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-1Civil Law v.

Common Law1

Plebisitia Plebeans
The 2 exeisted with dual roles.

The legal system - an important constitutive part of national identity


and central to the regulatory norms that shape patterns of behavior in
state and society
What does it mean to be a civil law country?
Civil Law tradition
Tradition
Set of underlying prescriptions,
attitudes, mindsets, shared by
civil law systems (France, Spain,
Germany, Latin America, etc.)

System

Ownership, usufruct, contract,


marriage
Different rules and solutions
underlying: set of mindsets
Sprung from a common source
Civil law sprung from a common source: Roman Law
How did it come to us?
Settlers of Italy practically all of 3 main waves of the Italian
peninsula
Europe was inhabited by a tribe: Indo-Europeans
2000 BC Certain tribes of Indoeuropeans (Italics) settled in the
Italian peninsula.
1000 BC Etruseans (not Indo-Europeans) settled in Italy probably
started in Normandy.
Greeks settled mostly south near the Tiber river
(Greeks were river people) they chose this place because of the
fertile lands, and was very hilly.

2 consuls Patricians
tribunes plebeans
*Fiction between classes
Consoldation: Tribune terectilios and the Dimitri
Proposal: 10 Plebeans to draft common set of laws
5 patricians and 5 Plebeans: but, 10 patricians were elected.
Draft of laws: 12 bronze tablets
fundamental laws for all (Laws of the 12 tablets)
450 BC Leges duodecim Tabularum
founder of Civil Law tradition
beginning of Roman law
served as the basic law for 1000 years
Expansion of Rome: Republic to Empire to World State
3 Punic wars (Phoenicians)
264 164 BC
Hannibal 2nd war marched army of soldiers and elephants and
almost conquered Rome
146 BC Rome won (Carthage)
Creation of Senate
Senex Old man
Senate assembly of old men
Triumvirate Cesar, Casus, Pompey (61 BC)
Worked under senate, administrative functions exercised
Casus was later killed by Particians.
Division of territories to administer:
Cesar West (conquered gaul, and wrote his jottings on the Gaullic
war)
Pompey East (married cesars daughter)

Early Roman society was composed of 2 main classes

later on, the 2 became rivals, Pompey went to senate


asking Cesar not to go to Italy in arms, but Cesar crossed
Rubicon and waged war on Pompey, who was defeated
and later fled to Egypt (and beheaded by Ptolemy).
Cesar (fathering a child with Cleopatra) went back to Italy and
forgave senate.

Patricians further divided into classes


Pribeans classless people

Senate named him Dictator for life. Named the 5 th month after him:
July

The Monarchy: Assemblies


1) Comitia Curiata
Legislative and executive functions under the king and
priestly functions
Largely replaced by:
2) Comitia Centuriata
3) Comitia Tributa
Plebean committee

Dictator someone given power by the senate (during emergencies


and merely temporary)

Rome city of 7 hills which makes is possible/easier to defend.

Fall of Monarchy and Birth of the Republic (510 BC)


Julius Brutus First Consula
Chief Executive 2 elected annually
Comitia Curiata
Cenatus Consulta Only Patricians

1 Based on Balanes lecture and A Primer on the Civil Law System,


available at http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/
$file/CivilLaw.pdf. Also based on 2 readings on Civil and Common
Law.
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2 months later (March 15) he was assassinated by senators in


senate as he was accused of destroying the republic.
Civil War Senators (Brutus and Casius) v. Cesarians (Anthony and
Lepidus)
Plains of Philippe (42 BC) Anthony and Lepidus won.
2nd triumvirate: Anthony, Octavian and Lepidus
Naval battle with Cleopatra (went back to Egypt with Anthony
following her)
Thus, Octavian wins. = First emperor (Augustus)
Month of august is born.
Emperato Commander in chief of battles
Senate was still said to be supreme. Retained administration of Italy,
Iberria, Gaul, Egypt (Best provinces)

Comparative

Law

Augustus took the worst provinces assumed positions on


bureaucracy little by little.
12 Cesars:
Julius Cesar not really the 1st emperor
Augustus 1st emperor
Tiberius
Caligula literally means little boots
Claudius
Nero
Galba
Otho
Vitelilus
Vespasian
Titus
Domitian
5 good emperors: 96 AD 180 AD
Nerva, Trajan and Antonius Pius
Marcus Aurelius Philosopher king
literally all road lead to Rome
Institution of adoption
Appointed as hi heirs not his biological son but adopted
man who was a good leader.
Antonius Pius had a son who was monster, but appointed another
(Comodus) as successor. This lead to the slow political decline of
Rome.
In 125 years: 23 emperors 13 assasinated
Diucletian tried to reform Rome:
Tetrachy - 4 rulers
Major administrative reform 180 to 4th century (305 AD)
Constantine one of the Augusti
fought his co-emperor battle of Mulvian Bridge 312 AD
In Hoc Signo Vinces
Byzantine: Constantinopolis
Basic law was still the 12 tablets
there were edicts
commentaries of jurists (juris consuls)
The jurisprudentes: wrote numerous commentaries
Scevola, Gaius, Paponian, Ulpian, Paul, Modertinus
426 AD Valentinians law of Citations
Decree to systematize commentaries on any given point of law. 5
major commentators will prevail. If there is difference among them,
major commentator will prevail. Ex. If there is difference among all,
Papinian will prevail. This started the development of law through
commentators.
The fall: 5th century
The Huns, via Atilla from the East, put pressure on the Germanic
tribes, and overrun the empire form the East.
476 AD Fall of Rome: Romulus Augustus
Resurgence and recovery of west: Justinian, but not really
successful.
Temple of Jesus in Constantinople was rebuilt, but later on turned
into mosque when Turks invaded Constatinople.
Codification of Roman Law
New work of Codification: Corpus Juris Civilis (Anthology of Civil
Law)
1)

Digests 15 Dec. 533 AD most important consolidation of


extracts from juris consults.

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2)

3)
4)

-2Institutiones 30 Dec. 533 AD textbook on law for students


and had force and effect of law. Justinian saw the need for
schools and was basically the father of the law school, and
bar exams.
Codex 534 AD collection of edicts
Novellae 534-543 AD New laws

Western Europe was in the Dark Ages


Law was still tribal customs
Strand of Roman law remained subdued people, but still it was
barbarized Roman law.
Period of Customary Thicket
trade later developed: Feudal system took root and monasticism
evolved (tried to preserve documents: scriptures, transcribed into
simple latin, epics, plays). But, still barbarized mingled with German
law.
Birth of nation state: France, England, Italy and Spain, later Germany
Europe rediscovers Roman Law in the 11th Century
Revival and Reception
rise of universities
Paris humanities; teachers universities
Bologna (Italy) Center of law schools; student university.
Why law? 1050 AD full text of digests foubd in Piza, taken
to library in Florence. Glositors (people educated) read the digests
and made marginal comments on their meaning. Thus reviving
Roman Law.
Post- Glositors Commentators
now used principles,
contemporary situations

explained

and

applied

to

Reception applied throughout eastern Europe


Great Renaissance of Law
Spain Visigoths
Euric 466-489: Code of Germanic Laws compiled
Alaric II Code: for conquered people (Breviary of Alaric)
Consolidation and Stabilization: Fuero Juzgo
690 AD made applicable to all. (Most advanced piece of Germanic
legislation).
Monish invasion: 1000 of them under Talic (Gibraltar)
Tarik and the Rock: Islamic triumph (711 AD)
The Reconquista: Slow piecemeal recovery of christians pushed
south.
Each area conquered got its legal system (Fuero) Forum Law.
Fuero Viejo
Alfonso X Fuero Real
Libro de las Leyes
1347 Grand son gave it force and effect of law: 7 partidas/siete
partidas (Alfonso)
Mid 15th Century
Kingdoms of Castille: heir was the sister of the king Isabel
Kingdom of Aragon: Heir was 17 year old Ferdinand
Valladolid Marriage of Ferdinand and Isabel
consolidated: after king appointed putative daughter, king
died and fought with Isabel, the latter succeeding to
Castille with Ferdinand having taken over Aragon.
Christopher Colombo rejected by Portugal, went to Isabel who had
to pawn her jewels to fund his trip, bought 3 ships and the rest is
history. Isabel died at 42.
Daughter Juana dela Loca basically she was crazy

Comparative

Law

Growth of Spanish Law


Las Leyes de Toro paternity and succession
Chapter V siete partidas extended to colonies
1567: La Nueva Recopilacion
1661: Recopilacion de lad Indians (most impressive)
Bourbons took over.
1805: revised recopilacion.

France
-

Revolution: Twilight for the Gods


Louis XVI and Marie Antoinette to Bastille Sire, Cest une
revolutione
14 July 1789: all beheaded
Reign of terror
Fall of Monarchy: La Treus
15th Brumaire Napoleon Bonaparte (10 November 1799)
Edict: Code Commission
Commission of Fountainebleau and project of Codification (1800)
Portalis and Trouchet
12 March 1804: Le Code Civil (First modern Civil Code)
then, France conquers Spain.
Codification Commission Codificatora
Queen Regent executed an edict: Real Directo
6 October 1888 Ordaining publication of Codigo Civil takes effect
on 24 July 1889.
extended effect to Puerto Rico, another colony and the
Philippines. (effectivity: 8 December 1889; published: 17
November 1889)
Remained law despite changes in the sovereignty: non-political
1947 EO48 for Codification
1948 Draft (in April Roxas dies of a heart attack
18 June 1949 signed
30 August 1950 Civil Code takes effect
What makes us a civil law country?
There are certain shared assumption: Codes
Mighty cleavage between public law and private law remains.
The generally accepted way of dividing and classifying the law in the
civil-law world is quite different from that to which common-law
lawyers are accustomed.
The fundamental division in modern civil-law systems is that between
public and private law.
Private Law
Public Law
That area of the law in which the Fcuses on the effectuation of
sole function of government was the public interest by state
the recognition and enforcement action. Now includes at least
of private rights
what a common-law attorney
Now includes at least the civil would recognize as constitutional
and commercial codes.
law, administrative law, and
criminal law.
Judiciary organized and divided
Several separate court systems often coexist in civil-law countries. A
case falling within the jurisdiction of one court generally is immune
from jurisdiction in all others.
While the typical common-law judicial system may be drawn as a
pyramid with the highest court at the top, the typical civil-law judicial
system would be represented as a set of two or more distinct
structures with no bridge between them.
Civil Procedure: Judicial Proceedings are public and controlled
by parties
series of meetings, hearings, and written communications
through which evidence is introduced and evaluated,
testimony is taken, and motions are made and decided.

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-3conducted primarily in writing, and the concept of a highly


concentrated and dramatic trial in the common-law sense
is not emphasized.
Cross-examination is uncommon.
The judge supervises the collection of evidence and
preparation of a summary of the record on which a
decision will be based.
lawyers in the civil-law system mainly act as law
adversaries (i.e., arguing points of law), and judges more
actively control the investigation and fact-finding process.

Criminal Procedure: divided into three phases: the investigative


phase, the examining phase, and the trial.
Investigative - a government official (generally the public prosecutor)
collects evidence and decides whether it is sufficient to warrant
formal charges.
Examining - primarily conducted in writing, an examining judge
completes and reviews the written record and decides whether the
case should proceed to trial.
Trial - present the case to the trial judge and, in certain cases, the
jury, and to allow the lawyers to present oral argument in public. No
real tradition of jury trials.
Appellate Review: Usually de novo
Often involves a de novo review of both the facts and law of the
case. Generally, only questions of law are raised and decided by
appellate court.
Legal actors:
Legal Scholars Do the thinking. Development of law is lodged in
legal scholars (as compared to common law development through
judges.)
Legislature - strives to supplement and update the codes in those
areas in which the legal scholars have suggested that codes are
defective or incomplete.
Main source of solution of problems: Statutory law
(Common law: Precedents, stare decisis)
Judges They the operators of the system designed by legal
scientists and built by legislators. Since there is only one correct
solution to a legal problem, according to legal science and the
developed doctrine, judicial discretion or interpretation becomes
largely unnecessary.
Legal Education and Lawyers
Law schools curriculum divided
Classification of law practice
Law v. Equity: not present in civil law
Presumption on civil law: What is legal is equitable and vice-versa.
According to Balane, we are civil law, with a little overlay of common
law.
Simplified comparison: Civil v. Common Law
Civil Law
Common Law
Greatly influenced by Corpus Not much influence.
Juris Civilis.
Law developed by judges.
Courts merely apply the law.

Courts have 2 functions, apply


the law, and make law.

Civil-law
countries
have
comprehensive codes, often
developed from a single drafting
event. The codes cover an
abundance of legal topics,
sometimes treating separately
private law, criminal law, and
commercial law.

Common-law countries have


statutes
in
those
areas,
sometimes collected into codes,
they have been derived more
from an ad hoc process over
many years. Codes of commonlaw countries very often reflect
the rules of law enunciated in
judicial decisions (i.e., they are
Comparative

Law

-4the statutory embodiment of


rules developed through the
judicial
decision-making
process).
What is legal is equitable, and
vice-versa.

Existence and growth of equity:


not really what is legal.

Role and influence of judicial


precedent, at least until more
recent
times,
has
been
negligible.

Precedent has been elevated to


a
position
of
supreme
prominence

Reasoning process is deductive,


proceeding from stated general
principles or rules of law
contained in the legal codes to a
specific solution.

The process is the


reversejudges apply inductive
reasoning,
deriving
general
principles or rules of law from
precedent or a series of specific
decisions and extracting an
applicable rule, which is then
applied to a particular case.

Tradition of separate codes for


separate areas of law, favor
specialty court systems and
specialty courts to deal with
constitutional law, criminal law,
administrative law, commercial
law, and civil
or private law.

Integrated court systems with


courts of general jurisdiction
available to adjudicate criminal
and most types of civil cases,
including
those
involving
constitutional law, administrative
law, and commercial law.

Single-event trial is unknown,


and trials involve an extended
process with a series of
successive
hearings
and
consultations
for
the
presentation and consideration
of evidence.

Single-event trial possible.

Trials using the inquisitorial


process, the role of the judge is
elevatedthe judge assumes
the role of principal interrogator
of witnesses, resulting in a
concomitant derogation of the
role of lawyers during the trial.

The role of the judge as the


manager of the trial (and
referee of the lawyers acting in
an adversary role) is secondary
to that of the lawyers, who are
the prime players in the process,
introducing
evidence
and
interrogating witnesses.

Judges are mere appliers of


the law.

Judges may search creatively for


an answer to a question or issue
among
many
potentially
applicable judicial precedents.

Judiciary is usually part of the


civil service of the country. Nonpolitical.

Judges are generally selected as


part of the political process for a
specific judicial post that they
hold for life or for a specified
term, with no system of
advancement to higher courts as
a reward for service.

The study of law at a faculty of


law follows graduation from high
school, with no intermediate
education in the liberal arts or
other fields of learning, and with
little or no exposure to subjects
taught in other departments of
a university.

The study of law is almost


always post-graduate. The law
student is exposed to other
disciplines prior to matriculation
in the law school, a situation that
has perhaps led to a greater
social consciousness among
judges and lawyers about the
purposes and functions of law

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and its applicationand a


greater openness and ability to
confront new situationsthan
exists among their counterparts
in civil-law countries.

Notes
on
the
movie,
A
Civil
Action:
(taken
http://home.comcast.net/~dkennedy56/woburn_realstory.html)

from

Civil reforms
William Thilly, an MIT scientist who's studying the relationship between
chemical exposure and chromosomal damage, once told a Woburn
citizens' group why he would never want to testify in a toxic-waste case
such as the one brought by Jan Schlichtmann. "For every PhD," he
quipped, "there is an equal and opposite anti-PhD."
In fact, the adversarial system of justice is ill-suited to deciding the kinds of
highly complex issues in cases such as the Woburn toxic-waste suit. Each
legal team -- the families', W.R. Grace's, and Beatrice's -- hired highly
credentialed scientists who presented mind-bogglingly technical testimony
about groundwater flow, pressure gradients, and even, for one memorably
arcane afternoon, how tetrachloroethylene biodegrades into vinyl chloride.
After many months of this, six ordinary men and women were herded into
a little room and forced to decide whose theory was the most convincing.
Thus was the fatally confused verdict virtually guaranteed.
After sitting through all but five of the 78 days of trial, I have some
qualifications for observing what went wrong, and how similar trials could
be made better. What follows are a few modest proposals.
He, the jury: The judge, rather than lay jurors, should be the sole arbiter
of facts in a case as complex and technical as Woburn's. The only role for
a jury in such a case should be to determine the level of damages.
Granted, Judge Walter Jay Skinner was no more technically adept than
the postal clerks and retired nurses who made up the jury. But if he had
had to make the final decision himself, the families -- and, ultimately, the
public -- would have been spared the travesty of the verdict against Grace
having to be thrown out because the jurors didn't understand what they
were doing.
Just the facts: Once a judge has ruled that a lawsuit meets some minimal
standard for moving forward, the court itself, rather than the lawyers,
should investigate the facts. Admittedly, this would present some
problems, mainly over who would pay for an expensive, drawn-out
investigation. But the benefits of a neutral, objective investigation headed
by a court-appointed master would far outweigh any possible objections.
The parties to the suit, of course, would be able to challenge the court's
findings of fact, and the judge would be required to take those challenges
into account.
Government work: Early in the Woburn trial, Schlichtmann attempted to
introduce data compiled by the US Environmental Protection Agency. He
was unsuccessful, because the EPA had a court-approved exemption from
having to testify in private lawsuits. (Schlichtmann gets some revenge-byproxy in the movie: the screenwriters have rewritten history by claiming
that the EPA got involved only after Schlichtmann's suit lit a fire under the
agency.) As EPA officials put it during the trial, take away their exemption
and they would end up spending more time testifying than working. But
there should be some way of balancing the concerns of government
agencies with the need for unbiased, authoritative information. In fact,
government agencies clearly identified Beatrice's 15-acre property as a
source of contamination to Wells G and H, the very issue that
Schlichtmann's hydrogeological consultant, George Pinder, botched so
badly. Schlichtmann still would have had to show that the property's
previous owner, the Riley tannery, was responsible for the contamination.
But at least the entire case wouldn't have come undone because of one
witness from hell.

Indigenous Peoples Rights Acts2

2 Taken from Sir Seds Powerpoint on IPRA.


Comparative

Law

Traditional Conception: Government treated them as in a state of


pupilage or as wards just like the way the U.S. related to the native
Indians. (Rubi v. Provincial Board of Mindoro)
Valid classification under the equal protection clause, against
Indegenous person. Classification was not discriminatory because it
was not based on accident of birth or parentage but on the degree of
civilization and culture. (People v Cayat)
Constitution and IPs
Article II, Section 22 (recognition and promotion of rights of IPs)
Article XII, Section 5 (applicability of customary laws in re: property
rights or relations)
Article XIII, Section 6 (recognition of rights to ancestral lands)
Article XIV, Section 17 (consider right of IPs to culture in
development national plans)
Who are IPs?
A group of people or homogenous societies identified by selfascription 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, become historically differentiated from the
majority of Filipinos.
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. (Sec.
3 (h) RA 8371)
Ancestral Domain
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
including: 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.
Ancestral Lands
Those: occupied, possessed and utilized by individuals,
families and clans who are members of the ICCs/Ips since time
immemorialincluding but not limited to, residential lots, rice
terraces or paddies, private forests, swidden farms and tree lots.
Problem of Jura Regalia

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-5Constitution: Sec. 2. 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
Sec. 3. Lands of the public domain are classified into agricultural,
forest or timber, mineral lands and national parks
The key to resolving the apparent conflict is the concept of native
title. This was affirmed in the landmark case of Carino v. Insular
Government (1909). The case involved claims of ownership of an
Igorot in Bunguet, over land which had been occupied by him and his
predecessor since prior to the time of Spanish conquest. Carino case
recognized the concept of private land title that existed irrespective of
any royal grant from the State.
Thus, in Chapter II, Section 3(l) native title has been defined as:
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.
Presumption: areas within the ancestral domains are communally
held but not in the concept of co-ownership under the New Civil
Code. (Chapter VIII, Section 55)
Rule on vested rights: respect for existing property rights regimes.
(Chapter VIII, Section 56)
Rule on natural resources within the domains: ICCs/IPs with
priority rights in the harvesting, extraction, development or
exploitation(but) a non-IP may be allowed to take part in the
development and utilization for a period of not exceeding 25 years
renewable for another 25 years: Provided a formal and written
agreement is entered into with the IPs concerned or that the
community, pursuant to its own decision making process has agreed
to allow such operation (Chapter VIII, Section 57)
Rule on sale or transfer:
1. Ancestral domains can never be sold. (Chapter III, Section 5)
2. Ancestral lands may be transferred only to/among members
of same IPs; but may be redeemed within 15 years if transferred to
non-IPs due to vitiated consent/unconscionable price. (Chapter 3,
Section 8)
Formal recognition of native title: Certificate of Ancestral Domain
Title (Chapter III, Section 11)
Option to register ancestral lands (within 20 yrs.):
a. Commonwealth Act 141, as amended
b. Land Registration Act 496 [note: see P.D. 1529] (Chapter III,
Section 12)
[Note: individually-owned ancestral lands, of agricultural character
and actually used for agricultural, residential, pasture, and treefarming purposes, including those with 18% slope are classified as
alienable and disposable agricultural lands Baguio compromise?]
Tax exemption (real property tax/ special levies/other exactions):
Ancestral domains except those portions actually used for
commercial purpose, large-scale agriculture, residence or upon titling
by private person (Chapter VIII, Section 60)
Rights related to ancestral domain (Chapter III, Section 7):
a.
to claim ownership
b.
to develop lands and natural resources (in re: Section 57)
c.
to stay in the territories
d.
to be resettled (in case of displacement)
e.
to regulate entry of migrant settlers

Comparative

Law

f.
to have access to integrated systems for the management
of their inland waters and their air space
g.
to claim parts of reservations (except: those for public
welfare and service)
h.
to resolve land conflicts using customary laws (before
going to court)
Right to Self-governance and Empowerment
Chapter IV, Sections 13-20
Applicability: IPs not included in or outside Muslim Mindanao and
Cordilleras may use the form and content of their ways of life as may
be compatible with the fundamental rights defined in the Constitution.
Justice System may be used within their own communities but
subject to two conditions:
a. compatible with the national legal system.
b. compatible with internationally recognized human rights.
[Note: Clarify relationship with the Autonomous Regions which are
given legislative powers over ancestral domain and natural
resources, among others, pursuant to Article X, Section 20 of the
Constitution.]
Other rights:
a. Right to participate at all levels of decision-making and
development of indigenous political structures, including mandatory
representation in policy-making bodies and other local legislative
councils, and the right to determine their own priorities for
development.
b. Right to constitute tribal barangays (in re: Local Government
Code) provided they are living in contiguous areas where they are
the predominant population but inside municipalities, provinces, or
cities where they do not constitute the majority.
Social Justice and Human Rights
1. Equal Protection and non-discrimination: with due
recognition of their distinct characteristics and identity,
accord to the members of the ICCs/IPs the rights,
protections and privileges enjoyed by the rest of the
citizenry; same employment rights, opportunities, basic
services, educational and other rights and privileges
available to every member of the society. Accordingly, the
State shall likewise ensure that the employment of any
form of force of coersion against ICCs/IPs shall be dealt
with by law.
2. Rights during armed conflict: protection under
international law, non-recruitment against their will/children,
no force to abandon lands.
3. Freedom from discrimination and equal opportunity
and treatment
4. Unlawful acts re. employment:
non-discrimination
equal pay for equal work
accord them with same benefits and rights/ cannot be
discharge to evade providing them with such rights.
5. Equal rights and protection to women, children and
youth
6. Integrated system of education: relevant to the need of
the young people of the ICC/IPs.
Cultural Integrity
1. The state shall respect, recognize and protect the right of
the ICCs/IPs to preserve and protect their culture,
traditions and institutions. It shall consider these rights in
the formulation of national plans and policies.
2. Educational Systems
3. Cultural diversity
4. Community Intellectual rights

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5.
6.
7.
8.
9.

-6Rights to religious, cultural sites and ceremonies


Indigenous Knowledge Systems and Practices and to
Develop own Sciences and Technologies
Access to Biological and Genetic Resources
Sustainable Agro-Technical Development
Funds for Archaeological and historical sites

National Commission on Indigenous People (NCIP)


Chapter VII, Sections 38-50 and Chapter IX, Sections 65-70
Composition: 7 Commissioners (at least 2 women and at least 2
lawyers) belonging to IPs appointed by the President representing
the following ethnographic areas:
a. Region 1 and the Cordilleras
b. Region 2
c. The rest of Luzon
d. Island Groups, including Mindoro, Palawan, Romblon, Panay and
the rest of the Visayas
e. Northern and Western Mindanao
f. Southern and Eastern Mindanao
g. Central Mindanao
Principal functions:
1. Issue certificate of ancestral domain/land title (Section 44 [e])
2. Issue certification as a pre-condition to grant of permit for
utilization of any portion of ancestral domain (Section 44 [m])
Offices:
Ancestral Domains
Policy, Planning and Research
Socio-economic Services
Empowerment and Human Rights
Administrative
Legal Affairs power to conduct preliminary investigation (for
violation of IP rights)
Jurisdiction: all claims and disputes involving rights of IPs
[Note: subject to principle of exhaustion of remedies under their
customary law]
Appeal: from NCIP to CA by way of petition for review
Injunctions: No restraining order by inferior court in any case
dispute or controversy arising from this Act.
Penalties: for violations of Section 10 (unlawful intrusion on domain)
Sections 21 and 24 (non-discrimination)
Section 33 (religious, cultural sites)
[Note: May proceed to punish under customary laws provided that:
1. Penalty is not cruel, degrading or inhuman
2. Death penalty shall not be imposed]
Special provision for Baguio City governed by its own Charter
Delineation Process - Chapter VIII, Sections 51-64
Process for Domains:
Petition with NCIP thru ADO
Delineation Proper
Proof testimony of elders and documentary evidence
Preparation of Maps
Report of investigation
Notice and Publication opposition may be filed w/in 15 days
ADO report on endorsement - w/in 15 days from publication
Issuance of CADT and registration
[Note: DENR Adm. Order No. 2, series of 1993 allowed claims.]
Process for Ancestral Lands:
GR allocation left to customary practice

Comparative

Law

Exception:
i. those not inside domain may seek ADO help
ii. proof required: oral and documentary evidence
iii. notice and publication
Current Debate: Codification of Customary Law
[Note:
Article 11 of New Civil Code - Customs which are contrary
to law, public order or public policy shall not be countenanced.
Article 12 - A custom must be proved as a fact, according to the rules
of evidence.]
[Note:
Badua vs. Cordillera Bodong Administration, 194 SCRA
101]
In the case of Badua v. Cordillera, the main question was whether
tribal court of the Cordillera Bodong Administration can render a valid
and executory decision in a land dispute. The Court ruled that the
tribal court in this case which rendered the decision, supposed to
have been constituted under the law creating the Cordillera
Autonomous Region, never came into existence, as the CAR never
came into existence. The tribal court here was an ordinary tribal court
existing under the customs and traditions of an indigenous cultural
community. Such tribal courts are not a part of the Philippine judicial
system which consists of the Supreme Court and the lower courts
which have been established by law. They do not possess judicial
power. Like the pangkats or conciliation panels created by P.D. No.
1508 in the barangays, they are advisory and conciliatory bodies
whose principal objective is to bring together the parties to a dispute
and persuade them to make peace, settle, and compromise.
An amicable settlement, compromise, and arbitration award rendered
by a pangkat, if not seasonably repudiated, has the force and effect
of a final judgment of a court (Sec. 11, P.D. 1508), but it can be
enforced only through the local city or municipal court to which the
secretary of the Lupon transmits the compromise settlement or
arbitration award upon expiration of the period to annul or repudiate it
(Sec. 14, P.D. 1508). Similarly, the decisions of a tribal court based
on compromise or arbitration, as provided in P.D. 1508, may be
enforced or set aside, in and through the regular courts today.
Use of customary law in settlement of disputes among IPs and
determination of property rights.
Sec. 3(f). - a body of written and/or unwritten rules, usages,
customs and practices traditionally and continually recognized,
accepted and observed by respective ICCs/IPs
Sec. 7(b). Right to develop lands and natural resources - 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 law
Sec. 7(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.
Sec. 8(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.
Sec. 15. Justice System Conflict Resolution Institutions, and Peace
Building Processes. - The ICCs/IPs shall have the right to use their
own commonly accepted justice systems, conflict resolution
institutions, peace building processes or mechanisms and other
customary laws and practices within their respective communities
and as may be compatible with the national legal system and with
internationally recognized human rights.

-7Sec. 51(d). Proof Required. - Proof of Ancestral Domain Claims shall


include the testimony of elders or community under oath, and other
documents directly or indirectly attesting to the possession or
occupation of the area since time immemorial by such ICCs/IPs in
the concept of owners which shall be any one (1) of the following
authentic documents:
1.
Written accounts of ICCs/IPs customs and traditions;
2.
Written accounts of the ICCs/IPs political structure and
institution;
3.
Pictures showing long term occupation such as those of
old improvements, burial grounds, sacred places and old villages;
4.
Historical accounts, including pacts and agreements
concerning boundaries entered into by the ICCs/IPs concerned with
other ICCs/IPs;
5.
Survey plans and sketch maps;
6.
Anthropological data;
7.
Genealogical surveys;
8.
Pictures and descriptive histories of traditional communal
forests and hunting grounds;
9.
Pictures and descriptive histories of traditional landmarks
such as mountains, rivers, creeks, ridges, hills, terraces and the like;
and
10. Write-ups of names and places derived from the native dialect of
the community.
Jurisdiction and Procedures for Enforcement of Rights
- Sections 65 to 66
Sec. 65. Primacy of Customary Laws and Practices. - When
disputes involve ICCs/IPs, customary laws and practices shall be
used to resolve the dispute.
Sec. 66. Jurisdiction of the NCIP. The NCIP, through its regional
offices, shall have jurisdiction over all claims and disputes involving
rights of ICCs/IPs: Provided, however, That no such dispute shall be
brought to the NCIP unless the parties have exhausted all remedies
provided under their customary laws. For this purpose, a certification
shall be issued by the Council of Elders/Leaders who participated in
the attempt to settle the dispute that the same has not been resolved,
which certification shall be a condition precedent to the filing of a
petition with the NCIP.
[Note: See Local Government Code Section 399 (b) and 412 (c)
regarding applicability of customary law to tribal barangays.]
LGC: SEC. 399. Lupong Tagapamayapa
(b) Any person actually residing or working in the barangay, not
otherwise expressly disqualified by law, and possessing integrity,
impartiality, independence of mind, sense of fairness, and reputation
for probity, may be appointed a member of the lupon.
SEC. 412. Conciliation.
(c) Conciliation among members of indigenous cultural communities.
- The customs and traditions of indigenous cultural communities shall
be applied in settling disputes between members of the cultural
communities.
Cruz v. DENR (GR No. 135385)
IPRA Law vis a vis Regalian Doctrine3
Cruz, a noted constitutionalist, assailed the validity of the RA 8371 or
the Indigenous Peoples Rights Act on the ground that the law
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. The IPRA law basically
enumerates the rights of the indigenous peoples over ancestral
domains which may include natural resources. Cruz et al content
that, by providing for an all-encompassing definition of ancestral

3
Starr Weigand 2012
Balane/Candelaria/Gulapa

Digest taken from Howard Chan online.


Comparative

Law

-8domains and ancestral lands which might even include private


lands found within said areas, Sections 3(a) and 3(b) of said law
violate the rights of private landowners.
ISSUE: Whether or not the IPRA law is unconstitutional.
HELD: The SC deliberated upon the matter. After deliberation they
voted and reached a 7-7 vote. They deliberated again and the same
result transpired. Since there was no majority vote, Cruzs petition
was dismissed and the IPRA law was sustained. Hence, ancestral
domains may include natural resources somehow against the
regalian doctrine.
Decisions and Opinions:
1) Substantive
(Note: Justice Vicente 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.)
1.
3(b)

Section 3(a)
defines the extent and coverage of A.D. (3a)
defines A.L. (3b)

PUNO
Carino Native Title
KAPUNAN

Cario Native title.

Jura Regalia is the natural fruit of conquest.

Cario is an exception to Jura Regalia

Distinguished ownership under native title vs. ownership by


acquisitive prescription.

Cario does not apply to lands of public domain as


SOLGEN argued at first.

Does not confer right of ownership over natural resources,


only definitional not declarative of right.
VITUG

Effectively withdraws from public domain millions of


hectares of A.D.

Undue delegation of State authority.

Cario cannot override the collective will of the people.

Congress should first make customary laws part of the


stream of laws.
PANGANIBAN

Too sweeping scope

Jura Regalia consistently adopted in our Constitutions.

Cario has been modified or superseded by 1935, 1973


and 1987 Constitutions. Carios claim only limited to land
ownership, not natural resources or aerial and cosmic space.
PUNO

Land is owned by IPs in limited form.

Does not include right to alienate the same.

Ownership of A.D. entitles IPs to CADT, not Torrens title.

Not the same as co-ownership in civil law.

Not the same as corporate condominium rights.

Communal rights of all generations of IPs.

New concept of ownership recognized by Civil Code as


source of law.
KAPUNAN

The phrase private but community property is merely


descriptive of IPs concept of ownership as distinguished from that of
Civil Code.
PANGANIBAN

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Balane/Candelaria/Gulapa

Dilutes state authority over natural resources.

3.
Section 6 in re: 3a & 3b
defines composition of A.D. and A.L.
(No comment on this particular provision.)
4. Section 7
Enumerates rights of IP over AD
PUNO
Constitutional
Rights of ownership in 7 (a) does not cover waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, forest, or timber, wildlife, flora and fauna and all other
natural resources in Section 2, Art. 12 of Constitution.
Consistent with Jura Regalia.
Section 7 (b) of IPRA merely refers to the right to manage natural
resources, not right to own (mere stewardship).
KAPUNAN
Does not bestow ownership over natural resources (similar to Puno).
Only projects IPs rights and welfare in relation to natural resources.
Concept of native title to natural resources, unlike native title to land,
has not been recognized in R.P.
5.
Section 8
enumerates rights of IPs over A.L.
(No comment on this particular provision.)
6. Section 57
priority rights of IPs in exploitation of natural resources within A.D.
PUNO
State with primary power to develop natural resources.
Cites 4 modes of control and supervision over resources:
Direct state action
Joint venture
Small-scale utilization [IPRA, Section 7 (b)]
Large-scale utilization [consistent with pars. 1 and 4,
Section 2, Art. 12 of Constitution]
No right to give the IPs right to manage and conserve natural
resources.
Consistent with Jura Regalia.
4 ways of large scale utilization:
Direct State action
Entry into agreement with IP (Priority Rights)
Entry into agreement with a non-IP member
Allow non-IP to participate in agreement with IP
7.
Section 58
gives IPs responsibility to conserve A.D. for critical watershed, forest,
etc
(No comment on this particular provision.)
2)

Procedural

1. Sections 51 to 53
Process of delineation and recognition of A.D.
NCIPs sole authority to delineate A.D./A.L.
KAPUNAN
No violation of due process
2.
Section 52 [i]
Termination of jurisdiction of DENR, DILG, DOJ and NDC upon NCIP
certification that a particular area is A.D.
KAPUNAN

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Law

-9NCIP jurisdiction over A.D. extends only to lands, not natural


resources.
Jurisdiction of other agencies over natural resources within A.D. is
not terminated.
3. Section 63
Application of custom first with respect to property rights
KAPUNAN
No violation of due process
4. Section 65
Customary law to be used to resolve disputes involving IPs
KAPUNAN
Constitutional
Use of customary law is not absolute but only primacy of use
If non-IP is involved, use of customary law is not required.
5.
Section 66
NCIP jurisdiction over all claims re: rights of IPs
(No comment on this particular provision.)
6. Rule VII, Part II, Section of NCIP, Adm. Order No.1, Series of
1998
Administrative relationship of NCIP to O.P. is lateral but autonomous
for purposes of policy and program coordination
KAPUNAN
NCIP not removed from Presidents control and supervision.
Exercises administrative, quasi-legislative and quasi- judicial powers,
therefore, it is characterized as an independent agency.
ILO 169 v. IPRA 4
ILO 169
The only international legal instrument for the protection of
Indigenous and Tribal Peoples that is open for ratification
by states.
As of date, ILO 169 has been ratified by 20 countries.
Not yet ratified by the Philippines.
In 1997, the Philippines, however, has enacted IPRA,
which substantially adopts the principles and provisions of
ILO 169 .
The Convention does not define who are indigenous and tribal
peoples. It takes a practical approach and only provides criteria for
describing the peoples it aims to protect.
Self-identification is considered as a fundamental criterion for the
identification of indigenous and tribal peoples, along with the criteria
outlined below.
Elements of tribal peoples include:
Traditional life styles;
Culture and way of life different from the other segments of the
national population, e.g. in their ways of making a living, language,
customs, etc.; and
Own social organization and traditional customs and laws.
Elements of indigenous peoples include:
Traditional life styles;
Culture and way of life different from the other segments of the
national population, e.g. in their ways of making a living, language,
customs, etc.;
Own social organization and political institutions; and
Living in historical continuity in a certain area, or before others
invaded or came to the area.

A comparative analysis of ILO 169 and IPRA shows that these two
instruments are consistent with each other.
There are, however, some provisions of ILO 169 which are not found
in or are not sufficiently addressed by IPRA.
On the other hand, since IPRA specifically applies to the Philippine
context, it also has provisions not embodied in ILO 169.
Issues addressed by ILO 169:
- government responsibility (Article 2, 7 and 33);
- human rights and enforcement mechanism (Article 3, 11 and 12);
- special measures (Article 4 and 20.1);
- consultation and participation (Article 6, 7.1 and 16.2);
- development (Article 7 and 2.2);
- cultural integrity and customary laws (Article 8, 9, 10 and 12);
- the rights of ownership and possession over the lands they
traditionally occupy, or have had access to (Article 14);
- the rights to natural resources including the right to participate in
the use, management and conservation of such resources (Article
15 and 7.4);
- displacement (Article 16);
- land alienation (Article 17);
- unauthorized intrusions (Article 17.3, and 18);
- agrarian programs (Article 19);
- recruitment and conditions of employment (Article 20);
- vocational training, handicrafts and rural industries (Articles 21 to
23);
- social security and health (Articles 24 and 25);
- education (Articles 26 to 31);
- cross-border co-operation (Article 32); and
- administration and implementation mechanism (Article 33)
Guiding Principles:
IPRA adopts the general principles of ILO 169, but with more specific
and stronger emphasis.
Under IPRA, the Philippines recognizes the values, practices and
institutions of the IPs.
It also has the duty to take measures, with the participation of the IPs
concerned, to protect their rights and guarantee respect for their
cultural integrity.
Who are Tribal and Indigenous People?
IPRA
Adopts the general description of
tribal and indigenous peoples
under ILO 169, with slight
modifications,
however,
as
applied to IPs in the Philippine
context.

ILO 169
Does not define but gives a
description of the tribal and
indigenous peoples which it
covers.

Allows for self-ascription and


ascription by others.

Self-ascription is equivalent to
self-identification under ILO 169.

Deviates from ILO 169 by


providing that the ascription may
likewise be made by others.
Another deviation by IPRA is its
inclusion as indigenous peoples
those who are historically
differentiated from the majority of
Filipinos.

4 Again, taken from Sir Seds Powerpoint presentation.


Starr Weigand 2012
Balane/Candelaria/Gulapa

Comparative

Law

- 10 Government Responsibility
The provisions on state responsibility to protect and promote the
rights of tribal and indigenous peoples under ILO 169 are effectively
incorporated in IPRA.
IPRA

The primary government agency


is the National Commission on
Indigenous
Cultural
Communities
/Indigenous
Peoples (NCIP).

ILO 169
Stat
duty
to
ensure
its
implementation,
with
participation of the tribal and
Indigenous
people,
through
coordinated
and
systematic
action.
May create specific agency/ies
focused solely on tribal and
indigenous peoples and the
issues concerning them, which
should be provided with the
necessary
resources,
will
coordinate and oversee all
efforts affecting tribal and
indigenous peoples.

Human Rights
IPRA
ILO 169
Affirm the human rights and fundamental freedoms of tribal and
indigenous peoples on the basis of equality and non-discrimination.
Prohibition of the use of force
and coercion against tribal and
indigenous peoples and the
exaction of compulsory personal
services are given special
emphasis
Various
Supreme
Court
decisions invoking human rights
instruments, the trend has been
to use the doctrines of
incorporation and transformation
interchangeably to apply human
rights principles to specific
cases.

Tribal and indigenous peoples


whose rights are abused should
be able to seek redress through
legal proceedings.
Thus, ILO 169, in so far as it
already contains customary law
rules on human rights as applied
to indigenous peoples, could
also be invoked as a source of
human
rights
principles
notwithstanding the current state
of
non-ratification
by
the
Philippine Government of ILO
169.

Special Measures
IPRA
Adopts the provisions on special
measures under ILO 169 for the
effective protection of the
persons, institutions, property,
labour, cultures and environment
of the tribal and indigenous
peoples concerned, with special
emphasis on recruitment and
conditions of employment.
Also
provides
for
special
measures to control, develop
and
protect
indigenous
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ILO 169

knowledge
practices.

systems

and

Emphasis on the basic services


as objects of special measures
apart from work-related and
indigenous knowledge systems
support measures.
Measures
safeguarding
the
environment are also found in
IPRA in relation to indigenous
knowledge
systems
and
practices.
Consultation and Participation
These principles empower the IPs by providing them bargaining and
negotiating power in the entire process before they decide whether or
not to give their free and informed consent to the said measure or
programme.
IPRA
ILO 169
Emphasize the right of IPs to be consulted and to participate at all
levels of decision-making, through appropriate procedures and their
authorized representatives, regarding legislative or administrative
measures or programmes affecting them.
The free and prior informed
consent of IPs is needed before
the implementation of any action
or measure which may affect the
IPs.
Development
IPRA reflects the tenor of ILO 169 on economic self-determination of
IPs.
The right to development of ICCs/IPs is incorporated within their right
to self-governance and empowerment.
The right to development is the right of all people to change their
culture or lifestyle.
2 aspects of development:
1) Right to choose - IPs are granted the right to decide for
themselves if they wish to continue to live in their
traditional manner or to adopt the modern norms.
2) Right to determine/control the pace of their
development
Cultural Integrity and Customary Laws
IPRA
ILO 169
Recognize the right of tribal and indigenous peoples to their own
customs and customary law.
Incorporates the twin standards Their customary laws should be
of ILO 169 in the use of considered
when
applying
indigenous penal and justice national laws.
systems.
Unique as a special penal law in
that it authorizes the imposition
of punishment in accordance
with the customary laws of the
ICCs/IPs concerned without
specifying what these penalties
are.
Does impose limitations as to
Comparative

Law

- 11 the penalties that the IPs may


impose
based
on
their
respective
customary
laws.
(Must not be cruel, degrading or
inhuman; nor may the death
penalty or excessive fines be
imposed.)

Always subject to compliance by


the IPs with existing laws, such
as Republic Act No. 7076
(Small-Scale Mining Act of 1991)
and Republic Act No. 7942
(Philippine Mining Act) since it is
not they but the State, which
owns these resources.

The offended party has the


option to prosecute the offender
under existing national laws in
lieu of customary laws. The
offender is likewise liable for civil
damages arising from such
unlawful acts.
Compatibility with the national legal system and internationally
recognized human rights are effective conditions for applicability of
customary laws.

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.

Concept of Land

The Mining Act, however, does take into account the IPs. A mining
agreement is subject to the rights of the IPs to their lands.

Both ILO 169 and IPRA recognize that land is an integral and
essential aspect of the lives and cultural integrity of tribal and
indigenous peoples.

In addition, the Mining Act prohibits the opening of the ancestral land
to mining operations without prior consent of the IPs. In case consent
is obtained, the law provides that royalty payments must be paid.

Both instruments embody the individual and collective aspects of the


concept of land and its ownership.

Displacement
Under both ILO 169 and IPRA, the right to stay in indigenous
territories is not absolute.

IPRA
Has
concrete
legal
categorization of the land rights
of indigenous peoples.

ILO 169
Concept of land encompasses
the total environment of the
areas which either the whole
community
or
individual
members occupy and use.

Right of Ownership over land


Both ILO 169 and IPRA recognize the collective and individual aspect
of the right of ownership and possession of the IPs over the lands
they traditionally occupy.
Since these lands form an integral part of the lives and culture of the
IPs and thus essential for their survival, the government is mandated
undertake measures to protect their rights of ownership and
possession over the lands.
IPRA
Provides for a process of
delineation or identification of the
IPs ancestral land and ancestral
domains for the purpose of
issuance of titles of ownership of
IPs over these lands.
Right over Natural Resources
IPRA
IPs shall have the priority rights
in the utilization of natural
resources and not absolute
ownership thereof.
Priority rights are not exclusive
and non-indigenous peoples
may
also
utilize
natural
resources within the ancestral
domains upon authority granted
by the proper governmental
agency.
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ILO 169
Mandates governments to make
sure that there are procedures
and mechanisms in place to
resolve any land disputes.

ILO 169
The State retains ownership of
mineral or sub-surface resources
or rights.

Moreover, IPs have a right to stay in their territories and not to be


removed therefrom without their free and informed consent.
IPs, however, may be removed from such areas through eminent
domain upon payment of just compensation.
In addition, IPs have the right to return as soon as the grounds for
relocation cease to exist.
Furthermore, whenever the right to return to traditional lands is no
longer possible, there must be payment of compensation.
The government also has the duty to provide lands of quality and
legal status at least equal to that of the land previously occupied by
indigenous peoples for their present needs and future development.
Unauthorized Intrusion
IPRA adopts the provisions of ILO 169 with the inclusion of the right
to regulate entry of migrant into the domains.
The consequences of having intruded into indigenous lands,
however, may give rise to the problem of choice of applicable law
whenever customary practice allows the imposition of penalties on
intrusion into indigenous lands.
It is sufficient compliance with ILO 169 that IPRA has a provision on
effective penalties for intrusion.
Recruitment and Conditions of Employment
Both ILO 169 and IPRA extends to IPs the same employment rights,
opportunities, basic services, educational and other rights and
privileges available to every member of society.
It further accords the IPs the right to be free from any form of
discrimination, with respect to recruitment and conditions of
employment and penalizes any discriminatory acts against IPs in
terms of employment.

Comparative

Law

This is to ensure that IPs enjoy equal opportunities for admission to


employment, medical and social assistance, safety as well as other
occupationally-related benefits.
IPs must be informed of their rights under existing labor legislation
and of means available to them for redress.
Vocational Training, Handicrafts and Rural Industries
IPRA

ILO 169
With regard
to
vocational
training, ILO 169 is more specific
and elaborate in the type of
measures and programs in
comparison with IPRA.

ILO 169 provides that any


special training programmes
shall be based on the economic
environment, social and cultural
conditions and practical needs of
the peoples concerned.
`Since the goal is for the IPs to gradually assume responsibility over
the training programme, they must be consulted and have
participation in its formulation to implementation and evaluation.
The government shall promote and strengthen the traditional
economies and activities of IPs with the participation of the people
concerned.
Social Security and Health
IPRA
Substantially reiterates ILO 169,
but with more emphasis on
women.

ILO 169
Government mandate to ensure
that IPs has equal access to
adequate health services and
social security benefits without
discrimination.
Health services shall also be community-based with the active
participation of the IPs concerned.
IPs should also be given opportunity to gain training in the health
profession.
Education and Means of Communication
The provisions of ILO 169 on education is substantially reiterated in
IPRA with special emphasis to women, children and the youth under
the latter.
IPs must be given equal opportunity to acquire education in the
existing formal system.

IPs also have the right to establish


use their indigenous language.
IPRA
Echoes this provision and in
addition directs the State to take
effective measures, arrived at in
consultation with the ICCs/IPs,
to eliminate cultural prejudice
and promote tolerance and
understanding.

their own educational system and


ILO 169
Member States are obliged to
undertake measures to educate
their own nationals to eradicate
prejudices against IPs.

These measures are specifically


aimed at correcting text books
and educational materials to
provide a fair, accurate and
informative portrayal of the
indigenous society and cultures
These effective measures may be in the form of laws penalizing
discrimination or information dissemination through media promoting
tolerance.

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Balane/Candelaria/Gulapa

- 12 In addition, these educational programmes and services provided by


the State must incorporate indigenous histories, knowledge and
technologies, value systems and further social, economic and
cultural aspirations.
Administration
IPRA
National
Commission
on
Indigenous
Cultural
Communities
/Indigenous
Peoples (NCIP) is 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 ICCs/IPs and the
recognition of their ancestral
domain as well as their rights
thereto.

ILO 169

The general mandate of the


NCIP is that it shall protect and
promote the interest and wellbeing of the ICCs/IPs with due
regard to their beliefs, customs
and traditions and institutions.
The NCIP serves as the primary
agency through which ICCs/IPs
can seek government assistance
and as the medium through
which such assistance may be
extended.
The NCIP is tasked to formulate
and implement policies, plans,
programs and projects for
economic, social, political and
cultural development of the
ICCs/IPs and to monitor the
implementation thereof.
It may review and assess the
conditions of ICCs/IPs including
existing laws and policies
pertinent thereto and to propose
relevant laws and policies to
address their role in national
development.
Specific Differences between the provisions of IPRA and ILO
169
IPRA
ILO 169
No cross-border contacts and Has provision on cross-border
communications provision.
contacts and communications.
(tribal and indigenous peoples,
who share the same cultural
identity, have become separated
by national boundaries and now
live in different countries.)
Governments to ensure free
communication and movement.
Gives special emphasis on
indigenous women and children
and youth.

No equivalent provisions.

It also states that particular


attention should be paid to the
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rights and special needs of the


elderly and differently-abled
indigenous persons.
IPRA also provides for IP rights
during armed conflict.
IPRA also recognizes the full
ownership,
control
and
protection of the cultural and
intellectual rights of ICCs/IPs,
often termed as Indigenous
Knowledge
Systems
and
Practices.
IPRA provides for penalties for
violation of its certain provisions.
Is there a need to ratify ILO 169?
While most of the provisions of ILO 169 can be found in IPRA,
ratification of the said Convention is still needed in order to make the
international minimum standards set therein binding on the Philippine
government
The ILO 169 standards will serve as parameters in assessing the
implementation of laws and policies for IPs.
The ratification will also strengthen the governments commitment to
its duty of respect, promotion and protection of the rights of IPs.
Thus, it is strongly recommended that the Philippine government
should ratify ILO 169 in order to complement and supplement IPRA.
The ILO 169 will strengthen the promotion and protection of IP rights
by addressing in greater depth and emphasis the areas which the
IPRA does not sufficiently cover.
Moreover, the ratification of ILO 169 will provide for the IPs an
additional forum at the international level, where resort can be made
in cases of violation of their rights.
After ratifying ILO 169, the government will be required to report
regularly to the ILO on its implementation, indicating not only whether
national laws are in conformity with the Convention in question, but
also informing the ILO regarding what has been done to make sure
the Convention has had an impact on a practical level.

- 13 Muslims believe Shari'ah is God's law, but they differ as to what


exactly it entails. Different countries, societies and cultures have
varying interpretations of Shari'ah as well.
Shari'ah deals with many topics addressed by secular law, including
crime, politics, and economics as well as personal matters such as
hygiene, prayer, diet and fasting.
Where it has official status, Shari'ah is applied by Islamic judges
(qadis).
Imam - varying responsibilities depending on the interpretation of the
Shari'ah;
- is commonly used to refer to the leader of communal prayers, the
imam may also be a scholar, religious leader, or political leader.
Origins
The Shari'ah, originated from the direct commandment of Allah and
the traditions gathered from the life of Prophet Muhammad.
However, there is the provision or power given to human beings in
order to interpret and expand the Divine commandments by means
of analogical deductions and through other processes.
Pre-Islamic Arabia - bonds of common ancestry formed the basis for
tribal association.
Islam - brought the tribes together under a single religion.
not just a religion, but also a complete way of life,
a new common basis of law and personal behavior which
constituted the Shari'ah began to take shape.
Shari'ahs fundamental changes
Reigns of Caliphs Aby Bakr (632-34) and Umar (63444) - many
questions were brought to the attention of Prophet Muhammad's
closest companions for consultation.
Reign of Muawiya b.Ab Sufiyan ibn Harb, ca. 662 CE, - urban
transformation of islam, raising questions not originally covered by
Islamic law.

Furthermore, ratification of ILO 169 will pave the way for greater
dialogue and cooperation between the government and ILO.

changes in Islamic society took place, ongoing role in


developing sharia, which branches out into:
FIQH
(Jurisprudence):
formative
period stretches to early muslim communities.
Jurists concerned with pragmatic issues of
authority and teaching.
QANUN (rules and regulations)
respectively.

Widespread ratification of ILO 169 will make it harder for


governments all over the world to ignore tribal peoples rights and
emphasize that the protection of tribal populations is a subject of
international concern.

Muhammaad Idris ash-Shafi'i (767-820) Early Muslim jurist


- Progress in theory happened
- laid down the basic principles of Islamic
jurisprudence in his book Al-Risala.

Ratification of ILO 169 would serve to guide development policy and


assistance and to recognize its positive contribution to international
standards for the realization of universal human rights.

Al-Risala: Details the four roots of law (Quran, Sunnah, ijma, and
qiyas) while specifying that the primary Islamic texts (the Quran and
the Sunnah) be understood according to objective rules of
interpretation derived from careful study of the Arabic language.

Shariah Islamic Law 5

A number of important legal concepts and institutions were


developed by Islamic jurists during the classical period of Islam,
known as the Islamic Golden Age, dated from the 7th to 13th
centuries.

When the government fail to fulfill its obligations and meet the ILO
standards, complaints can be made to the ILO Governing Body.

SHARI'AH - is an Arabic word which means


the path to be followed.
It literally means 'the way to a watering place'.

5 Taken From Shans Powerpoint presentation.


Starr Weigand 2012
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Categories of Human Behavior


Fiqh classifies behavior into the following types or grades where
every human action belongs:
1. FARD (obligatory)
2. MUATABB (recommended)

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- 14 3. MUBAH (neutral),
4. MAKRUH (discouraged)
5. HARAM (forbidden).
The recommended, neutral and discouraged categories are drawn
largely from accounts of the life of the Prophet Muhammad.
PRIMARY SOURCES
QURAN- Holy Book
Main source of the Shari'ah. The scholars of the Qur'an have
enumerated number of verses of legal injunctions, but the number is
approximately considered to be 500.
Covers: marriage, polygamy, dower, maintenance, rights and
obligation, divorce, and various modes of dissolution of marriage, the
period of retreat after divorce, fosterage, contracts, loans, weights
and measure, fosterage, contracts, loans, removal of injury, oaths
and vows, punishments for crime, wills and inheritance
SUNNAH - Practices of the Prophet Muhammad
- recommended as an example from the life and sayings of
Muhammad. These categories form the basis for proper
behavior in matters such as courtesy and manners,
interpersonal relations, generosity, personal habits and
hygiene.
SECONDARY SOURCES
IJMA - Consensus of the Religious Scholars (Ulamah)
QIYAS - Analogical deductions from the Quran and Sunnah
In topics where the Quran and the Sunnah are silent, Muslim jurists
arrive at conclusions by other means such as Ijma and Qiyas.

MALIKI North & West Africa, Kuwait, UAE, Bahrain


HANBALI Saudi Arabia, Qatar
They share most of their rulings, but differ on particular hadiths
(sayings of the Prophet) they accept as authentic and the weight they
give to analogy or reason (qiyas) in deciding difficulties.
Shia Muslims - also extend the sources with
(JURISPRUDENCE), and in some aspects reject analogy.

FIQH

A recurring theme in Shi'a jurisprudence is LOGIC (MANTIQ),


something most Shi'a believe employ and value to a higher degree
than most Sunnis do. They do not view logic as a third source for
laws, rather a way to see if the derived work is compatible with the
Quran and Sunnah.
In Imami-Shi'i law, the sources of law (usul al-fiqh) are the Quran,
anecdotes of Muhammad's practices and those of the TWELVE
IMAMS and the INTELLECT ('AQL).
Most Shi'a Muslims follow the JAFARI school of thought.
JA'FARI Iran, Iraq, Azerbaijan, Lebanon, Afghanistan, Bahrain,
Pakistan, India, and Saudi Arabia. It uses AQL (intellect) instead of
qiyas.
MAIN BRANCHES OF SHARIAH
1. IBADAH acts of worship
2. MU'AMALAT contracts and transactions
3. ADAB morals and manners

The conclusions arrived at with the aid of these additional tools


constitute a wider array of laws that Shari'ah and is called FIQH
(jurisprudence).

4. I'TIQADAT beliefs
5. 'UQUBAT punishments

SUBSIDIARY SOURCES
ISTIHSAN- Juristic Preference
DHARA'I - The Means
MASLAHAH The public interest
QAWL AL-SAHABI The Opinion of a Companion
SHARI'AI' MAN QABLANA the revealed laws preceding the
Shari'ah
ISTISHAB Presumption of Continuity
URF - Local Customs
*MANTIQ reasoning Logic
* AQL - Intellect
2 Major Sects of Muslims: Sunni or Shia
Within these sects, there are different schools of religious study and
scholarship. The schools within each sect have common
characteristics, although each differs in its details.
Sunni Muslims - In addition to the Quran and Sunnah, Sunni
Muslims also add the (consensus) IJMA of Prophet Muhammad's
companions known as SAHABA and Islamic jurists ULAMA on
certain issues.
In situations where no concrete rule exists in the sources, law
scholars use QIYAS various forms of reasoning, including analogy,
to derive law from the essence of divine principles and preceding
rulings. Other secondary sources are also used.
Major Schools of Thought (Madhhab)
HANAFI Turkey, Central Asia, India, Iran, Afganistan, Jordan,
China, Egypt
SHAFI'I Yemen, Somalia, Ethiopia, Southeast Asia, Maldives,
Jordan, India, Egypt, S. Iran

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Legal and Court Processes


Shari'ah judicial proceedings have significant differences with other
legal traditions.
Shari'ah courts traditionally do not rely on lawyers:
- Plaitiffs and defendants represent themselves.
- Trials are conducted solely by the judge, and there is no
jury system.
- no pre-trial discovery process, and no cross examination
of witnesses.
Shari'ah judges' verdicts do not set binding precedents under the
principle of stare decisis. Shari'ah does not utilize formally codified
statutes.
- relies on jurists' manuals and collections of non-binding legal
opinions of ulama, particularly a mufti, or hadiths / sunnahs, these
can be made binding for a particular case at the discretion of a judge.
The RULES OF EVIDENCE: distinctive custom of prioritizing oral
testimony.
A confession, an oath, or the oral testimony of a witness are the main
evidence admissible in a hudud case, written evidence is only
admissible when deemed reliable by the judge, i.e., notaries.
In some countries, sharia courts, simple rules of evidence, and
absence of appeals courts, prosecutors, cross examination, complex
documentary evidence and discovery proceedings, circumstantial
evidence, forensics, case law, standardized codes, exclusionary
rules, and most of the other infrastructure of civil and common law
court systems, have as a result, comparatively informal and
streamlined proceedings.

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Other systems, such as those of Iran, Iraq, and Pakistan, use a civil
Shari'a code, and do have defense attorneys, prosecutors, and
appeals courts.
They also have a supreme court, and a definite civil law style penal
code: still heavily based on the informality and simplicity of a "pure"
sharia court, and trials often still take a matter of hours or sometimes
days.
CATEGORIES of CRIMES
QISAS - involves personal injury
HUDUD - whose penalties were laid down by the Quran, and are
considered to be "claims against God
TAZIR - all other offenses not mentioned ; claim of the state" and it
receives a discretionary sentence
Economic Development and Corporate Law: no native tradition of
coporate law.
- Recognizes only natural persons
- No developed concept of legal persons, or corporations, i.e., a legal
entity that limits and liabilities of its managers, shareholders, and
employees; exists beyond the lifetimes of its founders; and that can
own assets, sign contracts, and appear in court through
representatives.

- 15 IRAN shares some of these characteristics, but also has a parliament


that legislates in a manner consistent with sharia.
Laws derived from Shari'ah are also applied in AFGANISTAN, LIBYA
and SUDAN.
NON-MUSLIM STATES
INDIA, PHILIPPINES are the only countries in the world that have
separate Muslim civil laws, wholly based on sharia.
In India, Muslim civil laws are framed by the Muslim Personal Law
Board while, in the Philippines, it is framed by the Code of Muslim
Personal Laws. However, the criminal laws in both the countries are
uniform.
UNITED KINGDOM
government had "quietly sanctioned" the
recognition of sharia courts. This refers to situations where both
sides in a legal dispute freely choose a sharia court as a binding
arbitrator rather than taking a matter before the official courts.
MIDDLE EAST and NORTH AFRICA maintain a dual system of
secular courts and religious courts, in which the religious courts
mainly regulate marriage and inheritance.
Shari'ah law is officially recognised by the justice system in ISRAEL
in matters of personal status of Muslims if they choose a sharia court,
e.g., marriage, divorce, guardianship. Judges' salaries are paid by
the state.
LEBANON also incorporates sharia law for Muslims in family matters.

SPECTRUM OF MUSLIM LEGAL SYSTEMS


The legal systems in 21st century Muslim majority states can be
classified as follows:

States in Northern NIGERIA have reintroduced Shari'ah and


reintroduced harsh punishments without respecting the much tougher
rules of evidence and testimony.

I.
Shari'ah in the Secular Muslim States
MALI, KAZAKHSTAN and TURKEY: declared secular. Religious
interference in state affairs, law and politics is prohibited. In these
Muslim countries, as well as the secular West, the role of Sharia is
limited to personal and family matters.

APPLICATION OF SHARIAH in the PHILIPPINES


Presidential Decree 1083
Codified Muslim Personal Laws in the Philippines
Composed of 190 articles spread over five (5) books.

The NIGERIAN legal system is based on ENGLISH COMMON LAW


and the constitution guarantees freedom of religion and separation of
church and State. However eleven northern states have adopted
sharia law for those who practice the Muslim religion.

The Code is not the Shari'ah but a piece of Philippine Legislation.


While it is a law enacted under Philippine Legal system, it contains
provisions of Islamic law on personal and family relations.

INDONESIA, BANGLADESH, PAKISTAN have largely secular


constitutions and laws, with only a few Islamic law provisions in
family law.
II. Muslim States with Blended Sources of Law
Muslim countries including PAKISTAN, INDONESIA, AFGANISTAN,
EGYPT, SUDAN, MOROCCO and MALAYSIA have legal systems
strongly influenced by Sharia, but also cede ultimate authority to their
constitutions and the rule of law. These countries conduct democratic
elections, although some are also under the influence of authoritarian
leaders.
In these countries, politicians and jurists make law, rather than
religious scholars. Most of these countries have modernized their
laws and now have legal systems with significant differences when
compared to classical Sharia.
III. Muslim States Using Classical Shari'ah
SAUDI ARABIA and some of the Gulf states do not have
constitutions or legislatures. Their rulers have limited authority to
change laws, since they are based on sharia as it is interpreted by
their religious scholars.

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