INDIGENOUS PEOPLES AND THEIR RIGHT TO
ANCESTRAL DOMAIN
Dean Sedfrey M. Candelaria
Ateneo de Manila University
School of Law
Abstract
The Indigenous Peoples’ Rights Act of the
Philippines is a piece of legislation which has been
passed to correct historical injustice experienced
by indigenous people since colonial times. It
immediately became the subject of a
constitutional challenge on account of the
progressive legal concept of property rights of
indigenous peoples. The need to reconcile, for
instance, the concept of ancestral domain with the
ownership by the state of natural resources
underneath the domain remains a continuing
challenge to decision-makers. But in the larger
context of empowering indigenous peoples, the
law has become an important instrument for
advocacy to advance their rights in various fields
of endeavor today. Given proper support and
opportunity to decide in accordance with their
traditional decision-making process, indigenous
peoples will be able to track for themselves a
culturally sensitive development strategy.
Keywords:
Philippines, Indigenous Peoples’ Rights Act,
Ancestral Domain, Indigenous Peoples’ Right to
Self-determination, Native Title, Customary Law,
Spanish Colonial History in the Philippines
I. Introduction
In 1997, the Philippine Congress passed the
Indigenous Peoples’ Rights Act (R.A. 8371 or IPRA)
which was perceived by the indigenous
communities as a remedial legislation to correct a
historical injustice. Conceptually, IPRA became
immediately controversial on account of its
apparent inconsistency with the Philippine
Constitution, particularly the doctrine of jura
regalia, i.e. that “all lands of the public domain
belong to the State.”
The legal characterization of ancestral domain
rights as “private but communal” in nature has
also been distinguished from the civil law concept
of co-ownership over real property.
It took a 7-7 vote by the Supreme Court in the
leading case of Cruz v. Secretary of Environment
and Natural Resources, et al., 1 to lay down the
highly nuanced appreciation of different Justices
of the Supreme Court over the concept of
ancestral domain rights based on indigenous
customary law.
This paper begins with the traditional conception
of indigenous peoples in a legal and historical
context using Philippine case law. The writer then
proceeds to highlight the breakthrough in
constitutional development when the framers of
the 1987 Constitution crafted unprecedented
constitutional rights of indigenous peoples to their
ancestral domain. The significant provisions of
IPRA are later discussed to emphasize the
pervasive impact of the law in our legal system
today.
The paper concludes by identifying the immediate
tasks ahead of us in the application of IPRA,
specifically the concept of ancestral domain, to
current economic development issues, like mining
rights and utilization of natural resources, and the
wider concern for self-determination of
indigenous peoples in the Philippines.
II. Traditional Conception of Indigenous Peoples in the geographical area and level of civilization of a
a Legal and Historical Context people. The Government treated them as in a
“state of pupilage” or as “wards” just like the way
Spanish colonial setting in the Philippine Islands
the United States related to the native Indians.
began with the discovery by Ferdinand Magellan
in 1521. Historians identified three distinct groups
of people inhabiting the archipelago at that time,
Twenty years later, in People v. Cayat, 4 a native
namely: (a) the lowlanders of the islands of Luzon
of Baguio was sentenced to pay fine for having in
and Visayas; (b) the inhabitants of the mountains
his possession one bottle of A-1-1 gin other than a
of northern Luzon; and (c) the Moro sultanates in
native wine. The Court reiterated the policy of
the southern islands of the archipelago.
reduccion to justify the exercise of police power. It
rationalized the prohibition as a valid classification
under the equal protection clause. Classification
The early subjugation of the predominant
was not discriminatory because it was not based
lowlanders gave the Spaniards the much needed
on accident of birth or parentage but on the
time and people to pursue the ultimate objective
degree of civilization and culture.
of reduccion or the process to convert pagan
people to a civilized way of life exemplified by the
life of the Hapsburg Empire. William Henry Scott
It was clear that the early colonial policies
explained the use of the term to clarify the
espoused an assimilationist approach toward the
prevailing Spanish policy at that time:
indigenous peoples in the Philippines. A more
progressive perspective would later on be carried
into the 1987 Constitution.
“The verb reducir must sometimes be translated
‘convert’ but other times ‘subjugate’ or ‘civilized.’
Similarly, the term ‘pacification’ meant not merely
The policy of reduccion had the concomitant
the termination of armed resistance but the
effect of converting indigenous lands into lands of
establishment of civil administration. The
the public domain following the adoption of the
Spaniards were themselves sensitive to the
Spanish civil law system and the doctrine of jura
implications of the term, and the Law of the Indies
regalia which declared all lands of the public
specifically prescribed the use of the words
domain as belonging to the King (or the State).
conquista in everything having been undertaken in
total peace and charity.”2

III. The 1987 Constitution and Indigenous Peoples

Two decisions of the Philippine Supreme Court
during the American colonial period still carried
over the Spanish policy of reduccion into the
treatment of indigenous peoples at that time.
The framers of the 1987 Constitution deemed it fit
to articulate the rights of indigenous communities
in a more elaborate set of provisions signalling an
unprecedented recognition of indigenous rights to
their ancestral domain.

In Rubi v. Provincial Board of Mindoro, 3 some

Mangyans were held in a reservation based on
Provincial Board Res. No. 25. Mindoro justified the
act as a form of protection and to introduce the
Mangyans to civilized customs. The Court traced
the reduccion during the conquest period. It also
used the term “non-Christian” tribes to describe
Article II, Section 22 provides that the State
recognizes and promotes the rights of indigenous
cultural communities within the framework of
national unity and development.
Moreover, Article XII, Section 5 states that the The Indigenous Peoples’ Rights Act (IPRA) is a
State, subject to the provisions of this Constitution fusion of existing concepts on indigenous rights
and national development policies and programs, derived from domestic and international law
shall protect the rights of indigenous cultural instruments.5
communities to their ancestral lands to ensure
their economic, social, and cultural well-being. In
this regard, the same provision allows Congress to An enumeration of selected provisions of the law
pass a law for the applicability of customary laws is instructive of the expanse of indigenous
governing property rights or relations in peoples’ rights in the Philippines today.
determining the ownership and extent of
ancestral domain.
Who are the Indigenous Peoples (IPs)?
Section 3(h) states:
According to Article XIII, Section 6 the State shall
apply the principles of agrarian reform or
stewardship, whenever applicable in accordance
“…a group of people or homogenous societies
with law, in the disposition or utilization of other
identified by self-ascription and ascription by
natural resources, including lands of the public
others, who have continuously lived as organized
domain under lease or concession suitable to
community on communally bounded and defined
agriculture, subject to prior rights, homestead
territory, and who have, under claims of
rights of small settlers, and the rights of
ownership, since time immemorial, occupied,
indigenous communities to their ancestral lands.
possessed and utilized such territories, sharing
common bonds of language, customs, traditions
and other distinctive cultural traits, or who have,
Article XIV, Section 17 provides that the State shall
through resistance to political, social and cultural
recognize, respect, and protect the rights of
inroads of colonization, non-indigenous religions
indigenous cultural communities to preserve and
and cultures, become historically differentiated
develop their cultures, traditions, and institutions.
from the majority of Filipinos. ICCs/IPs shall
It shall consider these rights in the formulation of
likewise include peoples who are regarded as
national plans and policies.
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
In addition to these provisions, Article X, Sections
inroads of non-indigenous religions and cultures,
15–21, recognized two compact groups of
or the establishment of present state boundaries,
communities who have historically asserted their
who retain some or all of their own social,
right to self-determination since the Spanish
economic, cultural and political institutions, but
colonization. The Cordillera up north and the
who may have been displaced from their
Muslims in Mindanao have been accorded
traditional domains or who may have resettled
autonomous regional status distinct from other
outside their ancestral domains.”
local government units in the Philippines within
the framework of the Constitution and the
national sovereignty as well as territorial integrity
The definition of indigenous peoples may be
of the Republic.
summed up in three distinct characteristics,
namely: (a) continuous display and expression of
customary practices; (b) history of
IV. R.A. 8371 of 1997
marginalization; and, (c) self-ascription as an
indigenous group.

B. Ancestral Domains/Lands
Constitutional Challenge
“occupied, possessed and utilized by individuals,
families and clans who are members of the
and the
ICCs/IPs since time immemorial…including but not
limited to, residential lots, rice terraces or paddies,
private forests, swidden farms and tree lots.”

One of the more problematic areas in IPRA is the

concept of ancestral domain, including ancestral
In Cruz v. Secretary of Environment and Natural
land. As will be discussed, the scope of ancestral
Resources, et al., 6 a constitutional issue was
domain invited constitutional scrutiny on account
raised premised on the doctrine of jura regalia
of the vast legal implications particularly in the
under Article 12, Sections 2 and 3, respectively, of
context of ownership and utilization of natural
the Constitution which state:
resources.

“Sec. 2. Lands of the public domain, waters,

Ancestral domain as defined in Chapter II, Section
minerals, coal, petroleum, and other mineral oils,
3(a) refers to:
all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural
resources are owned by the State…”
“all areas generally belonging to ICCs/IPs
comprising lands, inland waters, coastal areas, and
natural resources therein, held under a claim of
“Sec. 3. Lands of the public domain are classified
ownership, occupied or possessed by ICCs/IPs, by
into agricultural, forest or timber, mineral lands
themselves or through their ancestors,
and national parks…”
communally or individually since time
immemorial, continuously to the present except
when interrupted by war, force majeure or
Petitioner Cruz argued that the definition of
displacement by force, deceit, stealth or as a
ancestral domain runs contrary to the
consequence of government projects or any other
Constitution. The key to resolving the apparent
voluntary dealings entered into by government
conflict is the concept of native title. This was
and private individuals/corporations, and which
affirmed in the landmark case of Cariño v. Insular
are necessary to ensure their economic, social and
Government.7 The Cariño ruling recognized the
cultural welfare… including: ancestral lands,
concept of private land title that existed
forests, pasture, residential, agricultural, and
irrespective of any royal grant from the State.
other lands individually owned whether alienable
Thus, in Chapter II, Section 3(1) of IPRA, native title
and disposable or otherwise, hunting grounds,
has been defined as:
burial grounds, worship areas, bodies of water,
mineral and other natural resources, and lands
which may no longer be exclusively occupied by
“pre-conquest rights to lands and domains which,
ICCs/IPs but from which they traditionally had
as far back as memory reaches, have been held
access to for their subsistence and traditional
under a claim of private ownership by ICCs/IPs,
activities, particularly the home ranges of ICCs/IPs
have never been public lands and are thus
who are still nomadic and/or shifting cultivators.”
indisputably presumed to have been held that way
since before the Spanish Conquest.”
On the other hand, ancestral lands, is defined in
Chapter II, Section 3(b), are those:
Judicial decisions in Australia 8 and Canada9 Commonwealth Act 141, as amended, or the Land
confirm aboriginal titles in their respective Registration Act 496 as laid down in Section 12.
jurisdictions.

Under Section 60, ancestral domains, except those

Section 55 of IPRA states that areas within the portions actually used for commercial purpose,
ancestral domains are communally held but not in large-scale agriculture, residence or upon titling by
the concept of co-ownership under the New Civil private person are exempt from real property tax,
Code. special levies and other similar exactions.

The rule on vested rights respecting the existing Section 7 outlines the rights related to ancestral
property rights regimes is emphasized in Section domain:
56.

a. To claim ownership;
A source of controversy is the rule on natural
resources within the domains found in Section 57
granting ICCs/IPs “priority rights” in the b. To develop lands and natural resources (in
harvesting, extraction, development or relation to Section 57);
exploitation but allowing a non-IP to take part in
the development and utilization for a period of not
exceeding 25 years renewable for another 25 c. To stay in the territories;
years provideda formal and written agreement is
entered into with the IPs concerned or that the
community, pursuant to its own decision making d. To be resettled (in case of displacement);
process has agreed to allow such operation.

e. To regulate entry of migrant settlers;

The rule on sale or transfer of ancestral domain
has been distinguished from that of ancestral land.
Ancestral domains can never be sold as prescribed f. To have access to integrated systems for the
in Section 5. But, Section 8 clarifies that ancestral management of their inland waters and their air
lands may be transferred only to or among space;
members of same IPs. But these lands may be
redeemed within 15 years if transferred to non-IPs
due to vitiated consent or unconscionable price. g. To claim parts of reservations (except: those
for public welfare and service); and,

A Certificate of Ancestral Domain Title serves as a

formal recognition of native title under Section 11 h. To resolve land conflicts using customary laws
of IPRA. This is issued by the National Commission (before going to court).
on Indigenous Peoples.

C. Right to Self-governance and Empowerment

There is an option to register ancestral lands
within 20 years from approval of the law under
Sections 13–20 of IPRA provide that indigenous
peoples 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. Their indigenous justice system may
be used within their own communities but the
system must be compatible with the national legal
system and internationally recognized human
rights.
Other rights worth noting are as follows:
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; and,
b. Right to constitute tribal barangays 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.
V. Beyond Cruz v. Sec. of DENR
A continuing concern among indigenous peoples’
rights practitioners is the concept of codification
of customary laws. Article 11 of the New Civil Code
states that customs which are contrary to law,
public order or public policy shall not be
countenanced. Article 12 further requires that a
custom must be proved as a fact, according to the
rules of evidence. IPRA, on the other hand, allows
the use of customary law in settlement of disputes
among IPs and determination of property rights. It
has been advanced by Supreme Court Justice Jose
Vitug that Congress should first make customary
laws part of the stream of laws. Due process
demands that non-indigenous persons be properly
informed of these customary laws in light of the
expansive effect of these practices.
The demand for economic development in the
Philippines has brought forth another immediate
concern of indigenous peoples settled in areas
subject of exploration, development and
utilization of natural resources. IPRA has provided
as a safeguard the “free, prior and informed
consent” instrument for indigenous communities
in order to ensure consultation before any major
economic activity is undertaken within the
ancestral domains and ancestral lands. However,
the preparedness of indigenous leaders to deal
with technical economic agreements attending
natural resources development is gradually being
tested in recent years. It will require
empowerment of these communities to deal with
these agreements involving the private sector and
government agencies.
Finally, the assertion of self-determination as a
people is becoming more evident in the context of
socio-cultural development of indigenous
communities. Politically, however, indigenous
peoples are gradually making a dent through the
sectoral representation in Congress. Considerable
work is in progress to realize a more effective
participation at the electoral level.
1 G.R. No. 135385, December 6, 2000.
2 William Henry Scott, The Discovery of Igorots
75 (1977).
3 39 Phil 660 (1919).
4 68 Phil 12 (1939).
5 Two principal sources of the text of IPRA are
I.L.O. Convention No. 169 and the U.N. Declaration
on the Rights of Indigenous Peoples.
6 G.R. No. 135385, December 6, 2000.
Republic Act 8369
Family Courts Act of 1997
Files:
Be it enacted by the Senate and House
of Representatives of the Philippines in
Congress assembled:
AN ACT ESTABLISHING FAMILY
COURTS, GRANTING THEM
EXCLUSIVE ORIGINAL
JURISDICTION OVER CHILD AND
FAMILY CASES, AMENDING BATAS
PAMBANSA BILANG 129, AS
AMENDED, OTHERWISE KNOWN AS
THE JUDICIARY REORGANIZATION
ACT OF 1980, APPROPRIATING
FUNDS THEREFOR AND FOR OTHER
PURPOSES.
Section 1. Title. - This Act shall be
known as the "Family Courts Act of
1997".
Sec. 2. Statement of National
Policies. - The State shall protect the
rights and promote the welfare of
children in keeping with the mandate of
the Constitution and the precepts of the
United Nations Convention on the rights
of the Child. The State shall provide a
system of adjudication for youthful
offenders which takes into account their
peculiar circumstances.
The State recognizes the sanctity of
family life and shall protect and
strengthen the family as a basic
autonomous social institution. The
courts shall preserve the solidarity of the
family, provide procedures for the
reconciliation of spouses and the
amicable settlement of family
controversy.
Sec. 3. Establishment of Family
Courts. - There shall be established a
Family Court in every province and city
in the country. In case where the city is
the capital of the province, the Family
Court shall be established in the
municipality which has the highest
population.
Sec. 4. Qualification and Training of
Family Court Judges. - Sec. 15 of
Batas Pambansa Blg. 129, as amended,
is hereby further amended to read as
follows:
"Sec. 15. (a) Qualification. - No
person shall be appointed Regional Trial
Judge or Presiding Judge of the Family
Court unless he is a natural-born citizen
of the Philippines, at least thirty-five
(35) years of age, and, for at least ten
(10) years, has been engaged in the
practice of law in the Philippines or has
held a public office in the Philippines
requiring admission to the practice of
law as indispensable requisite.
"(b) Training of Family Court
Judges. - The Presiding Judge, as well
as the court personnel of the Family
Courts, shall undergo training and must
have the experience and demonstrated
ability in dealing with child and family
cases.
"The Supreme Court shall provide a
continuing education program on child
and family laws, procedure and other
related disciplines to judges and
personnel of such courts."
Sec. 5. Jurisdiction offamily
Courts. - The Family Courts shall have
exclusive original jurisdiction to hear and
decide the following cases:
a) Criminal cases where one or more of
the accused is below eighteen (18) years
of age but not less than nine (9) years of
age but not less than nine (9) years of
age or where one or more of the victims
is a minor at the time of the commission
of the offense: Provided, That if the
minor is found guilty, the court shall
promulgate sentence and ascertain any
civil liability which the accused may have
incurred.
The sentence, however, shall be
suspended without need of application
pursuant to Ptesidential Decree No. 603,
otherwise known as the "Child and Youth
Welfare Code";
b) Petitions for guardianship, custody of
children, habeas corpus in relation to the
latter;
c) Petitions for adoption of children and
the revocation thereof;
d) Complaints for annulment of
marriage, declaration of 'ity of marriage
and those relating to marital status and
property relations of husband and wife
or those living together under different
status and agreements, and petitions for
dissolution of conjugal partnership of
gains;
otherwise known as the "Special
Protection of Children Against Child
Abuse, Exploitation and Discrimination
Act," as amended by Republic Act No.
7658; and
k) Cases of domestic violence against:
1) Women - which are acts of
gender based violence that results, or
are likely to result in physical, sexual or
psychological harm or suffering to
women; and other forms of physical
abuse such as battering or threats and
coercion which violate a woman's
personhood, integrity and freedom
movement; and
2) Children - which include the
commission of all forms of abuse,
neglect, cruelty, exploitation, violence,
and discrimination and all other
conditions prejudicial to their
development.

If an act constitutes a criminal offense,

e) Petitions for support and/or
the accused or batterer shall be subject
acknowledgment;
to criminal proceedings and the
corresponding penalties.
f) Summary judicial proceedings brought
under the provisions of Executive Order
If any question involving any of the
No. 209, otherwise known as the "Family
above matters should arise as an
Code of the Philippines";
incident in any case pending in the
regular courts, said incident shall be
g) Petitions for declaration of status of determined in that court.
children as abandoned, dependent o
neglected children, petitions for
Sec. 6. Use of Income. - All Family
voluntary or involuntary commitment of
Courts shall be allowed the use of ten per
children; the suspension, termination, or
cent (10%) of their income derived from
restoration of parental authority and
filing and other court fees under Rule
other cases cognizable under
141 of the Rules of Court for research
Presidential Decree No. 603, Executive
and other operating expenses including
Order No. 56, (Series of 1986), and
capital outlay: Provided, That this
other related laws;
benefit shall likewise be enjoyed by all
courts of justice.
h) Petitions for the constitution of the
family home;
The Supreme Court shall promulgate the
necessary guidelines to effectively
i) Cases against minors cognizable under implement the provisions of this Sec.
the Dangerous Drugs Act, as amended;
j) Violations of Republic Act No. 7610,
Sec. 7. Special Provisional
Remedies. - In cases of violence among
immediate family members living in the
same domicile or household, the Family
Court may issue a restraining order
against the accused of defendant upon
verified application by the complainant
or the victim for relief from abuse.
The court may order the temporary
custody of children in all civil actions for
their custody. The court may also order
support pendente lite, including
deduction from the salary and use of
conjugal home and other properties in all
civil actions for support.
Sec. 8. Supervision of Youth
Detention Homes. - The judge of the
Family Court shall have direct control
and supervision of the youth detention
home which the local government unit
shall establish to separate the youth
offenders from adult criminals: Provided,
however, That alternatives to detention
and institutional care shall be made
available to the accused including
counseling, recognizance, bail,
community continuum, or diversions
from the justice system: Provided,
further, That the human rights of the
accused are fully respected in a manner
appropriate to their well-being.
Sec. 9. Social Services and
Counseling Division. - Under the
guidance ofthe Department of Social
Welfare and Development (DSWD), a
Social Services and Counseling Division
(SSCD) shall be established in each
judicial region as the Supreme Court
shall deem necessary based on the
number of juvenile and family cases
existing in such jurisdiction. It shall
provide appropriate social services to all
juvenile and family cases filed with the
court and recommend the proper social
action. It shall also develop programs,
formulate uniform policies and
procedures, and provide technical
supervision and monitoring of all SSCD
in coordination with the judge.
Sec. 10. Social Services and
Counseling Division Staff. - The SSCD
shall have a staff composed of qualified
social workers and other personnel with
academic preparation in behavioral
sciences to carry out the duties'of
conducting intake assessment, social
case studies, casework and counseling,
and othersocial services that may be
needed in connection with cases filed
with the court: Provided, however, That
in adoption cases and in petitions for
declaration of abandonment, the case
studies may be prepared by social
workers of duly licensed child caring or
child placement agencies, or the DSWD.
When warranted, the division shall
recommend that the court avail itself of
consultative services of psychiatrists,
psychologists, and other qualified
specialists presently employed in other
departments of the government in
connection with its cases.
The position of Social Work Adviser shall
be created under the Office of the Court
Administrator, who shall monitor and
supervise the SSCD ofthe Regional Trial
Court.
Sec. 11. Alternative Social
Services. - In accordance with Sec. 17
of this Act, in areas where no Family
Court has been established or no
Regional Trial Court was designated by
the Supreme Court due to the limited
number of cases, the DSWD shall
designate and assign qualified, trained,
and DSWD accredited social workers of
the local government units to handle
juvenile and family cases filed in the
designated Regional Trial Court of the
place.
Sec. 12. Privacy and Confidentiality
of Proceedings. - All hearings and
conciliation of the child and family cases
shall be treated in a manner consistent
with the promotion of the child's and the Dagupan, Olongapo, Cabanatuan, San
family's dignity and worth, and shall Jose, Angeles, Cavite, Batangas,
respect their privacy at all stages of the Lucena, Naga, Iriga, Legazpi, Roxas,
proceedings. Records of the cases shall Iloilo, Bacolod, Dumaguete, Tacloban,
be dealt with utmost confidentiality and Cebu, Mandaue, Tagbilaran, Surigao,
the identity of parties shall not be Butuan, Cagayan de Oro, Davao,
divulged unless necessary and with General Santos, Oroquieta,
authority of the judge. Ozamis, Dipolog, Zamboanga,
Pagadian, Iligan, and in such other
Sec. 13. Special Rules of places as the Supreme Court may deem
Procedure. - The Supreme Court shall necessary.
promulgate special rules of procedure
for the transfer of cases to the new Additional cases other than those
courts during the transition period and provided in Sec. 5 may be assigned to
for the disposition of family cases with the Family Courts when their dockets
the best interests of the child and the permit: Provided, That such additional
protection of the family as primary cases shall not be heard on the same day
consideration taking into account the family cases are heard.
United Nations Convention on the Rights
of the Child. In areas where there are no Family
Courts, the cases referred to in Sec. 5 of
Sec. 14. Appeals. - Decisions and this Act shall be adjudicated by the
orders of the court shall be appealed in Regional Trial Court.
the same manner and subject to the
same conditions as appeals from the Sec. 18. Separability Clause. - In case
ordinary Regional Trial Courts. any provision of this Act is declared
unconstitutional, the other provisions
shall remain in effect.
Sec. 15. Appropriations. - The
amount necessary to carry out the
Sec. 19. Repealing Clause. - All other
provisions of this Act shall be included in
laws, decrees, executive orders, rules or
the General Appropriations Act of the
regulations inconsistent herewith are
year following in its enactment into law
hereby repealed, amended or modified
and thereafter.
accordingly.

Sec. 16. Implementing Rules and

Sec. 20. Effectivity. - This Act shall
Regulations. - The Supreme Court, in
take effect fifteen (15) days after its
coordination with the DSWD, shall
publication in at least two (2) national
formulate the necessary rules and
newspapers of general circulation.
regulations for the effective
implementation of the social aspects of
this Act.

Sec. 17. Transitory Provisions. -

Pending the establishment of such
Family Courts, the Supreme Court shall
designate from among the branches
ofthe Regional Trial Court at least one
Family Court in each of the cities of
Manila, Quezon, Pasay, Caloocan,
Makati, Pasig, Mandaluyong,
Muntinlupa, Laoag, Baguio, Santiago,

APECO Imbroglio and the Anti-APECO Struggle:
A Situationer
Feb 13, 2012
The APECO Imbroglio and the Anti-APECO
Struggle: A Situationer
Task Force Anti-APECO— February 2012
APECO, or the Aurora Pacific Economic Zone,
is the special economic zone that is now being
built in the once-tranquil town of Casiguran.
Shepherded by the powerful Angara dynasty,
and pledged to bring economic progress to
one of the 20 poorest provinces in the
Philippines, the project has since been
embroiled in endless controversies.
Down among the foothills of the Sierra Madre,
sheltered from Pacific by the San Idelfonso
peninsula, the first infrastructures of the
Aurora Pacific Economic Zone are slowly
rising. Along the shore, where some fisherfolk
used to live, now runs a 1.2 kilometer airstrip.
Less than ten minutes away, on a road still
strewn with more mud than asphalt, the bare
bones of the ecozone’s administration building
juts out of the earth— the makings of a large
and imposing edifice.
These are only a whiff of the long-awaited
changes that APECO will bring to the 400
year-old town of Casiguran, the project’s
advocates maintain. Others, however, are not
as optimistic.
“Stop APECO”; “ASEZA,
Huwag dito!” (Don’t put ASEZA here!). These
hand-crafted signs are perched on makeshift
farm fences, on huts and houses, high up on
trees scattered throughout the municipality.
They make the resistance to the budding
ecozone clear for all to see, well-nigh
unmistakable.
Why?
This might, at first, seem a misplaced
question. APECO claims that it will bring
boundless economic prospects, once
operational as the Philippines’ first Pacific-side
ecozone. As a nascent transhipment hub, it
aims to rake up enough investment to
transform the municipality into a “self-
sustaining industrial, commercial/trading,
agro-industrial, tourist, banking, financial and
investment centre with suitable residential
areas.”[1] Poverty in Casiguran, it is argued,
will be alleviated, employment generated for
the province of Aurora, and industrial
development spurred throughout the
Northeastern Philippines in general.
APECO intends to secure such investment by
two general mechanisms. First, it will extend a
variety of fiscal incentives and other cost-
deflecting measures to prospective investors,
such as Income Tax Holidays, Duty-Free
Importations and lower costs of land
acquisition, among many others.
Secondly, it will stimulate infrastructural
development in Casiguran, while facilitating
private sector participation through Public-
Private Partnerships (PPP’s). Modern facilities
in power, water, transportation and others will
be mainly provisioned on this basis. In like
manner, APECO’s numerous residential,
ecotourism and real-estate subprojects
promise to allot considerable space for private
sector involvements and initiatives.
APECO even pledges that it will to do this with
a “touch of green”[2], as the first Philippine
ecozone to highlight “green urbanism” and
environmentally-responsible systems. Tax
exemptions for carbon credits and cash
incentives for missionary renewable energy
electrification are among the measures that
seemingly attest to this. A P220-million solar
power facility is currently developing in the
area, and initial studies for a hydroelectric
power plant are also underway.
The Aurora Pacific
ecozone presently covers 12,923 hectares of
the Casiguran landscape. 12,427 hectares of
that land will be taken from the San Idelfonso
Peninsula; the remainder will come from
Baranggays Esteves and Dibet on the Aurora
mainland. Significantly, the Freeport reserves
the power to acquire— either by purchase,
negotiation, or condemnation proceedings—
any private property adjacent to the ecozone
for consolidation, right of way, or natural
resource protection purposes.
But the ecozone’s scope was not always so
ambitious. Before 2009, APECO was limited to
500 hectares on the Aurora mainland. RA
9490 (superseded by RA 10083 in 2009)
created the ecozone in 2007, mainly through
the efforts of Senator Eduardo Angara, his son
Congressman Juan Eduardo Angara, and his
sister Gov. Bellaflor Angara-Castillo.
Yet for all the benefits that APECO has been
hyped to bring, the project has been constantly
mired in controversy— and at the root of the
whole imbroglio lies the issue of access to and
control over basic livelihood resources. The
APECO law outright assumed that the areas
for the ecozone were public, state-owned
lands; yet later surveys have revealed the
same lands to be titled under small farmers
with CLOA’s and indigenous peoples with
CADT’s. The coastal waters of the Casiguran
bay where the ecozone plans to build an
international container port, have meanwhile
been situated in close proximity to the DENR–
protected areas of the Calabgan River
Watershed Forest Reserve, and have even
been said by local fisherfolk to house several
endangered species such as whale sharks
(Butanding) and sea turtles (Pawikan).
Around three thousand families will be
stripped of their lands, resources and
livelihoods should the Freeport be carried
through to completion.
For this reason, thousands of Casiguranin
residents, backed by the Church, have
unfailingly challenged APECO since the
passage of RA 9490. Due to their opposition,
and the waves of scepticism towards the
ecozone that their actions have provoked, the
SEZ has suffered massive budget cuts in the
latter half of 2011. Of the original proposal of
P3.565 billion for 2012, merely P332.5 million
was granted to the Freeport after Congress’
budget deliberations.
But P332.5 million is still P332.5 million too
much for APECO, the dissenting groups
argue. Beyond the all-important resource
question, myriad grounds exist for arresting
the continued development of the ecozone, as
a more careful look at the project exposes.
Faulty Design, Flimsy Projections
On the November 2010 Budget Hearing at the
Senate, architect Felino Palafox— who was
originally recruited to draft the ecozone’s
master plan— revealed that no rigorous
feasibility studies, development plans, impact
forecasts, clearances and other related
studies were undertaken for APECO and its
technical subcomponents before it was
implemented[3]. Only, in fact, during 2011 did
funds for some of these feasibility studies
materialize, mostly due to the largesse it
received from the South Korean government.
Another damning criticism that has surfaced
during Senate deliberations is that APECO
has been more founded on “wishful thinking”,
in place of solid analysis. Up to this date, no
figures on what impact the ecozone will likely
have on the poverty status, the incomes, and
the livelihoods of Casiguran’s present
residents have publicly been made available.
This is deeply ironic, since APECO has hailed
to no end as a harbinger of “development” to
Aurora.
But even more disturbing have been Palafox’s
charges about the viability of the ecozone as a
whole. Engineering surveys have suggested
that some lands being used for the project’s
corporate campus are prone to flooding and
soil liquefaction. These projections, according
to Palafox, have shown that the lands in
question will be going underwater within 25
years[4]. Such indications cast serious doubt
on the soundness, the safety and the
sustainability of the entire venture.
Graft, Moral Hazard and a Can of
Worms
Before the Senate hearings of November
2010, APECO failed to subject itself to
Commission on Audit scrutiny from 2008 to
2010. Only in March 2011 was a three-year
COA audit report finally released, where it was
noted that “transactions relative to cash
advances granted for purposes other than
salaries and wages were not coursed thru the
required pre-audit, in disregard of COA
circular No. 2010-002.”[5] Such advances,
moreover, had been extended to those who
were neither bonded nor regular employees to
APECO, hinting at potential anomalies.
Ground reports have braced other concerns
about irregularities. While farmers have only
received P45000 per hectare for the rice lands
that have already been seized by the ecozone,
Aurora’s Provincial Environmental and Natural
Resources Officer Benjamin Mina— a vocal
sponsor of APECO— was compensated a
staggering P650,000 per hectare for the
coconut lands which he sold to the Freeport
authority[6]. It would be these lands that would
be later lambasted by Palafox in 2010 and
2011 for their eventual flooding and
liquefaction.
At the top of these fishy dealings were the
legislators of the ecozone themselves, who
have been accused of conflict-of-interests in
the setup of the Freeport. Congressman
Sonny Angara and Governor Bellaflor Angara-
Castillo have been confirmed to sit in the
APECO board, and no less than Senator
Angara himself admitted that he was its chief
executive in the 2010 Budget Hearings. These
were potential violations the Anti-Graft and
Corrupt Practices act, which forbids
lawmakers from acquiring any business
interests that will be furthered by laws
authored by them and approved by Congress.
Roberto Mathay was installed as the president
and chief executive of APECO in 2011, yet
fierce opposition over the irregularities of the
SEZ has persisted. By September 2011,
Palafox filed a criminal complaint against the
Angaras at the Office of the Ombudsman over
their alleged violations of the Constitution and
the Antigraft code[7]. The case is presently
ongoing.
Compulsion Over
Consultation
The legislation of APECO hit the communities
and municipal governments of Casiguran like
a bombshell, and the sense that it has not
democratically involved the people of
Casiguran in any consultation process has
been ubiquitous. It has not garnered the free,
prior and informed consent of IP’s, as
mandated in the IPRA law, prior to 2007. It has
not, likewise, approached the affected LGU’s
and sectors beforehand, as required by the
Local Government Code.
Representative Sonny Angara has himself
admitted— in a meeting with concerned
groups on June 2010 at the Ateneo de Manila
University— that consultations of APECO
different stakeholders, particularly IP’s, have
been lacking.
Instead of consultations with the stakeholders,
in fact, the ground agents of APECO have
often resorted to misinformation and
intimidation to push forward the ecozone in
Casiguran. During the Freeport’s early stages,
numerous farmers and IP’s have reportedly
been told by APECO operators that it could
readily amass their lands regardless of their
objections, whereas it could only really do this
after having to show the necessity of such
during an expropriation case.
Harassment incidents against dissenters to
the ecozone have also been repeatedly
testified to, and the gravest of such incidents
have involved explicit death threats and
attempted assassinations of the frontrunners
of the anti-APECO movement in Casiguran by
so-called anti-communist groups. On the early
morning of July 26, 2010, the convent of
Father Jose Francisco Talaban— the parish
priest of Baranggay Bianoan and one of the
opposition’s central figures— was attacked by
unidentified gunmen armed with grenade
launchers and high-powered armalites.
While APECO has since denied any
connection with the aggressors, it is
universally agreed that the episode was
precipitated by Talaban’s leadership of the
anti-APECO campaign in Aurora.
Exclusive, Not Inclusive, Development
APECO insists that it is out to “develop” Aurora
for the benefit of the province’s poor. The
record of SEZ’s established in the Philippines
and in other countries, however, attests
otherwise. “This ‘development’ process that
rests heavily on displacement, dispossession
and destruction of the environment is creating
an irreversible production structure in favour of
the rich”[8], argues Professor Swanpa
Banerjee-Guha, a known expert and critic of
similar ecozones in India. Yet there is nothing
in how APECO will operate that will prevent
such inequalities from being aggravated, if the
Freeport is made fully operational.
First, it seems that most of the infrastructures
and services to be provided by the ecozone
will be supplied on a PPP basis. Senator
Angara, after all, is known as an ardent
advocate of such initiatives; last December
2011 he lodged SB 3090 at the upper house,
“An Act Enhancing the Public Private
Partnership in Infrastructure Development in
the Philippines.”[9] The 2007 ASEZA law,
moreover, has granted APECO extensive
powers to enter into contracts or joint ventures
with the private sector through any of the
schemes allowed within pre-existing Build-
Operate-Transfer legislation[10].
Yet PPP’s have, for years, been the target of
a gamut of criticisms. As Dr. Rene Ofreneo—
a former DOLE undersecretary— has argued,
PPP’s have exhibited a “dangerous exclusivist
trajectory” in how they have been executed in
the Philippines[11]. By placing social services
and infrastructures in the hand of the profit-
oriented private sector, such projects have
often raised the rates of such services and
infrastructures beyond the purchasing
capacity of poor Filipinos, as has been the
case with past privatization efforts in the water,
power and transport sectors.
While the more affluent sectors of Philippine
society may benefit from such PPP
endeavours, Ofreneo concludes, they are
“likely to lead to the exclusion of the poor and
the marginalized.”
Secondly, while it has been promised that the
ecozone will spur job growth throughout
Aurora, where the poor, less educated
residents of Casiguran will fit in any
employment schemes so-generated remains
elusive. The truth is that most of these
residents are considered too unskilled for the
industries that APECO proposes to introduce.
Once dispossessed of their lands, waters,
ancestral domains and other livelihood
resources, they are in danger of becoming part
of the country’s low-end, contractual “floating
work force”— who have been repeatedly
shown “not to benefit from government
projects like the public-private partnership
scheme.”[12]
For all its pro-poor rhetoric, APECO offers little
on how it will negotiate these complexities in
favour of the poor. While it claims that it will
provide shelter for those who will be displaced
by the ecozone, personnel of the National
Housing Authority have subsequently
revealed that the proposed housing units were
of substandard quality. While it claims that it
will also provide livelihood projects, those who
have already begun working for the SEZ have
complained to anti-APECO groups of
inadequate compensation, irregular and
unstable work hours, delayed paychecks and
a near-complete absence of other
benefits. They retain almost no bargaining
power with their employers, and due to the
unskilled nature of the work that they perform,
are easily replaced should any conflicts
between them and the management arise.
These do not augur well for the “inclusive”
alignment that APECO argues it will sustain
into the long run. In India, the imposition of
SEZ’s has been tantamount to what many
have described as “enclave development”— a
broad pattern of industrial, corporate and real-
estate restructuring that “systematically keeps
out a large section of the population of the
growth process” by maintaining “a huge army
of cheap labour, a large section of them
comprising the dispossessed.”[13]
If APECO is fully implemented, the people of
Casiguran will no doubt be threatened with
similar outcomes.
Where to, Casiguran?
“Walang Daang Matuwid sa APECO!” (There
is no honest path with APECO), cry the anti-
APECO protesters. Their resistance shows
that they grasp more about the perils they face
than first meets the eye.
For, in truth, these people are not at all “anti-
development”, as some of the champions of
APECO have portrayed them to be. They have
studied the impact of like ecozones in the
Philippines, and have seen the inequities that
such “development” has deepened in its wake.
They are not against “development” per se,
but against the kind of development that
privileges the few, while worsening the
situation of the many. Yet this is the kind
of “development” that APECO is already
bringing to Casiguran.
What is happening in Casiguran today, in fact,
is nothing less than a struggle over two
competing visions of development. On one
hand, there is that of APECO, which dangles
abstract, fanciful notions of bettering the lives
of the poor through the growth in employment
opportunities generated by foreign, big-
business investment and PPP’s.
Yet further scrutiny shows that these promises
are hollow for the poor and the marginalized.
They will jeopardize the livelihoods that they
already have, and jeopardize their future
access to social services and other basic
utilities. Provided that the ecozone will not sink
within 25 years, and provided that the
unskilled poor will even be granted jobs in the
new Freeport—for these are not,
unfortunately, certain— APECO will
disproportionately benefit the ecozone’s
investors and others with the wealth and
influence to gain admittance to its high-end
facilities. Most of the new labour force,
meanwhile, will be left exposed to unequal
bargaining power, income instability, or
even— utter neglect by the Freeport authority.
This kind of “enclave development” has been
the common legacy of other ecozones in the
Philippines and in other nations.
But on the other hand, there remains the vision
of development that is being advanced by the
anti-APECO movement and the residents of nigh unmistakable. It’s high time that others
Casiguran. step up their support for them on this.
This vision is not imposed from the top-down,
but rather, stresses the efforts of the poor and (This Situationer has been prepared for the
the marginalized themselves from the bottom- Prelature of Infanta’s International Solidarity
up. It thrives on democratic practice, and Mission of 2012. For more information about
strives to ensure that rootedness in the actual the ISM or about the APECO issue, please
rhythms of the poor’s already-existing email morefunwithoutapeco@gmail.com.
livelihoods is maximized— such as with None of the photographs used were originally
sustainable agriculture and community-based taken by Task Force Anti-APECO)
coastal resource management.
And it is not as if the some of the town’s
inhabitants have not already been doing this. It
has been a major source of ire for the farmers-
at-risk that APECO will seize thousands of
hectares of prime agricultural landsthat they
have painstakingly cultivated over the
decades. It incenses the fisherfolk that the
Freeport will deny them access and damage
the integrity of the bountiful mangroves and
coastal waters that they have long fished
within sustainable limits, just as it angers the
Agta’s and Dumagats that they will
lose effective controlover their rainforests and
ancestral domains, mainly becoming tourist
attractions.
If the balance between Casiguran’s natural
beauty and its abiding agricultural productivity
has lasted as long as it has, in other words,
this has been largely been because of the
activities and stewardship of those whom
APECO supposedly aims to “uplift.”
“Shouldn’t APECO’s development strategy,
then, be the other way around?”, argue the
residents of Casiguran. Rather than
substituting the livelihoods which they have
gradually built up over the generations, would
it not be better to begin by supporting those
already-existing livelihoods? No one, after all,
knows better how to take care of the town’s
natural resources than those whose lives have
long depended on them.
Working through them, their resources, their
livelihoods is the only way that the poor can be
truly placed as the focal point of any kind of
“development.”
The struggle over the future of Casiguran boils
down to the struggle of these two visions of
development. Equity or Inequality?
Rootedness or Vulnerability? Development for
the poor— or “Development” for the rich?
The stakes are up, the cards are down, and
the people of Casiguran have made their
choice on the matter clear for all to see, well-

Supreme Court issues Rule on Cybercrime
Warrants
On 03 July 2018, the Supreme Court promulgated
the new Rule on Cybercrime Warrants (A.M. No.
17-11-03-SC). The new set of rules was issued after
the passage of the Cybercrime Prevention
Act (Republic Act No. 10175). It provides for
special procedures to implement various specific
remedies under the said law. The new rule became
effective on 15 August 2018.
The Rule provides for general rules on the venue of
criminal actions for cybercrime offenses and for
applications for warrants. It also provides specific
rules for: (1) preservation of computer data; (2)
disclosure of computer data; (3) interception of
computer data; (4) search, seizure, and examination
of computer data; (5) custody of computer data;
and, (6) destruction of computer data, all in
connection with the enforcement of
the Cybercrime Prevention Act.
The Rule on Cybercrime Warrants also includes
forms for four (4) types of warrants: (a) warrants to
disclose computer data; (b) warrants to intercept
computer data; (d) warrants to search, seize, and
examine computer data; and warrants to examine
computer data.
Types of Cybercrime Warrants
Preservation Warrant (Preservation of Computer Data)
A warrant usually issued for law enforcement authorities
ordering a provider to preserve data while law
enforcement works to obtain a disclosure warrant.
This does not allow law enforcement to view the data
but merely to order the provider to hold on to the data of
the subscriber.
A service provider may be a telecommunications or
infrastructure provider.
Disclosure Warrant (Disclosure of Computer Data)
A warrant issued for disclosing the data of a subscriber,
including all network traffic and data related.
Unlike a preservation warrant, this actually will allow law
enforcement to view the data.
Requirements for service provider
Disclose or submit subscriber’s information, traffic data
or other relevant data
How long does the service provider have to comply
with the disclosure warrant?
Within seventy-two (72) hours
Are law enforcement allowed to keep copies of the
data obtained from the disclosure warrant?
Yes, provided that they keep the details and contents of
the data strictly confidential for purposes of investigation
When are law enforcement authorities no longer
allowed to retain the data?
The data shall be turned over to the court upon filing of
a criminal action of the subscriber
Interception Warrant (Interception of Computer Data)
Warrant issued to law enforcement, enabling them to
conduct activities such as listening, recording,
monitoring and surveillance of data through the use of
electronic tapping or interception of computer data
pertaining to the accused.
Does law enforcement need to disclose to the
interception to the accused?
No. Except, if no return has been filed by the law
enforcement agent to the court.
In case of no return filed, the accused shall be informed
of all interception activities conducted pertaining to his
person and his data.
Search, Seizure and Examination Warrant (Search,
Seizure and Examination of Data)
Law enforcement may seize and conduct a search and
examination of the data obtained from an accused.
Can the accused seek return of the seized and
searched items and data?
Yes, provided that a forensic image has been made by
law enforcement
Forensic image is a copy of the entire data structure of
an item.
Can interception of communications and data be
done even in an search, seizure and examination
warrant?

Yes, provided that such interception is reasonably

related to the data being seized, searched or examined.

How long are the items seized, returned to the

court?

10 days

What data is kept by law enforcement?

 List of all items seized (name, make, brand,

serial numbers)
 Hash value of data seized

How long shall the examination of data be

conducted by law enforcement?

Upon the discretion of the court, provided it shall not be

extended for more than thirty (30) days.

Examination Warrant (Examine Data Obtained

Lawfully)
Is a warrant issued when an item has been seized
through lawful warrantless arrest by law enforcement for
the purpose of forensic examination of data.

Destruction Warrant (Destruction of Data)

Allows law enforcement to partially or completely
destroy data subject to preservation and examination.

May the court order return of the data subject for

destruction?

Yes. If no preliminary investigation or case is instituted

after thirty-one (31) days from deposit, or if upon lack of
probable cause.

How shall the destruction of the data be made?

The court shall ask for the retained copy from law
enforcement and in the presence of the Clerk of Court,
the accused and his counsel, destroy the data through
shredding, drilling of four holes on the device, prying the
platters or other methods accepted by international
standards of data destruction
What is Guantánamo?
In the wake of terrorist attacks in the USA on
11 September 2001, the administration
– headed by President George Bush –
declared a ‘war on terror’. He argued that the
need to counter terrorism and keep people
safe overrode the obligation to respect human
rights.
Guantánamo Bay was established by the
United States in January 2002 as a place for
the US authorities to hold people perceived to
be ‘enemy combatants’ in this war on terror.
The first detainees were transferred to the
prison camp, based in Cuba, on 11 January
2002.
At Guantánamo, the US government sought to
hold detainees in a place neither US nor
international law applied.
The facilities at Guantánamo have become
emblematic of the gross human rights abuses
perpetrated by the US government in the
name of terrorism.
Illegal detention and unfair trials
779 men have been taken to the facility since
then. Of these, only seven have been
convicted, including five as a result of pre-trial
agreements under which they pleaded guilty in
return for the possibility of release from the
base. These men faced trial by 'military
commission'. The proceedings did not meet
fair trial standards.
Only one Guantánamo detainee has been
transferred to the US mainland for trial in a
civilian court.
There are currently 107 detainees held in the
US detention center in Guantánamo Bay,
Cuba. Of them, 47 have been cleared for
transfer, yet still remain behind bars.
Rasul v. Bush[edit]
In the summer of 2004 the United States Supreme
Court ruled on the habeas corpus submission Rasul
v. Bush, determining that the court had jurisdiction
over Guantanamo, and that detainees had a right to
an impartial tribunal to challenge their detention
under habeas corpus. It was a landmark decision in
detainee rights. Rasul v Bush challenged an earlier
precedent set in Johnson v.
Eisentrager. Rasul concluded that the U.S, as a
lessee, has 'extensive proprietary rights over
Guantanamo Bay' that were exclusively granted in
the 1903 lease.[8] This lease gave U.S operational
sovereignty over the base and brought it within the
Supreme Court's jurisdiction. A related decision
was Hamdi v. Rumsfeld (2004), which ruled that
United States citizens detained as suspected enemy
combatants had the right to habeas corpus
challenge of their detention.
B. The Non-Extraterritorial Approach Violates Jus
Cogens Norms Prohibiting Torture and Other Human
Rights Abuses The U.S. government’s position deviates
from international law for a second reason. If such an
approach is followed it will, in certain circumstances,
necessitate conflict with a peremptory norm of general
international law, or jus cogens. Jus cogens norms are
considered “so fundamental to the existence of a just
international legal order that states cannot derogate
from them, even by agreement.” 48 Article 53 of the
Vienna Convention states that “[a] treaty is void if, at
the time of its conclusion, it conflicts with a
peremptory norm of general international law.” 11
Torture is one such peremptory norm. In applying
Article 53, it is clear that states are prohibited from
entering into treaties which contemplate the use of
torture. Should the ICCPR be applied only territorially,
perfectly feasible scenarios will arise where U.S.
nationals who remain in the country are prohibited
from committing torture, but U.S. nationals who are
outside of the country can commit these prohibited
abuses. The ICCPR would thereby be permitting the use
of torture by U.S. nationals so long as they stepped
outside American borders. Such an interpretation of
the ICCPR’s jurisdictional applicability violates jus
cogens, is inconsistent with some of the fundamental
objectives of the ICCPR, and is therefore not permitted.
It is important to note that the U.S. Supreme Court has
held that the Guantanamo Naval Base is considered
part of the territory of the United States, by virtue of a
lease agreement the United States has with Cuba. 49
Accordingly, the U.S. government’s position that the
ICCPR does not apply extraterritorially has no effect on
its obligations under the Covenant with respect to
military detainees held at Guantanamo Bay. Iraq and
Afghanistan represent analogous scenarios to the
extent that violations are committed in U.S.-operated
facilities
The CHR was created as a response to the
atrocities committed during Martial Law. When
the 1987 Philippine Constitution was drafted,
Article XIII on Social Justice and Human Rights
clearly defined the creation of the Commission.

The Commission on Human Rights (CHR) is an

independent National Human Rights Institution
(NHRI) created under the 1987 Philippine
Constitution, established on 05 May 1987 by
virtue of Executive Order No. 163.

The Commission is mandated to conduct

investigations on human rights violations against
marginalized and vulnerable sectors of the
society, involving civil and political rights.

CHR is an “A” accredited NHRI, fully

complying with the Paris Principles adopted by
the United Nations General Assembly in 1995.
As an NHRI, the Commission upholds six
fundamental characteristics — independence,
pluralism, broad mandate, transparency,
accessibility, and operational efficiency.

The Commission commits to deliver prompt,

responsive, accessible, and excellent public ser
vice for the protection and promotion of human
rights in accordance with universal human rights
principles and standards.

PRIMER ON THE BATAS
KASAMBAHAY OR
DOMESTIC WORKERS ACT
(REPUBLIC ACT NO. 10361)
By: Atty.Fred | October 22, 2018 in HR and Labor
1 Reply | Related posts at the bottom of article
In a move meant to better protect domestic workers,
the Philippine Congress passed a law known as the
“Domestic Workers Act” or “Batas Kasambahay”. On
18 January 2013, President Benigno Aquino III
signed Republic Act No. 10361 (full text; see
also Implementing Rules and Regulations),
instituting policies for the protection and welfare of
domestic helpers. Considering that it equally affects
the domestic helpers and the employers, let’s get to
know what’s provided in this law.
1. Who is a Kasambahay or Domestic
Worker?
Domestic worker or “Kasambahay” refers to any
person engaged in domestic work within an
employment relationship such as, but not limited to,
the following: general househelp, nursemaid or
“yaya”, cook, gardener, or laundry person, but shall
exclude any person who performs domestic work
only occasionally or sporadically and not on an
occupational basis.
The term shall not include children who are under
foster family arrangement, and are provided access
to education and given an allowance incidental to
education, i.e. “baon”, transportation, school projects
and school activities.
2. Minimum age of domestic workers
It’s criminally punishable to employ any person below
15 years of age as a domestic worker.
3. Employer’s reportorial duties
The employers shall register all domestic workers
under their employment in the Registry of Domestic
Workers in the barangay where the employer’s
residence is located. [Back to the top]
4. Requirement of a contract
An employment contract shall be executed by and
between the domestic worker and the employer
before the commencement of the service in a
language or dialect understood by both the domestic
worker and the employer. The domestic worker shall
be provided a copy of the duly signed employment
contract which must include the following:
(a) Duties and responsibilities of the domestic worker
(b) Period of employment
(c) Compensation
(d) Authorized deductions
(e) Hours of work and proportionate additional
payment
(f) Rest days and allowable leaves
(g) Board, lodging and medical attention
(h) Agreements on deployment expenses, if any
(i) Loan agreement
(j) Termination of employment
(k) Any other lawful condition agreed upon by both
parties
The Department of Labor and Employment (DOLE)
shall develop and disseminate a model employment
contract for domestic workers. In cases where the
employment of the domestic worker is facilitated
through a private employment agency, the PEA shall
keep a copy of all employment contracts of domestic
workers and shall be made available for verification
and inspection by the DOLE. [Back to the top]
5. Wage provisions
What is the minimum wage of domestic helpers?
The minimum wage of domestic workers shall not be
less than the following:
a. P2,500 a month for those employed in the National
Capital Region (NCR)
b. P2,000 a month for those employed in chartered
cities and first class municipalities
c. P1,500 a month for those employed in other
municipalities
The Regional Tripartite and Productivity Wage
Boards (RTPWBs) are required to periodically adjust,
if proper, the minimum wage rates of domestic
workers.
What is the manner of paying wages?
Payment of wages shall be made on time directly to
the domestic worker to whom they are due in cash at
least once a month. The employer, unless allowed by
the domestic worker through a written consent, shall
make no deductions from the wages other than that
which is mandated by law. No employer shall pay the
wages of a domestic worker by means of promissory
notes, vouchers, coupons, tokens, tickets, chits, or
any object other than the cash wage.
Is the kasambahay entitled to 13th-month pay?
The domestic worker is entitled to a thirteenth month
pay.
Is the employer required to keep pay slips?
Yes. The employer shall at all times provide the
domestic worker with a copy of the pay slip
containing the amount paid in cash every pay day,
and indicating all deductions made, if any.
What is more, copies of the pay slip shall be kept by
the employer for a period of 3 years.
What are additional prohibitions in relation to wages?
Interference in the disposal of wages. It shall be
unlawful for the employer to interfere with the
freedom of any domestic worker to dispose of the
latter’s wages. The employer shall not force, compel
or oblige the domestic worker to purchase
merchandise, commodities or other properties from
the employer or from any other person, or otherwise
make use of any store or services of such employer
or any other person.
Withholding of wages. It shall be unlawful for an
employer, directly or indirectly, to withhold the wages
of the domestic worker. If the domestic worker leaves
without any justifiable reason, any unpaid salary for
a period not exceeding 15 days shall be forfeited.
Likewise, the employer shall not induce the domestic
worker to give up any part of the wages by force,
stealth, intimidation, threat or by any other means
whatsoever. [Back to the top]
6. Rest periods and leave credits
How many hours of rest period per day?
Domestic workers are entitled to an aggregate daily
rest period of 8 hours per day.
What is the required weekly rest period?
The domestic worker shall be entitled to at least 24
consecutive hours of rest in a week. The employer
and the domestic worker shall agree in writing on the
schedule of the weekly rest day of the domestic
worker, but the employer shall respect the preference
of the domestic worker as to the weekly rest day
when such preference is based on religious grounds.
The domestic worker and the employer may agree on
the following:
a. Offsetting a day of absence with a particular rest
day
b. Waiving a particular rest day in return for an
equivalent daily rate of pay
c. Accumulating rest days not exceeding 5 days, or
d. Other similar arrangements [Back to the top]
How may days are required for leave credits?
A domestic worker who has rendered at least 1 year
of service shall be entitled to an annual service
incentive leave of 5 days with pay. Any unused
portion of said annual leave shall not be cumulative
or carried over to the succeeding years. Unused
leaves shall not be convertible to cash. [Back to the
top]
7. SSS and other social benefits
A domestic worker who has rendered at least 1
month of service shall be covered by the Social
Security System (SSS), the Philippine Health
Insurance Corporation (PhilHealth), and the Home
Development Mutual Fund or Pag-IBIG, and shall be
entitled to all the benefits in accordance with the
pertinent provisions provided by law.
Premium payments or contributions shall be
shouldered by the employer. However, if the
domestic worker is receiving a wage of P5,000 and
above per month, the domestic worker shall pay the
proportionate share in the premium payments or
contributions, as provided by law.
The domestic worker shall be entitled to all other
benefits under existing laws. [Back to the top]
8. Assignment to non-household work
No domestic worker shall be assigned to work in a
commercial, industrial or agricultural enterprise at a
wage rate lower than that provided for agricultural or
non-agricultural workers. In such cases, the domestic
worker shall be paid the applicable minimum wage.
[Back to the top]
9. Assignment in another home
The domestic worker and the employer may mutually
agree for the former to temporarily perform a task that
is outside the latter’s household for the benefit of
another household. However, any liability that will be
incurred by the domestic worker on account of such
arrangement shall be borne by the original employer.
In addition, such work performed outside the
household shall entitle the domestic worker to an
additional payment of not less than the existing
minimum wage rate of a domestic worker. It shall be
unlawful for the original employer to charge any
amount from the said household where the service of
the domestic worker was temporarily performed.
[Back to the top]
10. Deposits for loss or damage
It’s unlawful for the employer or any other person to
require a domestic worker to make deposits from
which deductions shall be made for the
reimbursement of loss or damage to tools, materials,
furniture and equipment in the household. [Back to
the top]
11. Prohibition on debt bondage
It’s unlawful for the employer or any person acting on
behalf of the employer to place the domestic worker
under debt bondage, which refers to the rendering of
service by the domestic worker as security or
payment for a debt where the length and nature of
service is not clearly defined or when the value of the
service is not reasonably applied in the payment of
the debt. [Back to the top]
12. Rights and Privileges of Kasambahay
Standard of Treatment
The employer or any member of the household shall
not subject a domestic worker or “kasambahay” to
any kind of abuse nor inflict any form of physical
violence or harassment or any act tending to degrade
the dignity of a domestic worker.
Board, Lodging and Medical Attendance
The employer shall provide for the basic necessities
of the domestic worker to include at least 3 adequate
meals a day and humane sleeping arrangements that
ensure safety.
The employer shall provide appropriate rest and
assistance to the domestic worker in case of illnesses
and injuries sustained during service without loss of
benefits.
At no instance shall the employer withdraw or hold in
abeyance the provision of these basic necessities as
punishment or disciplinary action to the domestic
worker.
Guarantee of Privacy
Respect for the privacy of the domestic worker shall
be guaranteed at all times and shall extend to all
forms of communication and personal effects. This
guarantee equally recognizes that the domestic
worker is obliged to render satisfactory service at all
times.
Access to Outside Communication
The employer shall grant the domestic worker access
to outside communication during free time: Provided,
That in case of emergency, access to communication
shall be granted even during work time. Should the
domestic worker make use of the employer’s
telephone or other communication facilities, the costs
shall be borne by the domestic worker, unless such
charges are waived by the employer.
Right to Education and Training
The employer shall afford the domestic worker the
opportunity to finish basic education and may allow
access to alternative learning systems and, as far as
practicable, higher education or technical and
vocational training. The employer shall adjust the
work schedule of the domestic worker to allow such
access to education or training without hampering the
services required by the employer.
Prohibition Against Privileged Information
All communication and information pertaining to the
employer or members of the household shall be
treated as privileged and confidential, and shall not
be publicly disclosed by the domestic worker during
and after employment. Such privileged information
shall be inadmissible in evidence except when the
suit involves the employer or any member of the
household in a crime against persons, property,
personal liberty and security, and chastity. [Back to
the top]
13. Cessation of employment
Termination of service
Neither the domestic worker nor the employer may
terminate the contract before the expiration of the
term except on reasons allowed by law. If the
domestic worker is unjustly dismissed, the domestic
worker shall be paid the compensation already
earned plus the equivalent of 15 days work by way of
indemnity. If the domestic worker leaves without
justifiable reason, any unpaid salary due not
exceeding the equivalent 15 days work shall be
forfeited. In addition, the employer may recover from
the domestic worker costs incurred related to the
deployment expenses, if any, provided that the
service has been terminated within 6 months from the
domestic worker’s employment.
If the duration of the domestic service is not
determined either in stipulation or by the nature of the
service, the employer or the domestic worker may
give notice to end the working relationship 5 days
before the intended termination of the service.
The domestic worker and the employer may mutually
agree upon written notice to pre-terminate the
contract of employment to end the employment
relationship.
Termination initiated by the domestic worker

The domestic worker may terminate the employment

relationship at any time before the expiration of the
contract for any of the following causes:

(a) Verbal or emotional abuse of the domestic worker

by the employer or any member of the household;

(b) Inhuman treatment including physical abuse of

the domestic worker by the employer or any member
of the household;

(c) Commission of a crime or offense against the

domestic worker by the employer or any member of
the household;

(d) Violation by the employer of the terms and

conditions of the employment contract and other
standards set forth under this law;

(e) Any disease prejudicial to the health of the

domestic worker, the employer, or member/s of the
household; and

(f) Other causes analogous to the foregoing.

Termination initiated by the employer

An employer may terminate the services of the

domestic worker at any time before the expiration of
the contract, for any of the following causes:

(a) Misconduct or willful disobedience by the

domestic worker of the lawful order of the employer
in connection with the former’s work;

(b) Gross or habitual neglect or inefficiency by the

domestic worker in the performance of duties;

(c) Fraud or willful breach of the trust reposed by the

employer on the domestic worker;

(d) Commission of a crime or offense by the domestic

worker against the person of the employer or any
immediate member of the employer’s family;

(e) Violation by the domestic worker of the terms and

conditions of the employment contract and other
standards set forth under this law;

(f) Any disease prejudicial to the health of the

domestic worker, the employer, or member/s of the
household; and

(g) Other causes analogous to the foregoing. [Back

to the top]