[G.R. No. 147465.

January 30, 2002]

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner, vs. JANCOM ENVIRONMENTAL

CORPORATION and JANCOM INTERNATIONAL DEVELOPMENT PROJECTS PTY. LIMITED OF
AUSTRALIA, respondents.

DECISION
MELO, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure
filed by petitioner Metropolitan Manila Development Authority (MMDA), seeking to reverse and set aside
the November 13, 2000 decision of the Court of Appeals declaring valid and perfected the waste
management contract entered into by the Republic of the Philippines, represented by the Secretary of
National Resources and the Executive Committee to oversee the build-operate-transfer implementation of
solid waste management projects, and JANCOM Environmental Corporation.
The pertinent facts are as follows:
In 1994, then President Fidel V. Ramos issued Presidential Memorandum Order No. 202 creating the
Executive Committee (EXECOM) to oversee the BOT implementation of solid waste management projects,
headed by the Chairman of the MMDA and the Cabinet Officer for Regional Development-National Capital
Region (CORD-NCR). The EXECOM was to oversee and develop waste-to-energy projects for the waste
disposal sites in San Mateo, Rizal and Carmona, Cavite under the build-operate-transfer (BOT) scheme.
The terms of reference for the waste-to-energy projects provided that its proponents should have the
capability to establish municipal solid waste thermal plants using incineration technology. This type of
technology was selected because of its alleged advantages of greatly reduced waste volume, prolongation
of the service life of the disposal site, and generation of electricity.
While eleven (11) proponents submitted their pre-qualification documents, most failed to comply with
the requirements under Section 5.4 of the Implementing Rules and Regulations (IRR) of Republic Act No.
6957, otherwise known as the Build-Operate-Transfer Law. On July 21, 1995, the Pre-qualification, Bids
and Awards Committee (PBAC) recommended the pre-qualification of three proponents, namely: i)
JANCOM International Pty. Ltd.; ii) First Philippine International W-E Managers; and iii) PACTECH
Development Corporation. On July 26, 1995, the EXECOM approved the recommendation of the
PBAC. On July 27, 1995, MMDA forwarded to the Investment Coordinating Committee (ICC) Secretariat
the pre-feasibility study on the privatization of the Carmona and San Mateo landfill sites. The project was
later presented to the ICC-Technical Board (ICC-TB) and then endorsed to the ICC-Cabinet Committee
(ICC-CC).
On May 2, 1996, the PBAC conducted a pre-bid conference where it required the three pre-qualified
bidders to submit, within ninety (90) days, their bid proposals. On August 2, 1996, JANCOM and First
Philippines requested for an extension of time to submit their bids. PACTECH, on the other hand, withdrew
from the bidding.
Subsequently, JANCOM entered into a partnership with Asea Brown Boveri (ABB) to form JANCOM
Environmental Corporation while First Philippines formed a partnership with OGDEN. Due to the change in
the composition of the proponents, particularly in their technology partners and contractors, the PBAC
conducted a post pre-qualification evaluation.
During the second bid conference, the bid proposals of First Philippines for the Carmona site and
JANCOM for the San Mateo site were found to be complete and [Link], on February 12,
1997, JANCOM and First Philippines were declared the winning bidders, respectively, for the San
Mateo and the Carmona projects.
In a letter dated February 27, 1997, then MMDA Chairman Prospero I. Oreta informed JANCOMs Chief
Executive Officer Jay Alparslan that the EXECOM had approved the PBAC recommendation to award to
JANCOM the San Mateo Waste-to-Energy Project on the basis of the final Evaluation Report declaring
JANCOM International Ltd., Pty., together with Asea Brown Boveri (ABB), as the sole complying (winning)
bidder for the San Mateo Waste Disposal site, subject to negotiation and mutual approval of the terms and
conditions of the contract of award. The letter also notified Alparslan that the EXECOM had created a
negotiating team composed of Secretary General Antonio Hidalgo of the Housing and Urban Development
Coordinating Council, Director Ronald G. Fontamillas, General Manager Roberto Nacianceno of MMDA, and
Atty. Eduardo Torres of the host local government unit to work out and finalize the contract
award. Chairman Oreta requested JANCOM to submit to the EXECOM the composition of its own
negotiating team.
Thereafter, after a series of meetings and consultations between the negotiating teams of EXECOM
and JANCOM, a draft BOT contract was prepared and presented to the Presidential Task Force on Solid
Waste Management.
On December 19, 1997, the BOT Contract for the waste-to-energy project was signed between
JANCOM and the Philippine Government, represented by the Presidential Task Force on Solid Waste
Management through DENR Secretary Victor Ramos, CORD-NCR Chairman Dionisio dela Serna, and MMDA
Chairman Prospero Oreta.
 On March 5, 1998, the BOT contract was submitted to President Ramos for approval but this was too
close to the end of his term which expired without him signing the [Link] Ramos, however,
endorsed the contract to incoming President Joseph E. Estrada.
With the change of administration, the composition of the EXECOM also changed. Memorandum Order
No. 19 appointed the Chairman of the Presidential Committee on Flagship Programs and Project to be the
EXECOM chairman. Too, Republic Act No. 8749, otherwise known as the Clean Air Act of 1999, was passed
by Congress. And due to the clamor of residents of Rizal province, President Estrada had, in the interim,
also ordered the closure of the San Mateo landfill. Due to these circumstances, the Greater Manila Solid
Waste Management Committee adopted a resolution not to pursue the BOT contract with
JANCOM. Subsequently, in a letter dated November 4, 1999, Roberto Aventajado, Chairman of the
Presidential Committee on Flagship Programs and Project informed Mr. Jay Alparslan, Chairman of
JANCOM, that due to changes in policy and economic environment (Clean Air Act and non-availability of
the San Mateo landfill), the implementation of the BOT contract executed and signed between JANCOM
and the Philippine Government would no longer be pursued. The letter stated that other alternative
implementation arrangements for solid waste management for Metro Manila would be considered instead.
JANCOM appealed to President Joseph Estrada the position taken by the EXECOM not to pursue the
BOT Contract executed and signed between JANCOM and the Philippine Government, refuting the cited
reasons for non-implementation. Despite the pendency of the appeal, MMDA, on February 22, 2000,
caused the publication in a newspaper of an invitation to pre-qualify and to submit proposals for solid
waste management projects for Metro Manila. JANCOM thus filed with the Regional Trial Court of Pasig a
petition for certiorari to declare i) the resolution of the Greater Metropolitan Manila Solid Waste
Management Committee disregarding the BOT Contract and ii) the acts of MMDA calling for bids and
authorizing a new contract for Metro Manila waste management, as illegal, unconstitutional, and void; and
for prohibition to enjoin the Greater Metropolitan Manila Solid Waste Management Committee and MMDA
from implementing the assailed resolution and disregarding the Award to, and the BOT contract with,
JANCOM, and from making another award in its place. On May 29, 2000, the trial court rendered a
decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court hereby renders judgment in favor of petitioners JANCOM
ENVIRONMENTAL CORPORATION, and JANCOM INTERNATIONAL DEVELOPMENT PROJECTS PTY., LIMITED
OF AUSTRALIA, and against respondent GREATER METROPOLITAN MANILA SOLID WASTE MANAGEMENT
COMM., and HON. ROBERTO N. AVENTAJADO, in his Capacity as Chairman of the said Committee, METRO
MANILA DEVELOPMENT AUTHORITY and HON. JEJOMAR C. BINAY, in his capacity as Chairman of said
Authority, declaring the Resolution of respondent Greater Metropolitan Manila Solid Waste Management
Committee disregarding petitioners BOT Award Contract and calling for bids for and authorizing a new
contract for the Metro Manila waste management ILLEGAL and VOID.

Moreover, respondents and their agents are hereby PROHIBITED and ENJOINED from implementing the
aforesaid Resolution and disregarding petitioners BOT Award Contract and from making another award in
its place.

Let it be emphasized that this Court is not preventing or stopping the government from implementing
infrastructure projects as it is aware of the proscription under PD 1818. On the contrary, the Court is
paving the way for the necessary and modern solution to the perennial garbage problem that has been the
major headache of the government and in the process would serve to attract more investors in the
country.

(Rollo,p. 159.)

Instead of appealing the decision, MMDA filed a special civil action for certiorari with prayer for a
temporary restraining order with the Court of Appeals which was later docketed therein as CA-G.R. SP No.
59021. The appellate court not only required JANCOM to comment on the petition, it also granted MMDAs
prayer for a temporary restraining order. During the pendency of the petition for certiorari, JANCOM
moved for the execution of the RTC decision, which was opposed by MMDA. However, the RTC granted the
motion for execution on the ground that its decision had become final since MMDA had not appealed the
same to the Court of Appeals. MMDA moved to declare respondents and the RTC judge in contempt of
court, alleging that the RTCs grant of execution was abuse of and interference with judicial rules and
processes.
On November 13, 2001, the Court of Appeals dismissed the petition in CA-G.R. SP No. 59021 and a
companion case, CA-G.R. SP No. 60303.
MMDAs motion for reconsideration of said decision having been denied, MMDA filed the instant
petition, alleging that the Court of Appeals gravely erred in finding that:
1) There is a valid and binding contract between the Republic of the Philippines and JANCOM
given that: a) the contract does not bear the signature of the President of the Philippines; b)
the conditions precedent specified in the contract were not complied with; and c) there was no
valid notice of award.
2) The MMDA had not seasonably appealed the Decision of the lower court via a petition for
certiorari.
Before taking up the substantive issue in question, we shall first dispose of the question as to whether
it is fatal to petitioners cause, that rather than appealing the trial courts decision to the Court of Appeals,
it instead filed a petition for certiorari. While petitioner claims that the trial courts decision never became
final by virtue of its having appealed by certiorari to the Court of Appeals, the trial court ruled that
petitioners failure to file an appeal has made its decision final and executory. At bottom, the question
involves a determination of the propriety of petitioners choice of the remedy of certiorari in questioning
the decision of the trial court.
Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:

Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or 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 of such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require.

The petition shall be accompanied by a certified true copy of the judgment, order, or resolution subject
thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of
non-forum shopping as provided in the third paragraph of section 3, Rule 46.

Plain it is from a reading of the above provision that certiorari will lie only where a court has acted
without or in excess of jurisdiction or with grave abuse of discretion. If the court has jurisdiction over the
subject matter and of the person, its rulings upon all questions involved are within its jurisdiction,
however irregular or erroneous these may be, they cannot be corrected by certiorari. Correction may be
obtained only by an appeal from the final decision.
Verily, Section 1, Rule 41 of the 1997 Rules of Civil Procedure provides:

SEC. 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely
disposes of the case or of a particular matter therein when declared by these Rules to be appealable.

xxx xxx xxx

In all the above instances where the judgment or final order is not appealable, the aggrieved party may
file an appropriate special civil action under Rule 65.

There can be no dispute that the trial courts May 29, 2000 decision was a final order or judgment
which MMDA should have appealed, had it been so minded. In its decision, the trial court disposed of the
main controversy by declaring the Resolution of respondent Greater Metropolitan Manila Solid Waste
Management Committee disregarding petitioners BOT Award Contract and calling for bids for and
authorizing a new contract for the Metro Manila waste management ILLEGAL and VOID. This ruling
completely disposed of the controversy between MMDA and JANCOM. In BA Finance Corporation vs.
CA (229 SCRA 5667 [1994]), we held that a final order or judgment is one which disposes of the whole
subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce
by execution what has been determined. An order or judgment is deemed final when it finally disposes of
the pending action so that nothing more can be done with it in the trial court. In other words, a final order
is that which gives an end to the litigation. A final order or judgment finally disposes of, adjudicates, or
determines the rights, or some right or rights of the parties, either on the entire controversy or on some
definite and separate branch thereof, and concludes them until it is reversed or set aside. Where no issue
is left for future consideration, except the fact of compliance or non-compliance with the terms of the
judgment or doer, such judgment or order is final and appealable (Investments, Inc. vs. Court of
Appeals, 147 SCRA 334 [1987]).
However, instead of appealing the decision, MMDA resorted to the extraordinary remedy
of certiorari, as a mode of obtaining reversal of the judgment. This cannot be done. The judgment was not
in any sense null and void ab initio, incapable of producing any legal effects whatever, which could be
resisted at any time and in any court it was attempted. It was a judgment which could or may have
suffered from some substantial error in procedure or in findings of fact or of law, and on that account, it
could have been reversed or modified on [Link] since it was not appealed, it became final and has
thus gone beyond the reach of any court to modify in any substantive aspect. The remedy to obtain
reversal or modification of the judgment on the merits is appeal. This is true even if the error, or one of
the errors, ascribed to the court rendering the judgment is its lack of jurisdiction over the subject matter,
or the exercise of power in excess thereof, or grave abuse of discretion in the findings of fact or of law set
out in the decision. The existence and availability of the right of appeal proscribes a resort
to certiorari, because one of the requirements for availment of the latter remedy is precisely that there
should be no appeal (Mercado vs. CA, 162 SCRA 75 [1988]). As incisively observed by the Court of
Appeals:

The special civil action for certiorari is available only when there is no appeal nor any plain, speedy and
adequate remedy in the ordinary course of law (Sec. 1, rule 65, id.)

Admittedly, appeal could have been taken from the assailed RTC decision. However, petitioners maintain
that appeal is not a speedy remedy because the RTC decision prohibiting them from conducting a bidding
for a new waste disposal project has adverse and serious effects on the citys garbage situation.

Nevertheless, the RTC decision is not immediately executory. Only judgments in actions for injunction,
receivership, accounting and support and such other judgments as are now or may hereafter be declared
to be immediately executory shall be enforced after their rendition and shall not be stayed by an appeal
therefrom, unless otherwise ordered by the trial court (Sec. 4, rule 39, id.).

Since the RTC decision is not immediately executory, appeal would have stayed its
execution. Consequently, the adverse effects of said decision will not visit upon petitioners during the
appeal. In other words, appeal is a plain, speedy and adequate remedy in the ordinary course of the law.

But as no appeal was taken within the reglementary period, the RTC decision had become final and
executory. Well-settled is the rule that the special civil action for certiorari may not be invoked as a
substitute for the remedy of appeal (BF Corporation vs. Court of Appeals, 288 SCRA 267). Therefore, the
extraordinary remedy of certiorari does not lie.

Moreover, petitioners instituted the instant action without filing a motion for reconsideration of the RTC
decision. Doctrinal is the rule that certiorari will not lie unless a motion for reconsideration is first filed
before the respondent tribunal to allow it an opportunity to correct its errors (Zapanta vs. NLRC, 292
SCRA 580).

Admittedly, there are instances where the extraordinary remedy of certiorari may be resorted to
despite the availability of an appeal. In Ruiz, Jr. vs. Court of Appeals (220 SCRA 490 [1993]), we held:

Considered extraordinary, [certiorari] is made available only when there is no appeal, nor any plain,
speedy or adequate remedy in the ordinary course of the law (Rule 65, Rules of Court, Section 1). The
long line of decisions denying the petition for certiorari, either before appeal was availed or specially in
instances where the appeal period has lapsed, far outnumbers the instances when certiorari was given due
course. The few significant exceptions were: when public welfare and the advancement of public policy
dictate; or when the broader interests of justice so require, or when the writs issued are null . . . or when
the questioned order amounts to an oppressive exercise of judicial authority.

In the instant case, however, MMDA has not sufficiently established the existence of any fact or
reason to justify its resort to the extraordinary remedy of certiorari. Neither does the record show that the
instant case, indeed, falls under any of the exceptions aforementioned.
The Court thus holds that the Court of Appeals did not err in declaring that the trial courts decision
has become final due to the failure of MMDA to perfect an appeal within the reglementary period.
With the foregoing disquisition, it would appear unnecessarily to discuss and resolve the substantive
issue posed before the Court. However, the procedural flaw notwithstanding, the Court deems it judicious
to take cognizance of the substantive question, if only to put petitioners mind to rest.
In its second assignment of errors, petitioner MMDA contends that there is no valid and binding
contract between the Republic of the Philippines and respondents because: a) the BOT contract does not
bear the signature of the President of the Philippines; b) the conditions precedent specified in the contract
were not complied with; and that c) there was no valid notice of award.
These contentions hold no water.
Under Article 1305 of the Civil Code, [a] contract is a meeting of minds between two persons whereby
one binds himself, with respect to the other, to give something or to render some service. A contract
undergoes three distinct stages preparation or negotiation, its perfection, and finally, its
consummation. Negotiation begins from the time the prospective contracting parties manifest their
interest in the contract and ends at the moment of agreement of the parties. The perfection or birth of the
contract takes place when the parties agree upon the essential elements of the contract. The last stage is
the consummation of the contract wherein the parties fulfill or perform the terms agreed upon in the
contract, culminating in the extinguishment thereof (Bugatti vs. CA, 343 SCRA 335 [2000]). Article 1315
of the Civil Code, provides that a contract is perfected by mere consent. Consent, on the other hand, is
manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to
constitute the contract (See Article 1319, Civil Code). In the case at bar, the signing and execution of the
contract by the parties clearly show that, as between the parties, there was a concurrence of offer and
acceptance with respect to the material details of the contract, thereby giving rise to the perfection of the
contract. The execution and signing of the contract is not disputed by the parties. As the Court of Appeals
aptly held:

[C]ontrary to petitioners insistence that there was no perfected contract, the meeting of the offer and
acceptance upon the thing and the cause, which are to constitute the contract (Arts. 1315 and 1319, New
Civil Code), is borne out by the records.

Admittedly, when petitioners accepted private respondents bid proposal (offer), there was, in effect, a
meeting of the minds upon the object (waste management project) and the cause (BOT scheme). Hence,
the perfection of the contract. In City of Cebu vs. Heirs of Candido Rubi (306 SCRA 108), the Supreme
Court held that the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a
contract, upon notice of the award to the bidder.

In fact, in asserting that there is no valid and binding contract between the parties, MMDA can only
allege that there was no valid notice of award; that the contract does not bear the signature of the
President of the Philippines; and that the conditions precedent specified in the contract were not complied
with.
 In asserting that the notice of award to JANCOM is not a proper notice of award, MMDA points to the
Implementing Rules and Regulations of Republic Act No. 6957, otherwise known as the BOT Law, which
require that i) prior to the notice of award, an Investment Coordinating Committee clearance must first be
obtained; and ii) the notice of award indicate the time within which the awardee shall submit the
prescribed performance security, proof of commitment of equity contributions and indications of financing
resources.
Admittedly, the notice of award has not complied with these requirements. However, the defect was
cured by the subsequent execution of the contract entered into and signed by authorized representatives
of the parties; hence, it may not be gainsaid that there is a perfected contract existing between the
parties giving to them certain rights and obligations (conditions precedents) in accordance with the terms
and conditions thereof. We borrow the words of the Court of Appeals:

Petitioners belabor the point that there was no valid notice of award as to constitute acceptance of private
respondents offer. They maintain that former MMDA Chairman Oretas letter to JANCOM EC dated February
27, 1997 cannot be considered as a valid notice of award as it does not comply with the rules
implementing Rep. Act No. 6957, as amended. The argument is untenable.

The fact that Chairman Oretas letter informed JANCOM EC that it was the sole complying (winning) bidder
for the San Mateo project leads to no other conclusion than that the project was being awarded to it. But
assuming that said notice of award did not comply with the legal requirements, private respondents
cannot be faulted therefore as it was the government representatives duty to issue the proper
notice.

In any event, petitioners, as successors of those who previously acted for the government (Chairman
Oreta, et al), are estopped from assailing the validity of the notice of award issued by the latter. As
private respondents correctly observed, in negotiating on the terms and conditions of the BOT contract
and eventually signing said contract, the government had led private respondents to believe that the
notice of award given to them satisfied all the requirement of the law.

While the government cannot be estopped by the erroneous acts of its agents, nevertheless, petitioners
may not now assail the validity of the subject notice of award to the prejudice of private [Link]
the institution of the original action before the RTC, invalidity of the notice of award was never invoked as
a ground for termination of the BOT contract. In fact, the reasons cited for terminating the San
Mateo project, per Chairman Aventajados letter to JANCOM EC dated November 4, 1999, were its
purported non-implementability and non-viability on account of supervening events, e.g., passage of the
Clean Air Act, etc.

MMDA also points to the absence of the Presidents signature as proof that the same has not yet been
perfected. Not only that, the authority of the signatories to bind the Republic has even been put to
question. Firstly, it is pointed out that Memorandum Order No. 202 creating the Executive Committee to
oversee the BOT implementation of solid waste management projects only charged the officials thereof
with the duty of recommending to the President the specific project to be implemented under the BOT
scheme for both San Mateo and Carmona sites. Hence, it is concluded that the signatories, CORD-NCR
Chairman Dionisio dela Serna and MMDA Chairman Prospero Oreta, had no authority to enter into any
waste management project for and in behalf of the Government. Secondly, Section 59 of Executive Order
No. 292 is relied upon as authority for the proposition that presidential approval is necessary for the
validity of the contract.
The first argument conveniently overlooks the fact that then Secretary of Environment and Natural
Resources Victor Ramos was likewise a signatory to the contract. While dela Serna and Oreta may not
have had any authority to sign, the Secretary of Environment and Natural Resources has such an
authority. In fact, the authority of the signatories to the contract was not denied by the Solicitor
General. Moreover, as observed by the Court of Appeals, [i]t was not alleged, much less shown, that those
who signed in behalf of the Republic had acted beyond the scope of their authority.
In truth, the argument raised by MMDA does not focus on the lack of authority of the signatories, but
on the amount involved as placing the contract beyond the authority of the signatories to approve. Section
59 of Executive Order No. 292 reads:

Section 59. Contracts for Approval by the President. Contracts for infrastructure projects, including
contracts for the supply of materials and equipment to be used in said projects, which involve amounts
above the ceilings provided in the preceding section shall be approved by the President: Provided, That
the President may, when conditions so warrant, and upon recommendation of the National Economic and
Development Authority, revise the aforesaid ceilings of approving authority.

However, the Court of Appeals trenchantly observed in this connection:

As regards the Presidents approval of infrastructure projects required under Section 59 of Executive Order
No. 292, said section does not apply to the BOT contract in question. Sec. 59 should be correlated with
Sec. 58 of Exec. Order No. 292. Said sections read:

SECTION 58. Ceiling for Infrastructure Contracts. The following shall be the ceilings for all civil works,
construction and other contracts for infrastructure projects, including supply contracts for said projects,
awarded through public bidding or through negotiation, which may be approved by the Secretaries of
Public Works and Highways, Transportation and Communications, Local Government with respect to Rural
Road improvement Project and governing boards of government-owned or controlled corporations:

xxx xxx xxx

Save as provided for above, the approval ceilings assigned to the departments/agencies involved in
national infrastructure and construction projects shall remain at the levels provided in existing laws, rules
and regulations.

Contrary to petitioners claim that all infrastructure contracts require the Presidents approval (Petition, p.
16), Sec. 59 provides that such approval is required only in infrastructure contracts involving amounts
exceeding the ceilings set in Sec. 58. Significantly, the infrastructure contracts treated in Sec. 58 pertain
only to those which may be approved by the Secretaries of Public Works and Highways, Transportation
and Communications, Local Government (with respect to Rural Road Improvement Project) and the
governing boards of certain government-owned or controlled corporations. Consequently, the BOT
contract in question, which was approved by the DENR Secretary and the EXCOM Chairman and Co-
Chairman, is not covered by Exec. Order No. 292.

The provision pertinent to the authority of the Secretary of Environment and Natural Resources would
actually be Section 1 of Executive Order No. 380, Series of 1989 which provides that The Secretaries of all
Departments and Governing Boards of government-owned or controlled corporations [except the
Secretaries of Public Works and Highways, Transportation and Communication, and Local Government
with respect to Rural Road Improvement projects] can enter into publicly bidded contracts
regardless of amount (See also Section 515,Government Accounting and Auditing Manual Volume I).
Consequently, MMDA may not claim that the BOT contract is not valid and binding due to the lack of
presidential approval.
Significantly, the contract itself provides that the signature of the President is necessary only for its
effectivity (not perfection), pursuant to Article 19 of the contract, which reads:

This contract shall become effective upon approval by the President of the Republic of
the Philippines pursuant to existing laws subject to the condition, precedent in Article 18. This contract
shall remain in full force and effect for twenty-five (25) years subject to renewal for another twenty-five
(25) years from the date of Effectivity. Such renewal will be subject to mutual agreement of the parties
and approval of the President of the Republic of the Philippines.

Stated differently, while the twenty-five year effectivity period of the contract has not yet started to
run because of the absence of the Presidents signature, the contract has, nonetheless, already been
perfected.
As to the contention that there is no perfected contract due to JANCOMs failure to comply with several
conditions precedent, the same is, likewise, unmeritorious. Article 18 of the BOT contract reads:

ARTICLE 18

CONDITIONS PRECEDENT

xxx
18.2.1. The BOT COMPANY hereby undertakes to provide the following within 2 months from
execution of this Contract as an effective document:
a) sufficient proof of the actual equity contributions from the proposed shareholders of the BOT
COMPANY in a total amount not less than PHP500,000,000 in accordance with the BOT Law
and the implementing rules and regulations;
b) sufficient proof of financial commitment from a lending institution sufficient to cover total
project cost in accordance with the BOT Law and the implementing rules and regulations;
c) to support its obligation under this Contract, the BOT COMPANY shall submit a security bond to
the CLIENT in accordance with the form and amount required under the BOT Law.
xxx
18.2.3 Completion of Documentary Requirements as per Schedule 4 by the BOT Company
As clearly stated in Article 18, JANCOM undertook to comply with the stated conditions within 2
months from execution of the Contract as an effective document. Since the President of
the Philippines has not yet affixed his signature on the contract, the same has not yet become an effective
document. Thus, the two-month period within which JANCOM should comply with the conditions has not
yet started to run. It cannot thus be said that JANCOM has already failed to comply with the conditions
precedent mandated by the contract. By arguing that failure [of JANCOM] to comply with the conditions
results in the failure of a contract or prevents the judicial relation from coming into existence, MMDA reads
into the contract something which is not contemplated by the parties. If the terms of a contract are clear
and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations
shall control (Art. 1370, Civil Code).
We, therefore, hold that the Court of Appeals did not err when it declared the existence of a valid and
perfected contract between the Republic of the Philippines and JANCOM. There being a perfected contract,
MMDA cannot revoke or renounce the same without the consent of the other. From the moment of
perfection, the parties are bound not only to the fulfillment of what has been expressly stipulated but also
to all the consequences which, according to their nature, may be in keeping with good faith, usage, and
law (Article 1315, Civil Code). The contract has the force of law between the parties and they are
expected to abide in good faith by their respective contractual commitments, not weasel out of them. Just
as nobody can be forced to enter into a contract, in the same manner, once a contract is entered into, no
party can renounce it unilaterally or without the consent of the other. It is a general principle of law that
no one may be permitted to change his mind or disavow and go back upon his own acts, or to proceed
contrary thereto, to the prejudice of the other party. Nonetheless, it has to be repeated that although the
contract is a perfected one, it is still ineffective or unimplementable until and unless it is approved by the
President.
Moreover, if after a perfected and binding contract has been executed between the parties, it occurs
to one of them to allege some defect therein as reason for annulling it, the alleged defect must be
conclusively proven, since the validity and the fulfillment of contracts cannot be left to the will of one of
the contracting parties. In the case at bar, the reasons cited by MMDA for not pushing through with the
subject contract were: 1) the passage of the Clean Air Act, which allegedly bans incineration; 2) the
closure of the San Mateo landfill site; and 3) the costly tipping fee. These reasons are bereft of merit
Once again, we make reference to the insightful declarations of the Court of Appeals:

Sec. 20 of the Clean Air Act pertinently reads:

SECTION 20. Ban on Incineration. Incineration, hereby defined as the burning of municipal, bio-chemical
and hazardous wastes, which process emits poisonous and toxic fumes, is hereby prohibited: x x x.

Section 20 does not absolutely prohibit incineration as a mode of waste disposal; rather only those
burning processes which emit poisonous and toxic fumes are banned.

As regards the projected closure of the San Mateo landfill vis--vis the implementability of the contract,
Art. 2.3 thereof expressly states that [i]n the event the project Site is not delivered x x x, the Presidential
task Force on Solid Waste Management (PTFSWM) and the Client, shall provide within a reasonable period
of time, a suitable alternative acceptable to the BOT COMPANY.

With respect to the alleged financial non-viability of the project because the MMDA and the local
government units cannot afford the tipping fees under the contract, this circumstance cannot, by itself,
abrogate the entire agreement.

Doctrinal is the rule that neither the law nor the courts will extricate a party from an unwise or undesirable
contract, or stipulation for that matter, he or she entered into with full awareness of its consequences
(Opulencia vs. CA, 293 SCRA 385). Indeed, the terms and conditions of the subject contract were arrived
at after due negotiations between the parties thereto.

WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit and the
decision of the Court of Appeals in CA-G.R. SP No. 59021 dated November 13, 2001AFFIRMED. No costs.
SO ORDERED.
Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.
Carpio, J., no part. I was former counsel to a foreign partner of Jancom Environmental Corporation.

G.R. No. 180771, April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TANON STRAIT, E.G., TOOTHED
WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, JOINED IN AND
REPRESENTED HEREIN BY HUMAN BEINGS GLORIA ESTENZO RAMOS AND ROSE-LIZA EISMA-
OSORIO, IN THEIR CAPACITY AS LEGAL GUARDIANS OF THE LESSER LIFE-FORMS AND AS
RESPONSIBLE STEWARDS OF GOD'S CREATIONS, Petitioners, v. SECRETARY ANGELO REYES, IN
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENERGY (DOE), SECRETARY JOSE L.
ATIENZA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES (DENR), LEONARDO R. SIBBALUCA, DENR REGIONAL DIRECTOR-REGION
VII AND IN HIS CAPACITY AS CHAIRPERSON OF THE TANON STRAIT PROTECTED SEASCAPE
MANAGEMENT BOARD, BUREAU OF FISHERIES AND AQUATIC RESOURCES (BFAR), DIRECTOR
MALCOLM I. SARMIENTO, JR., BFAR REGIONAL DIRECTOR FOR REGION VII ANDRES M. BOJOS,
JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), AS REPRESENTED BY ITS PHILIPPINE
AGENT, SUPPLY OILFIELD SERVICES, INC., Respondents.

G.R. No. 181527

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL,

RAMON YANONG, FRANCISCO LABID, IN THEIR PERSONAL CAPACITY AND AS
REPRESENTATIVES OF THE SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF
ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND
FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY
AFFECTED, Petitioners, v. SECRETARY ANGELO REYES, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENERGY (DOE), JOSE L. ATIENZA, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), LEONARDO R.
SIBBALUCA, IN HIS CAPACITY AS DENR REGIONAL DIRECTOR-REGION VII AND AS
CHAIRPERSON OF THE TAON STRAIT PROTECTED SEASCAPE MANAGEMENT BOARD, ALAN
ARRANGUEZ, IN HIS CAPACITY AS DIRECTOR ENVIRONMENTAL MANAGEMENT BUREAU-
REGION VII, DOE REGIONAL DIRECTOR FOR REGION VIII 1 ANTONIO LABIOS, JAPAN
PETROLEUM EXPLORATION CO., LTD. (JAPEX), AS REPRESENTED BY ITS PHILIPPINE AGENT,
SUPPLY OILFIELD SERVICES, INC., Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

Before Us are two consolidated Petitions filed under Rule 65 of the 1997 Rules of Court,
concerning Service Contract No. 46 (SC-46), which allowed the exploration, development, and
exploitation of petroleum resources within Taon Strait, a narrow passage of water situated between the
islands of Negros and Cebu.2

The Petition docketed as G.R. No. 180771 is an original Petition for Certiorari, Mandamus, and
Injunction, which seeks to enjoin respondents from implementing SC-46 and to have it nullified for willful
and gross violation of the 1987 Constitution and certain international and municipal laws. 3

Likewise, the Petition docketed as G.R. No. 181527 is an original Petition for Certiorari, Prohibition,
and Mandamus, which seeks to nullify the Environmental Compliance Certificate (ECC) issued by the
Environmental Management Bureau (EMB) of the Department of Environment and Natural Resources
(DENR), Region VII in connection with SC-46; to prohibit respondents from implementing SC-46; and to
compel public respondents to provide petitioners access to the pertinent documents involving the Taon
Strait Oil Exploration Project.4

ANTECEDENT FACTS AND PROCEEDINGS

Petitioners in G.R. No. 180771, collectively referred to as the "Resident Marine Mammals" in the petition,
are the toothed whales, dolphins, porpoises, and other cetacean species, which inhabit the waters in and
around the Taon Strait. They are joined by Gloria Estenzo Ramos (Ramos) and Rose-Liza Eisma-Osorio
(Eisma-Osorio) as their legal guardians and as friends (to be collectively known as "the Stewards") who
allegedly empathize with, and seek the protection of, the aforementioned marine species. Also impleaded
as an unwilling co-petitioner is former President Gloria Macapagal-Arroyo, for her express declaration and
undertaking in the ASEAN Charter to protect the Taon Strait, among others. 5

Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk Development Center (FIDEC), a non-
stock, non-profit, non-governmental organization, established for the welfare of the marginal fisherfolk in
Region VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong) and Francisco Labid (Labid), in
their personal capacities and as representatives of the subsistence fisherfolk of the municipalities of
Aloguinsan and Pinamungajan, Cebu.

Named as respondents in both petitions are the late Angelo T. Reyes, as then Secretary of the Department
of Energy (DOE); Jose L. Atienza, as then Secretary of the DENR; Leonardo R. Sibbaluca, as then DENR-
Regional Director for Region VII and Chairman of the Taon Strait Protected Seascape Management
Board; Japan Petroleum Exploration Co., Ltd. (JAPEX), a company organized and existing under the laws
of Japan with a Philippine branch office; and Supply Oilfield Services, Inc. (SOS), as the alleged Philippine
agent of JAPEX.

In G.R. No. 181527, the following were impleaded as additional public respondents: Alan C. Arranguez
(Arranguez) and Antonio Labios (Labios), in their capacities as then Director of the EMB, Region VII and
then Regional Director of the DOE, Region VII, respectively. 6

On June 13, 2002, the Government of the Philippines, acting through the DOE, entered into a Geophysical
Survey and Exploration Contract-102 (GSEC-102) with JAPEX. This contract involved geological and
geophysical studies of the Taon Strait. The studies included surface geology, sample analysis, and
reprocessing of seismic and magnetic data. JAPEX, assisted by DOE, also conducted geophysical and
satellite surveys, as well as oil and gas sampling in Taon Strait. 7

On December 21, 2004, DOE and JAPEX formally converted GSEC-102 into SC-46 for the exploration,
development, and production of petroleum resources in a block covering approximately 2,850 square
kilometers offshore the Taon Strait.8

From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Taon Strait. A multi-
channel sub-bottom profiling covering approximately 751 kilometers was also done to determine the
area's underwater composition.9

JAPEX committed to drill one exploration well during the second sub-phase of the project. Since the well
was to be drilled in the marine waters of Aloguinsan and Pinamungajan, where the Taon Strait was
declared a protected seascape in 1988,10 JAPEX agreed to comply with the Environmental Impact
Assessment requirements pursuant to Presidential Decree No. 1586, entitled "Establishing An
Environmental Impact Statement System, Including Other Environmental Management Related Measures
And For Other Purposes."11

On January 31, 2007, the Protected Area Management Board 12 of the Taon Strait (PAMB-Taon Strait)
issued Resolution No. 2007-001,13 wherein it adopted the Initial Environmental Examination (IEE)
commissioned by JAPEX, and favorably recommended the approval of JAPEX's application for an ECC.

On March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and JAPEX for the offshore oil
and gas exploration project in Taon Strait.14 Months later, on November 16, 2007, JAPEX began to drill
an exploratory well, with a depth of 3,150 meters, near Pinamungajan town in the western Cebu
Province.15 This drilling lasted until February 8, 2008. 16

It was in view of the foregoing state of affairs that petitioners applied to this Court for redress, via two
separate original petitions both dated December 17, 2007, wherein they commonly seek that respondents
be enjoined from implementing SC-46 for, among others, violation of the 1987 Constitution.

On March 31, 2008, SOS filed a Motion to Strike17 its name as a respondent on the ground that it is not
the Philippine agent of JAPEX. In support of its motion, it submitted the branch office application of
JAPEX,18 wherein the latter's resident agent was clearly identified. SOS claimed that it had acted as a
mere logistics contractor for JAPEX in its oil and gas exploration activities in the Philippines.

Petitioners Resident Marine Mammals and Stewards opposed SOS's motion on the ground that it was
premature, it was pro-forma, and it was patently dilatory. They claimed that SOS admitted that "it is in
law a (sic) privy to JAPEX" since it did the drilling and other exploration activities in Taon Strait under the
instructions of its principal, JAPEX. They argued that it would be premature to drop SOS as a party as
JAPEX had not yet been joined in the case; and that it was "convenient" for SOS to ask the Court to
simply drop its name from the parties when what it should have done was to either notify or ask JAPEX to
join it in its motion to enable proper substitution. At this juncture, petitioners Resident Marine Mammals
and Stewards also asked the Court to implead JAPEX Philippines as a corespondent or as a substitute for
its parent company, JAPEX.19

On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and G.R. No. 181527.

On May 26, 2008, the FIDEC manifested 20 that they were adopting in toto the Opposition to Strike with
Motion to Implead filed by petitioners Resident Marine Mammals and Stewards in G.R. No. 180771.

On June 19, 2008, public respondents filed their Manifestation21 that they were not objecting to SOS's
Motion to Strike as it was not JAPEX's resident agent. JAPEX during all this time, did not file any comment
at all.

Thus, on February 7, 2012, this Court, in an effort to ensure that all the parties were given ample chance
and opportunity to answer the issues herein, issued a Resolution directing the Court's process servicing
unit to again serve the parties with a copy of the September 23, 2008 Resolution of the Court, which gave
due course to the petitions in G.R. Nos. 180771 and 181527, and which required the parties to submit
their respective memoranda. The February 7, 2012 Resolution 22 reads as
follows:chanroblesvirtuallawlibrary
G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape Taon Strait, e.g., Toothed
Whales, Dolphins, Porpoises and Other Cetacean Species, et al. vs. Hon. Angelo Reyes, in his capacity as
Secretary of the Department of Energy, et al.) and G.R. No. 181527 (Central Visayas Fisherfolk
Development Center, et al. vs. Hon. Angelo Reyes, et al.). - The Court Resolved to direct the Process
Servicing Unit to RE-SEND the resolution dated September 23, 2008 to the following parties and counsel,
together with this resolution:chanroblesvirtuallawlibrary
Atty. Aristeo O. th
20 Floor Pearlbank Centre
Cario
Counsel for
146 Valero Street
Respondent Supply
Oilfield Services, Inc. Salcedo Village, Makati City

JAPEX Philippines
20th Floor Pearlbank Centre
Ltd.
146 Valero Street
Salcedo Village, Makati City

JAPEX Philippines th
19 Floor Pearlbank Centre
Ltd.
c/o Atty. Maria Farah
146 Valero Street
Z.G.
Nicolas-Suchianco Salcedo Village, Makati City

Atty. Maria Farah

Suite 2404 Discovery Centre
Z.G.
Nicolas-Suchianco 25 ADB Avenue
Resident Agent of
Ortigas Center, Pasig City
JAPEX
Philippines Ltd.
This Resolution was personally served to the above parties, at the above addresses on February 23, 2012.
On March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by way of special appearance, filed a Motion to
Admit23 its Motion for Clarification,24 wherein JAPEX PH requested to be clarified as to whether or not it
should deem the February 7, 2012 Resolution as this Court's Order of its inclusion in the case, as it has
not been impleaded. It also alleged that JAPEX PH had already stopped exploration activities in the Taon
Strait way back in 2008, rendering this case moot.

On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion for Extension of Time25 to file its
Memorandum. It stated that since it received the February 7, 2012 Resolution on February 23, 2012, it
had until March 22, 2012 to file its Memorandum. JAPEX PH then asked for an additional thirty days,
supposedly to give this Court some time to consider its Motion for Clarification.

On April 24, 2012, this Court issued a Resolution 26 granting JAPEX PH's Motion to Admit its Motion for
Clarification. This Court, addressing JAPEX PH's Motion for Clarification, held:chanroblesvirtuallawlibrary
With regard to its Motion for Clarification (By Special Appearance) dated March 19, 2012, this Court
considers JAPEX Philippines. Ltd. as a real party-in-interest in these cases. Under Section 2, Rule 3 of the
1997 Rules of Court, a real party-in-interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Contrary to JAPEX Philippines, Ltd.'s
allegation that it is a completely distinct corporation, which should not be confused with JAPEX Company,
Ltd., JAPEX Philippines, Ltd. is a mere branch office, established by JAPEX Company, Ltd. for the purpose
of carrying out the latter's business transactions here in the Philippines. Thus, JAPEX Philippines, Ltd., has
no separate personality from its mother foreign corporation, the party impleaded in this case.

Moreover, Section 128 of the Corporation Code provides for the responsibilities and duties of a resident
agent of a foreign corporation:chanroblesvirtuallawlibrary
SECTION 128. Resident agent; service of process. The Securities and Exchange Commission shall
require as a condition precedent to the issuance of the license to transact business in the Philippines by
any foreign corporation that such corporation file with the Securities and Exchange Commission a written
power of attorney designating some person who must be a resident of the Philippines, on whom any
summons and other legal processes may be served in all actions or other legal proceedings against such
corporation, and consenting that service upon such resident agent shall be admitted and held as valid as if
served upon the duly authorized officers of the foreign corporation at its home office. Any such foreign
corporation shall likewise execute and file with the Securities and Exchange Commission an agreement or
stipulation, executed by the proper authorities of said corporation, in form and substance as follows:

"The (name of foreign corporation) does hereby stipulate and agree, in consideration of its being granted
by the Securities and Exchange Commission a license to transact business in the Philippines, that if at any
time said corporation shall cease to transact business in the Philippines, or shall be without any resident
agent in the Philippines on whom any summons or other legal processes may be served, then in any
action or proceeding arising out of any business or transaction which occurred in the Philippines, service of
any summons or other legal process may be made upon the Securities and Exchange Commission and
that such service shall have the same force and effect as if made upon the duly-authorized officers of the
corporation at its home office."

Whenever such service of summons or other process shall be made upon the Securities and Exchange
Commission, the Commission shall, within ten (10) days thereafter, transmit by mail a copy of such
summons or other legal process to the corporation at its home or principal office. The sending of such
copy by the Commission shall be a necessary part of and shall complete such service. All expenses
incurred by the Commission for such service shall be paid in advance by the party at whose instance the
service is made.

In case of a change of address of the resident agent, it shall be his or its duty to immediately notify in
writing the Securities and Exchange Commission of the new address.
It is clear from the foregoing provision that the function of a resident agent is to receive summons or legal
processes that may be served in all actions or other legal proceedings against the foreign corporation.
These cases have been prosecuted in the name of JAPEX Company, Ltd., and JAPEX Philippines Ltd., as its
branch office and resident agent, had been receiving the various resolutions from this Court, as evidenced
by Registry Return Cards signed by its representatives.
And in the interest of justice, this Court resolved to grant JAPEX PH's motion for extension of time to file
its memorandum, and was given until April 21, 2012, as prayed for, within which to comply with the
submission.27

Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion, asking this Court for an
additional thirty days to file its Memorandum, to be counted from May 8, 2012. It justified its request by
claiming that this Court's April 24, 2012 Resolution was issued past its requested deadline for filing, which
was on April 21, 2012.28

On June 19, 2012, this Court denied JAPEX PH's second request for additional time to file its Memorandum
and dispensed with such filing.

Since petitioners had already filed their respective memoranda, 29 and public respondents had earlier filed
a Manifestation30 that they were adopting their Comment dated March 31, 2008 as their memorandum,
this Court submitted the case for [Link]

Petitioners' Allegations
Protesting the adverse ecological impact of JAPEX's oil exploration activities in the Taon Strait, petitioners
Resident Marine Mammals and Stewards aver that a study made after the seismic survey showed that the
fish catch was reduced drastically by 50 to 70 percent. They claim that before the seismic survey, the
average harvest per day would be from 15 to 20 kilos; but after the activity, the fisherfolk could only
catch an average of 1 to 2 kilos a day. They attribute this "reduced fish catch" to the destruction of the
"payao" also known as the "fish aggregating device" or "artificial reef." 31Petitioners Resident Marine
Mammals and Stewards also impute the incidences of "fish kill" 32 observed by some of the local fisherfolk
to the seismic survey. And they further allege that the ECC obtained by private respondent JAPEX is
invalid because public consultations and discussions with the affected stakeholders, a pre-requisite to the
issuance of the ECC, were not held prior to the ECC's issuance.

In its separate petition, petitioner FIDEC confirms petitioners Resident Marine Mammals and Stewards'
allegations of reduced fish catch and lack of public consultations or discussions with the fisherfolk and
other stakeholders prior to the issuance of the ECC. Moreover, it alleges that during the seismic surveys
and drilling, it was barred from entering and fishing within a 7-kilometer radius from the point where the
oilrig was located, an area greater than the 1.5-kilometer radius "exclusion zone" stated in the IEE.33 It
also agrees in the allegation that public respondents DENR and EMB abused their discretion when they
issued an ECC to public respondent DOE and private respondent JAPEX without ensuring the strict
compliance with the procedural and substantive requirements under the Environmental Impact
Assessment system, the Fisheries Code, and their implementing rules and regulations. 34 It further claims
that despite several requests for copies of all the documents pertaining to the project in Taflon Strait, only
copies of the PAMB-Taon Strait Resolution and the ECC were given to the fisherfolk.35

Public Respondents' Counter-Allegations

Public respondents, through the Solicitor General, contend that petitioners Resident Marine Mammals and
Stewards have no legal standing to file the present petition; that SC-46 does not violate the 1987
Constitution and the various laws cited in the petitions; that the ECC was issued in accordance with
existing laws and regulations; that public respondents may not be compelled by mandamus to furnish
petitioners copies of all documents relating to SC-46; and that all the petitioners failed to show that they
are entitled to injunctive relief. They further contend that the issues raised in these petitions have been
rendered moot and academic by the fact that SC-46 had been mutually terminated by the parties thereto
effective June 21, 2008.36

ISSUES

The following are the issues posited by petitioners Resident Marine Mammals and Stewards in G.R. No.
180771:chanroblesvirtuallawlibrary

I. WHETHER OR NOT PETITIONERS HAVE LOCUS STANDI TO FILE THE INSTANT PETITION;

II. WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLAT[IVE] OF THE 1987 PHILIPPINE
CONSTITUTION AND STATUTES;

III. WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED EXPLOITATION FOR OIL AND
NATURAL GAS AT, AROUND, AND UNDERNEATH THE MARINE WATERS OF THE TANON STRAIT
PROTECTED SEASCAPE IS INCONSISTENT WITH THE PHILIPPINE COMMITMENTS TO
INTERNATIONAL ENVIRONMENTAL LAWS AND INSTRUMENTS; AND

IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) IN
ENVIRONMENTALLY CRITICAL AREAS AND HABITATS OF MARINE WILDLIFE AND ENDANGERED
SPECIES IS LEGAL AND PROPER.37

Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for our
consideration:chanroblesvirtuallawlibrary

I. WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN RESPONDENTS DOE AND
JAPEX SHOULD BE NULLIFIED AND SET ASIDE FOR BEING IN DIRECT VIOLATION OF SPECIFIC
PROVISIONS OF THE 1987 PHILIPPINE CONSTITUTION AND APPLICABLE LAWS;

II. WHETHER OR NOT THE OFF-SHORE OIL EXPLORATION CONTEMPLATED UNDER SERVICE
CONTRACT NO. 46 IS LEGALLY PERMISSIBLE WITHOUT A LAW BEING DULY PASSED EXPRESSLY
FOR THE PURPOSE;

III. WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE TANON STRAIT
PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL PROTECTION GRANTED TO
PETITIONERS UNDER THE CONSTITUTION AND APPLICABLE LAWS.

IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) FOR
SUCH AN ENVIRONMENTALLY CRITICAL PROJECT INSIDE AN ENVIRONMENTALLY CRITICAL AREA
SUCH AS THE TANON STRAIT PROTECTED SEASCAPE CONFORMED TO LAW AND EXISTING RULES
AND REGULATIONS ON THE MATTER.
 V. WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO FURNISH
PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING TO THE TANON STRAIT OIL
EXPLORATION PROJECT.38

In these consolidated petitions, this Court has determined that the various issues raised by the petitioners
may be condensed into two primary issues:

I. Procedural Issue: Locus Standi of the Resident Marine Mammals and Stewards, petitioners in G.R.
No. 180771; and

II. Main Issue: Legality of Sendee Contract No. 46.

DISCUSSION

At the outset, this Court makes clear that the '"moot and academic principle' is not a magical formula that
can automatically dissuade the courts in resolving a case." Courts have decided cases otherwise moot and
academic under the following exceptions:

1) There is a grave violation of the Constitution;

2) The exceptional character of the situation and the paramount public interest is involved;

3) The constitutional issue raised requires formulation of controlling principles to guide the bench, the bar,
and the public; and

4) The case is capable of repetition yet evading review.39

In this case, despite the termination of SC-46, this Court deems it necessary to resolve these consolidated
petitions as almost all of the foregoing exceptions are present in this case. Both petitioners allege that SC-
46 is violative of the Constitution, the environmental and livelihood issues raised undoubtedly affect the
public's interest, and the respondents' contested actions are capable of
[Link]

Procedural Issues

Locus Standi of Petitioners Resident Marine Mammals and Stewards

The Resident Marine Mammals, through the Stewards, "claim" that they have the legal standing to file this
action since they stand to be benefited or injured by the judgment in this suit. 40 Citing Oposa v. Factoran,
Jr.,41 they also assert their right to sue for the faithful performance of international and municipal
environmental laws created in their favor and for their benefit. In this regard, they propound that they
have the right to demand that they be accorded the benefits granted to them in multilateral international
instruments that the Philippine Government had signed, under the concept of stipulation pour autrui.42

For their part, the Stewards contend that there should be no question of their right to represent the
Resident Marine Mammals as they have stakes in the case as forerunners of a campaign to build
awareness among the affected residents of Taon Strait and as stewards of the environment since the
primary steward, the Government, had failed in its duty to protect the environment pursuant to the public
trust doctrine.43

Petitioners Resident Marine Mammals and Stewards also aver that this Court may lower the benchmark
in locus standi as an exercise of epistolary jurisdiction.44

In opposition, public respondents argue that the Resident Marine Mammals have no standing because
Section 1, Rule 3 of the Rules of Court requires parties to an action to be either natural or juridical
persons, viz.:chanroblesvirtuallawlibrary
Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may
refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa, pointing out that the petitioners therein
were all natural persons, albeit some of them were still unborn.45

As regards the Stewards, the public respondents likewise challenge their claim of legal standing on the
ground that they are representing animals, which cannot be parties to an action. Moreover, the public
respondents argue that the Stewards are not the real parties-in-interest for their failure to show how they
stand to be benefited or injured by the decision in this case.46

Invoking the alter ego principle in political law, the public respondents claim that absent any proof that
former President Arroyo had disapproved of their acts in entering into and implementing SC-46, such acts
remain to be her own.47

The public respondents contend that since petitioners Resident Marine Mammals and Stewards' petition
was not brought in the name of a real party-in-interest, it should be dismissed for failure to state a cause
of action.48
The issue of whether or not animals or even inanimate objects should be given legal standing in actions
before courts of law is not new in the field of animal rights and environmental law. Petitioners Resident
Marine Mammals and Stewards cited the 1972 United States case Sierra Club v. Rogers C.B.
Morton,49wherein Justice William O. Douglas, dissenting to the conventional thought on legal standing,
opined:chanroblesvirtuallawlibrary
The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal
rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name
of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where
injury is the subject of public outrage, x x x.

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful
for maritime purposes. The corporation sole - a creature of ecclesiastical law - is an acceptable adversary
and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the
adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of
trees, swampland, or even air that feels the destructive pressures of modern technology and modem life.
The river, for example, is the living symbol of all the life it sustains or nourishesfish, aquatic insects,
water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it
or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life
that is part of it. Those people who have a meaningful relation to that body of waterwhether it be a
fisherman, a canoeist, a zoologist, or a loggermust be able to speak for the values which the river
represents and which are threatened with destruction.50 (Citations omitted.)
The primary reason animal rights advocates and environmentalists seek to give animals and inanimate
objects standing is due to the need to comply with the strict requirements in bringing a suit to court. Our
own 1997 Rules of Court demand that parties to a suit be either natural or juridical persons, or entities
authorized by law. It further necessitates the action to be brought in the name of the real party-in-
interest, even if filed by a representative, viz.:chanroblesvirtuallawlibrary
Rule 3
Parties to Civil Actions

Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may
refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant.

Sec. 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law
or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of
the case and shall be deemed to be the real party in interest. A representative may be a trustee of an
express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An
agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without
joining the principal except when the contract involves things belonging to the principal.
It had been suggested by animal rights advocates and environmentalists that not only natural and juridical
persons should be given legal standing because of the difficulty for persons, who cannot show that they by
themselves are real parties-in-interests, to bring actions in representation of these animals or inanimate
objects. For this reason, many environmental cases have been dismissed for failure of the petitioner to
show that he/she would be directly injured or affected by the outcome of the case. However, in our
jurisdiction, locus standi in environmental cases has been given a more liberalized approach. While
developments in Philippine legal theory and jurisprudence have not progressed as far as Justice Douglas's
paradigm of legal standing for inanimate objects, the current trend moves towards simplification of
procedures and facilitating court access in environmental cases.

Recently, the Court passed the landmark Rules of Procedure for Environmental Cases,51 which allow
for a "citizen suit," and permit any Filipino citizen to file an action before our courts for violations of our
environmental laws:chanroblesvirtuallawlibrary
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description
of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest
to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order
once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of
said order.

Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective
provisions.52 (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the Annotations to the Rules of Procedure for
Environmental Cases, commented:chanroblesvirtuallawlibrary
Citizen suit. To further encourage the protection of the environment, the Rules enable litigants enforcing
environmental rights to file their cases as citizen suits. This provision liberalizes standing for all cases filed
enforcing environmental laws and collapses the traditional rule on personal and direct interest, on the
principle that humans are stewards of nature. The terminology of the text reflects the doctrine first
enunciated in Oposa v. Factoran, insofar as it refers to minors and generations yet unborn.53 (Emphasis
supplied, citation omitted.)
Although this petition was filed in 2007, years before the effectivity of the Rules of Procedure for
Environmental Cases, it has been consistently held that rules of procedure "may be retroactively applied
to actions pending and undetermined at the time of their passage and will not violate any right of a person
who may feel that he is adversely affected, inasmuch as there is no vested rights in rules of procedure."54

Elucidating on this doctrine, the Court, in Systems Factors Corporation v. National Labor Relations
Commission55 held that:chanroblesvirtuallawlibrary
Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or
take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already
existing, do not come within the legal conception of a retroactive law, or the general rule against
retroactive operation of statutes. Statutes regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of their passage. Procedural laws are
retroactive in that sense and to that extent, x x x.
Moreover, even before the Rules of Procedure for Environmental Cases became effective, this Court had
already taken a permissive position on the issue of locus standi in environmental cases. In Oposa, we
allowed the suit to be brought in the name of generations yet unborn "based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned."56Furthermore, we said that the right to a balanced and healthful ecology, a right that does not
even need to be stated in our Constitution as it is assumed to exist from the inception of humankind,
carries with it the correlative duty to refrain from impairing the environment. 57

In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been
eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce
our environmental laws. It is worth noting here that the Stewards are joined as real parties in the Petition
and not just in representation of the named cetacean species. The Stewards, Ramos and Eisma-Osorio,
having shown in their petition that there may be possible violations of laws concerning the habitat of the
Resident Marine Mammals, are therefore declared to possess the legal standing to file this
[Link]

Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-Petitioner

Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-petitioner former President Gloria
Macapagal-Arroyo for the following reasons, which we quote:chanroblesvirtuallawlibrary
Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident of Malacaang Palace,
Manila Philippines. Steward Gloria Macapagal-Arroyo happens to be the incumbent President of the
Philippine Islands. She is personally impleaded in this suit as an unwilling co-petitioner by reason of her
express declaration and undertaking under the recently signed ASEAN Charter to protect Your Petitioners'
habitat, among others. She is meantime dominated as an unwilling co-petitioner due to lack of material
time in seeking her signature and imprimatur hereof and due to possible legal complications that may
hereafter arise by reason of her official relations with public respondents under the alter ego principle in
political law.58cralawlawlibrary
This is incorrect.

Section 10, Rule 3 of the Rules of Court provides:chanroblesvirtuallawlibrary

Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.
Under the foregoing rule, when the consent of a party who should be joined as a plaintiff cannot be
obtained, he or she may be made a party defendant to the case. This will put the unwilling party under
the jurisdiction of the Court, which can properly implead him or her through its processes. The unwilling
party's name cannot be simply included in a petition, without his or her knowledge and consent, as such
would be a denial of due process.

Moreover, the reason cited by the petitioners Stewards for including former President Macapagal-Arroyo in
their petition, is not sufficient to implead her as an unwilling co-petitioner. Impleading the former
President as an unwilling co-petitioner, for an act she made in the performance of the functions of her
office, is contrary to the public policy against embroiling the President in suits, "to assure the exercise of
Presidential duties and functions free from any hindrance or distraction, considering that being the Chief
Executive of the Government is a job that, aside from requiring all of the office holder's time, also
demands undivided attention."59

Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the petitioners in this suit.
Thus, her name is stricken off the title of this [Link]

Main Issue:
Legality of Service Contract No. 46

Service Contract No. 46 vis-a-vis

Section 2, Article XII of the
1987 Constitution

Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or paragraph 1, Section 2, Article
XII of the 1987 Constitution because JAPEX is 100% Japanese-owned.60 Furthermore, the FIDEC asserts
that SC-46 cannot be considered as a technical and financial assistance agreement validly executed under
paragraph 4 of the same provision.61 The petitioners claim that La Bugal-B'laan Tribal Association, Inc. v.
Ramos62 laid down the guidelines for a valid service contract, one of which is that there must exist a
general law for oil exploration before a service contract may be entered into by the Government. The
petitioners posit that the service contract in La Bugal is presumed to have complied with the requisites of
(a) legislative enactment of a general law after the effectivity of the 1987 Constitution (such as Republic
Act No. 7942, or the Philippine Mining Law of 1995, governing mining contracts) and (b) presidential
notification. The petitioners thus allege that the ruling in La Bugal, which involved mining contracts under
Republic Act No. 7942, does not apply in this case. 63 The petitioners also argue that Presidential Decree
No. 87 or the Oil Exploration and Development Act of 1972 cannot legally justify SC-46 as it is deemed to
have been repealed by the 1987 Constitution and subsequent laws, which enunciate new policies
concerning the environment.64 In addition, petitioners in G.R. No. 180771 claim that paragraphs 2 and 3
of Section 2, Article XII of the 1987 Constitution mandate the exclusive use and enjoyment by the
Filipinos of our natural resources, 65 and paragraph 4 does not speak of service contracts but of FTAAs or
Financial Technical Assistance Agreements.66

The public respondents again controvert the petitioners' claims and asseverate that SC-46 does not violate
Section 2, Article XII of the 1987 Constitution. They hold that SC-46 does not fall under the coverage of
paragraph 1 but instead, under paragraph 4 of Section 2, Article XII of the 1987 Constitution on FTAAs.
They also insist that paragraphs 2 and 3, which refer to the grant of exclusive fishing right to Filipinos, are
not applicable to SC-46 as the contract does not grant exclusive fishing rights to JAPEX nor does it
otherwise impinge on the FIDEC's right to preferential use of communal marine and fishing resources.67

Ruling of the Court

On the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987 Constitution

The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII of the 1987
Constitution, which reads as follows:chanroblesvirtuallawlibrary
Section 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. (Emphases ours.)
This Court has previously settled the issue of whether service contracts are still allowed under the 1987
Constitution. In La Bugal, we held that the deletion of the words "service contracts" in the 1987
Constitution did not amount to a ban on them per se. In fact, in that decision, we quoted in length,
portions of the deliberations of the members of the Constitutional Commission (ConCom) to show that in
deliberating on paragraph 4, Section 2, Article XII, they were actually referring to service contracts as
understood in the 1973 Constitution, albeit with safety measures to eliminate or minimize the abuses
prevalent during the martial law regime, to wit:chanroblesvirtuallawlibrary
Summation of the ConCom Deliberations

At this point, we sum up the matters established, based on a careful reading of the ConCom deliberations,
as follows:

In their deliberations on what was to become paragraph 4, the framers used the term service contracts in
referring to agreements x x x involving either technical or financial assistance.

They spoke of service contracts as the concept was understood in the 1973 Constitution.

It was obvious from their discussions that they were not about to ban or eradicate service contracts.

Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or minimize
the abuses prevalent during the marital law regime. In brief, they were going to permit service contracts
with foreign corporations as contractors, but with safety measures to prevent abuses, as an exception to
the general norm established in the first paragraph of Section 2 of Article XII. This provision reserves or
limits to Filipino citizens and corporations at least 60 percent of which is owned by such citizens the
exploration, development and utilization of natural resources.

This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for foreign
investments in the EDU of minerals and petroleum resources.

The framers for the most part debated about the sort of safeguards that would be considered adequate
and reasonable. But some of them, having more "radical" leanings, wanted to ban service contracts
altogether; for them, the provision would permit aliens to exploit and benefit from the nation's natural
resources, which they felt should be reserved only for Filipinos.

In the explanation of their votes, the individual commissioners were heard by the entire body. They
sounded off their individual opinions, openly enunciated their philosophies, and supported or attacked the
provisions with fervor. Everyone's viewpoint was heard.

In the final voting, the Article on the National Economy and Patrimony including paragraph 4 allowing
service contracts with foreign corporations as an exception to the general norm in paragraph 1 of Section
2 of the same article was resoundingly approved by a vote of 32 to 7, with 2 abstentions.

Agreements Involving Technical Or Financial Assistance Are Service Contracts with Safeguards

From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or
financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973
variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the
other, the government as principal or "owner" of the works. In the new service contracts, the foreign
contractors provide capital, technology and technical know-how, and managerial expertise in the creation
and operation of large-scale mining/extractive enterprises; and the government, through its agencies
(DENR, MGB), actively exercises control and supervision over the entire operation. 68cralawlawlibrary
In summarizing the matters discussed in the ConCom, we established that paragraph 4, with the
safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The following are
the safeguards this Court enumerated in La Bugal:chanroblesvirtuallawlibrary
Such service contracts may be entered into only with respect to minerals, petroleum and other mineral
oils. The grant thereof is subject to several safeguards, among which are these requirements:

(1) The service contract shall be crafted in accordance with a general law that will set standard or uniform
terms, conditions and requirements, presumably to attain a certain uniformity in provisions and avoid the
possible insertion of terms disadvantageous to the country.

(2) The President shall be the signatory for the government because, supposedly before an agreement is
presented to the President for signature, it will have been vetted several times over at different levels to
ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that
branch of government an opportunity to look over the agreement and interpose timely objections, if
any.69cralawlawlibrary
Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void for
noncompliance with the requirements of the 1987 Constitution.

1. The General Law on Oil Exploration

The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the
Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and Development Act of
1972. This was enacted by then President Ferdinand Marcos to promote the discovery and production of
indigenous petroleum through the utilization of government and/or local or foreign private resources to
yield the maximum benefit to the Filipino people and the revenues to the Philippine Government.70

Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted in 1972, before the
adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed, to
wit:chanroblesvirtuallawlibrary
ARTICLE XVIII - TRANSITORY PROVISIONS

Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other
executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed,
or revoked.
If there were any intention to repeal Presidential Decree No. 87, it would have been done expressly by
Congress. For instance, Republic Act No. 7160, more popularly known as the Local Government Code of
1991, expressly repealed a number of laws, including a specific provision in Presidential Decree No.
87, viz.:chanroblesvirtuallawlibrary
SECTION 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the "Local
Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby
repealed.

(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda
and issuances related to or concerning the barangay are hereby repealed.

(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a
(3) and b (2) of Republic Act No. 5447 regarding the Special Education Fund; Presidential Decree No. 144
as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended;
Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos.
381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.

(e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the
provisions of this Code: Sections 2, 16 and 29 of Presidential Decree No. 704; Section 12 of
Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended,
and

(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly. (Emphasis supplied.)
This Court could not simply assume that while Presidential Decree No. 87 had not yet been expressly
repealed, it had been impliedly repealed. As we held in Villarea v. The Commission on Audit,71 "[i]mplied
repeals are not lightly presumed." It is a settled rule that when laws are in conflict with one another,
every effort must be exerted to reconcile them. In Republic of the Philippines v. Marcopper Mining
Corporation,72 we said:chanroblesvirtuallawlibrary
The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the
inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare
leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with
other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not have enacted conflicting statutes.
Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order
to harmonize and give effect to all laws on the subject. (Citation omitted.)
Moreover, in cases where the statute seems to be in conflict with the Constitution, but a construction that
it is in harmony with the Constitution is also possible, that construction should be preferred. 73 This Court,
in Pangandaman v. Commission on Elections74 expounding on this point,
pronounced:chanroblesvirtuallawlibrary
It is a basic precept in statutory construction that a statute should be interpreted in harmony with the
Constitution and that the spirit, rather than the letter of the law determines its construction; for that
reason, a statute must be read according to its spirit and intent, x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is prohibited on the ground that there
is no general law prescribing the standard or uniform terms, conditions, and requirements for service
contracts involving oil exploration and extraction.

But note must be made at this point that while Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration and extraction may be authorized, as will be
discussed below, the exploitation and utilization of this energy resource in the present case may be
allowed only through a law passed by Congress, since the Taon Strait is a NIPAS 75 area.

2. President was not the signatory to SC-46 and the same was not submitted to Congress

While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a general
law, the absence of the two other conditions, that the President be a signatory to SC-46, and that
Congress be notified of such contract, renders it null and void.

As SC-46 was executed in 2004, its terms should have conformed not only to the provisions of Presidential
Decree No. 87, but also to those of the 1987 Constitution. The Civil Code
provides:chanroblesvirtuallawlibrary
ARTICLE 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as
they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or
public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals,76 this Court held that:chanroblesvirtuallawlibrary
It is basic that the law is deemed written into every contract. Although a contract is the law between the
parties, the provisions of positive law which regulate contracts are deemed written therein and shall limit
and govern the relations between the parties, x x x. (Citations omitted.)
Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the President himself enter into
any service contract for the exploration of petroleum. SC-46 appeared to have been entered into and
signed only by the DOE through its then Secretary, Vicente S. Perez, Jr., contrary to the said
constitutional requirement. Moreover, public respondents have neither shown nor alleged that Congress
was subsequently notified of the execution of such contract.

Public respondents' implied argument that based on the "alter ego principle," their acts are also that of
then President Macapagal-Arroyo's, cannot apply in this case. In Joson v. Torres,77 we explained the
concept of the alter ego principle or the doctrine of qualified political agency and its limit in this
wise:chanroblesvirtuallawlibrary
Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and administrative functions of
the Chief Executive are performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive.
(Emphasis ours, citation omitted.)
While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of the 1987
Constitution seem like mere formalities, they, in reality, take on a much bigger role. As we have explained
in La Bugal, they are the safeguards put in place by the framers of the Constitution to "eliminate or
minimize the abuses prevalent during the martial law regime." 78 Thus, they are not just mere formalities,
which will only render a contract unenforceable but not void, if not complied with. They are requirements
placed, not just in an ordinary statute, but in the fundamental law, the non-observance of which will
nullify the contract. Elucidating on the concept of a "constitution," this Court, in Manila Prince Hotel v.
Government Service Insurance System,79 held:chanroblesvirtuallawlibrary
A constitution is a system of fundamental laws for the governance and administration of a nation. It is
supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a
system of government, assigns to the different departments their respective powers and duties, and
establishes certain fixed principles on which government is founded. The fundamental conception in other
words is that it is a supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered. Under the doctrine of
constitutional supremacy, if a law or contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and effect.
Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract. (Emphasis ours.)
As this Court has held in La Bugal, our Constitution requires that the President himself be the signatory of
service agreements with foreign-owned corporations involving the exploration, development, and
utilization of our minerals, petroleum, and other mineral oils. This power cannot be taken lightly.

In this case, the public respondents have failed to show that the President had any participation in SC-46.
Their argument that their acts are actually the acts of then President Macapagal-Arroyo, absent proof of
her disapproval, must fail as the requirement that the President herself enter into these kinds of contracts
is embodied not just in any ordinary statute, but in the Constitution itself. These service contracts
involving the exploitation, development, and utilization of our natural resources are of paramount interest
to the present and future generations. Hence, safeguards were put in place to insure that the guidelines
set by law are meticulously observed and likewise to eradicate the corruption that may easily penetrate
departments and agencies by ensuring that the President has authorized or approved of these service
contracts herself.

Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board, now the
DOE, obtain the President's approval for the execution of any contract under said statute, as shown in the
following provision:chanroblesvirtuallawlibrary
SECTION 5. Execution of contract authorized in this Act. - Every contract herein authorized shall, subject
to the approval of the President, be executed by the Petroleum Board created in this Act, after due public
notice pre-qualification and public bidding or concluded through negotiations. In case bids are requested
or if requested no bid is submitted or the bids submitted are rejected by the Petroleum Board for being
disadvantageous to the Government, the contract may be concluded through negotiation.

In opening contract areas and in selecting the best offer for petroleum operations, any of the following
alternative procedures may be resorted to by the Petroleum Board, subject to prior approval of the
President [.]
Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution with the
aforementioned provision of Presidential Decree No. 87, it must be shown that the government agency or
subordinate official has been authorized by the President to enter into such service contract for the
government. Otherwise, it should be at least shown that the President subsequently approved of such
contract explicitly. None of these circumstances is evident in the case at [Link]

Service Contract No. 46 vis-a-vis Other Laws

Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of Republic Act. No. 9147 or the
Wildlife Resources Conservation and Protection Act, which bans all marine exploration and exploitation of
oil and gas deposits. They also aver that Section 14 of Republic Act No. 7586 or the National Integrated
Protected Areas System Act of 1992 (NIPAS Act), which allows the exploration of protected areas for the
purpose of information-gathering, has been repealed by Section 27 of Republic Act No. 9147. The said
petitioners further claim that SC-46 is anathema to Republic Act No. 8550 or the Philippine Fisheries Code
of 1998, which protects the rights of the fisherfolk in the preferential use of municipal waters, with the
exception being limited only to research and survey activities. 80

The FIDEC, for its part, argues that to avail of the exceptions under Section 14 of the NIPAS Act, the
gathering of information must be in accordance with a DENR-approved program, and the exploitation and
utilization of energy resources must be pursuant to a general law passed by Congress expressly for that
purpose. Since there is neither a DENR-approved program nor a general law passed by Congress, the
seismic surveys and oil drilling operations were all done illegally.81 The FIDEC likewise contends that SC-
46 infringes on its right to the preferential use of the communal fishing waters as it is denied free access
within the prohibited zone, in violation not only of the Fisheries Code but also of the 1987 Constitutional
provisions on subsistence fisherfolk and social justice. 82 Furthermore, the FIDEC believes that the
provisions in Presidential Decree No. 87, which allow offshore drilling even in municipal waters, should be
deemed to have been rendered inoperative by the provisions of Republic Act No. 8550 and Republic Act
No. 7160, which reiterate the social justice provisions of the Constitution. 83
The public respondents invoke the rules on statutory construction and argue that Section 14 of the NIPAS
Act is a more particular provision and cannot be deemed to have been repealed by the more general
prohibition in Section 27 of Republic Act No. 9147. They aver that Section 14, under which SC-46 falls,
should instead be regarded as an exemption to Section 27.84

Addressing the claim of petitioners in G.R. No. 180771 that there was a violation of Section 27 of Republic
Act No. 9147, the public respondents assert that what the section prohibits is the exploration of minerals,
which as defined in the Philippine Mining Act of 1995, exclude energy materials such as coal, petroleum,
natural gas, radioactive materials and geothermal energy. Thus, since SC-46 involves oil and gas
exploration, Section 27 does not apply.85

The public respondents defend the validity of SC-46 and insist that it does not grant exclusive fishing
rights to JAPEX; hence, it does not violate the rule on preferential use of municipal waters. Moreover, they
allege that JAPEX has not banned fishing in the project area, contrary to the FIDEC's claim. The public
respondents also contest the attribution of the declining fish catch to the seismic surveys and aver that
the allegation is unfounded. They claim that according to the Bureau of Fisheries and Aquatic Resources'
fish catch data, the reduced fish catch started in the 1970s due to destructive fishing practices.86

Ruling of the Court

On the legality of Service Contract No. 46 vis-a-vis Other Laws

Although we have already established above that SC-46 is null and void for being violative of the 1987
Constitution, it is our duty to still rule on the legality of SC-46 vis-a-vis other pertinent laws, to serve as a
guide for the Government when executing service contracts involving not only the Taon Strait, but also
other similar areas. While the petitioners allege that SC-46 is in violation of several laws, including
international ones, their arguments focus primarily on the protected status of the Taon Strait, thus this
Court will concentrate on those laws that pertain particularly to the Taon Strait as a protected seascape.

The Taon Strait is a narrow passage of water bounded by the islands of Cebu in the East and Negros in
the West. It harbors a rich biodiversity of marine life, including endangered species of dolphins and
whales. For this reason, former President Fidel V. Ramos declared the Taon Strait as a protected
seascape in 1998 by virtue of Proclamation No. 1234 - Declaring the Taon Strait situated in the Provinces
of Cebu, Negros Occidental and Negros Oriental as a Protected Area pursuant to the NIP AS Act and shall
be known as Taon Strait Protected Seascape. During former President Joseph E. Estrada's time, he also
constituted the Taon Strait Commission via Executive Order No. 76 to ensure the optimum and sustained
use of the resources in that area without threatening its marine life. He followed this with Executive Order
No. 177,87 wherein he included the mayor of Negros Occidental Municipality/City as a member of the
Taon Strait Commission, to represent the LGUs concerned. This Commission, however, was subsequently
abolished in 2002 by then President Gloria Macapagal-Arroyo, via Executive Order No. 72.88

True to the constitutional policy that the "State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature," 89 Congress enacted the
NIPAS Act to secure the perpetual existence of all native plants and animals through the establishment of
a comprehensive system of integrated protected areas. These areas possess common ecological values
that were incorporated into a holistic plan representative of our natural heritage. The system encompasses
outstandingly remarkable areas and biologically important public lands that are habitats of rare and
endangered species of plants and animals, biogeographic zones and related ecosystems, whether
terrestrial, wetland, or marine.90 It classifies and administers all the designated protected areas to
maintain essential ecological processes and life-support systems, to preserve genetic diversity, to ensure
sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent
possible.91 The following categories of protected areas were established under the NIPAS
Act:chanroblesvirtuallawlibrary

a. Strict nature reserve;

b. Natural park;

c. Natural monument;

d. Wildlife sanctuary;

e. Protected landscapes and seascapes;

f. Resource reserve;

g. Natural biotic areas; and

h. Other categories established by law, conventions or international agreements which the Philippine
Government is a signatory.92

Under Section 4 of the NIPAS Act, a protected area refers to portions of land and water, set aside due to
their unique physical and biological significance, managed to enhance biological diversity and protected
against human exploitation.

The Taon Strait, pursuant to Proclamation No. 1234, was set aside and declared a protected area under
the category of Protected Seascape. The NIPAS Act defines a Protected Seascape to be an area of national
significance characterized by the harmonious interaction of man and land while providing opportunities for
public enjoyment through recreation and tourism within the normal lifestyle and economic activity of this
areas;93 thus a management plan for each area must be designed to protect and enhance the permanent
preservation of its natural conditions.94 Consistent with this endeavor is the requirement that an
Environmental Impact Assessment (EIA) be made prior to undertaking any activity outside the scope of
the management plan. Unless an ECC under the EIA system is obtained, no activity inconsistent with the
goals of the NIPAS Act shall be implemented. 95

The Environmental Impact Statement System (EISS) was established in 1978 under Presidential Decree
No. 1586. It prohibits any person, partnership or corporation from undertaking or operating any declared
environmentally critical project or areas without first securing an ECC issued by the President or his duly
authorized representative.96 Pursuant to the EISS, which called for the proper management of
environmentally critical areas,97 Proclamation No. 214698 was enacted, identifying the areas and types of
projects to be considered as environmentally critical and within the scope of the EISS, while DENR
Administrative Order No. 2003-30 provided for its Implementing Rules and Regulations (IRR).

DENR Administrative Order No. 2003-30 defines an environmentally critical area as "an area delineated as
environmentally sensitive such that significant environmental impacts are expected if certain types of
proposed projects or programs are located, developed, or implemented in it"; 99 thus, before a project,
which is "any activity, regardless of scale or magnitude, which may have significant impact on the
environment,"100 is undertaken in it, such project must undergo an EIA to evaluate and predict the likely
impacts of all its stages on the environment. 101 An EIA is described in detail as
follows:chanroblesvirtuallawlibrary
h. Environmental Impact Assessment (EIA) - process that involves evaluating and predicting the likely
impacts of a project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing appropriate preventive,
mitigating and enhancement measures addressing these consequences to protect the environment
and the community's welfare. The process is undertaken by, among others, the project proponent
and/or EIA Consultant, EMB, a Review Committee, affected communities and other stakeholders. 102
Under Proclamation No. 2146, the Taon Strait is an environmentally critical area, having been
declared as a protected area in 1998; therefore, any activity outside the scope of its
management plan may only be implemented pursuant to an ECC secured after undergoing an
EIA to determine the effects of such activity on its ecological system.

The public respondents argue that they had complied with the procedures in obtaining an ECC 103 and that
SC-46 falls under the exceptions in Section 14 of the NIPAS Act, due to the following reasons:

1) The Taon Strait is not a strict nature reserve or natural park;

2) Exploration is only for the purpose of gathering information on possible energy resources; and

3) Measures are undertaken to ensure that the exploration is being done with the least damage to
surrounding areas.104

We do not agree with the arguments raised by the public respondents.

Sections 12 and 14 of the NIPAS Act read:

SECTION 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope of
the management plan for protected areas shall be subject to an environmental impact assessment as
required by law before they are adopted, and the results thereof shall be taken into consideration in the
decision-making process.

No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environmental Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry them out
in such manner as will minimize any adverse effects and take preventive and remedial action when
appropriate. The proponent shall be liable for any damage due to lack of caution or indiscretion.

SECTION 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2 hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for
the purpose of gathering information on energy resources and only if such activity is carried out with the
least damage to surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the public and submitted
to the President for recommendation to Congress. Any exploitation and utilization of energy resources
found within NIPAS areas shall be allowed only through a law passed by Congress.
It is true that the restrictions found under the NIPAS Act are not without exceptions. However, while an
exploration done for the purpose of surveying for energy resources is allowed under Section 14
of the NIPAS Act, this does not mean that it is exempt from the requirement to undergo an EIA
under Section 12. In Sotto v. Sotto,105 this Court explained why a statute should be construed as a
whole:chanroblesvirtuallawlibrary
A statute is passed as a whole and not in parts or sections and is animated by one general purpose and
intent. Consequently each part or section should be construed in connection with every other part or
section and so as to produce a harmonious whole. It is not proper to confine the attention to the one
section to be construed. It is always an unsafe way of construing a statute or contract to divide it by a
process of etymological dissection, into separate words, and then apply to each, thus separated from its
context, some particular definition given by lexicographers, and then reconstruct the instrument upon the
basis of these definitions. An instrument must always be construed as a whole, and the particular meaning
to be attached to any word or phrase is usually to be ascertained from the context, the nature of the
subject treated of and the purpose or intention of the parties who executed the contract, or of the body
which enacted or framed the statute or constitution, x x x.
Surveying for energy resources under Section 14 is not an exemption from complying with the
EIA requirement in Section 12; instead, Section 14 provides for additional requisites before any
exploration for energy resources may be done in protected areas.

The rationale for such additional requirements are incorporated in Section 2 of the NIPAS Act, to
wit:chanroblesvirtuallawlibrary
SECTION 2. Declaration of Policy - Cognizant of the profound impact of man's activities on all components
of the natural environment particularly the effect of increasing population, resource exploitation and
industrial advancement amd recognizing the critical importance of protecting and maintaining the natural
biological and physical diversities of the environment notably on areas with biologically unique features to
sustain human life and development, as well as plant and animal life, it is hereby declared the policy of
the State to secure for the Filipino people of present and future generations the perpetual existence of all
native plants and animals through the establishment of a comprehensive system of integrated protected
areas within the classification of national park as provided for in the Constitution.

It is hereby recognized that these areas, although distinct in features, possess common ecological values
that may be incorporated into a holistic plan representative of our natural heritage; that effective
administration of this area is possible only through cooperation among national government, local
government and concerned private organizations; that the use and enjoyment of these protected areas
must be consistent with the principles of biological diversity and sustainable development.

To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which
shall encompass outstandingly remarkable areas and biologically important public lands that are habitats
of rare and endangered species of plants and animals, biogeographic zones and related ecosystems,
whether terrestrial, wetland or marine, all of which shall be designated as "protected areas."
The public respondents themselves admitted that JAPEX only started to secure an ECC prior to the second
sub-phase of SC-46, which required the drilling of an oil exploration well. This means that when the
seismic surveys were done in the Taon Strait, no such environmental impact evaluation was done. Unless
seismic surveys are part of the management plan of the Taon Strait, such surveys were dona in violation
of Section 12 of the NIPAS Act and Section 4 of Presidential Decree No. 1586, which
provides:chanroblesvirtuallawlibrary
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. - The President of the
Philippines may, on his own initiative or upon recommendation of the National Environmental Protection
Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall undertake or operate any such declared
environmentally critical project or area without first securing an Environmental Compliance Certificate
issued by the President or his duly authorized representative. For the proper management of said critical
project or area, the President may by his proclamation reorganize such government offices, agencies,
institutions, corporations or instrumentalities including the re-alignment of government personnel, and
their specific functions and responsibilities.

For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or
water use pattern for said critical project(s) or area(s); (b) establish ambient environmental quality
standards; (c) develop a program of environmental enhancement or protective measures against
calamitous factors such as earthquakes, floods, water erosion and others, and (d) perform such other
functions as may be directed by the President from time to time.
The respondents' subsequent compliance with the EISS for the second sub-phase of SC-46 cannot and will
not cure this violation. The following penalties are provided for under Presidential Decree No. 1586 and
the NIPAS Act.

Section 9 of Presidential Decree No. 1586 provides for the penalty involving violations of the ECC
requirement:chanroblesvirtuallawlibrary
Section 9. Penalty for Violation. - Any person, corporation or partnership found violating Section 4 of this
Decree, or the terms and conditions in the issuance of the Environmental Compliance Certificate, or of the
standards, rules and regulations issued by the National Environmental Protection Council pursuant to this
Decree shall be punished by the suspension or cancellation of his/its certificates and/or a fine in
an amount not to exceed Fifty Thousand Pesos (P50,000.00) for every violation thereof, at the
discretion of the National Environmental Protection Council. (Emphasis supplied.)
Violations of the NIPAS Act entails the following fines and/or imprisonment under Section
21:chanroblesvirtuallawlibrary
SECTION 21. Penalties. - Whoever violates this Act or any rules and regulations issued by the Department
pursuant to this Act or whoever is found guilty by a competent court of justice of any of the offenses in
the preceding section shall be fined in the amount of not less than Five thousand pesos (P5,000)
nor more than Five hundred thousand pesos (P500,000), exclusive of the value of the thing
damaged or imprisonment for not less than one (1) year but not more than six (6) years, or
both, as determined by the court: Provided, that, if the area requires rehabilitation or restoration
as determined by the court, the offender shall be required to restore or compensate for the
restoration to the damages: Provided, further, that court shall order the eviction of the offender
from the land and the forfeiture in favor of the Government of all minerals, timber or any
species collected or removed including all equipment, devices and firearms used in connection
therewith, and any construction or improvement made thereon by the offender. If the offender is
an association or corporation, the president or manager shall be directly responsible for the act of his
employees and laborers: Provided, finally, that the DENR may impose administrative fines and
penalties consistent with this Act. (Emphases supplied.)
Moreover, SC-46 was not executed for the mere purpose of gathering information on the possible energy
resources in the Taon Strait as it also provides for the parties' rights and obligations relating to
extraction and petroleum production should oil in commercial quantities be found to exist in the
area. While Presidential Decree No. 87 may serve as the general law upon which a service
contract for petroleum exploration and extraction may be authorized, the exploitation and
utilization of this energy resource in the present case may be allowed only through a law
passed by Congress, since the Taon Strait is a NIPAS area.106Since there is no such law
specifically allowing oil exploration and/or extraction in the Taon Strait, no energy resource
exploitation and utilization may be done in said protected seascape.

In view of the foregoing premises and conclusions, it is no longer necessary to discuss the other issues
raised in these consolidated [Link]

WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED, Service Contract No. 46 is
hereby declared NULL AND VOID for violating the 1987 Constitution, Republic Act No. 7586, and
Presidential Decree No. 1586.

SO [Link]

Sereno, C. J., Carpio, Velasco, Jr., Brion, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza,
Reyes, and Perlas-Bernabe, JJ., concur.
Leonen, J., see concurring opinion.
Jardeleza, J., no part prior OSG action
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 States 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 Presidents 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 States 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

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) Cario v. Insular Government

(b) Indian Title to land

(c) Why the Cario 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
[Link] 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 Cario 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 Cario, 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 Cario 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
[Link] 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) Cario v. Insular Government129

The concept of native title in the IPRA was taken from the 1909 case of Cario v. Insular
Government.130 Cariofirmly established a concept of private land title that existed irrespective of any
royal grant from the State.

In 1903, Don Mateo Cario, 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. Cario 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, Cario 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 reservation 133 was proclaimed over his
land and, shortly thereafter, a military detachment was detailed on the property with orders to keep cattle
and trespassers, including Cario, off the land.134

In 1904, the land registration court granted Cario'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 Cario's application. The Philippine Supreme
Court135 affirmed the C.F.I. by applying the Valenton ruling. Cario took the case to the U.S. Supreme
Court.136 On one hand, the Philippine government invoked the Regalian doctrine and contended that
Cario 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. Cario, 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 Cario 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 Cario and ordered the registration of the 148 hectares in
Baguio Municipality in his name. 144

Examining Cario 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 Cario 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 Cario extensively and used the term "native title"
to refer to Cario'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 Cario "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--vis American Jurisprudence on aboriginal title will depend on the peculiar facts of
each case.

(c) Why the Cario doctrine is unique

In the Philippines, the concept of native title first upheld in Cario 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. Cario is the only case that specifically and categorically recognizes native
title. The long line of cases citing Cario did not touch on native title and the private character
of ancestral domains and lands. Cariowas 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 Cario was cited to support the applicant's claim of acquisitive
prescription under the said Act.

All these years, Cario 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 citizens 194 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 IPRA 230 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.
 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 Courts 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 Courts jurisdiction and to render legally feasible the
exercise of the Courts 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 nations
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 Cario 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.

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 citizens and taxpayers 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 Taada 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 nations 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 citizens 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 taxpayers 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 entitys or persons
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 countrys 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 Courts 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 Courts
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 Courts time and attention which
are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding
of the Courts 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 Courts 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 nations 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 ownership 60 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 Cario 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 Cario 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 Cario 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 Cario, an Igorot by the name of Mateo Cario 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.

Cario 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 Cario 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 Courts ruling in Cario 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 Cario was transferred from the State, as
original owner, to Cario by virtue of prescription. They conclude that the doctrine cannot be the basis for
decreeing "by mere legislative fiatthat ownership of vast tracts of land belongs to [indigenous peoples]
without judicial confirmation."81

The Solicitor General, for his part, claims that the Cario 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 Cario 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 Generals thesis that native title under Cario 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 Constitution 82 is
irrelevant to the application of the Cario 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 Cario 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 Recopilacin 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 Cario 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 latters 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, McKinleys 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 Generals 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 Cario 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 Davides 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 States 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 States 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 latters 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 States 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 countrys 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 countrys 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 States 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 peoples 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 persons 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 Presidents
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 Presidents 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 NCIPs 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 Presidents 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 Presidents approval in obtaining loans to finance its
projects;189 (2) it must obtain the Presidents 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 States 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 Cario 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 Presidents 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 Presidents
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.

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 Presidents 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 courts 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.

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 ponencias 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 peoples 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 States 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 nations 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 countrys 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 IPRAs Section 57 19- 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.

Cario v. Insular Government Was Modified by the Constitution

In this connection, I submit that Cario 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 Cario
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 generals 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 ICCs/IPs 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.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA
FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES
FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by
their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his
parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her
parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA,
MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ,
minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN,
MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents
MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed
ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA.
and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and
MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors,
represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and
IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and
MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT,
minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their
parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK,
INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility"
and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a
cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the petitioners. 1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for themselves and others who are equally concerned
about the preservation of said resource but are "so numerous that it is impracticable to bring them all
before the Court." The minors further asseverate that they "represent their generation as well as
generations yet unborn."4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf
to

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these rainforests contain a
genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful ecology, the country's land area should be
utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this
balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a)
water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as
of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity,
with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers
and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in
marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated
for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are
so capable of unquestionable demonstration that the same may be submitted as a matter of judicial
notice. This notwithstanding, they expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of
rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and
about 3.0 million hectares of immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex
"A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour nighttime, Saturdays, Sundays and holidays included the Philippines
will be bereft of forest resources after the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable damage of
this continued trend of deforestation to the plaintiff minor's generation and to generations
yet unborn are evident and incontrovertible. As a matter of fact, the environmental
damages enumerated in paragraph 6 hereof are already being felt, experienced and
suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the remaining
forest stands will work great damage and irreparable injury to plaintiffs especially plaintiff
minors and their successors who may never see, use, benefit from and enjoy this rare
and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural

resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and
are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office. On
March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits
in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing
serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of
the rights of plaintiffs, especially plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the
public policy enunciated in the Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State

(a) to create, develop, maintain and improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future generations
of Filipinos and;
 (c) to ensure the attainment of an environmental quality that is conductive to a life of
dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is

contradictory to the Constitutional policy of the State to

a. effect "a more equitable distribution of opportunities, income and wealth" and "make full
and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14,
Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind the natural law
and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant
action to arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive
branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1)
the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the
action presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In
the said order, not only was the defendant's claim that the complaint states no cause of action against
him and that it raises a political question sustained, the respondent Judge further ruled that the
granting of the relief prayed for would result in the impairment of contracts which is prohibited by the
fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and
self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such
allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that
the question of whether logging should be permitted in the country is a political question which should be
properly addressed to the executive or legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA remains effective for a certain period of time
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case
No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this
matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of
the complaint is of common and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to
bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in
the said civil case and in the instant petition, the latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. 10Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put
a little differently, the minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right for the generations to
come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the
petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and
rule against the respondent Judge's challenged order for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but
agree with the defendant. For although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they
are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and
redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete
with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of by this
Court without doing violence to the sacred principle of "Separation of Powers" of the three
(3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself
belies these conclusions.

The complaint focuses on one specific fundamental legal right the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
 This right unites with the right to health which is provided for in the preceding section of the
same article:

Sec. 15. The State shall protect and promote the right to health of the people and instill
health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the
civil and political rights enumerated in the latter. 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 the 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. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come generations which stand to
inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing
the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of
pollution air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily

carries with it the correlative duty of not impairing the same and, therefore,
sanctions may be provided for impairment of environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the
country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well
as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June
1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and
Natural Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:

Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country's
forest, mineral, land, off-shore areas and other natural resources, including the protection
and enhancement of the quality of the environment, and equitable access of the different
segments of the population to the development and the use of the country's natural
resources, not only for the present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation
of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987,15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino
people, the full exploration and development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity
of maintaining a sound ecological balance and protecting and enhancing the quality of the
environment and the objective of making the exploration, development and utilization of
such natural resources equitably accessible to the different segments of the present as well
as future generations.
 (2) The State shall likewise recognize and apply a true value system that takes into account
social and environmental cost implications relative to the utilization, development and
conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's
being subject to law and higher authority. Said section provides:

Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be
primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization,
and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and enjoyable harmony with
each other, (b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity
and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian
of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the
said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or
protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which
they claim was done with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other; and
its essential elements are legal right of the plaintiff, correlative obligation of the defendant,
and act or omission of the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to
state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the
facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of
falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted.
The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court
render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action]
lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically
admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the
legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article
VIII of the Constitution states that:

Judicial power includes 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.

Commenting on this provision in his book, Philippine Political Law, 22

Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving
the settlement of conflicting rights as conferred as law. The second part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before forbidden territory, to wit, the discretion of the political departments of the
government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature
and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion,"
which is a very elastic phrase that can expand or contract according to the disposition of the
judiciary.

In Daza vs. Singson, 23

Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from revolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even the political question.
Article VII, Section 1, of the Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber
license holders because he would have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and the demands of public interest
and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend,
modify, replace or rescind any contract, concession, permit, licenses or any other form of
privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protested by the due process clause of the Constitution.
In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber license is
not a contract within the purview of the due process clause; it is only a license or privilege,
which can be validly withdrawn whenever dictated by public interest or public welfare as in
this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not
a contract between the authority, federal, state, or municipal, granting it and the person to
whom it is granted; neither is it property or a property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does
not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54
O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by which
the State regulates the utilization and disposition of forest resources to the end that public
welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege
granted by the State to qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest products therein. They may
be validly amended, modified, replaced or rescinded by the Chief Executive when national
 interests so require. Thus, they are not deemed contracts within the purview of the due
process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA
302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that
a law has actually been passed mandating cancellations or modifications, the same cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute. The
same is understood to be subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by the exercise of the police
power of the State, in the interest of public health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29
quoted in Philippine American Life
Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts are normally
matters of private and not of public concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor contract rights are absolute; for
government cannot exist if the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them harm. Equally fundamental with
the private right is that of the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing
or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in
the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the natural
resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what
the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved membership in this "class" appears to embrace everyone living in the country
whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court
may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may
be found under any and all circumstances, or whether some failure to act, in the first instance, on the part
of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs
and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination
of ground water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution
that is or may be violated by the actions, or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for.
To my mind, the Court should be understood as simply saying that such a more specific legal right or
rights may well exist in our corpus of law, considering the general policy principles found in the
Constitution and the existence of the Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a
motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration where a specific violation of law or applicable regulation is
not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:

Section 1. . . .

Judicial power includes 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. (Emphasis
supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At least
in respect of the vast area of environmental protection and management, our courts have no claim
to special technical competence and experience and professional qualification. Where no specific,
operable norms and standards are shown to exist, then the policy making departments the
legislative and executive departments must be given a real and effective opportunity to fashion
and promulgate those norms and standards, and to implement them before the courts should
intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements
or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon
proof of breach by the timber companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will those companies litigate about?
The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights
and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also
controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the
circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.

# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to
my mind, is one of the most important cases decided by this Court in the last few years. The seminal
principles laid down in this decision are likely to influence profoundly the direction and course of the
protection and management of the environment, which of course embraces the utilization of all the natural
resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what
the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and,
maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their
suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of
"class" here involved membership in this "class" appears to embrace everyone living in the country
whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court
may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency directly concerned and the private persons or
entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may
be found under any and all circumstances, or whether some failure to act, in the first instance, on the part
of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is
not discussed in the decision and presumably is left for future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental
legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that
"the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it
cannot be characterized as "specific," without doing excessive violence to language. It is in fact very
difficult to fashion language more comprehensive in scope and generalized in character than a right to "a
balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers,
inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after
strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs
and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination
of ground water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II,
Section 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other
hand, a compendious collection of more "specific environment management policies" and "environment
quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified
the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a
specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code
identifies with notable care the particular government agency charged with the formulation and
implementation of guidelines and programs dealing with each of the headings and sub-headings
mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of
Article II of the Constitution are self-executing and judicially enforceable even in their present form. The
implications of this doctrine will have to be explored in future cases; those implications are too large and
far-reaching in nature even to be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a
right cast in language of a significantly lower order of generality than Article II (15) of the Constitution
that is or may be violated by the actions, or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for.
To my mind, the Court should be understood as simply saying that such a more specific legal right or
rights may well exist in our corpus of law, considering the general policy principles found in the
Constitution and the existence of the Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a
motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration where a specific violation of law or applicable regulation is
not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial
power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:

Section 1. . . .

Judicial power includes 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. (Emphasis
supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At least
in respect of the vast area of environmental protection and management, our courts have no claim
to special technical competence and experience and professional qualification. Where no specific,
operable norms and standards are shown to exist, then the policy making departments the
legislative and executive departments must be given a real and effective opportunity to fashion
and promulgate those norms and standards, and to implement them before the courts should
intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements
or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings
below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon
proof of breach by the timber companies of one or more of the specific terms and conditions of their
concession agreements (and this, petitioners implicitly assume), what will those companies litigate about?
The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners
should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights
and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also
controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the
circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the forest
cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's
decision issued today should, however, be subjected to closer examination.