sovereign prerogative of passing
judgment on the life, liberty or property of his fellowmen, the judge must ultimately depend on the
power of reason for sustained public confidence in the justness of his decision. The decision of the trial
court in this case disrespects the judicial function.

We would normally remand this case to the trial court for compliance with the constitutional
requirement for decisions. But this case has been pending for sometime and further delay can be
avoided if the Court simply reviews the whole evidence. After all, the records of the trial court contain
the transcript of stenographic notes, the complainant's sworn statement dated February 22, 1992, the
resolution of the prosecutor, and the statement of the arresting officer, on the basis of which the Court
may properly decide the case. 3 For this reason the Court has decided to review this case despite the
failure of the trial court to make detailed findings of facts and a statement of the reasons underlying its
decision.

Now it is settled that when the complainant in a rape case, more so if she is a minor, 4 testifies that she
has been raped, she says, in effect, all that is necessary to prove the commission of the crime. 5 Care
must be taken, however, that her testimony is credible for a conviction to be justified based on her
testimony alone. 6 In this case, Maryjane Bugarin testified on November 25, 1992 7 as follows:

Q — On November 1989, was your father residing with you or was he living with you?

A — Yes, sir.

Q — Now, on November, 1989 do you remember any unusual incident that happened, if any?

A — Yes, sir, when he entered the room.

Q — When you say "he," are you referring to Marcelino Bugarin?

A — Yes, sir.

Q — If Marcelino Bugarin is present today, would you be able to identify him?

A — Yes, sir. (witness is pointing to a man wearing a green t-shirt who answers by the name Marcelino
Bugarin when asked by the Court).

Q — On November 1989, you were mentioning that "he", referring to the accused, entered your room,
what happened?

A — (witness crying) When he entered the room, he embraced me and touched the different parts of
my body and he informed me that when I grow up, I would not become innocent.

Q — What do you mean by those words that he told you that when you grow up you would not be
innocent?

A — So that when I grow up I will know what he will be doing.

Q — What did he do?


A — He touched my knees and spread them out and then holding my breast and he put his sex organ
inside me.

Q — When you say inside me, what do you mean?

A — His sex organ entered my what, I am fertile.

Q — What do you mean by what?

A — My sex organ, sir.

Q — What did you do when your father tried to put his sex organ to your sex organ?

A — I was trying to push his body away from me, and I said to him, father, I don't like it, ayoko po.

Q — Despite your pleas, what happened next?

A — He still continued what he is doing, and when I fainted, he suddenly moved back.

Q — After he moved back, what transpired afterwards?

A — He went out and I was left crying.

Q — After this first incident, were there any other similar incident which happened, if any?

A — There are, sir, but I can't recall when.

Q — How many times more or less?

A — Around four (4) times.

Q — After November 1989?

A — Including November 1989.

Q — How about on December 24, 1989, do you remember where you were?

A — Yes, sir. I was in our house.

Q — Do you remember any unusual or extraordinary incident that happened on December 24, 1989?

A — Yes, sir. It is the same thing that he did to me.

Q — Please explain what the same thing he do to you?

A — He embraced and kissed me on my cheek, my neck and also my breast.

Q — What happened next?

A — He was spreading my legs.

Q — Then, after spreading your legs, what did the accused do?

A — He let his sex organ touched my sex organ.

Q — After that, what happened next?


A — I cried again.

Q — When you cried again, what did your father do, if any?

A — His face became scaring.

Q — Now, after December 24, 1989 incident, do you remember where you were sometime in June
1990?

A — I was in our house.

Q — Specifically, in June of 1990, do you remember any unusual incident that happened?

A — The same thing happened, over and over.

Q — What do you mean by the same thing happened, over and over?

A — He would embraced me and then kissed me and touched my breast and kissed my nipples.

Q — And, besides in embracing, kissing and kissing your nipples, what else did your father do on June
1990?

A — He kissed also my sex organ.

Q — Beside kissing your sex organ, what else did he do, if any?

A — He placed inside my sex organ his sex organ.

Q — In March 14, 1991, where were you?

A — I was also in our house.

Q — Do you remember what happened, if any, On March 14, 1991?

A — That's it again, I was in the room and again he embraced me made me lie down then kiss my sex
organ and then, he placed again his sex organ inside my sex organ.

Q — How about December 23, 1991, do you remember where you were?

A — I was also in the house.

Q — What happened?

A — I was lying down and he lied there beside me and told me to accede to his desire.

Q — What do you mean to accede to his desire?

A — He wanted to use me again.

Q — Then, he actually used you?

A — Yes, sir.

Q — Now, on January 17, 1992, do you remember where you were?

A — I was also in our house.


Q — Would you kindly tell what happened in your house on this day?

A — He licked my sex organ.

Q — After that, what did he do next?

A — He was threatening me.

Q — What did you do when he threatened you?

A — I was so afraid. (witness is crying)

Q — What did the accused to after threatening you?

A — He was doing nothing. He was just walking beside me.

Q — What happened after you saw him walking just beside you on that date?

A — None, sir. I was just crying.

The accused-appellant claims that Maryjane's testimony contains inconsistencies which indicate that the
charges against him were fabricated. He points to the failure of complainant on cross-examination to
state in some instances the exact date and time she was allegedly raped, and to the fact that it took
complainant two years before reporting the incidents and that the prosecution did not present the
medico-legal officer who examined the complainant. Accused-appellant also claims that no evidence
was adduced to prove that the rape was committed by force and intimidation.

The failure of the complainant to state in some cases the exact date and time of the commission of rape
is a minor matter and can be expected when a witness is recounting the details of a humiliating
experience which are painful and difficult to recall in open court and in the presence of other
people. 8 Indeed, this Court has ruled that complainant's failure to recall some details of the crime,
instead of suggesting prevarication, precisely indicates spontaneity and is to be expected from a witness
who is of tender age and unaccustomed to court proceedings.

Besides, the date of the commission of the rape is not an essential element of the crime. 9 The precise
time of the crime has no substantial bearing on its commission, 10 especially since in this case the date
and time of the commission of the crime is not material to the accused-appellant's defense. Indeed,
accused-appellant's contention is only that he could not have raped his daughter in the common
bedroom at nighttime because the place where they sleep is shut off from the rest of their house by a
curtain.

Suffice it to state that lust is no respecter of time and place. 11 Our cases record instances of rape
committed inside family dwellings when other occupants are asleep. 12 In the case at bar, Maryjane
testified that the accused-appellant was able to rape her by sending out her siblings to play with their
neighbors' children, and while her mother was at work from 3 p.m. to 11 p.m. Complainant explained
her apparent inability to recall the exact dates of the assaults upon her, thus:

Q — Madam witness, you mentioned that you were raped sometime November 1989, June 1990,
December 24, 1989, March 14, 1991, December 23, 1991, how come that you knew very well the date
as December 24, March 14, December 23; or rather, how come that your complaint is only sometime in
the early part of 1991?
A — I remember because that was closed to the birthday of my brother.

Q — How about March 14, how come you knew very well that you were molested by your father?

A — Because at that time, our class will almost end and we were given clearances.

Q — What day is your last school day?

A — I cannot remember, sir.

Q — Is it usual that you knew very well March 14, and you do not know very well your last day of your
school day?

A — Because March 14 is our clearance.

Neither does the delay in making a criminal accusation impair the credibility of a witness if such delay is
satisfactorily explained. 13 In People v. Coloma, 14 where the complainant was also only 13 years old
when first molested by her father, the Court adverted to the father's moral and physical control over the
young complainant in explaining the delay of eight years before the complaint against her father was
made. In this case, Maryjane must have been overwhelmed by fear and confusion, and shocked that her
own father had defiled her. After all, she had been very close to him. She also testified that she was
afraid to tell her mother because the latter might be angered, so that she finally confided to her aunt.
Indeed, a survey conducted by the University of the Philippines Center for Women's Studies showed
that victims of rape committed by their fathers took much longer in reporting the incidents to the
authorities than did other victims. Many factors account for this difference: the fact that the father lives
with the victim and constantly exerts moral authority over her, the threat he might make against her,
the victim's fear of her mother and other relatives.

Nor is it entirely true that no evidence of force and intimidation had been adduced during the trial.
Maryjane testified that she tried to resist her father's advances but, on several occasions, she was
overpowered by him. She was embraced and thus prevented from escaping. 15 At other times she was
intimidated by menacing looks cast on her 16and by threats of harm. 17 Indeed, even if there was no
violence or force employed against her, the moral influence of accused-appellant over the complainant
sufficed to make the crime rape. 18

Nor is a medical examination an indispensable element in prosecutions for rape. 19 That the prosecution
did not present the medico-legal officer is, therefore, not an obstacle to a finding of guilt in this case.

We think the evidence in this case proves beyond all reasonable doubt that Maryjane had been raped
on four occasions by accused-appellant: November 1989, June 1990, March 14, 1991, and December 23,
1991. Complainant has no motive to incriminate her father. To the contrary, she testified that she was
close to him. The absence of a motive lends greater credence to her testimony. 20 Neither does her
mother have any reason to falsely accuse Marcelino Bugarin. Regina Bugarin suspected her husband of
having an affair with her sister in 1980 and confronted him, but she continued to live with him. This fact
makes it unlikely that she would use her daughter to destroy her husband more than ten years later. A
mother would not expose her child to public trial, if the charges she makes are not true. 21

We find no evidence, however, to find accused-appellant guilty of the charge in Criminal Case No. Q-92-
31160 for alleged rape committed in May 1990. There is no evidence to prove that accused-appellant
raped complainant on that date. Her testimony is to the effect that she was raped on another date,
December 24, 1989. But accused-appellant cannot be convicted for this as no complaint was formally
filed regarding it. Accused-appellant must accordingly be acquitted of the charge in Criminal Case No. Q-
92-31160.

Nor do we think that accused-appellant is guilty of attempted rape committed on January 17, 1992 as
the trial court held. Maryjane testified:

Q — Now, on Janu