Separate Opinion – Puno
Voted to uphold the constitutionality of IPRA Law, and of the opinion of the following:
1. Sec. 1, Part II, Rule III of NCIP Administrative Order No. 1, series of 1998 is unconstitutional;
2. the Rules and Regulations Implementing the IPRA is unconstitutional; and
3. Sec. 57, IPRA – which he contends should be interpreted as dealing with the large-scale
exploitation of natural resources and should be read in conjunction with Sec. 2, Art XII of the
1987 Constitution.
Power of Dominium is the capacity of the State to own or acquire property. This was the foundation of the
early Spanish decrees embracing feudal theory of jura regalia. Regalian Doctrine/Jura Regalia was first
introduced by the Spaniards into the country through the Laws of the Indies and the Royal Cedulas.
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. Private land titles
could only be acquired from the government either by purchase or by the various modes of land grant from
the Crown.
The Regalian Doctrine/Jura Regalia dictates that all lands of the public domain belong to the State, that the
State is the source of any asserted right to ownership of land and charged with the conservation of such
patrimony
Art. VII, Sec. 3, 1987 Constitution – 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.
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.
RA 8371, IPRA (“Indigenous Peoples Rights Act”)
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. IPRA is based on the concept of native title and parens patreae.
Concept of “Native Title”
The Court has recognized long occupancy of land by an indigenous member of the cultural communities as
one of private ownership. This is considered as an exception to the Regalian Doctrine. [Carino v Insular
Governement]
Ancestral Land and Ancestral Domain
Native Title, different from Aboriginal Title
Aboriginal Title: Aboriginal Indian interest simply constitutes "permission" from the whites to occupy the land,
and means mere possession not specifically recognized as ownership by Congress. It is clear that this
right of occupancy based upon aboriginal possession is not a property right. It is vulnerable to affirmative
action by the federal government who, as sovereign, possessed exclusive power to extinguish the right of
occupancy at will. 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.
Native Title: Presumes that the land is private and was never public even before colonization.
Other relevant cases:
Valenton v Murciano 3 Phil. 537, 543 [1904]
Carino v Insular Government 41 Phil. 935 (1909), 212 U.S. 449, 53 L.Ed. 594.
Rubi v. Provincial Board of Mindoro, supra, at 693.
Separate Opinion – Vitug - Voted to grant the petition to declare IPRA as unconstitutional
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 (Art 12,
Sec. 5, 1987 Constitution).
On the issue of the constitutionality of IPRA
1) Justice Vitug is of the opinion that Sec. 3(a), Sec. 7, with exception to paragraph (h), and Sec. 57, are
unconstitutional on the following grounds:
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 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."
2) The Regalian Doctrine is based on the collective will of the people expressed in the Constitution. Hence, a
court ruling or legislation cannot override fundamental law.
The decision of the United States Supreme Court in Cariño vs. Insular Government, 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 (the People) that
sovereignty resides and from them that all government authority emanates. 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 (Court Ruling or
Legislation) to adapt to the latter (Constitution), and it is the sovereign act that must, between them, stand
inviolate.
3) Justice Vitug is of the opinion that Congress shall “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”. In other
words, customary laws should be written or codified specifically and be part of statutory law, and
published to be binding and effective.
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 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," in Tanada vs. Tuvera 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.
Separate Opinion – Kapunan
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 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.
The Constitutional Policies on 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.
Preliminary Issues
1. On whether the petition presents an actual controversy
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, or that which
seeks to resolve hypothetical or feigned constitutional problems. 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. 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.The controversy must also be justiciable; that is, it must be susceptible of judicial determination.
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.
2. On whether petitioners have locus standi to raise the constitutional questions
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.
The proper party requirement is considered as merely procedural, and the Court has ample discretion with
regard thereto.
a. If relief is sought for the protection of private right - 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. [Severino vs. Governor General, 1910]
b. If relief is sought for the protection of public right – 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. [Severino vs. Governor General,
1910]
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."
A public right belongs to the people at large. It need not be written in the Constitution for they are
assumed to exist from the inception of humankind (e.g. right to self-preservation and self-
perpetuation in the case of Oposa v Factoran.
In the present case, the petitioners, as tax payers and citizens, possess the following public
rights:
Preservation of integrity and inviolability of the national patrimony
Restrain officials from wasting public funds through enforcement of unconstitutional statute
[Philconsa v. Mathay, 18 SCRA 300, 306 (1966), Philconsa v. Gimenez, 15 SCRA 479, 487
(1965), citing 11 Am Jur 761.]
3. On whether petition for prohibition and mandamus are proper remedies or not
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.
Mandamus 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.
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.
4. On whether petitioners are allowed to raise the petition to Supreme Court in the first instance, thereby
disregarding the principle of judicial hierarchy.
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,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. 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.
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 Issue
Primary Issue
1. On whether Sections 3(a), 3(b), 5, 6, 7, 8, 57, 58 and 59 of the IPRA law violate Sec. 2, Art. XII of the
Constitution (Regalian Doctrine)
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?
