Republic of the Philippines DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT. A. Francisco Gold Condominium Il, EDSA. cor. Mapagmanal St., Diliman, Quezon City OFFICE OF THE SECRETARY DILG OPINION NO.31_$, 2005. 09 May 2005 DIRECTOR MASLI A. QUILAMAN Office of the Empowerment and Human Rights National Commission on Indigenous Peoples 2/F N. dela Merced Building Cor. West and Quezon Avenues Quezon City Dear Dir. Quilaman: This refers to your request for this Department's opinion on the following issues, to wit: 1. “Will the reduction of the population in the mother/original barangay as a result of its division for the creation of tribal barangay cause or result to the abolition of the mother/original barangay? 2. Can a tribal barangay adopt indigenous political systems, leadership structures and form of governance? 3. Cana tribal barangay adopt indigenous justice system, conflict resolution institutions, and peace building process? 4. Can a tribal barangay general other sources of revenue aside from those provided for in RA 71602?” As to your first query, Sections 385 and 586 of the Local Govemment Code of 1991 (KA 7160) respectively provide: “SEC. 385. Manner of Creation.- A barangay may be created, divided, merged, abolished, or its boundary substantially altered, by law or by an ordinance of the sangguniang panlalawigan or sangguniang panlungsod, subject to approval by 4 majority of the votes cast in a plebiscite to be conducted by the COMELEC in the local government unit or units directly affected within such period of time as may be deterntined by the law or ordinance creating said barangay. In the case of the creation of barangays by the sangguniang panlalawigan, the recommendation of the sangguniang bayan concerned shall be necessary.” “SEC. 386. Requisites for Creation.- (a) A barangay may be created out of a contiguous territory which has a population of at-2- least two thousand (2,000) inhabitants as certified by the National Statistics Office except in cities and municipalities within Metro Manila and other Metropolitan Political Subdivisions or in highly urbanized cities where such territory shall have a certified population of at least five thousand (5,000) inhabitants: Provided, That the creation thereof shall not reduce the population of the original barangay or barangays to less than the minimun requirement prescribed herein. To enhance the delivery of basic services in the indigenous cultural minorities, barangays may be created in such communities by an act of congress, notwithstanding the above requirements.” (underlining ours) Hence, barangays may be created by law passed by Congress or by an ordinance passed by either the Sangguniang Panlungsod or Sangguniang Panlalawigan having territorial jurisdiction thereof, as the case may be. May it be emphasized that the requirements, such as population, for the creation of a barangay if it involves indigenous cultural minorities, may be disregarded when Congress itself creates the barangay. However, if a barangay is to be created by either the Sangguniang Panlungsod or Sangguniang Panlalawigan, the latter bodies can not set aside the requirements set forth under RA 7160 for the creation of a barangay. Hence, insofar as the creation of tribal barangays are concemed, Congress is not bound by the requirement that the creation of the new barangay shall not reduce the population of the original barangay or barangays to less than the minimum set by the Local Government Code. Your second, third and fourth queries shall be answered in seriatim. However, at the outset, please be informed that RA 7160, the general law applicable to all local goverment units and its local officials, sets the technical and political structure and mode of governance of all local govemment units, barangays included. Simply put, RA 7160 is the basic law which must be considered by all local govemment units, that include barangays whether tribal or not. On the other hand, RA 8731 or the Indigenous Peoples Rights Act concems the recognition of the customs and traditions of the country’s Indigenous citizens and the latter’s right to preserve their respective customs and traditions vis-a-vis the exercise of their political rights. Please note that the exercise of customs and traditions are not limitless, as otherwise, indigenous communities would already rise above the State that created them. Precisely, under Article 11 of the New Civil Code, it is so provided that customs which. are contrary to law, public order or public policy shall not be countenanced. It is without doubt that it was never the intent of Congress to create another sovereign within the sovereign Republic, through the enactment of RA 8371.Bho Such being the case, the political systems, leadership structures and form of governance of the indigenous communities must be in accord with the requirements of RA 7160, such that a tribal barangay must only have a Punong Barangay, seven (7) regular members of the Sangguniang Barangay, and a Sangguniang Kabataan Chairman as its exofficio member. A tribal barangay can not likewise disregard the mandated twice a month session, and such other provisions found in RA 7160 regarding barangay governance and administration. Insofar as the adoption of justice system, conflict resolutions and peace building processes of tribal barangays, please be apprised that the Katarungang Pambarangay Rules promulgated by the Department of Justice is instructive, viz: “SECTION 1. Local system of dispute settlement In barangays where majority of the inhabitants are members of indigenous cultural minorities as determined by the Provincial Office of the National Statistics Office, such community or communities shall register with the office of the city/municipal mayor the name/names of their recognized datus, tribal leaders, elders or similar leaders. The indigenous system of settling disputes as certified to by their respective councils of datus, tribal leaders, or elders or other similar leaders shall be recognized without prejudice to the applicable provisions of the Katarungang Pambarangay. Disputes between members of the same indigenous cultural community shall be settled in accordance with the customs and traditions of that particular cultural community as provided in the immediately preceding paragraph. Where one or more of the parties to the aforesaid dispute belong to the minority, submission to the indigenous system of amicable settlement shall be mutually agreed upon by all the parties. In the absence of such agreement, the settlement procedures provided in these Rules shall apply.” Please note that the customs and practices of the tribal members of society are recognized “without prejudice to the applicable provisions of the Kataruigang Pambarangay”. Manifestly, the rule of law takes precedence over customs and practices of indigenous communities. In connection with the revenue raising authority of tribal barangays, please be guided by the provisions of Section 129 of RA 7160, regarding the local govemment units’ power to create the source of revenue. Categorically, the law states: “Each local government unit shall exercise its power to create its ows sources of revenue and to levy taxes, fees, and charges subject to the provisions herein consistent with the basic policy of local autonomy xxx". Corollary thereto, Section 152 of RA 7160 provides for the items or services that may be taxed or charged upon by the barangays.Be that as it may, it does not follow that only those items or services enumerated by law may be taxed or charged upon because Section 153 of the Code has given local government units a certain degree of leeway to determine other Possible sources of Income. Hence, aside from those enumerated under Section 152 of the Code, barangays, without distinction, may conceptualize other forms of revenue generating sources provided, however, that the restrictions and limitations found in Section 133 of RA 7160 are observed and that the procedure surrounding the enactment of Tevenue-raising barangay ordinances are complied with. Consequently, queries two to four are to be replied to in this regard: while the customs and practice of our tribal communities are to be respected, the members of these communities are nonetheless required to ensure that the exercise of their customs and practices are in accord with all pertinent laws. We hope to have enlightened you on the matter. Very truly yours, | — (oe ANGELO T. REYES Secretary Legal:68:87/La @ es oA, i