SECOND DIVISION

G.R. No. L-46410 October 30, 1981

ERNESTO BALBIN, JOSE ORIÑA, MAURICIO NARAG, ROSA

STA. MA. SYTAMCO, BASILIO SYTAMCO, LEOCADIO
SYTAMCO, AMADO V. REYES, LYDIA V. REYES and
APOLINARIO REYES, Petitioners, vs. PEDRO C. MEDALLA and
JOSEFINA MEDALLA and LINO BARBOSA, Judge of the Court
of First Instance of Mamburao, Occidental
Mindoro, Respondents. chanrobles v irt ual law l ibra ry

DE CASTRO, J.:

Petition for certiorari for the review of the decision of the Court of
First Instance of Occidental Mindoro, Branch I, the dispositive
portion of which reads: chanrobles vi rt ual law li bra ry

WHEREFORE, judgment is hereby rendered as follows: chanroble s virtual law l ibra ry

1. that the lands in controversy be, as they are hereby declared as

the private properties of the plaintiffs with the right of immediate
possession; chanrobles vi rtua l law lib ra ry

2. that the Free Patents Nos. HV-85975, RV-86191, HV-85977, HV-

85976, HV-85978, HV-85974, EV-85432, EV-94632 and EV- 58631,
and the corresponding Original Certification of Titles Nos. P-3088, P-
3089, P-3087, P-4010, P-4011, P-3084, P-919, P-4060 and P-920
be, as they are hereby declared null and void and therefor should be
cancelled; chan rob les vi rtual law lib rary

3. that defendants, ERNESTO BALBIN the HRS. of MAURICIO NARAG

and JOSE ORINA shall pay the plaintiffs as damages, the sum of
TWO HUNDRED (P200.00 PESOS per hectare possessed and
cultivated by them from the year 1963 until the possession of the
property in question has been duly surrendered to the plaintiffs,
with interest at the rate of 6% per annum, from the date of this
decision, and because said defendants must have paid the
corresponding land taxes due them from the said date (1963),
whatever amounts paid by them from said date to the present
should correspondingly be deducted from the total amount of
damages herein awarded to plaintiffs; however, defendants, ROSA
STA. MA. SYTAMCO, BASILIO SYTAMCO, LEOCADIO SYTAMCO,
AMADO V. REYES, LYDIA REYES and APOLINARIO REYES, shall not
pay any amount to plaintiffs as damages as they are not in actual
possession and cultivation of the area respectively claimed by them
and chanroble s virtual law lib rary

4. that the defendants shall further pay the amount of ?2,000.00 as

attorney's fees and cost of the suit.

The following facts, quoting from private respondents' brief, are not
disputed: chanrobles vi rt ual law li bra ry

Private respondents on June 19, 1962, purchased from the heirs of

Juan Ladao, a large parcel of agricultural land situated at Sitios of
Bacong, Tambunakan and Ibunan, Barrio Balansay Mamburao,
Occidental, Mindoro. Said respondents on June 14, 1963, filed an
application for registration of title of the said parcel of land. They
utilized as evidence of ownership, the Deed of Sale executed in their
favor by the heirs of the late Juan Ladao (Exhibit "F" thereof)
the Informacion Posesoria issued in the name of Juan Ladao Exhibit
"H" in the LRC Case) together with the tax declaration and tax
receipts for said land covering the period from May 26, 1904, to
January 27, 1962 (Exhibits I to I-28 of said LRC Case) the private
respondents, after the sale, declared it for taxation purposes
(Exhibits G and G-1) of said LRC Case), and have continuously been
paying the corresponding taxes up to the present; the application
for registration of title aforesaid was opposed by petitioners on the
ground that they were previously issued Original Certificates of title
thru either Homestead or Free Patent grants. Petitioner Rosa Sta.
Maria Sytamco was issued Original Certificate of Title No. P-3088
(Exhibit "1" on June 26, 1963, under Homestead Patent No. HV-
85975; Basilio Sytamco was issued Original Certificate of Title No.
P-3089 (Exhibit "2" on June 26, 1963, under Homestead Patent No.
HV-86191; Leocadio Sytamco was issued Original Certificate of Title
No. P-3087 (Exhibit "3" on June 26, 1963, under Homestead Patent
No. HV-85977; Lydia Reyes was issued Original Certificate of Title
No. P- 4010 (Exhibit "4" on September 30, 1963), under Homestead
Patent No. HV-85978; Amado Reyes was issued Original Certificate
of Title No. P-4011 (Exhibit "5" on September 30, 1963), under
Homestead Patent No. V-85976; Apolinario Reyes was issued
Original Certificate of Title No. P-3084 (Exhibit "6") on June 18,
1963, under Homestead Patent No. V-85974; Ernesto Balbin was
issued Original Certificate of Title No. P-919 (Exhibit "7"), under
Free Patent No. V-58633; Mauricio Narag was issued Original
Certificate of Title No. P-4060 (Exhibit 118") on October 14, 1959,
under Free Patent No. V-94632-1 Jose Orina was issued Original
Certificate of Title No. P-920 (Exhibit "9") on April 3, 1957 under
Free Patent No. V-58631. 1

It appears that before the filing of the present action for

reconveyance and annulment of titles on August 30, 1973, land
registration proceedings had been instituted by private respondents
covering the same lands involved in the aforesaid action. Petitioners
herein filed opposition to the application, but because of the
reservation of private respondents to file a separate action for the
cancellation of the original certificates of title issued to petitioners
herein, the land registration court abstained from ruling on the
petitioners' opposition. chanroble svi rtualaw lib rary cha nrob les vi rtual law lib rary

In the pre-trial of the ordinary action from which the present

petition stemmed, the following stipulation of facts 2 was entered
into:chanroble s virtual law l ibra ry

1. That the parcels of land subject matter of the instant case are
Identified as Lot Nos. 979, 980, 981, 982, 983, 984, 1013, 1016
and 1006, as shown in plans Ap-10864 and Ap-10866; that these
lots enumerated are embraced in Pls-21, Mamburao Public
Subdivision; chanroble s virtual law l ibra ry

2. That the herein petitioners were among the oppositors in Land

Registration Case No. N-44, filed before the court (CFI Occidental
Mindoro, Branch I, Mamburao, Occidental Mindoro) on June 14,1963
by spouses Pedro C. Medalla and Josefina O. Medalla; chanroble s virtual law l ibra ry
3. That the opposition of petitioners is based on the ground that the
aforesaid lots respectively titled in their names are included in the
land subject matter of the Land Registration Case No. N-44; chanrobles vi rtua l law lib rary

4. That in the Decision rendered by the court in Land Registration

Case No. N-44 dated May 7, 1969 giving due course to the
applicants' petition for registration of title, the opposition of the
petitioners were not resolved in view of the reservation made by the
applicants to file appropriate actions for the cancellation of
petitioners' homestead or patent titles. chanrob lesvi rtua lawlib rary chan roble s virtual law l ibra ry

5. That the land subject matter of the instant case are titled in the
name of petitioners and included in plans AP-10864 and Ap-10866,
which plans were submitted as evidence in the said Land
Registration Case No. N-44, and that the basis of herein
respondents' claim in the instant case is the possessory information
title of Juan Ladao, registered on May 25, 1895 before the Register
of Deeds of the Province of Occidental Mindoro.

Petitioners made the following assignment of errors: 3

chanroble s virtual law lib rary

I. That the respondent judge of the court a quo erred in holding the
validity of the possessory information title of Juan Ladao,
consequently, erroneously holding that the parcels of land covered
by certificate of titles of petitioners are private properties of private
respondents. chanroble svirtualawl ibrary chan rob les vi rtual law lib rary

II. That respondent judge of the court a quo erred in holding that
private respondents' cause of action has not prescribed. chan roblesv irtualawli bra ry chan roble s virtual law l ibra ry

III. The respondent judge of the court a quo erred in holding that
private respondents have personality and capacity to institute the
action, considering that the land in controversy were public lands at
the time of issuance of respective patents and titles of
petitioners.chanroblesvi rtua lawlib rary cha nrob les vi rtua l law lib rary

IV. The respondent judge of the court a quo erred in holding that
the lower court has jurisdiction over the nature and cause of action
of private respondents.
The first question to be resolved relates to the validity of the
possessory information title of Juan Ladao as raised in the first
assignment of error because petitioners' title to the land based on
their respective homestead or free patents is valid or not,
depending on whether the land so disposed of under the Public Land
Act has not yet been segregated from the public domain and passed
into private ownership at the time of the issuance of the patents. 4
libra ry
chanrob les vi rtual law

As found uncontroverted by the lower court, there exists

an Information Posesoria in the name of Juan Ladao from whom
private respondents Medalla bought the land. It is also an admitted
fact, at least impliedly, same being not denied in petitioners' answer
to the complaint, that the Informacion Posesoria was registered on
May 25, 1896. What petitioners assail is the validity of the
registration which they claim to have been done beyond the period
of one year from April 17, 1894 to April 17, 1895, as allegedly
required by the Royal Decree of February 13, 1894 otherwise known
as the Maura Law. The provision invoked by petitioners is Article 21
of the aforementioned decree which reads: chanrobles vi rtua l law lib rary

Art. 21. A term of one year, without grace, is granted in order to

perfect the information referred to in Articles 19 and 20. chanroblesvi rtua lawlib rary c hanro bles vi rt ual law li bra ry

After the expiration of this period, the right of the cultivators and
possessors to obtain a gratuitous title shall be extinguished; the full
ownership of the land shag be restored to the State, or in a proper
case to the community of neighbors, and the said possessors and
cultivators or their predecessors in interest by a universal title shall
only be entitled to the right of redemption, if the land had been sold
within the five years subsequent to the lapse of the period. chan roble svirtualawl ibra ry chan roble s virtual law lib rary

The possessors not included within the provisions of this Chapter

shall only acquire for some time the ownership of the alienable
lands of the royal patrimony, in accordance with the common law.

It is the petitioners' contention that pursuant to the aforecited

provision, all grants of Spanish titles to lands including possessory
information titles must be registered within a period of one (1) year
to be counted from April 17, 1894 until April 17, 1895, in
accordance with Article 80 of the rules and regulations
implementing said Royal Decree of February 13, 1894; that this
requirement of the law finds support in the cases of Baltazar vs.
Insular Government, 40 Phil. 267 and Romero v. Director of Lands,
39 Phil. 814 from which petitioners quoted the following. chanroble svirtualawl ibra rycha nrob les vi rtua l law lib rary

All such titles covered by possessory information title during the

Spanish Regime and not registered within the non-extendible period
of one year as provided for in the Maura Law or the Royal Decree of
February 13, 1894, it reverts to the State or in a proper case to the
public domain. (Emphasis supplied).

Petitioners further contend that inasmuch as the possessory

information title of respondents, in the name of the late Juan Ladao,
was registered only on May 25, 1895 or 38 days from the last day
of the one-year period as provided in the Maura Law, the same was
patently nun and void, and the land covered by said possessory
information title reverted to the State or to the public domain of the
government. chanroblesv irt ualawli bra ry chan roble s virtual law l ibra ry

Petitioners' contention is without merit. Examining closely the two

cases invoked by petitioners, nowhere in said cases can be found
the aforecited passages quoted by the petitioners. These cases did
not even speak of registration as a requisite for the validity of
possessory information title obtained for purposes of Royal Decree
of February 13, 1894 or the Maura Law. What was actually stated in
the two aforecited cases are the following chanro bles vi rtua l law lib ra ry

A possessory information proceeding instituted in accordance with

the provisions of the Mortgage Law in force on July 14, 1893 neither
constitutes nor is clothed with the character of a gratuitous title to
property, referred to in Section 19 of the Royal Decree of February
13, 1894, which provides that in order that an information may be
valid for the purpose of the said Royal Decree and produce the
effects of a title of ownership, it is indispensable what it be
instituted within the unextended period of one year fixed in sections
19 and 20 of the said Royal Decree (Aguinaldo de Romero vs.
Director of Land 39 Phil. 814). chanroblesvi rt ualawlib ra ry chan robles v irt ual law li bra ry

The time within which advantage could be taken of the Maura Law
expired on April 17, 1895. Almeida obtained dominion over 526
hectares of lands on June 9, 1895. The possessory information for
815 hectares was issued to Almeida on December 14, 1896 Almeida
was thus not in possession until after the expiration of the period
specified by the Maura Law for the issuance of possessory titles and
his possessory information was of even a later date and made to
cover a large excess of land. Under these conditions, the possessory
information could not even furnish, as in other cases, prima facie
evidence of the fact that at the time of the execution the claimant
was in possession, which it would be possible to convert into
ownership by uninterrupted possession for the statutory period.
(Baltazar vs. Insular Government 40 Phil. 267).

From the foregoing, it is made clear that what was required is

merely the institution of a possessory information proceeding within
the one-year period as provided in the Royal Decree of February 13,
1894 or the Maura Law. This fact is bolstered by the commentaries
of Prof. Francisco Venture in his book Land Titles and Deeds, a book
widely used by law practitioners and in the law schools. 5 Thus - chanrobles vi rtua l law lib rary

A distinction should be made between the informacion

posesoria issued in accordance with Articles 390, 391, and 392 of
the Spanish Mortgage Law in connection with Articles 19, 20 and 21
of the Royal Decree of February 13, 1894 and the informacion
posesoria issued in accordance with Articles 390, 391 and 392 of
said law without regard to the aforementioned decree. The former
was the basis of a gratuitous title of ownership which was issued
upon application of the grantee and the possessory title provided he
complied with the requisites prescribed by Articles 19 and 21 of the
aforesaid decree and Articles 81 and 82 of the Chapter IV of the
Regulations for the execution of the same decree. The requisites to
be fulfilled and steps to be taken are as follows: chanrob les vi rtual law lib rary

1. The holder of the land must prove possession or cultivation of the

land under the conditions presented by Article 19 of the said
decree.chanrob lesvi rtua lawlib rary cha nro bles vi rtua l law lib ra ry

2. The holder of the land had to institute the possessory information

proceeding within one year from the date (April 1 7, 1894) of the
publication of the Royal Decree of February 13, 1894 (Article 21,
Royal Decree of February 13, 1894) (Emphasis supplied). c hanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry
3. After obtaining the informacion posesoria, the holder of the land
had to file a petition with the General Director of Civil
Administration, attaching thereto a certified copy of the informacion
posesoria asking for the issuance in his name of a gratuitous title of
ownership. If the said office was satisfied that the applicant fulfilled
the conditions prescribed by the law, a gratuitous title of ownership
was issued to him. Such title oftentimes called composicion gratuita
was to be registered in the Registry of Property of the province
where the land was located. ... (pp. 30-31).

Even Section 21 of the Maura Law invoked by petitioners

themselves does not speak of registration, but merely perfection of
information title, which, as already discuss may be done by
instituting possessory information proceedings within the said one-
year period fixed by the aforementioned Royal Decree of February
13, 1894, possibly ending in the registration of the title, depending
on the evidence presented. chanroble svirtualawl ibra ry chan roble s virtual law l ib rary

In the case at bar, it is admitted and uncontroverted that there

exists an informacion posesoria registered on May 25, 1895 in the
name of Juan Ladao. This registration of the informacion
posesoria must have followed as the result or outcome of a
possessory information proceeding instituted by the late Juan Ladao
in accordance with Section 19 of the said Royal Decree of February
13, 1894, and commenced within the one year period, pursuant to
Section 21 of the same decree. Otherwise, if this were not so, no
registration of the said informacion posesoria might have been
effected in the Registry of Deeds of the Province of Occidental
Mindoro, for if the registration thereof on May 25, 1895 was
violative of the decree, for being beyond the one-year period from
April 17, 1894 to April 17, 1895, the Register of Deeds would
certainly not have performed an illegal act. chanroblesvi rtualaw lib rary cha nrob les vi rtua l law lib rary

Moreover, registration of title usually follows a specified proceeding.

The registration is the act of a government official and may not be
controlled by the private party applying for registration of his title.
What is under his control is the commencement or the institution of
the prescribed proceeding for the perfection of his title for which he
may be penalized for tardiness of compliance. The institution of the
proper proceeding is clearly what is required to be done within the
one-year period by the party seeking to perfect his title, not the
registration thereof, if found legally warranted. By its nature,
therefore, registration may not necessarily be within the same one-
year period. If the required proceedings are instituted, as they have
to be before the corresponding title may be issued and registered,
the registration may be possible of accomplishment only after the
one-year period, considering the number of proceedings that might
have been instituted within the non-extendible period of one year.
This is what apparently happened in the instant case with the
proceeding to perfect the title commenced within the one-year
period, but the registration of the possessory information title done
thereafter, or on May 25, 1895, after the prescribed proceeding
which is naturally featured with the requisite notice and hearing. 6
libra ry
chanrobles v irt ual law

The next question relates to the issue of prescription as raised in

the second assignment of error. chanroble svirtualawl ibra ry chan roble s virtua l law lib rary

It is the contention of petitioners that the present action for

reconveyance has already prescribed. They developed this theory in
their Reply to Rejoinder 7 to Motion to Dismiss, as follows: chanroble s virtual law lib rary

Even granting for the sake of argument that plaintiffs' possessory

information title is valid and effective, the cause of action for
reconveyance had already prescribed because such action can only
be instituted within four (4) years after discovery of the alleged
fraud. (Sec. 55, Act 496; Vera vs. Vera, 47 O.G. 5060; Tayao vs.
Robles, 7 4 Phil. 114) I t will be noted from plaintiffs' complaint that
the patent of Ernesto Balbin and Jose Orina were issued on
December 6, 1956 so that if any action for reconveyance at all could
be instituted against the two defendants, the same should be
instituted before or during the period of four years or up to 6
December, 1960. According to the complaint, the patents of Rosa
Sta. Ma. Sytamco, Basilio Sytamco and Leocadio Sytamco were
issued on 17 April 1959, so that if any action for reconveyance can
lie against them, the same should be instituted within four years or
up to 17 April, 1963. In so far as the free patent of Amado V.
Reyes, Lydia Reyes and Apolinario Reyes, it appears that said
patents were issued on 3 March, 1959, so that if any action for
reconveyance should be filed, it should be on or before March 3,
1963. And lastly, the patent of Mauricio Narag was issued on 14
October, 1959, so that if any action for reconveyance should be
instituted, the same should be filed on or before October 14,
1963. chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry

Plaintiffs' complaint was filed only on August 30, 1973, or more than
14 years had already elapsed from the date of the issuance of the
respective titles of the defendants. Consequently, the action for
reconveyance of land titled in the names of defendants had already
prescribed.

An action for reconveyance of real property resulting from fraud

may be barred by the statute of limitations, which requires that the
action shall be filed within four (4) years from the discovery of the
fraud. Such discovery is deemed to have taken place when the
petitioners herein were issued original certificate of title through
either homestead or free patent grants, for the registration of said
patents constitute constructive notice to the whole world. 8 chanrob les vi rtual law lib rary

In the case at bar, the latest patent was issued on October 14,
1959. There is, therefore, merit in petitioner's contention that "if
any action for reconveyance should be commenced, the same
should be filed on or before October 14, 1963. But private
respondents' complaint for reconveyance and annulment of titles
with damages was filed only on August 30, 1973, or more than 14
years had already elapsed from the date of the issuance of the
respective titles of the defendants. Consequently, the action for
reconveyance of land titled in the names of defendants (petitioners
herein) had already prescribed." chanrobles vi rtua l law lib ra ry

Even from the viewpoint of acquisitive prescription, petitioners have

acquired title to the nine lots in question by virtue of possession in
concept of an owner. Petitioners herein were given either free
patent or homestead patent, and original certificates of title in their
names issued to them, the latest on October 14, 1959. Said public
land patents must have been issued after the land authorities had
found out, after proper investigation, that petitioners were in actual
possession of the nine lots in question, particularly in the case of
the free patents. If petitioners were in actual possession of the nine
lots, then the heirs of Ladao and the Medalla spouses were never in
actual possession of the said lots. If the Medalla spouses were not in
actual possession of the nine lots, the alleged possessory
information would not justify the registration of the said nine lots in
the names of the Medallas. chan roble svirtualawl ibra ry chan roble s virtual law lib rary

A possessory information has to be confirmed in a land registration

proceeding, as required in Section 19 of Act No. 496. "A possessory
information alone, without a showing of actual, public and adverse
possession of the land under claim of ownership, for a sufficient
period of time, in accordance with the law, is ineffective as a mode
of acquiring title under Act No. 496." 9 Although converted into a
title of absolute ownership, an informacion posesoria may still be
lost by prescription. 10 chanrobles vi rtua l law lib ra ry

On the other hand, the Torrens Titles issued to the petitioners on

the basis of the homestead patents and free patents obtained by
them had become indefeasible. 11 chan robles v irt ual la w libra ry

It would result from what has been said on the two main
assignments of errors that petitioners herein have a better right to
the land in question than the Medalla spouses. chanroble svirtualawl ibra ry chan roble s virtual law l ib rary

WHEREFORE, the judgment appealed from should be reversed and

the complaint of the Medallas should be, as it is hereby dismissed
with costs against appellees. cha nrob lesvi rtua lawlib rary cha nrob les vi rtua l law lib ra ry

SO ORDERED.

Barredo (Chairman), Concepcion Jr., and Abad Santos, JJ.,

concur. chanroblesvi rtua lawlib rary c hanro bles vi rt ual law li bra ry

Aquino, J., concur in the result.

Endnotes:

1 Respondents' Brief, pp. 2-4; Rollo, p. 191. chanrobles virtual law library
2 Respondents' Brief, pp. 5-6; Rollo, p. 191. chanrobles virtual law library

3 Respondents' Brief, pp. 6-7; Rollo, p. 191. chanrobles virtual law library

4 Panimdim vs. Director of Lands, 1,19731, July 31, 1964, 11 SCRA 628; Duran vs. Olivia, et all L-16589,
September 29, 1961; Republic vs. Heirs of Ciriaco Carle et all L-12485, July 31, 1959; El Hogar Filipino vs.
Olviga, 60 Phil. 17; Manalo vs. Lukban, et all 48 Phil. 973. chanrobles virtual law librar y

5 Same observations were made by Prof. Anatolio C. Manalac in his book entitled 'Development of Land Laws
and Registration in the Philippines, " 1961 ed., pp. 47-48. chanrobles virtual law library

6 In Bishop of Nueva Segovia vs. Municipality of Bantay, 28 Phil. 347, the procedure as to notice and hearing
of the possessory information proceeding is outlined which is commenced with the filing of the proper
application either in the Court of first Instance or in the Municipal Court. chanrobles virtual law library

7 p. 12, Petition, p. 38; Rollo. chanrobles virtual law library

8 Gerona vs. de Guzman 11 SCRA 153 and cases cited therein. chanrobles virtual law library

9 Heirs of Luno vs. Marquez, 48 Phil. 855, See Government of the P.I. vs. Heirs of Abella, 49 Phil. 374, 379;
Fernandez Hermanos vs. Director of Lands, 57 Phil. 929; Roman Catholic Bishop of Nueva Segovia vs.
Municipality of Bantay, 28 Phil. 347). chanrobles virtual law library

10 Noblejas, Land Titles and Deeds, 1965 Ed., p. 7. chanrobles virtual law library

11 Pajomayo vs. Manipon, L-33676, June 30, 1971, 39 SCRA 676.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-41278 April 15, 1988

DIRECTOR OF LANDS, petitioner,

vs.
HON. PEDRO T. SANTIAGO, Presiding Judge, Court of First Instance of Bataan, Branch II,
MARIA O. GARCIA, and IMPERIAL DEVELOPMENT CORPORATION, respondents.

The Solicitor General for petitioner.

Filoteo T. Banzon for respondents.

SARMIENTO, J.:

On September 8, 1973, an application for land registration was filed by respondent Maria O. Garcia in the Second Branch of the Court of
First Instance of Bataan; 1 a copy of the application was forwarded to the Solicitor General thru the Director of Lands. On February 19, 1974,
the Director of Lands filed an opposition to this application, and at the same time the Solicitor General entered his appearance and
authorized the Provincial Fiscal to appear on his behalf at the hearings of the same. Subsequently, respondent Inperial Development
Corporation, with the conformity of respondent Garcia, filed a Motion to Substitute Party Applicant from Maria O. Garcia to Imperial
Development Corporation without amending the boundaries and the area of the parcels of land stated in the original application, which
motion was granted by the respondent Judge. A Notice of Initial Hearing was sent by the respondent Judge to all parties concerned, with the
warning that a party who failed to appear would be declared in default. The same notice was likewise published in the Official Gazette and
posted by the sheriff as required by law. On January 23, 1975, the date of the initial hearing, neither petitioner nor his counsel was present;
an order of general default was issued by the respondent Judge on the same date. After the reception of evidence for the applicant before
the clerk of court, the respondent Judge rendered the questioned decision and adjudicated the lands in favor of the respondent corporation.

Thereafter, the petitioner filed a Motion for New Trial on the grounds that the failure of his counsel to
appear at the initial hearing was excusable, and that the decision was contrary to the facts and to
law. The motion was, however, denied.

The instant petition is for certiorari, to nullify and set aside the following orders and decision of the
respondent Judge:

a) Order of the respondent Judge dated September 30, 1974, admitting the Amended Application for
Registration;

b) Order of the respondent Judge dated January 23, 1975 declaring, in effect, the Director of Lands
in default;

c) Decision of the respondent Judge dated February 17, 1975, adjudicating the parcels of land in
favor of the respondent corporation; and

d) Order of the respondent Judge dated August 7, 1976, denying the petitioner's Motion for New
Trial;
and for mandamus, to order the respondent Judge to give due course to the petitioner's Motion for
New Trial; alternatively, the petitioner prays for the dismissal of the respondent corporation's
application for registration. 2

According to Sec. 34 of the Land Registration Act, and as adopted in Sec. 151 of the Public Land
Act:

Any person claiming an interest, whether named in the notice or not, may appear and
file an answer on or before the return day, or within such further time as may be
allowed by the court. The answer shall state all the objections to the application, and
shall set forth the interest claimed by the party filing the same and apply for the
remedy desired, and shall be signed and sworn to by him or by some person in his
behalf. (As amended by Sec. 1, Act No. 3621.)

It is undisputed that on February 19, 1974, or prior to the issuance of the Notice of Initial Hearing, an
opposition was filed by the petitioner Director of Lands to the original application for land registration
of respondent Garcia. 3 That verified opposition was precisely the answer referred to in the above-
quoted section, for, as therein alleged by the Director of Lands, neither the applicant nor her
predecessors-in-interest possess sufficient title to acquire ownership in fee simple of the parcels of
land applied for; neither the applicant nor her predecessors-in-interest, have been in open,
continuous, exclusive, and notorious possession and occupation of the lands in question for at least
30 years immediately preceding the filing of the present application; that the said parcels of land are
a portion of the public domain belonging to the Republic of the Philippines, and that, therefore, the
same should be declared part of the public domain. 4 As a matter of fact, under the Property
Registration Decree, issued on June 11, 1978, which supersedes all other laws relative to
registration of property, the word used is "opposition" and not "answer." 5

Thus, the opposition or answer, which is based on substantial grounds, having been formally filed, it
was improper for the respondent Judge taking cognizance of such registration case to declare the
oppositor in default simply because he failed to appear on the day set for the initial hearing. The
pertinent provision of law which states: "If no person appears and answers within the time allowed,
the court may at once upon motion of the applicant, no reason to the contrary appearing, order a
general default to be recorded ...," 6 cannot be interpreted to mean that the court can just disregard
the answer before it, which has long been filed, for such an interpretation would be nothing less than
illogical, unwarranted, and unjust. Had the law intended that failure of the oppositor to appear on the
date of the initial hearing would be a ground for default despite his having filed an answer, it would
have been so stated in unmistakable terms, considering the serious consequences of an order of
default. Especially in this case where the greater public interest is involved as the land sought to be
registered is alleged to be public land, the respondent Judge should have received the applicant's
evidence and set another date for the reception of the oppositor's evidence. The oppositor in the
Court below and petitioner herein should have been accorded ample opportunity to establish the
government's claim.

True, an amended application was submitted but it is admitted by the respondents themselves that
no significant alterations were made therein, hence, the opposition already filed should have been
considered as the answer to the amended application as well. Parenthetically, since the amendment
in the application consisted merely in the substitution of the name of the applicant, it was not
absolutely necessary to furnish the Solicitor General with a copy of the amended application, and it
sufficed that the substitution was stated in the Notice of Initial Hearing. 7

The respondent corporation maintains that the appropriate remedy in this instance is appeal, which
is expressly provided in Section 2, Rule 41 of the Rules of Court, and not certiorari. We do not
agree. The declaration of default against the petitioner was patently invalid because when the same
was made, he had already entered an appearance and filed his opposition or answer. In Omico
Mining and Industrial Corporation vs. Vallejos we laid down the doctrine that appeal is not an
adequate remedy where a party is illegally declared in default. Thus, we stated:

The remedy provided for in the above-quoted rule (i.e. Sec. 2, Rule 41) is properly,
though not exclusively, available to a defendant who has been validly declared in
default. It does not preclude a defendant who has been illegally declared in default
from pursuing a more speedy and efficacious remedy, like a petition for certiorari to
have the judgment by default set aside as a nullity. 8

Indeed, for the above reason, we gave due course to this petition. 9

Additionally, the respondent Judge, in denying the petitioner's Motion for New Trial, ignored the
established rule that courts should be liberal in setting aside a default judgment. "The Court, in the
exercise of wise discretion, could have restored their standing in court and given them an even
chance to face their opponents." 10

Further, we hold that the lower court gravely abused its discretion when it granted the respondent
corporation's application for registration, without sufficient proof that the applicant possessed an
imperfect and incomplete title that is registrable under Sec. 48, par. b, of Commonwealth Act 141, as
amended by Republic Act 6236, otherwise known as the Public Land Act. Verily, we said in Director
of Lands vs. Intermediate Appellate Court that: "No proof being admissible to overcome a conclusive
presumption, confirmation proceedings would, in truth, be little more than formality, at the most
limited to ascertaining whether the possession claimed is of the required character and length of
time; and registration thereunder would not confer title, but simply recognize a title already
vested." 11 But precisely we are not convinced with the conclusion of the respondent Judge and with
the arguments of the respondent corporation that the latter, through its predecessors-in- interest, has
been in open, continuous, exclusive, and notorious possession and occupation of agricultural lands
of the public domain, under a bona fide claim of acquisition or ownership, for at least thirty years.

First, it appears that Maria Garcia and Vicente Obdin, from whom the respondent corporation
purchased the subject lots, have pending sales applications as evidenced in the plans submitted to
the land registration court by Maria Garcia herself which contain the following footnotes: "This survey
is covered by S.A. (x-5) 582" ... "This is covered by S.A. No. (x-5) 583," S.A. being the short form for
Sales Application. As such sales applicants, they manifestly acknowledge that they do not own the
land and that the same is a public land under the administration of the Bureau of Lands, to which the
applications were submitted. 12 Therefore, their possession was not that of an owner, as required by
law. We note that the private respondents were conspicuously silent on this point, as if they were
trying to conceal this vital fact.

Secondly, if it is true that the original owner and possessor, Generosa Santiago, had been in
possession since 1925, why were the subject lands declared for taxation purposes for the first time
only in 1968, and in the names of Garcia and Obdin? For although tax receipts and declarations of
ownership for taxation purposes are not incontrovertible evidence of ownership, they constitute at
least proof that the holder had a claim of title over the property. 13

More than anything else, however, registration in this instance can not be granted on the basis of
Section 48, paragraph b, of the Public Land Act, to wit:

SEC. 48. The following described citizens of the Philippines, occupying lands of the
public domain or claiming to own any such lands or an interest therein, but whose
 titles have not been perfected or completed, may apply to the Court of First Instance
of the province where the land is located for confirmation of their claims, and the
issuance of a certificate of title therefor, under the Land Registration Act, to wit:

xxx xxx xxx

(b) Those who by themselves or through their predecessors-in-interest have been in

open, continuous, exclusive and notorious possession and occupation of agricultural
lands of the public domain, under a bona fide claim of acquisition or ownership, for at
least thirty years immediately preceding the filing of the application for confirmation of
title except when prevented by war or force majeure. These shall be conclusively
presumed to have performed all the conditions essential to a Government grant and
shall be entitled to a certificate of title under the provisions of this chapter.

as the above provision applies exclusively to agricultural lands of the public domain. It appears from
Forestry Administrative Order No. 4-1157, dated April 28, 1971, 14 that the subject lands, with an
approximate area of 56,598 square meters and situated at Sitio Babuyan, Cabcaben, Mariveles,
Bataan, under Project No. 4-A, were forest lands and only later, declared as alienable or disposable
by the Secretary of Agriculture and Natural Resources. Thus, even on the assumption that the
applicant herein, through its predecessors-in-interest, had been in possession for at least thirty
years, such possession never ripened into private ownership. The respondent Garcia and Vicente
Obdin must have applied for sales patents precisely because they wanted to acquire ownership over
the subject lands. An examination of the dates will show that the filing of the sales applications,
apparently on October 24, 1971, was done after the lands had been declared as alienable and
disposable.

In view of the basic presumption that lands of whatever clasification belong to the State, courts must
scrutinize with care applications to private ownership of real estate. But this the respondent Judge
sadly failed to heed; the tax declarations and plans submitted by the private respondents were not
carefully analyzed, and the allegations in the petitioner's opposition to the application were so
casually ignored.

We no longer deem it imperative to order a new trial of this case which would only prolong the
litigation unnecessarily, for as we said in a recent case, the remand of a case to the lower court for
Lither reception of evidence is not necessary where the court is in a position to resolve the dispute
based on the records before on the records before it. 15

WHEREFORE, in view of the foregoing, the petition is GRANTED; the Order of general default,
dated January 23, 1975, as against the petitioner, and the Order dated August 7, 1975 denying the
Motion For New Trial, the Decision dated February 17, 1975, as well as the decree of registration
issued pursuant thereto, if any, are all declared VOID and SET ASIDE. The respondent corporation's
subject application for land registration is hereby DISMISSED. No costs.

This decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

Yap, (Chairman), Melencio-Herrera, Paras and Padilla, JJ., concur.

Footnotes

1 Presided by Judge Pedro T. Santiago, at Balanga, Bataan, Fifth Judicial District,

"Land Registration Case No. N-260, Maria O. Garcia, applicant."

2 Petition, 2-3, 16; Rollo, 9-10, 23.

3 Decision 1; Rollo, 26.

4 Opposition, 1; Rollo, 33.

5 Section 25, Presidential Decree No. 1529.

6 Section 26, Ibid.

7 Section 23, Act No. 496: "Amendments to the application, including joinder,
substitution, or discontinuing as to parties, shall be allowed by the court at any time
upon terms that are just and reasonable. But all amendments shall be in writ, signed
and sworn to like the original."

8 Omico Mining and Industrial Corporation v. Vallejos, L-38974, March 25, 1975, 63
SCRA 285, citing Matute v. Court of Appeals, 26 SCRA 768; see also Pioneer
Insurance and Surety Corporation vs. Hontanosas, No. L-35951, August 31, 1977,
78 SCRA 447.

9 Resolution dated March 3, 1976.

10 Pioneer Insurance & Surety Corp. vs. Hontanosas, supra.

11 G.R. No. L-73002, December 29, 1986, 146 SCRA 509.

12 Palawan Agricultural and Industrial Co., Inc. vs. Director of Lands, No. L-25914,
March 21, 1672, 44 SCRA 15.

13 Director of Lands vs. Reyes, No. L-27594, November 28, 1975, 68 SCRA 177.

14 A certified true copy of this Forestry Administrative Order is attached as Annex

"A" of the Memorandum, dated May 17, 1976, of the petitioner.

15 Lianga Bay Logging Co. v. Court of Appeals, No. L-37783, January 28, 1988.
 EN BANC

G.R. No. 133250 July 9, 2002

FRANCISCO I. CHAVEZ, petitioner,

vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT
CORPORATION, respondents.

CARPIO, J.:

This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a
temporary restraining order. The petition seeks to compel the Public Estates Authority ("PEA" for
brevity) to disclose all facts on PEA's then on-going renegotiations with Amari Coastal Bay and
Development Corporation ("AMARI" for brevity) to reclaim portions of Manila Bay. The petition
further seeks to enjoin PEA from signing a new agreement with AMARI involving such reclamation.

The Facts

On November 20, 1973, the government, through the Commissioner of Public Highways, signed a
contract with the Construction and Development Corporation of the Philippines ("CDCP" for brevity)
to reclaim certain foreshore and offshore areas of Manila Bay. The contract also included the
construction of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to carry out
all the works in consideration of fifty percent of the total reclaimed land.

On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084
creating PEA. PD No. 1084 tasked PEA "to reclaim land, including foreshore and submerged areas,"
and "to develop, improve, acquire, x x x lease and sell any and all kinds of lands."1 On the same
date, then President Marcos issued Presidential Decree No. 1085 transferring to PEA the "lands
reclaimed in the foreshore and offshore of the Manila Bay"2 under the Manila-Cavite Coastal Road
and Reclamation Project (MCCRRP).

On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its
contract with CDCP, so that "[A]ll future works in MCCRRP x x x shall be funded and owned by
PEA." Accordingly, PEA and CDCP executed a Memorandum of Agreement dated December 29,
1981, which stated:

"(i) CDCP shall undertake all reclamation, construction, and such other works in the
MCCRRP as may be agreed upon by the parties, to be paid according to progress of works
on a unit price/lump sum basis for items of work to be agreed upon, subject to price
escalation, retention and other terms and conditions provided for in Presidential Decree No.
1594. All the financing required for such works shall be provided by PEA.
 xxx

(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and
transfer in favor of PEA, all of the rights, title, interest and participation of CDCP in and to all
the areas of land reclaimed by CDCP in the MCCRRP as of December 30, 1981 which have
not yet been sold, transferred or otherwise disposed of by CDCP as of said date, which
areas consist of approximately Ninety-Nine Thousand Four Hundred Seventy Three (99,473)
square meters in the Financial Center Area covered by land pledge No. 5 and approximately
Three Million Three Hundred Eighty Two Thousand Eight Hundred Eighty Eight (3,382,888)
square meters of reclaimed areas at varying elevations above Mean Low Water Level
located outside the Financial Center Area and the First Neighborhood Unit."3

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting
and transferring to PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road and
Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand
eight hundred ninety four (1,915,894) square meters." Subsequently, on April 9, 1988, the Register
of Deeds of the Municipality of Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and
7312, in the name of PEA, covering the three reclaimed islands known as the "Freedom Islands"
located at the southern portion of the Manila-Cavite Coastal Road, Parañaque City. The Freedom
Islands have a total land area of One Million Five Hundred Seventy Eight Thousand Four Hundred
and Forty One (1,578,441) square meters or 157.841 hectares.

On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for brevity) with AMARI, a
private corporation, to develop the Freedom Islands. The JVA also required the reclamation of an
additional 250 hectares of submerged areas surrounding these islands to complete the configuration
in the Master Development Plan of the Southern Reclamation Project-MCCRRP. PEA and AMARI
entered into the JVA through negotiation without public bidding.4 On April 28, 1995, the Board of
Directors of PEA, in its Resolution No. 1245, confirmed the JVA.5 On June 8, 1995, then President
Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved the JVA.6

On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the
Senate and denounced the JVA as the "grandmother of all scams." As a result, the Senate
Committee on Government Corporations and Public Enterprises, and the Committee on
Accountability of Public Officers and Investigations, conducted a joint investigation. The Senate
Committees reported the results of their investigation in Senate Committee Report No. 560 dated
September 16, 1997.7 Among the conclusions of their report are: (1) the reclaimed lands PEA seeks
to transfer to AMARI under the JVA are lands of the public domain which the government has not
classified as alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of
title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No.
365 creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate
Committee Report No. 560. The members of the Legal Task Force were the Secretary of
Justice,8 the Chief Presidential Legal Counsel,9 and the Government Corporate Counsel.10 The Legal
Task Force upheld the legality of the JVA, contrary to the conclusions reached by the Senate
Committees.11

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were on-
going renegotiations between PEA and AMARI under an order issued by then President Fidel V.
Ramos. According to these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and
retired Navy Officer Sergio Cruz composed the negotiating panel of PEA.
On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with Application
for the Issuance of a Temporary Restraining Order and Preliminary Injunction docketed as G.R. No.
132994 seeking to nullify the JVA. The Court dismissed the petition "for unwarranted disregard of
judicial hierarchy, without prejudice to the refiling of the case before the proper court."12

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the
instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and
Temporary Restraining Order. Petitioner contends the government stands to lose billions of pesos in
the sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the
terms of any renegotiation of the JVA, invoking Section 28, Article II, and Section 7, Article III, of the
1987 Constitution on the right of the people to information on matters of public concern. Petitioner
assails the sale to AMARI of lands of the public domain as a blatant violation of Section 3, Article XII
of the 1987 Constitution prohibiting the sale of alienable lands of the public domain to private
corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos in
properties of the State that are of public dominion.

After several motions for extension of time,13 PEA and AMARI filed their Comments on October 19,
1998 and June 25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an
Omnibus Motion: (a) to require PEA to submit the terms of the renegotiated PEA-AMARI contract;
(b) for issuance of a temporary restraining order; and (c) to set the case for hearing on oral
argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated May 26, 1999, which the
Court denied in a Resolution dated June 22, 1999.

In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the
parties to file their respective memoranda.

On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement ("Amended
JVA," for brevity). On May 28, 1999, the Office of the President under the administration of then
President Joseph E. Estrada approved the Amended JVA.

Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on
"constitutional and statutory grounds the renegotiated contract be declared null and void."14

The Issues

The issues raised by petitioner, PEA15 and AMARI16 are as follows:

I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT
AND ACADEMIC BECAUSE OF SUBSEQUENT EVENTS;

II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE
PRINCIPLE GOVERNING THE HIERARCHY OF COURTS;

III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF

ADMINISTRATIVE REMEDIES;

IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;

V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL

INFORMATION ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT;
 VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT
FOR THE TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE
RECLAIMED, VIOLATE THE 1987 CONSTITUTION; AND

VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF
WHETHER THE AMENDED JOINT VENTURE AGREEMENT IS GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT.

The Court's Ruling

First issue: whether the principal reliefs prayed for in the petition are moot and academic
because of subsequent events.

The petition prays that PEA publicly disclose the "terms and conditions of the on-going negotiations
for a new agreement." The petition also prays that the Court enjoin PEA from "privately entering into,
perfecting and/or executing any new agreement with AMARI."

PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner
on June 21, 1999 a copy of the signed Amended JVA containing the terms and conditions agreed
upon in the renegotiations. Thus, PEA has satisfied petitioner's prayer for a public disclosure of the
renegotiations. Likewise, petitioner's prayer to enjoin the signing of the Amended JVA is now moot
because PEA and AMARI have already signed the Amended JVA on March 30, 1999. Moreover, the
Office of the President has approved the Amended JVA on May 28, 1999.

Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking
the signing and approval of the Amended JVA before the Court could act on the issue. Presidential
approval does not resolve the constitutional issue or remove it from the ambit of judicial review.

We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President
cannot operate to moot the petition and divest the Court of its jurisdiction. PEA and AMARI have still
to implement the Amended JVA. The prayer to enjoin the signing of the Amended JVA on
constitutional grounds necessarily includes preventing its implementation if in the meantime PEA
and AMARI have signed one in violation of the Constitution. Petitioner's principal basis in assailing
the renegotiation of the JVA is its violation of Section 3, Article XII of the Constitution, which prohibits
the government from alienating lands of the public domain to private corporations. If the Amended
JVA indeed violates the Constitution, it is the duty of the Court to enjoin its implementation, and if
already implemented, to annul the effects of such unconstitutional contract.

The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title and
ownership to 367.5 hectares of reclaimed lands and submerged areas of Manila Bay to a
single private corporation. It now becomes more compelling for the Court to resolve the issue to
insure the government itself does not violate a provision of the Constitution intended to safeguard
the national patrimony. Supervening events, whether intended or accidental, cannot prevent the
Court from rendering a decision if there is a grave violation of the Constitution. In the instant case, if
the Amended JVA runs counter to the Constitution, the Court can still prevent the transfer of title and
ownership of alienable lands of the public domain in the name of AMARI. Even in cases where
supervening events had made the cases moot, the Court did not hesitate to resolve the legal or
constitutional issues raised to formulate controlling principles to guide the bench, bar, and the
public.17

Also, the instant petition is a case of first impression. All previous decisions of the Court involving
Section 3, Article XII of the 1987 Constitution, or its counterpart provision in the 1973
Constitution,18 covered agricultural lands sold to private corporations which acquired the lands from
private parties. The transferors of the private corporations claimed or could claim the right to judicial
confirmation of their imperfect titles19 under Title II of Commonwealth Act. 141 ("CA No. 141" for
brevity). In the instant case, AMARI seeks to acquire from PEA, a public corporation, reclaimed
lands and submerged areas for non-agricultural purposes by purchase under PD No. 1084
(charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the Amended
JVA constitute the consideration for the purchase. Neither AMARI nor PEA can claim judicial
confirmation of their titles because the lands covered by the Amended JVA are newly reclaimed or
still to be reclaimed. Judicial confirmation of imperfect title requires open, continuous, exclusive and
notorious occupation of agricultural lands of the public domain for at least thirty years since June 12,
1945 or earlier. Besides, the deadline for filing applications for judicial confirmation of imperfect title
expired on December 31, 1987.20

Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because
of the possible transfer at any time by PEA to AMARI of title and ownership to portions of the
reclaimed lands. Under the Amended JVA, PEA is obligated to transfer to AMARI the latter's seventy
percent proportionate share in the reclaimed areas as the reclamation progresses. The Amended
JVA even allows AMARI to mortgage at any time the entire reclaimed area to raise financing for the
reclamation project.21

Second issue: whether the petition merits dismissal for failing to observe the principle
governing the hierarchy of courts.

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the
Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As
it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case,
however, raises constitutional issues of transcendental importance to the public.22 The Court can
resolve this case without determining any factual issue related to the case. Also, the instant case is a
petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article
VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.

Third issue: whether the petition merits dismissal for non-exhaustion of administrative
remedies.

PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain
information without first asking PEA the needed information. PEA claims petitioner's direct resort to
the Court violates the principle of exhaustion of administrative remedies. It also violates the rule that
mandamus may issue only if there is no other plain, speedy and adequate remedy in the ordinary
course of law.

PEA distinguishes the instant case from Tañada v. Tuvera23 where the Court granted the petition for
mandamus even if the petitioners there did not initially demand from the Office of the President the
publication of the presidential decrees. PEA points out that in Tañada, the Executive Department
had an affirmative statutory duty under Article 2 of the Civil Code24 and Section 1 of
Commonwealth Act No. 63825 to publish the presidential decrees. There was, therefore, no need for
the petitioners in Tañada to make an initial demand from the Office of the President. In the instant
case, PEA claims it has no affirmative statutory duty to disclose publicly information about its
renegotiation of the JVA. Thus, PEA asserts that the Court must apply the principle of exhaustion of
administrative remedies to the instant case in view of the failure of petitioner here to demand initially
from PEA the needed information.
The original JVA sought to dispose to AMARI public lands held by PEA, a government corporation.
Under Section 79 of the Government Auditing Code,26 the disposition of government lands to private
parties requires public bidding. PEA was under a positive legal duty to disclose to the public the
terms and conditions for the sale of its lands. The law obligated PEA to make this public
disclosure even without demand from petitioner or from anyone. PEA failed to make this public
disclosure because the original JVA, like the Amended JVA, was the result of a negotiated
contract, not of a public bidding. Considering that PEA had an affirmative statutory duty to make the
public disclosure, and was even in breach of this legal duty, petitioner had the right to seek direct
judicial intervention.

Moreover, and this alone is determinative of this issue, the principle of exhaustion of administrative
remedies does not apply when the issue involved is a purely legal or constitutional question.27 The
principal issue in the instant case is the capacity of AMARI to acquire lands held by PEA in view of
the constitutional ban prohibiting the alienation of lands of the public domain to private corporations.
We rule that the principle of exhaustion of administrative remedies does not apply in the instant
case.

Fourth issue: whether petitioner has locus standi to bring this suit

PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his
constitutional right to information without a showing that PEA refused to perform an affirmative duty
imposed on PEA by the Constitution. PEA also claims that petitioner has not shown that he will
suffer any concrete injury because of the signing or implementation of the Amended JVA. Thus,
there is no actual controversy requiring the exercise of the power of judicial review.

The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to
comply with its constitutional duties. There are two constitutional issues involved here. First is the
right of citizens to information on matters of public concern. Second is the application of a
constitutional provision intended to insure the equitable distribution of alienable lands of the public
domain among Filipino citizens. The thrust of the first issue is to compel PEA to disclose publicly
information on the sale of government lands worth billions of pesos, information which the
Constitution and statutory law mandate PEA to disclose. The thrust of the second issue is to prevent
PEA from alienating hundreds of hectares of alienable lands of the public domain in violation of the
Constitution, compelling PEA to comply with a constitutional duty to the nation.

Moreover, the petition raises matters of transcendental importance to the public. In Chavez v.
PCGG,28 the Court upheld the right of a citizen to bring a taxpayer's suit on matters of transcendental
importance to the public, thus -

"Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the
Marcoses is an issue of 'transcendental importance to the public.' He asserts that ordinary
taxpayers have a right to initiate and prosecute actions questioning the validity of acts or
orders of government agencies or instrumentalities, if the issues raised are of 'paramount
public interest,' and if they 'immediately affect the social, economic and moral well being of
the people.'

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest,
when the proceeding involves the assertion of a public right, such as in this case. He invokes
several decisions of this Court which have set aside the procedural matter of locus standi,
when the subject of the case involved public interest.

xxx
 In Tañada v. Tuvera, the Court asserted that when the issue concerns a public right and the
object of mandamus is to obtain the enforcement of a public duty, the people are regarded
as the real parties in interest; and because it is sufficient that petitioner is a citizen and as
such is interested in the execution of the laws, he need not show that he has any legal or
special interest in the result of the action. In the aforesaid case, the petitioners sought to
enforce their right to be informed on matters of public concern, a right then recognized in
Section 6, Article IV of the 1973 Constitution, in connection with the rule that laws in order to
be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they
sought to be enforced 'is a public right recognized by no less than the fundamental law of the
land.'

Legaspi v. Civil Service Commission, while reiterating Tañada, further declared that 'when a
mandamus proceeding involves the assertion of a public right, the requirement of personal
interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the
general 'public' which possesses the right.'

Further, in Albano v. Reyes, we said that while expenditure of public funds may not have
been involved under the questioned contract for the development, management and
operation of the Manila International Container Terminal, 'public interest [was] definitely
involved considering the important role [of the subject contract] . . . in the economic
development of the country and the magnitude of the financial consideration involved.' We
concluded that, as a consequence, the disclosure provision in the Constitution would
constitute sufficient authority for upholding the petitioner's standing.

Similarly, the instant petition is anchored on the right of the people to information and access
to official records, documents and papers — a right guaranteed under Section 7, Article III of
the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of
the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's
legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we
rule that the petition at bar should be allowed."

We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional
rights - to information and to the equitable diffusion of natural resources - matters of transcendental
public importance, the petitioner has the requisite locus standi.

Fifth issue: whether the constitutional right to information includes official information on on-
going negotiations before a final agreement.

Section 7, Article III of the Constitution explains the people's right to information on matters of public
concern in this manner:

"Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law." (Emphasis supplied)

The State policy of full transparency in all transactions involving public interest reinforces the
people's right to information on matters of public concern. This State policy is expressed in Section
28, Article II of the Constitution, thus:
 "Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest." (Emphasis supplied)

These twin provisions of the Constitution seek to promote transparency in policy-making and in the
operations of the government, as well as provide the people sufficient information to exercise
effectively other constitutional rights. These twin provisions are essential to the exercise of freedom
of expression. If the government does not disclose its official acts, transactions and decisions to
citizens, whatever citizens say, even if expressed without any restraint, will be speculative and
amount to nothing. These twin provisions are also essential to hold public officials "at all times x x x
accountable to the people,"29 for unless citizens have the proper information, they cannot hold public
officials accountable for anything. Armed with the right information, citizens can participate in public
discussions leading to the formulation of government policies and their effective implementation. An
informed citizenry is essential to the existence and proper functioning of any democracy. As
explained by the Court in Valmonte v. Belmonte, Jr.30 –

"An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end that the government may
perceive and be responsive to the people's will. Yet, this open dialogue can be effective only
to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit."

PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going negotiations the right to information
is limited to "definite propositions of the government." PEA maintains the right does not include
access to "intra-agency or inter-agency recommendations or communications during the stage when
common assertions are still in the process of being formulated or are in the 'exploratory stage'."

Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before
the closing of the transaction. To support its contention, AMARI cites the following discussion in the
1986 Constitutional Commission:

"Mr. Suarez. And when we say 'transactions' which should be distinguished from contracts,
agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract itself?

Mr. Ople: The 'transactions' used here, I suppose is generic and therefore, it can cover
both steps leading to a contract and already a consummated contract, Mr. Presiding
Officer.

Mr. Suarez: This contemplates inclusion of negotiations leading to the consummation

of the transaction.

Mr. Ople: Yes, subject only to reasonable safeguards on the national interest.

Mr. Suarez: Thank you."32 (Emphasis supplied)

AMARI argues there must first be a consummated contract before petitioner can invoke the right.
Requiring government officials to reveal their deliberations at the pre-decisional stage will degrade
the quality of decision-making in government agencies. Government officials will hesitate to express
their real sentiments during deliberations if there is immediate public dissemination of their
discussions, putting them under all kinds of pressure before they decide.

We must first distinguish between information the law on public bidding requires PEA to disclose
publicly, and information the constitutional right to information requires PEA to release to the public.
Before the consummation of the contract, PEA must, on its own and without demand from anyone,
disclose to the public matters relating to the disposition of its property. These include the size,
location, technical description and nature of the property being disposed of, the terms and conditions
of the disposition, the parties qualified to bid, the minimum price and similar information. PEA must
prepare all these data and disclose them to the public at the start of the disposition process, long
before the consummation of the contract, because the Government Auditing Code requires public
bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at
any time during the bidding process.

Information, however, on on-going evaluation or review of bids or proposals being undertaken by

the bidding or review committee is not immediately accessible under the right to information. While
the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the
bids or proposals. However, once the committee makes its official recommendation, there arises
a "definite proposition" on the part of the government. From this moment, the public's right to
information attaches, and any citizen can access all the non-proprietary information leading to such
definite proposition. In Chavez v. PCGG,33 the Court ruled as follows:

"Considering the intent of the framers of the Constitution, we believe that it is incumbent
upon the PCGG and its officers, as well as other government representatives, to disclose
sufficient public information on any proposed settlement they have decided to take up with
the ostensible owners and holders of ill-gotten wealth. Such information, though, must
pertain to definite propositions of the government, not necessarily to intra-agency or
inter-agency recommendations or communications during the stage when common
assertions are still in the process of being formulated or are in the "exploratory" stage. There
is need, of course, to observe the same restrictions on disclosure of information in general,
as discussed earlier – such as on matters involving national security, diplomatic or foreign
relations, intelligence and other classified information." (Emphasis supplied)

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission

understood that the right to information "contemplates inclusion of negotiations leading to the
consummation of the transaction."Certainly, a consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the people can never exercise the right if no contract
is consummated, and if one is consummated, it may be too late for the public to expose its defects. 1âw phi 1.nêt

Requiring a consummated contract will keep the public in the dark until the contract, which may be
grossly disadvantageous to the government or even illegal, becomes a fait accompli. This negates
the State policy of full transparency on matters of public concern, a situation which the framers of the
Constitution could not have intended. Such a requirement will prevent the citizenry from participating
in the public discussion of any proposed contract, effectively truncating a basic right enshrined in
the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the
State of its avowed "policy of full disclosure of all its transactions involving public interest."

The right covers three categories of information which are "matters of public concern," namely: (1)
official records; (2) documents and papers pertaining to official acts, transactions and decisions; and
(3) government research data used in formulating policies. The first category refers to any document
that is part of the public records in the custody of government agencies or officials. The second
category refers to documents and papers recording, evidencing, establishing, confirming, supporting,
justifying or explaining official acts, transactions or decisions of government agencies or officials.
The third category refers to research data, whether raw, collated or processed, owned by the
government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the JVA includes evaluation
reports, recommendations, legal and expert opinions, minutes of meetings, terms of reference and
other documents attached to such reports or minutes, all relating to the JVA. However, the right to
information does not compel PEA to prepare lists, abstracts, summaries and the like relating to the
renegotiation of the JVA.34 The right only affords access to records, documents and papers, which
means the opportunity to inspect and copy them. One who exercises the right must copy the
records, documents and papers at his expense. The exercise of the right is also subject to
reasonable regulations to protect the integrity of the public records and to minimize disruption to
government operations, like rules specifying when and how to conduct the inspection and copying.35

The right to information, however, does not extend to matters recognized as privileged information
under the separation of powers.36 The right does not also apply to information on military and
diplomatic secrets, information affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the accused, which courts have long
recognized as confidential.37 The right may also be subject to other limitations that Congress may
impose by law.

There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house
of Congress,38 are recognized as confidential. This kind of information cannot be pried open by a co-
equal branch of government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power.39 This is not
the situation in the instant case.

We rule, therefore, that the constitutional right to information includes official information on on-
going negotiationsbefore a final contract. The information, however, must constitute definite
propositions by the government and should not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting national security and public
order.40 Congress has also prescribed other limitations on the right to information in several
legislations.41

Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI of lands,
reclaimed or to be reclaimed, violate the Constitution.

The Regalian Doctrine

The ownership of lands reclaimed from foreshore and submerged areas is rooted in the Regalian
doctrine which holds that the State owns all lands and waters of the public domain. Upon the
Spanish conquest of the Philippines, ownership of all "lands, territories and possessions" in the
Philippines passed to the Spanish Crown.42 The King, as the sovereign ruler and representative of
the people, acquired and owned all lands and territories in the Philippines except those he disposed
of by grant or sale to private individuals.

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the
State, in lieu of the King, as the owner of all lands and waters of the public domain. The Regalian
doctrine is the foundation of the time-honored principle of land ownership that "all lands that were not
acquired from the Government, either by purchase or by grant, belong to the public domain."43 Article
339 of the Civil Code of 1889, which is now Article 420 of the Civil Code of 1950, incorporated the
Regalian doctrine.

Ownership and Disposition of Reclaimed Lands

The Spanish Law of Waters of 1866 was the first statutory law governing the ownership and
disposition of reclaimed lands in the Philippines. On May 18, 1907, the Philippine Commission
enacted Act No. 1654 which provided for the lease, but not the sale, of reclaimed lands of the
government to corporations and individuals. Later, on November 29, 1919, the Philippine
Legislature approved Act No. 2874, the Public Land Act, which authorized the lease, but not the
sale, of reclaimed lands of the government to corporations and individuals. On November 7,
1936, the National Assembly passed Commonwealth Act No. 141, also known as the Public Land
Act, which authorized the lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. CA No. 141 continues to this day as the general law governing the
classification and disposition of lands of the public domain.

The Spanish Law of Waters of 1866 and the Civil Code of 1889

Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters within the
maritime zone of the Spanish territory belonged to the public domain for public use.44 The Spanish
Law of Waters of 1866 allowed the reclamation of the sea under Article 5, which provided as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State,
or by the provinces, pueblos or private persons, with proper permission, shall become the
property of the party constructing such works, unless otherwise provided by the terms of the
grant of authority."

Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party undertaking
the reclamation, provided the government issued the necessary permit and did not reserve
ownership of the reclaimed land to the State.

Article 339 of the Civil Code of 1889 defined property of public dominion as follows:

"Art. 339. Property of public dominion is –

1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, riverbanks, shores, roadsteads, and that of a similar character;

2. That belonging exclusively to the State which, without being of general public use, is
employed in some public service, or in the development of the national wealth, such as walls,
fortresses, and other works for the defense of the territory, and mines, until granted to private
individuals."

Property devoted to public use referred to property open for use by the public. In contrast, property
devoted to public service referred to property used for some specific public service and open only to
those authorized to use the property.

Property of public dominion referred not only to property devoted to public use, but also to property
not so used but employed to develop the national wealth. This class of property constituted
property of public dominion although employed for some economic or commercial activity to increase
the national wealth.

Article 341 of the Civil Code of 1889 governed the re-classification of property of public dominion into
private property, to wit:

"Art. 341. Property of public dominion, when no longer devoted to public use or to the
defense of the territory, shall become a part of the private property of the State."

This provision, however, was not self-executing. The legislature, or the executive department
pursuant to law, must declare the property no longer needed for public use or territorial defense
before the government could lease or alienate the property to private parties.45

Act No. 1654 of the Philippine Commission

On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the lease of
reclaimed and foreshore lands. The salient provisions of this law were as follows:

"Section 1. The control and disposition of the foreshore as defined in existing law, and
the title to all Government or public lands made or reclaimed by the Government by
dredging or filling or otherwise throughout the Philippine Islands, shall be retained by the
Government without prejudice to vested rights and without prejudice to rights conceded to
the City of Manila in the Luneta Extension.

Section 2. (a) The Secretary of the Interior shall cause all Government or public lands made
or reclaimed by the Government by dredging or filling or otherwise to be divided into lots or
blocks, with the necessary streets and alleyways located thereon, and shall cause plats and
plans of such surveys to be prepared and filed with the Bureau of Lands.

(b) Upon completion of such plats and plans the Governor-General shall give notice to the
public that such parts of the lands so made or reclaimed as are not needed for public
purposes will be leased for commercial and business purposes, x x x.

xxx

(e) The leases above provided for shall be disposed of to the highest and best
bidder therefore, subject to such regulations and safeguards as the Governor-General may
by executive order prescribe." (Emphasis supplied)

Act No. 1654 mandated that the government should retain title to all lands reclaimed by the
government. The Act also vested in the government control and disposition of foreshore lands.
Private parties could lease lands reclaimed by the government only if these lands were no longer
needed for public purpose. Act No. 1654 mandated public bidding in the lease of government
reclaimed lands. Act No. 1654 made government reclaimed lands sui generis in that unlike other
public lands which the government could sell to private parties, these reclaimed lands were available
only for lease to private parties.

Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866. Act No. 1654
did not prohibit private parties from reclaiming parts of the sea under Section 5 of the Spanish Law
of Waters. Lands reclaimed from the sea by private parties with government permission remained
private lands.
Act No. 2874 of the Philippine Legislature

On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land Act.46 The
salient provisions of Act No. 2874, on reclaimed lands, were as follows:

"Sec. 6. The Governor-General, upon the recommendation of the Secretary of

Agriculture and Natural Resources, shall from time to time classify the lands of the
public domain into –

(a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands, x x x.

Sec. 7. For the purposes of the government and disposition of alienable or disposable public
lands, the Governor-General, upon recommendation by the Secretary of Agriculture
and Natural Resources, shall from time to time declare what lands are open to
disposition or concession under this Act."

Sec. 8. Only those lands shall be declared open to disposition or concession which
have been officially delimited or classified x x x.

xxx

Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land,
shall be classified as suitable for residential purposes or for commercial, industrial, or
other productive purposes other than agricultural purposes, and shall be open to
disposition or concession, shall be disposed of under the provisions of this chapter, and not
otherwise.

Sec. 56. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

x x x.

Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be
disposed of to private parties by lease only and not otherwise, as soon as the
Governor-General, upon recommendation by the Secretary of Agriculture and Natural
Resources, shall declare that the same are not necessary for the public service and
are open to disposition under this chapter. The lands included in class (d) may be
disposed of by sale or lease under the provisions of this Act." (Emphasis supplied)
Section 6 of Act No. 2874 authorized the Governor-General to "classify lands of the public domain
into x x x alienable or disposable"47 lands. Section 7 of the Act empowered the Governor-General to
"declare what lands are open to disposition or concession." Section 8 of the Act limited alienable or
disposable lands only to those lands which have been "officially delimited and classified."

Section 56 of Act No. 2874 stated that lands "disposable under this title48 shall be classified" as
government reclaimed, foreshore and marshy lands, as well as other lands. All these lands,
however, must be suitable for residential, commercial, industrial or other productive non-
agricultural purposes. These provisions vested upon the Governor-General the power to classify
inalienable lands of the public domain into disposable lands of the public domain. These provisions
also empowered the Governor-General to classify further such disposable lands of the public domain
into government reclaimed, foreshore or marshy lands of the public domain, as well as other non-
agricultural lands.

Section 58 of Act No. 2874 categorically mandated that disposable lands of the public domain
classified as government reclaimed, foreshore and marshy lands "shall be disposed of to private
parties by lease only and not otherwise." The Governor-General, before allowing the lease of
these lands to private parties, must formally declare that the lands were "not necessary for the public
service." Act No. 2874 reiterated the State policy to lease and not to sell government reclaimed,
foreshore and marshy lands of the public domain, a policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands remained sui generis, as the only alienable or
disposable lands of the public domain that the government could not sell to private parties.

The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy
public lands for non-agricultural purposes retain their inherent potential as areas for public service.
This is the reason the government prohibited the sale, and only allowed the lease, of these lands to
private parties. The State always reserved these lands for some future public service.

Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore and marshy
lands into other non-agricultural lands under Section 56 (d). Lands falling under Section 56 (d) were
the only lands for non-agricultural purposes the government could sell to private parties. Thus, under
Act No. 2874, the government could not sell government reclaimed, foreshore and marshy lands to
private parties, unless the legislature passed a law allowing their sale.49

Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to Section 5 of
the Spanish Law of Waters of 1866. Lands reclaimed from the sea by private parties with
government permission remained private lands.

Dispositions under the 1935 Constitution

On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino people. The
1935 Constitution, in adopting the Regalian doctrine, declared in Section 1, Article XIII, that –

"Section 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy and other natural
resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for
the exploitation, development, or utilization of any of the natural resources shall be granted
 for a period exceeding twenty-five years, renewable for another twenty-five years, except as
to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and limit of
the grant." (Emphasis supplied)

The 1935 Constitution barred the alienation of all natural resources except public agricultural lands,
which were the only natural resources the State could alienate. Thus, foreshore lands, considered
part of the State's natural resources, became inalienable by constitutional fiat, available only for
lease for 25 years, renewable for another 25 years. The government could alienate foreshore lands
only after these lands were reclaimed and classified as alienable agricultural lands of the public
domain. Government reclaimed and marshy lands of the public domain, being neither timber nor
mineral lands, fell under the classification of public agricultural lands.50 However, government
reclaimed and marshy lands, although subject to classification as disposable public agricultural
lands, could only be leased and not sold to private parties because of Act No. 2874.

The prohibition on private parties from acquiring ownership of government reclaimed and marshy
lands of the public domain was only a statutory prohibition and the legislature could therefore
remove such prohibition. The 1935 Constitution did not prohibit individuals and corporations from
acquiring government reclaimed and marshy lands of the public domain that were classified as
agricultural lands under existing public land laws. Section 2, Article XIII of the 1935 Constitution
provided as follows:

"Section 2. No private corporation or association may acquire, lease, or hold public

agricultural lands in excess of one thousand and twenty four hectares, nor may any
individual acquire such lands by purchase in excess of one hundred and forty
hectares, or by lease in excess of one thousand and twenty-four hectares, or by
homestead in excess of twenty-four hectares. Lands adapted to grazing, not exceeding two
thousand hectares, may be leased to an individual, private corporation, or association."
(Emphasis supplied)

Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section 58 of Act No.
2874 to open for sale to private parties government reclaimed and marshy lands of the public
domain. On the contrary, the legislature continued the long established State policy of retaining for
the government title and ownership of government reclaimed and marshy lands of the public domain.

Commonwealth Act No. 141 of the Philippine National Assembly

On November 7, 1936, the National Assembly approved Commonwealth Act No. 141, also known as
the Public Land Act, which compiled the then existing laws on lands of the public domain. CA No.
141, as amended, remains to this day the existing general law governing the classification and
disposition of lands of the public domain other than timber and mineral lands.51

Section 6 of CA No. 141 empowers the President to classify lands of the public domain into
"alienable or disposable"52 lands of the public domain, which prior to such classification are
inalienable and outside the commerce of man. Section 7 of CA No. 141 authorizes the President to
"declare what lands are open to disposition or concession." Section 8 of CA No. 141 states that the
government can declare open for disposition or concession only lands that are "officially delimited
and classified." Sections 6, 7 and 8 of CA No. 141 read as follows:

"Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and
Commerce, shall from time to time classify the lands of the public domain into –
 (a) Alienable or disposable,

(b) Timber, and

(c) Mineral lands,

and may at any time and in like manner transfer such lands from one class to another,53 for
the purpose of their administration and disposition.

Sec. 7. For the purposes of the administration and disposition of alienable or disposable
public lands, the President, upon recommendation by the Secretary of Agriculture and
Commerce, shall from time to time declare what lands are open to disposition or
concession under this Act.

Sec. 8. Only those lands shall be declared open to disposition or concession which
have been officially delimited and classified and, when practicable, surveyed, and which
have not been reserved for public or quasi-public uses, nor appropriated by the
Government, nor in any manner become private property, nor those on which a private right
authorized and recognized by this Act or any other valid law may be claimed, or which,
having been reserved or appropriated, have ceased to be so. x x x."

Thus, before the government could alienate or dispose of lands of the public domain, the President
must first officially classify these lands as alienable or disposable, and then declare them open to
disposition or concession. There must be no law reserving these lands for public or quasi-public
uses.

The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy lands of the
public domain, are as follows:

"Sec. 58. Any tract of land of the public domain which, being neither timber nor
mineral land, is intended to be used for residential purposes or for commercial,
industrial, or other productive purposes other than agricultural, and is open to
disposition or concession, shall be disposed of under the provisions of this chapter
and not otherwise.

Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the Government by dredging, filling, or other means;

(b) Foreshore;

(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;

(d) Lands not included in any of the foregoing classes.

Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case may
be, to any person, corporation, or association authorized to purchase or lease public lands
for agricultural purposes. x x x.
 Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be
disposed of to private parties by lease only and not otherwise, as soon as the
President, upon recommendation by the Secretary of Agriculture, shall declare that the
same are not necessary for the public service and are open to disposition under this
chapter. The lands included in class (d) may be disposed of by sale or lease under the
provisions of this Act." (Emphasis supplied)

Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution, Section 58 of Act
No. 2874 prohibiting the sale of government reclaimed, foreshore and marshy disposable lands of
the public domain. All these lands are intended for residential, commercial, industrial or other non-
agricultural purposes. As before, Section 61 allowed only the lease of such lands to private parties.
The government could sell to private parties only lands falling under Section 59 (d) of CA No. 141, or
those lands for non-agricultural purposes not classified as government reclaimed, foreshore and
marshy disposable lands of the public domain. Foreshore lands, however, became inalienable under
the 1935 Constitution which only allowed the lease of these lands to qualified private parties.

Section 58 of CA No. 141 expressly states that disposable lands of the public domain intended for
residential, commercial, industrial or other productive purposes other than agricultural "shall be
disposed of under the provisions of this chapter and not otherwise." Under Section 10 of CA
No. 141, the term "disposition" includes lease of the land. Any disposition of government reclaimed,
foreshore and marshy disposable lands for non-agricultural purposes must comply with Chapter IX,
Title III of CA No. 141,54 unless a subsequent law amended or repealed these provisions.

In his concurring opinion in the landmark case of Republic Real Estate Corporation v. Court of
Appeals,55Justice Reynato S. Puno summarized succinctly the law on this matter, as follows:

"Foreshore lands are lands of public dominion intended for public use. So too are lands
reclaimed by the government by dredging, filling, or other means. Act 1654 mandated that
the control and disposition of the foreshore and lands under water remained in the national
government. Said law allowed only the 'leasing' of reclaimed land. The Public Land Acts of
1919 and 1936 also declared that the foreshore and lands reclaimed by the government
were to be "disposed of to private parties by lease only and not otherwise." Before leasing,
however, the Governor-General, upon recommendation of the Secretary of Agriculture and
Natural Resources, had first to determine that the land reclaimed was not necessary for the
public service. This requisite must have been met before the land could be disposed of. But
even then, the foreshore and lands under water were not to be alienated and sold to
private parties. The disposition of the reclaimed land was only by lease. The land
remained property of the State." (Emphasis supplied)

As observed by Justice Puno in his concurring opinion, "Commonwealth Act No. 141 has remained
in effect at present."

The State policy prohibiting the sale to private parties of government reclaimed, foreshore and
marshy alienable lands of the public domain, first implemented in 1907 was thus reaffirmed in CA
No. 141 after the 1935 Constitution took effect. The prohibition on the sale of foreshore lands,
however, became a constitutional edict under the 1935 Constitution. Foreshore lands became
inalienable as natural resources of the State, unless reclaimed by the government and classified as
agricultural lands of the public domain, in which case they would fall under the classification of
government reclaimed lands.

After the effectivity of the 1935 Constitution, government reclaimed and marshy disposable lands of
the public domain continued to be only leased and not sold to private parties.56 These lands
remained sui generis, as the only alienable or disposable lands of the public domain the
government could not sell to private parties.

Since then and until now, the only way the government can sell to private parties government
reclaimed and marshy disposable lands of the public domain is for the legislature to pass a law
authorizing such sale. CA No. 141 does not authorize the President to reclassify government
reclaimed and marshy lands into other non-agricultural lands under Section 59 (d). Lands classified
under Section 59 (d) are the only alienable or disposable lands for non-agricultural purposes that the
government could sell to private parties.

Moreover, Section 60 of CA No. 141 expressly requires congressional authority before lands under
Section 59 that the government previously transferred to government units or entities could be sold
to private parties. Section 60 of CA No. 141 declares that –

"Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the
Secretary of Agriculture and Natural Resources, be reasonably necessary for the purposes
for which such sale or lease is requested, and shall not exceed one hundred and forty-four
hectares: Provided, however, That this limitation shall not apply to grants, donations, or
transfers made to a province, municipality or branch or subdivision of the Government for the
purposes deemed by said entities conducive to the public interest; but the land so granted,
donated, or transferred to a province, municipality or branch or subdivision of the
Government shall not be alienated, encumbered, or otherwise disposed of in a manner
affecting its title, except when authorized by Congress: x x x." (Emphasis supplied)

The congressional authority required in Section 60 of CA No. 141 mirrors the legislative authority
required in Section 56 of Act No. 2874.

One reason for the congressional authority is that Section 60 of CA No. 141 exempted government
units and entities from the maximum area of public lands that could be acquired from the State.
These government units and entities should not just turn around and sell these lands to private
parties in violation of constitutional or statutory limitations. Otherwise, the transfer of lands for non-
agricultural purposes to government units and entities could be used to circumvent constitutional
limitations on ownership of alienable or disposable lands of the public domain. In the same manner,
such transfers could also be used to evade the statutory prohibition in CA No. 141 on the sale of
government reclaimed and marshy lands of the public domain to private parties. Section 60 of CA
No. 141 constitutes by operation of law a lien on these lands.57

In case of sale or lease of disposable lands of the public domain falling under Section 59 of CA No.
141, Sections 63 and 67 require a public bidding. Sections 63 and 67 of CA No. 141 provide as
follows:

"Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for public
purposes, the Director of Lands shall ask the Secretary of Agriculture and Commerce (now
the Secretary of Natural Resources) for authority to dispose of the same. Upon receipt of
such authority, the Director of Lands shall give notice by public advertisement in the same
manner as in the case of leases or sales of agricultural public land, x x x.

Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be
made to the highest bidder. x x x." (Emphasis supplied)

Thus, CA No. 141 mandates the Government to put to public auction all leases or sales of alienable
or disposable lands of the public domain.58
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the Spanish
Law of Waters of 1866. Private parties could still reclaim portions of the sea with government
permission. However, the reclaimed land could become private land only if classified as
alienable agricultural land of the public domain open to disposition under CA No. 141. The 1935
Constitution prohibited the alienation of all natural resources except public agricultural lands.

The Civil Code of 1950

The Civil Code of 1950 readopted substantially the definition of property of public dominion found in
the Civil Code of 1889. Articles 420 and 422 of the Civil Code of 1950 state that –

"Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some
public service or for the development of the national wealth.

x x x.

Art. 422. Property of public dominion, when no longer intended for public use or for public
service, shall form part of the patrimonial property of the State."

Again, the government must formally declare that the property of public dominion is no longer
needed for public use or public service, before the same could be classified as patrimonial property
of the State.59 In the case of government reclaimed and marshy lands of the public domain, the
declaration of their being disposable, as well as the manner of their disposition, is governed by the
applicable provisions of CA No. 141.

Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those
properties of the State which, without being for public use, are intended for public service or the
"development of the national wealth." Thus, government reclaimed and marshy lands of the State,
even if not employed for public use or public service, if developed to enhance the national wealth,
are classified as property of public dominion.

Dispositions under the 1973 Constitution

The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the Regalian
doctrine. Section 8, Article XIV of the 1973 Constitution stated that –

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public domain, natural
resources shall not be alienated, and no license, concession, or lease for the exploration,
development, exploitation, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not more than twenty-five years, except as
to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases, beneficial use may be the measure and the
limit of the grant." (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural resources with the exception of
"agricultural, industrial or commercial, residential, and resettlement lands of the public domain." In
contrast, the 1935 Constitution barred the alienation of all natural resources except "public
agricultural lands." However, the term "public agricultural lands" in the 1935 Constitution
encompassed industrial, commercial, residential and resettlement lands of the public domain.60 If the
land of public domain were neither timber nor mineral land, it would fall under the classification of
agricultural land of the public domain. Both the 1935 and 1973 Constitutions, therefore,
prohibited the alienation of all natural resources except agricultural lands of the public
domain.

The 1973 Constitution, however, limited the alienation of lands of the public domain to individuals
who were citizens of the Philippines. Private corporations, even if wholly owned by Philippine
citizens, were no longer allowed to acquire alienable lands of the public domain unlike in the 1935
Constitution. Section 11, Article XIV of the 1973 Constitution declared that –

"Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and
development requirements of the natural resources, shall determine by law the size of land
of the public domain which may be developed, held or acquired by, or leased to, any
qualified individual, corporation, or association, and the conditions therefor. No private
corporation or association may hold alienable lands of the public domain except by
lease not to exceed one thousand hectares in area nor may any citizen hold such lands by
lease in excess of five hundred hectares or acquire by purchase, homestead or grant, in
excess of twenty-four hectares. No private corporation or association may hold by lease,
concession, license or permit, timber or forest lands and other timber or forest resources in
excess of one hundred thousand hectares. However, such area may be increased by the
Batasang Pambansa upon recommendation of the National Economic and Development
Authority." (Emphasis supplied)

Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public
domain only through lease. Only individuals could now acquire alienable lands of the public domain,
and private corporations became absolutely barred from acquiring any kind of alienable land
of the public domain. The constitutional ban extended to all kinds of alienable lands of the public
domain, while the statutory ban under CA No. 141 applied only to government reclaimed, foreshore
and marshy alienable lands of the public domain.

PD No. 1084 Creating the Public Estates Authority

On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1084
creating PEA, a wholly government owned and controlled corporation with a special charter.
Sections 4 and 8 of PD No. 1084, vests PEA with the following purposes and powers:

"Sec. 4. Purpose. The Authority is hereby created for the following purposes:

(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or
other means, or to acquire reclaimed land;

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any
and all kinds of lands, buildings, estates and other forms of real property, owned,
managed, controlled and/or operated by the government;

(c) To provide for, operate or administer such service as may be necessary for the efficient,
economical and beneficial utilization of the above properties.
 Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the
purposes for which it is created, have the following powers and functions:

(a)To prescribe its by-laws.

xxx

(i) To hold lands of the public domain in excess of the area permitted to private
corporations by statute.

(j) To reclaim lands and to construct work across, or otherwise, any stream, watercourse,
canal, ditch, flume x x x.

xxx

(o) To perform such acts and exercise such functions as may be necessary for the
attainment of the purposes and objectives herein specified." (Emphasis supplied)

PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public domain.
Foreshore areas are those covered and uncovered by the ebb and flow of the tide.61 Submerged
areas are those permanently under water regardless of the ebb and flow of the tide.62 Foreshore and
submerged areas indisputably belong to the public domain63 and are inalienable unless reclaimed,
classified as alienable lands open to disposition, and further declared no longer needed for public
service.

The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the public
domain did not apply to PEA since it was then, and until today, a fully owned government
corporation. The constitutional ban applied then, as it still applies now, only to "private corporations
and associations." PD No. 1084 expressly empowers PEA "to hold lands of the public domain"
even "in excess of the area permitted to private corporations by statute." Thus, PEA can hold title
to private lands, as well as title to lands of the public domain.

In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain,
there must be legislative authority empowering PEA to sell these lands. This legislative authority is
necessary in view of Section 60 of CA No.141, which states –

"Sec. 60. x x x; but the land so granted, donated or transferred to a province, municipality, or
branch or subdivision of the Government shall not be alienated, encumbered or otherwise
disposed of in a manner affecting its title, except when authorized by Congress; x x x."
(Emphasis supplied)

Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and
submerged alienable lands of the public domain. Nevertheless, any legislative authority granted to
PEA to sell its reclaimed alienable lands of the public domain would be subject to the constitutional
ban on private corporations from acquiring alienable lands of the public domain. Hence, such
legislative authority could only benefit private individuals.

Dispositions under the 1987 Constitution

The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the Regalian
doctrine. The 1987 Constitution declares that all natural resources are "owned by the State," and
except for alienable agricultural lands of the public domain, natural resources cannot be alienated.
Sections 2 and 3, Article XII of the 1987 Constitution state that –

"Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. x x x.

Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral
lands, and national parks. Agricultural lands of the public domain may be further classified by
law according to the uses which they may be devoted. Alienable lands of the public
domain shall be limited to agricultural lands. Private corporations or associations may
not hold such alienable lands of the public domain except by lease, for a period not
exceeding twenty-five years, renewable for not more than twenty-five years, and not to
exceed one thousand hectares in area. Citizens of the Philippines may lease not more
than five hundred hectares, or acquire not more than twelve hectares thereof by purchase,
homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, and
subject to the requirements of agrarian reform, the Congress shall determine, by law, the
size of lands of the public domain which may be acquired, developed, held, or leased and
the conditions therefor." (Emphasis supplied)

The 1987 Constitution continues the State policy in the 1973 Constitution banning private
corporations from acquiring any kind of alienable land of the public domain. Like the 1973
Constitution, the 1987 Constitution allows private corporations to hold alienable lands of the public
domain only through lease. As in the 1935 and 1973 Constitutions, the general law governing the
lease to private corporations of reclaimed, foreshore and marshy alienable lands of the public
domain is still CA No. 141.

The Rationale behind the Constitutional Ban

The rationale behind the constitutional ban on corporations from acquiring, except through lease,
alienable lands of the public domain is not well understood. During the deliberations of the 1986
Constitutional Commission, the commissioners probed the rationale behind this ban, thus:

"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which
says:

`No private corporation or association may hold alienable lands of the public domain except
by lease, not to exceed one thousand hectares in area.'

If we recall, this provision did not exist under the 1935 Constitution, but this was introduced
in the 1973 Constitution. In effect, it prohibits private corporations from acquiring alienable
public lands. But it has not been very clear in jurisprudence what the reason for this is.
In some of the cases decided in 1982 and 1983, it was indicated that the purpose of this
is to prevent large landholdings. Is that the intent of this provision?

MR. VILLEGAS: I think that is the spirit of the provision.

 FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances
where the Iglesia ni Cristo was not allowed to acquire a mere 313-square meter land where a
chapel stood because the Supreme Court said it would be in violation of this." (Emphasis
supplied)

In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional ban in this way:

"Indeed, one purpose of the constitutional prohibition against purchases of public agricultural
lands by private corporations is to equitably diffuse land ownership or to encourage 'owner-
cultivatorship and the economic family-size farm' and to prevent a recurrence of cases like
the instant case. Huge landholdings by corporations or private persons had spawned social
unrest."

However, if the constitutional intent is to prevent huge landholdings, the Constitution could have
simply limited the size of alienable lands of the public domain that corporations could acquire. The
Constitution could have followed the limitations on individuals, who could acquire not more than 24
hectares of alienable lands of the public domain under the 1973 Constitution, and not more than 12
hectares under the 1987 Constitution.

If the constitutional intent is to encourage economic family-size farms, placing the land in the name
of a corporation would be more effective in preventing the break-up of farmlands. If the farmland is
registered in the name of a corporation, upon the death of the owner, his heirs would inherit shares
in the corporation instead of subdivided parcels of the farmland. This would prevent the continuing
break-up of farmlands into smaller and smaller plots from one generation to the next.

In actual practice, the constitutional ban strengthens the constitutional limitation on individuals from
acquiring more than the allowed area of alienable lands of the public domain. Without the
constitutional ban, individuals who already acquired the maximum area of alienable lands of the
public domain could easily set up corporations to acquire more alienable public lands. An individual
could own as many corporations as his means would allow him. An individual could even hide his
ownership of a corporation by putting his nominees as stockholders of the corporation. The
corporation is a convenient vehicle to circumvent the constitutional limitation on acquisition by
individuals of alienable lands of the public domain.

The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer ownership of only a
limited area of alienable land of the public domain to a qualified individual. This constitutional intent
is safeguarded by the provision prohibiting corporations from acquiring alienable lands of the public
domain, since the vehicle to circumvent the constitutional intent is removed. The available alienable
public lands are gradually decreasing in the face of an ever-growing population. The most effective
way to insure faithful adherence to this constitutional intent is to grant or sell alienable lands of the
public domain only to individuals. This, it would seem, is the practical benefit arising from the
constitutional ban.

The Amended Joint Venture Agreement

The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three
properties, namely:

1. "[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo
Boulevard in Paranaque and Las Pinas, Metro Manila, with a combined titled area of
1,578,441 square meters;"
 2. "[A]nother area of 2,421,559 square meters contiguous to the three islands;" and

3. "[A]t AMARI's option as approved by PEA, an additional 350 hectares more or less to
regularize the configuration of the reclaimed area."65

PEA confirms that the Amended JVA involves "the development of the Freedom Islands and further
reclamation of about 250 hectares x x x," plus an option "granted to AMARI to subsequently reclaim
another 350 hectares x x x."66

In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of the
750-hectare reclamation project have been reclaimed, and the rest of the 592.15 hectares are
still submerged areas forming part of Manila Bay.

Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's
"actual cost" in partially reclaiming the Freedom Islands. AMARI will also complete, at its own
expense, the reclamation of the Freedom Islands. AMARI will further shoulder all the reclamation
costs of all the other areas, totaling 592.15 hectares, still to be reclaimed. AMARI and PEA will
share, in the proportion of 70 percent and 30 percent, respectively, the total net usable area which is
defined in the Amended JVA as the total reclaimed area less 30 percent earmarked for common
areas. Title to AMARI's share in the net usable area, totaling 367.5 hectares, will be issued in the
name of AMARI. Section 5.2 (c) of the Amended JVA provides that –

"x x x, PEA shall have the duty to execute without delay the necessary deed of transfer or
conveyance of the title pertaining to AMARI's Land share based on the Land Allocation
Plan. PEA, when requested in writing by AMARI, shall then cause the issuance and
delivery of the proper certificates of title covering AMARI's Land Share in the name of
AMARI, x x x; provided, that if more than seventy percent (70%) of the titled area at any
given time pertains to AMARI, PEA shall deliver to AMARI only seventy percent (70%) of the
titles pertaining to AMARI, until such time when a corresponding proportionate area of
additional land pertaining to PEA has been titled." (Emphasis supplied)

Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5
hectares of reclaimed land which will be titled in its name.

To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture
PEA's statutory authority, rights and privileges to reclaim foreshore and submerged areas in Manila
Bay. Section 3.2.a of the Amended JVA states that –

"PEA hereby contributes to the joint venture its rights and privileges to perform Rawland
Reclamation and Horizontal Development as well as own the Reclamation Area, thereby
granting the Joint Venture the full and exclusive right, authority and privilege to undertake the
Project in accordance with the Master Development Plan."

The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its
supplemental agreement dated August 9, 1995.

The Threshold Issue

The threshold issue is whether AMARI, a private corporation, can acquire and own under the
Amended JVA 367.5 hectares of reclaimed foreshore and submerged areas in Manila Bay in view of
Sections 2 and 3, Article XII of the 1987 Constitution which state that:
 "Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. x x x.

xxx

Section 3. x x x Alienable lands of the public domain shall be limited to agricultural

lands. Private corporations or associations may not hold such alienable lands of the
public domain except by lease, x x x."(Emphasis supplied)

Classification of Reclaimed Foreshore and Submerged Areas

PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila Bay are
alienable or disposable lands of the public domain. In its Memorandum,67 PEA admits that –

"Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as
alienable and disposable lands of the public domain:

'Sec. 59. The lands disposable under this title shall be classified as follows:

(a) Lands reclaimed by the government by dredging, filling, or other means;

x x x.'" (Emphasis supplied)

Likewise, the Legal Task Force68 constituted under Presidential Administrative Order No. 365
admitted in its Report and Recommendation to then President Fidel V. Ramos, "[R]eclaimed lands
are classified as alienable and disposable lands of the public domain."69 The Legal Task Force
concluded that –

"D. Conclusion

Reclaimed lands are lands of the public domain. However, by statutory authority, the rights of
ownership and disposition over reclaimed lands have been transferred to PEA, by virtue of
which PEA, as owner, may validly convey the same to any qualified person without violating
the Constitution or any statute.

The constitutional provision prohibiting private corporations from holding public land, except
by lease (Sec. 3, Art. XVII,70 1987 Constitution), does not apply to reclaimed lands whose
ownership has passed on to PEA by statutory grant."

Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of Manila
Bay are part of the "lands of the public domain, waters x x x and other natural resources" and
consequently "owned by the State." As such, foreshore and submerged areas "shall not be
alienated," unless they are classified as "agricultural lands" of the public domain. The mere
reclamation of these areas by PEA does not convert these inalienable natural resources of the State
into alienable or disposable lands of the public domain. There must be a law or presidential
proclamation officially classifying these reclaimed lands as alienable or disposable and open to
disposition or concession. Moreover, these reclaimed lands cannot be classified as alienable or
disposable if the law has reserved them for some public or quasi-public use.71
Section 8 of CA No. 141 provides that "only those lands shall be declared open to disposition or
concession which have been officially delimited and classified."72 The President has the authority
to classify inalienable lands of the public domain into alienable or disposable lands of the public
domain, pursuant to Section 6 of CA No. 141. In Laurel vs. Garcia,73 the Executive Department
attempted to sell the Roppongi property in Tokyo, Japan, which was acquired by the Philippine
Government for use as the Chancery of the Philippine Embassy. Although the Chancery had
transferred to another location thirteen years earlier, the Court still ruled that, under Article 42274 of
the Civil Code, a property of public dominion retains such character until formally declared
otherwise. The Court ruled that –

"The fact that the Roppongi site has not been used for a long time for actual Embassy
service does not automatically convert it to patrimonial property. Any such conversion
happens only if the property is withdrawn from public use (Cebu Oxygen and Acetylene Co.
v. Bercilles, 66 SCRA 481 [1975]. A property continues to be part of the public domain,
not available for private appropriation or ownership 'until there is a formal declaration
on the part of the government to withdraw it from being such' (Ignacio v. Director of
Lands, 108 Phil. 335 [1960]." (Emphasis supplied)

PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for lands
reclaimed by PEA from the foreshore or submerged areas of Manila Bay. On January 19, 1988 then
President Corazon C. Aquino issued Special Patent No. 3517 in the name of PEA for the 157.84
hectares comprising the partially reclaimed Freedom Islands. Subsequently, on April 9, 1999 the
Register of Deeds of the Municipality of Paranaque issued TCT Nos. 7309, 7311 and 7312 in the
name of PEA pursuant to Section 103 of PD No. 1529 authorizing the issuance of certificates of title
corresponding to land patents. To this day, these certificates of title are still in the name of PEA.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the
Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as
alienable or disposable lands of the public domain. PD No. 1085 and President Aquino's issuance of
a land patent also constitute a declaration that the Freedom Islands are no longer needed for public
service. The Freedom Islands are thus alienable or disposable lands of the public domain,
open to disposition or concession to qualified parties.

At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the
Freedom Islands although subsequently there were partial erosions on some areas. The government
had also completed the necessary surveys on these islands. Thus, the Freedom Islands were no
longer part of Manila Bay but part of the land mass. Section 3, Article XII of the 1987 Constitution
classifies lands of the public domain into "agricultural, forest or timber, mineral lands, and national
parks." Being neither timber, mineral, nor national park lands, the reclaimed Freedom Islands
necessarily fall under the classification of agricultural lands of the public domain. Under the 1987
Constitution, agricultural lands of the public domain are the only natural resources that the State may
alienate to qualified private parties. All other natural resources, such as the seas or bays, are
"waters x x x owned by the State" forming part of the public domain, and are inalienable pursuant to
Section 2, Article XII of the 1987 Constitution.

AMARI claims that the Freedom Islands are private lands because CDCP, then a private
corporation, reclaimed the islands under a contract dated November 20, 1973 with the
Commissioner of Public Highways. AMARI, citing Article 5 of the Spanish Law of Waters of 1866,
argues that "if the ownership of reclaimed lands may be given to the party constructing the works,
then it cannot be said that reclaimed lands are lands of the public domain which the State may not
alienate."75 Article 5 of the Spanish Law of Waters reads as follows:
 "Article 5. Lands reclaimed from the sea in consequence of works constructed by the State,
or by the provinces, pueblos or private persons, with proper permission, shall become the
property of the party constructing such works, unless otherwise provided by the terms of
the grant of authority." (Emphasis supplied)

Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea only
with "proper permission" from the State. Private parties could own the reclaimed land only if not
"otherwise provided by the terms of the grant of authority." This clearly meant that no one could
reclaim from the sea without permission from the State because the sea is property of public
dominion. It also meant that the State could grant or withhold ownership of the reclaimed land
because any reclaimed land, like the sea from which it emerged, belonged to the State. Thus, a
private person reclaiming from the sea without permission from the State could not acquire
ownership of the reclaimed land which would remain property of public dominion like the sea it
replaced.76 Article 5 of the Spanish Law of Waters of 1866 adopted the time-honored principle of
land ownership that "all lands that were not acquired from the government, either by purchase or by
grant, belong to the public domain."77

Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the
disposition of public lands. In particular, CA No. 141 requires that lands of the public domain must
first be classified as alienable or disposable before the government can alienate them. These lands
must not be reserved for public or quasi-public purposes.78 Moreover, the contract between CDCP
and the government was executed after the effectivity of the 1973 Constitution which barred private
corporations from acquiring any kind of alienable land of the public domain. This contract could not
have converted the Freedom Islands into private lands of a private corporation.

Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the
reclamation of areas under water and revested solely in the National Government the power to
reclaim lands. Section 1 of PD No. 3-A declared that –

"The provisions of any law to the contrary notwithstanding, the reclamation of areas
under water, whether foreshore or inland, shall be limited to the National Government or
any person authorized by it under a proper contract. (Emphasis supplied)

x x x."

PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of areas
under water could now be undertaken only by the National Government or by a person contracted by
the National Government. Private parties may reclaim from the sea only under a contract with the
National Government, and no longer by grant or permission as provided in Section 5 of the Spanish
Law of Waters of 1866.

Executive Order No. 525, issued on February 14, 1979, designated PEA as the National
Government's implementing arm to undertake "all reclamation projects of the government," which
"shall be undertaken by the PEA or through a proper contract executed by it with any person
or entity." Under such contract, a private party receives compensation for reclamation services
rendered to PEA. Payment to the contractor may be in cash, or in kind consisting of portions of the
reclaimed land, subject to the constitutional ban on private corporations from acquiring alienable
lands of the public domain. The reclaimed land can be used as payment in kind only if the reclaimed
land is first classified as alienable or disposable land open to disposition, and then declared no
longer needed for public service.
The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares
which are still submerged and forming part of Manila Bay. There is no legislative or Presidential
act classifying these submerged areas as alienable or disposable lands of the public domain
open to disposition. These submerged areas are not covered by any patent or certificate of title.
There can be no dispute that these submerged areas form part of the public domain, and in their
present state are inalienable and outside the commerce of man. Until reclaimed from the sea,
these submerged areas are, under the Constitution, "waters x x x owned by the State," forming part
of the public domain and consequently inalienable. Only when actually reclaimed from the sea can
these submerged areas be classified as public agricultural lands, which under the Constitution are
the only natural resources that the State may alienate. Once reclaimed and transformed into public
agricultural lands, the government may then officially classify these lands as alienable or disposable
lands open to disposition. Thereafter, the government may declare these lands no longer needed for
public service. Only then can these reclaimed lands be considered alienable or disposable lands of
the public domain and within the commerce of man.

The classification of PEA's reclaimed foreshore and submerged lands into alienable or disposable
lands open to disposition is necessary because PEA is tasked under its charter to undertake public
services that require the use of lands of the public domain. Under Section 5 of PD No. 1084, the
functions of PEA include the following: "[T]o own or operate railroads, tramways and other kinds of
land transportation, x x x; [T]o construct, maintain and operate such systems of sanitary sewers as
may be necessary; [T]o construct, maintain and operate such storm drains as may be necessary."
PEA is empowered to issue "rules and regulations as may be necessary for the proper use by
private parties of any or all of the highways, roads, utilities, buildings and/or any of its
properties and to impose or collect fees or tolls for their use." Thus, part of the reclaimed foreshore
and submerged lands held by the PEA would actually be needed for public use or service since
many of the functions imposed on PEA by its charter constitute essential public services.

Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of the National
Government." The same section also states that "[A]ll reclamation projects shall be approved by the
President upon recommendation of the PEA, and shall be undertaken by the PEA or through a
proper contract executed by it with any person or entity; x x x." Thus, under EO No. 525, in relation
to PD No. 3-A and PD No.1084, PEA became the primary implementing agency of the National
Government to reclaim foreshore and submerged lands of the public domain. EO No. 525
recognized PEA as the government entity "to undertake the reclamation of lands and ensure their
maximum utilization in promoting public welfare and interests."79 Since large portions of these
reclaimed lands would obviously be needed for public service, there must be a formal declaration
segregating reclaimed lands no longer needed for public service from those still needed for public
service.1âwphi 1.nêt

Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be owned
by the PEA," could not automatically operate to classify inalienable lands into alienable or disposable
lands of the public domain. Otherwise, reclaimed foreshore and submerged lands of the public
domain would automatically become alienable once reclaimed by PEA, whether or not classified as
alienable or disposable.

The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No. 525, vests
in the Department of Environment and Natural Resources ("DENR" for brevity) the following powers
and functions:

"Sec. 4. Powers and Functions. The Department shall:

 (1) x x x

xxx

(4) Exercise supervision and control over forest lands, alienable and disposable public
lands, mineral resources and, in the process of exercising such control, impose appropriate
taxes, fees, charges, rentals and any such form of levy and collect such revenues for the
exploration, development, utilization or gathering of such resources;

xxx

(14) Promulgate rules, regulations and guidelines on the issuance of licenses,

permits, concessions, lease agreements and such other privileges concerning the
development, exploration and utilization of the country's marine, freshwater, and
brackish water and over all aquatic resources of the country and shall continue to
oversee, supervise and police our natural resources; cancel or cause to cancel such
privileges upon failure, non-compliance or violations of any regulation, order, and for all other
causes which are in furtherance of the conservation of natural resources and supportive of
the national interest;

(15) Exercise exclusive jurisdiction on the management and disposition of all lands of
the public domain and serve as the sole agency responsible for classification, sub-
classification, surveying and titling of lands in consultation with appropriate
agencies."80 (Emphasis supplied)

As manager, conservator and overseer of the natural resources of the State, DENR exercises
"supervision and control over alienable and disposable public lands." DENR also exercises
"exclusive jurisdiction on the management and disposition of all lands of the public domain." Thus,
DENR decides whether areas under water, like foreshore or submerged areas of Manila Bay, should
be reclaimed or not. This means that PEA needs authorization from DENR before PEA can
undertake reclamation projects in Manila Bay, or in any part of the country.

DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain.
Hence, DENR decides whether reclaimed lands of PEA should be classified as alienable under
Sections 681 and 782 of CA No. 141. Once DENR decides that the reclaimed lands should be so
classified, it then recommends to the President the issuance of a proclamation classifying the lands
as alienable or disposable lands of the public domain open to disposition. We note that then DENR
Secretary Fulgencio S. Factoran, Jr. countersigned Special Patent No. 3517 in compliance with the
Revised Administrative Code and Sections 6 and 7 of CA No. 141.

In short, DENR is vested with the power to authorize the reclamation of areas under water, while
PEA is vested with the power to undertake the physical reclamation of areas under water, whether
directly or through private contractors. DENR is also empowered to classify lands of the public
domain into alienable or disposable lands subject to the approval of the President. On the other
hand, PEA is tasked to develop, sell or lease the reclaimed alienable lands of the public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not
make the reclaimed lands alienable or disposable lands of the public domain, much less patrimonial
lands of PEA. Likewise, the mere transfer by the National Government of lands of the public domain
to PEA does not make the lands alienable or disposable lands of the public domain, much less
patrimonial lands of PEA.
Absent two official acts – a classification that these lands are alienable or disposable and open to
disposition and a declaration that these lands are not needed for public service, lands reclaimed by
PEA remain inalienable lands of the public domain. Only such an official classification and formal
declaration can convert reclaimed lands into alienable or disposable lands of the public domain,
open to disposition under the Constitution, Title I and Title III83 of CA No. 141 and other applicable
laws.84

PEA's Authority to Sell Reclaimed Lands

PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public domain,
the reclaimed lands shall be disposed of in accordance with CA No. 141, the Public Land Act. PEA,
citing Section 60 of CA No. 141, admits that reclaimed lands transferred to a branch or subdivision of
the government "shall not be alienated, encumbered, or otherwise disposed of in a manner affecting
its title, except when authorized by Congress: x x x."85 (Emphasis by PEA)

In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised Administrative Code of 1987, which
states that –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following: x x x."

Thus, the Court concluded that a law is needed to convey any real property belonging to the
Government. The Court declared that -

"It is not for the President to convey real property of the government on his or her own sole
will. Any such conveyance must be authorized and approved by a law enacted by the
Congress. It requires executive and legislative concurrence." (Emphasis supplied)

PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA to
sell its reclaimed lands. PD No. 1085, issued on February 4, 1977, provides that –

"The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the
contract for the reclamation and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the Construction and Development Corporation
of the Philippines dated November 20, 1973 and/or any other contract or reclamation
covering the same area is hereby transferred, conveyed and assigned to the ownership
and administration of the Public Estates Authority established pursuant to PD No. 1084;
Provided, however, That the rights and interests of the Construction and Development
Corporation of the Philippines pursuant to the aforesaid contract shall be recognized and
respected.

Henceforth, the Public Estates Authority shall exercise the rights and assume the obligations
of the Republic of the Philippines (Department of Public Highways) arising from, or incident
to, the aforesaid contract between the Republic of the Philippines and the Construction and
Development Corporation of the Philippines.

In consideration of the foregoing transfer and assignment, the Public Estates Authority shall
issue in favor of the Republic of the Philippines the corresponding shares of stock in said
entity with an issued value of said shares of stock (which) shall be deemed fully paid and
non-assessable.
 The Secretary of Public Highways and the General Manager of the Public Estates Authority
shall execute such contracts or agreements, including appropriate agreements with the
Construction and Development Corporation of the Philippines, as may be necessary to
implement the above.

Special land patent/patents shall be issued by the Secretary of Natural Resources in

favor of the Public Estates Authority without prejudice to the subsequent transfer to
the contractor or his assignees of such portion or portions of the land reclaimed or to
be reclaimed as provided for in the above-mentioned contract. On the basis of such
patents, the Land Registration Commission shall issue the corresponding certificate
of title." (Emphasis supplied)

On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that -

"Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA which shall
be responsible for its administration, development, utilization or disposition in accordance
with the provisions of Presidential Decree No. 1084. Any and all income that the PEA may
derive from the sale, lease or use of reclaimed lands shall be used in accordance with the
provisions of Presidential Decree No. 1084."

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed
lands. PD No. 1085 merely transferred "ownership and administration" of lands reclaimed from
Manila Bay to PEA, while EO No. 525 declared that lands reclaimed by PEA "shall belong to or be
owned by PEA." EO No. 525 expressly states that PEA should dispose of its reclaimed lands "in
accordance with the provisions of Presidential Decree No. 1084," the charter of PEA.

PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer, deal in,
subdivide, dispose, lease and sell any and all kinds of lands x x x owned, managed, controlled
and/or operated by the government."87(Emphasis supplied) There is, therefore, legislative
authority granted to PEA to sell its lands, whether patrimonial or alienable lands of the public
domain. PEA may sell to private parties its patrimonial propertiesin accordance with the PEA
charter free from constitutional limitations. The constitutional ban on private corporations from
acquiring alienable lands of the public domain does not apply to the sale of PEA's patrimonial lands.

PEA may also sell its alienable or disposable lands of the public domain to private individuals
since, with the legislative authority, there is no longer any statutory prohibition against such sales
and the constitutional ban does not apply to individuals. PEA, however, cannot sell any of its
alienable or disposable lands of the public domain to private corporations since Section 3, Article XII
of the 1987 Constitution expressly prohibits such sales. The legislative authority benefits only
individuals. Private corporations remain barred from acquiring any kind of alienable land of the public
domain, including government reclaimed lands.

The provision in PD No. 1085 stating that portions of the reclaimed lands could be transferred by
PEA to the "contractor or his assignees" (Emphasis supplied) would not apply to private corporations
but only to individuals because of the constitutional ban. Otherwise, the provisions of PD No. 1085
would violate both the 1973 and 1987 Constitutions.

The requirement of public auction in the sale of reclaimed lands

Assuming the reclaimed lands of PEA are classified as alienable or disposable lands open to
disposition, and further declared no longer needed for public service, PEA would have to conduct a
public bidding in selling or leasing these lands. PEA must observe the provisions of Sections 63 and
67 of CA No. 141 requiring public auction, in the absence of a law exempting PEA from holding a
public auction.88 Special Patent No. 3517 expressly states that the patent is issued by authority of
the Constitution and PD No. 1084, "supplemented by Commonwealth Act No. 141, as amended."
This is an acknowledgment that the provisions of CA No. 141 apply to the disposition of reclaimed
alienable lands of the public domain unless otherwise provided by law. Executive Order No.
654,89 which authorizes PEA "to determine the kind and manner of payment for the transfer" of its
assets and properties, does not exempt PEA from the requirement of public auction. EO No. 654
merely authorizes PEA to decide the mode of payment, whether in kind and in installment, but does
not authorize PEA to dispense with public auction.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code,
the government is required to sell valuable government property through public bidding. Section 79
of PD No. 1445 mandates that –

"Section 79. When government property has become unserviceable for any cause, or is no
longer needed, it shall, upon application of the officer accountable therefor, be inspected by
the head of the agency or his duly authorized representative in the presence of the auditor
concerned and, if found to be valueless or unsaleable, it may be destroyed in their
presence. If found to be valuable, it may be sold at public auction to the highest
bidder under the supervision of the proper committee on award or similar body in the
presence of the auditor concerned or other authorized representative of the
Commission, after advertising by printed notice in the Official Gazette, or for not less
than three consecutive days in any newspaper of general circulation, or where the
value of the property does not warrant the expense of publication, by notices posted for a like
period in at least three public places in the locality where the property is to be sold. In the
event that the public auction fails, the property may be sold at a private sale at such
price as may be fixed by the same committee or body concerned and approved by the
Commission."

It is only when the public auction fails that a negotiated sale is allowed, in which case the
Commission on Audit must approve the selling price.90 The Commission on Audit implements
Section 79 of the Government Auditing Code through Circular No. 89-29691 dated January 27, 1989.
This circular emphasizes that government assets must be disposed of only through public auction,
and a negotiated sale can be resorted to only in case of "failure of public auction."

At the public auction sale, only Philippine citizens are qualified to bid for PEA's reclaimed foreshore
and submerged alienable lands of the public domain. Private corporations are barred from bidding at
the auction sale of any kind of alienable land of the public domain.

PEA originally scheduled a public bidding for the Freedom Islands on December 10, 1991. PEA
imposed a condition that the winning bidder should reclaim another 250 hectares of submerged
areas to regularize the shape of the Freedom Islands, under a 60-40 sharing of the additional
reclaimed areas in favor of the winning bidder.92 No one, however, submitted a bid. On December
23, 1994, the Government Corporate Counsel advised PEA it could sell the Freedom Islands
through negotiation, without need of another public bidding, because of the failure of the public
bidding on December 10, 1991.93

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the
additional 250 hectares still to be reclaimed, it also granted an option to AMARI to reclaim another
350 hectares. The original JVA, a negotiated contract, enlarged the reclamation area to 750
hectares.94 The failure of public bidding on December 10, 1991, involving only 407.84 hectares,95 is
not a valid justification for a negotiated sale of 750 hectares, almost double the area publicly
auctioned. Besides, the failure of public bidding happened on December 10, 1991, more than three
years before the signing of the original JVA on April 25, 1995. The economic situation in the country
had greatly improved during the intervening period.

Reclamation under the BOT Law and the Local Government Code

The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute and clear:
"Private corporations or associations may not hold such alienable lands of the public domain except
by lease, x x x." Even Republic Act No. 6957 ("BOT Law," for brevity), cited by PEA and AMARI as
legislative authority to sell reclaimed lands to private parties, recognizes the constitutional ban.
Section 6 of RA No. 6957 states –

"Sec. 6. Repayment Scheme. - For the financing, construction, operation and maintenance
of any infrastructure projects undertaken through the build-operate-and-transfer arrangement
or any of its variations pursuant to the provisions of this Act, the project proponent x x x may
likewise be repaid in the form of a share in the revenue of the project or other non-monetary
payments, such as, but not limited to, the grant of a portion or percentage of the reclaimed
land, subject to the constitutional requirements with respect to the ownership of the
land: x x x." (Emphasis supplied)

A private corporation, even one that undertakes the physical reclamation of a government BOT
project, cannot acquire reclaimed alienable lands of the public domain in view of the constitutional
ban.

Section 302 of the Local Government Code, also mentioned by PEA and AMARI, authorizes local
governments in land reclamation projects to pay the contractor or developer in kind consisting of a
percentage of the reclaimed land, to wit:

"Section 302. Financing, Construction, Maintenance, Operation, and Management of

Infrastructure Projects by the Private Sector. x x x

xxx

In case of land reclamation or construction of industrial estates, the repayment plan may
consist of the grant of a portion or percentage of the reclaimed land or the industrial estate
constructed."

Although Section 302 of the Local Government Code does not contain a proviso similar to that of the
BOT Law, the constitutional restrictions on land ownership automatically apply even though not
expressly mentioned in the Local Government Code.

Thus, under either the BOT Law or the Local Government Code, the contractor or developer, if a
corporate entity, can only be paid with leaseholds on portions of the reclaimed land. If the contractor
or developer is an individual, portions of the reclaimed land, not exceeding 12 hectares96 of non-
agricultural lands, may be conveyed to him in ownership in view of the legislative authority allowing
such conveyance. This is the only way these provisions of the BOT Law and the Local Government
Code can avoid a direct collision with Section 3, Article XII of the 1987 Constitution.

Registration of lands of the public domain

Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to public
respondent PEA transformed such lands of the public domain to private lands." This theory is
echoed by AMARI which maintains that the "issuance of the special patent leading to the eventual
issuance of title takes the subject land away from the land of public domain and converts the
property into patrimonial or private property." In short, PEA and AMARI contend that with the
issuance of Special Patent No. 3517 and the corresponding certificates of titles, the 157.84 hectares
comprising the Freedom Islands have become private lands of PEA. In support of their theory, PEA
and AMARI cite the following rulings of the Court:

1. Sumail v. Judge of CFI of Cotabato,97 where the Court held –

"Once the patent was granted and the corresponding certificate of title was issued, the land
ceased to be part of the public domain and became private property over which the Director
of Lands has neither control nor jurisdiction."

2. Lee Hong Hok v. David,98 where the Court declared -

"After the registration and issuance of the certificate and duplicate certificate of title based on
a public land patent, the land covered thereby automatically comes under the operation of
Republic Act 496 subject to all the safeguards provided therein."3. Heirs of Gregorio Tengco
v. Heirs of Jose Aliwalas,99 where the Court ruled -

"While the Director of Lands has the power to review homestead patents, he may do so only
so long as the land remains part of the public domain and continues to be under his
exclusive control; but once the patent is registered and a certificate of title is issued, the land
ceases to be part of the public domain and becomes private property over which the Director
of Lands has neither control nor jurisdiction."

4. Manalo v. Intermediate Appellate Court,100 where the Court held –

"When the lots in dispute were certified as disposable on May 19, 1971, and free patents
were issued covering the same in favor of the private respondents, the said lots ceased to be
part of the public domain and, therefore, the Director of Lands lost jurisdiction over the
same."

5.Republic v. Court of Appeals,101 where the Court stated –

"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected a
land grant to the Mindanao Medical Center, Bureau of Medical Services, Department of
Health, of the whole lot, validly sufficient for initial registration under the Land Registration
Act. Such land grant is constitutive of a 'fee simple' title or absolute title in favor of petitioner
Mindanao Medical Center. Thus, Section 122 of the Act, which governs the registration of
grants or patents involving public lands, provides that 'Whenever public lands in the
Philippine Islands belonging to the Government of the United States or to the Government of
the Philippines are alienated, granted or conveyed to persons or to public or private
corporations, the same shall be brought forthwith under the operation of this Act (Land
Registration Act, Act 496) and shall become registered lands.'"

The first four cases cited involve petitions to cancel the land patents and the corresponding
certificates of titles issued to private parties. These four cases uniformly hold that the Director of
Lands has no jurisdiction over private lands or that upon issuance of the certificate of title the land
automatically comes under the Torrens System. The fifth case cited involves the registration under
the Torrens System of a 12.8-hectare public land granted by the National Government to Mindanao
Medical Center, a government unit under the Department of Health. The National Government
transferred the 12.8-hectare public land to serve as the site for the hospital buildings and other
facilities of Mindanao Medical Center, which performed a public service. The Court affirmed the
registration of the 12.8-hectare public land in the name of Mindanao Medical Center under Section
122 of Act No. 496. This fifth case is an example of a public land being registered under Act No. 496
without the land losing its character as a property of public dominion.

In the instant case, the only patent and certificates of title issued are those in the name of PEA, a
wholly government owned corporation performing public as well as proprietary functions. No patent
or certificate of title has been issued to any private party. No one is asking the Director of Lands to
cancel PEA's patent or certificates of title. In fact, the thrust of the instant petition is that PEA's
certificates of title should remain with PEA, and the land covered by these certificates, being
alienable lands of the public domain, should not be sold to a private corporation.

Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or
public ownership of the land. Registration is not a mode of acquiring ownership but is merely
evidence of ownership previously conferred by any of the recognized modes of acquiring ownership.
Registration does not give the registrant a better right than what the registrant had prior to the
registration.102 The registration of lands of the public domain under the Torrens system, by itself,
cannot convert public lands into private lands.103

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the
alienable land of the public domain automatically becomes private land cannot apply to government
units and entities like PEA. The transfer of the Freedom Islands to PEA was made subject to the
provisions of CA No. 141 as expressly stated in Special Patent No. 3517 issued by then President
Aquino, to wit:

"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines and
in conformity with the provisions of Presidential Decree No. 1084, supplemented by
Commonwealth Act No. 141, as amended, there are hereby granted and conveyed unto
the Public Estates Authority the aforesaid tracts of land containing a total area of one million
nine hundred fifteen thousand eight hundred ninety four (1,915,894) square meters; the
technical description of which are hereto attached and made an integral part hereof."
(Emphasis supplied)

Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered by PD No.
1084. Section 60 of CA No. 141 prohibits, "except when authorized by Congress," the sale of
alienable lands of the public domain that are transferred to government units or entities. Section 60
of CA No. 141 constitutes, under Section 44 of PD No. 1529, a "statutory lien affecting title" of the
registered land even if not annotated on the certificate of title.104Alienable lands of the public domain
held by government entities under Section 60 of CA No. 141 remain public lands because they
cannot be alienated or encumbered unless Congress passes a law authorizing their disposition.
Congress, however, cannot authorize the sale to private corporations of reclaimed alienable lands of
the public domain because of the constitutional ban. Only individuals can benefit from such law.

The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141
does not automatically convert alienable lands of the public domain into private or patrimonial lands.
The alienable lands of the public domain must be transferred to qualified private parties, or to
government entities not tasked to dispose of public lands, before these lands can become private or
patrimonial lands. Otherwise, the constitutional ban will become illusory if Congress can declare
lands of the public domain as private or patrimonial lands in the hands of a government agency
tasked to dispose of public lands. This will allow private corporations to acquire directly from
government agencies limitless areas of lands which, prior to such law, are concededly public lands.

Under EO No. 525, PEA became the central implementing agency of the National Government to
reclaim foreshore and submerged areas of the public domain. Thus, EO No. 525 declares that –

"EXECUTIVE ORDER NO. 525

Designating the Public Estates Authority as the Agency Primarily Responsible for all
Reclamation Projects

Whereas, there are several reclamation projects which are ongoing or being proposed to be
undertaken in various parts of the country which need to be evaluated for consistency with
national programs;

Whereas, there is a need to give further institutional support to the Government's declared
policy to provide for a coordinated, economical and efficient reclamation of lands;

Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall be limited
to the National Government or any person authorized by it under proper contract;

Whereas, a central authority is needed to act on behalf of the National Government

which shall ensure a coordinated and integrated approach in the reclamation of lands;

Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as a
government corporation to undertake reclamation of lands and ensure their maximum
utilization in promoting public welfare and interests; and

Whereas, Presidential Decree No. 1416 provides the President with continuing authority to
reorganize the national government including the transfer, abolition, or merger of functions
and offices.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of

the powers vested in me by the Constitution and pursuant to Presidential Decree No. 1416,
do hereby order and direct the following:

Section 1. The Public Estates Authority (PEA) shall be primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of
the National Government. All reclamation projects shall be approved by the President upon
recommendation of the PEA, and shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity; Provided, that, reclamation projects of any
national government agency or entity authorized under its charter shall be undertaken in
consultation with the PEA upon approval of the President.

x x x ."

As the central implementing agency tasked to undertake reclamation projects nationwide, with
authority to sell reclaimed lands, PEA took the place of DENR as the government agency charged
with leasing or selling reclaimed lands of the public domain. The reclaimed lands being leased or
sold by PEA are not private lands, in the same manner that DENR, when it disposes of other
alienable lands, does not dispose of private lands but alienable lands of the public domain. Only
when qualified private parties acquire these lands will the lands become private lands. In the hands
of the government agency tasked and authorized to dispose of alienable of disposable lands
of the public domain, these lands are still public, not private lands.

Furthermore, PEA's charter expressly states that PEA "shall hold lands of the public domain" as
well as "any and all kinds of lands." PEA can hold both lands of the public domain and private lands.
Thus, the mere fact that alienable lands of the public domain like the Freedom Islands are
transferred to PEA and issued land patents or certificates of title in PEA's name does not
automatically make such lands private.

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands
will sanction a gross violation of the constitutional ban on private corporations from acquiring any
kind of alienable land of the public domain. PEA will simply turn around, as PEA has now done
under the Amended JVA, and transfer several hundreds of hectares of these reclaimed and still to
be reclaimed lands to a single private corporation in only one transaction. This scheme will
effectively nullify the constitutional ban in Section 3, Article XII of the 1987 Constitution which was
intended to diffuse equitably the ownership of alienable lands of the public domain among Filipinos,
now numbering over 80 million strong.

This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain
since PEA can "acquire x x x any and all kinds of lands." This will open the floodgates to
corporations and even individuals acquiring hundreds of hectares of alienable lands of the public
domain under the guise that in the hands of PEA these lands are private lands. This will result in
corporations amassing huge landholdings never before seen in this country - creating the very evil
that the constitutional ban was designed to prevent. This will completely reverse the clear direction
of constitutional development in this country. The 1935 Constitution allowed private corporations to
acquire not more than 1,024 hectares of public lands.105 The 1973 Constitution prohibited private
corporations from acquiring any kind of public land, and the 1987 Constitution has unequivocally
reiterated this prohibition.

The contention of PEA and AMARI that public lands, once registered under Act No. 496 or PD No.
1529, automatically become private lands is contrary to existing laws. Several laws authorize lands
of the public domain to be registered under the Torrens System or Act No. 496, now PD No. 1529,
without losing their character as public lands. Section 122 of Act No. 496, and Section 103 of PD No.
1529, respectively, provide as follows:

Act No. 496

"Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x x
Government of the Philippine Islands are alienated, granted, or conveyed to persons or
the public or private corporations, the same shall be brought forthwith under the operation
of this Act and shall become registered lands."

PD No. 1529

"Sec. 103. Certificate of Title to Patents. Whenever public land is by the Government
alienated, granted or conveyed to any person, the same shall be brought forthwith under the
operation of this Decree." (Emphasis supplied)

Based on its legislative history, the phrase "conveyed to any person" in Section 103 of PD No. 1529
includes conveyances of public lands to public corporations.
Alienable lands of the public domain "granted, donated, or transferred to a province, municipality, or
branch or subdivision of the Government," as provided in Section 60 of CA No. 141, may be
registered under the Torrens System pursuant to Section 103 of PD No. 1529. Such registration,
however, is expressly subject to the condition in Section 60 of CA No. 141 that the land "shall not be
alienated, encumbered or otherwise disposed of in a manner affecting its title, except when
authorized by Congress." This provision refers to government reclaimed, foreshore and marshy
lands of the public domain that have been titled but still cannot be alienated or encumbered unless
expressly authorized by Congress. The need for legislative authority prevents the registered land of
the public domain from becoming private land that can be disposed of to qualified private parties.

The Revised Administrative Code of 1987 also recognizes that lands of the public domain may be
registered under the Torrens System. Section 48, Chapter 12, Book I of the Code states –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be executed
in behalf of the government by the following:

(1) x x x

(2) For property belonging to the Republic of the Philippines, but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality." (Emphasis supplied)

Thus, private property purchased by the National Government for expansion of a public wharf may
be titled in the name of a government corporation regulating port operations in the country. Private
property purchased by the National Government for expansion of an airport may also be titled in the
name of the government agency tasked to administer the airport. Private property donated to a
municipality for use as a town plaza or public school site may likewise be titled in the name of the
municipality.106 All these properties become properties of the public domain, and if already registered
under Act No. 496 or PD No. 1529, remain registered land. There is no requirement or provision in
any existing law for the de-registration of land from the Torrens System.

Private lands taken by the Government for public use under its power of eminent domain become
unquestionably part of the public domain. Nevertheless, Section 85 of PD No. 1529 authorizes the
Register of Deeds to issue in the name of the National Government new certificates of title covering
such expropriated lands. Section 85 of PD No. 1529 states –

"Sec. 85. Land taken by eminent domain. Whenever any registered land, or interest therein,
is expropriated or taken by eminent domain, the National Government, province, city or
municipality, or any other agency or instrumentality exercising such right shall file for
registration in the proper Registry a certified copy of the judgment which shall state definitely
by an adequate description, the particular property or interest expropriated, the number of
the certificate of title, and the nature of the public use. A memorandum of the right or interest
taken shall be made on each certificate of title by the Register of Deeds, and where the fee
simple is taken, a new certificate shall be issued in favor of the National Government,
province, city, municipality, or any other agency or instrumentality exercising such right for
the land so taken. The legal expenses incident to the memorandum of registration or
issuance of a new certificate of title shall be for the account of the authority taking the land or
interest therein." (Emphasis supplied)

Consequently, lands registered under Act No. 496 or PD No. 1529 are not exclusively private or
patrimonial lands. Lands of the public domain may also be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to AMARI of the Freedom Islands
or of the lands to be reclaimed from submerged areas of Manila Bay. In the words of AMARI, the
Amended JVA "is not a sale but a joint venture with a stipulation for reimbursement of the original
cost incurred by PEA for the earlier reclamation and construction works performed by the CDCP
under its 1973 contract with the Republic." Whether the Amended JVA is a sale or a joint venture,
the fact remains that the Amended JVA requires PEA to "cause the issuance and delivery of the
certificates of title conveying AMARI's Land Share in the name of AMARI."107

This stipulation still contravenes Section 3, Article XII of the 1987 Constitution which provides that
private corporations "shall not hold such alienable lands of the public domain except by lease." The
transfer of title and ownership to AMARI clearly means that AMARI will "hold" the reclaimed lands
other than by lease. The transfer of title and ownership is a "disposition" of the reclaimed lands, a
transaction considered a sale or alienation under CA No. 141,108 the Government Auditing
Code,109 and Section 3, Article XII of the 1987 Constitution.

The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged areas
form part of the public domain and are inalienable. Lands reclaimed from foreshore and submerged
areas also form part of the public domain and are also inalienable, unless converted pursuant to law
into alienable or disposable lands of the public domain. Historically, lands reclaimed by the
government are sui generis, not available for sale to private parties unlike other alienable public
lands. Reclaimed lands retain their inherent potential as areas for public use or public service.
Alienable lands of the public domain, increasingly becoming scarce natural resources, are to be
distributed equitably among our ever-growing population. To insure such equitable distribution, the
1973 and 1987 Constitutions have barred private corporations from acquiring any kind of alienable
land of the public domain. Those who attempt to dispose of inalienable natural resources of the
State, or seek to circumvent the constitutional ban on alienation of lands of the public domain to
private corporations, do so at their own risk.

We can now summarize our conclusions as follows:

1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by
certificates of title in the name of PEA, are alienable lands of the public domain. PEA may
lease these lands to private corporations but may not sell or transfer ownership of these
lands to private corporations. PEA may only sell these lands to Philippine citizens, subject to
the ownership limitations in the 1987 Constitution and existing laws.

2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural
resources of the public domain until classified as alienable or disposable lands open to
disposition and declared no longer needed for public service. The government can make
such classification and declaration only after PEA has reclaimed these submerged areas.
Only then can these lands qualify as agricultural lands of the public domain, which are the
only natural resources the government can alienate. In their present state, the 592.15
hectares of submerged areas are inalienable and outside the commerce of man.

3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of
77.34 hectares110of the Freedom Islands, such transfer is void for being contrary to Section 3,
Article XII of the 1987 Constitution which prohibits private corporations from acquiring any
kind of alienable land of the public domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156
hectares111 of still submerged areas of Manila Bay, such transfer is void for being contrary to
Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural
 resources other than agricultural lands of the public domain. PEA may reclaim these
submerged areas. Thereafter, the government can classify the reclaimed lands as alienable
or disposable, and further declare them no longer needed for public service. Still, the transfer
of such reclaimed alienable lands of the public domain to AMARI will be void in view of
Section 3, Article XII of the 1987 Constitution which prohibits private corporations from
acquiring any kind of alienable land of the public domain.

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution.
Under Article 1409112 of the Civil Code, contracts whose "object or purpose is contrary to law," or
whose "object is outside the commerce of men," are "inexistent and void from the beginning." The
Court must perform its duty to defend and uphold the Constitution, and therefore declares the
Amended JVA null and void ab initio.

Seventh issue: whether the Court is the proper forum to raise the issue of whether the
Amended JVA is grossly disadvantageous to the government.

Considering that the Amended JVA is null and void ab initio, there is no necessity to rule on this last
issue. Besides, the Court is not a trier of facts, and this last issue involves a determination of factual
matters.

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay
Development Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint
Venture Agreement which is hereby declared NULL and VOID ab initio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Austria-Martinez, and Corona, JJ., concur.

Footnote

1 Section 4 of PD No. 1084.

2 PEA's Memorandum dated August 4, 1999, p. 3.

3PEA's Memorandum, supra note 2 at 7. PEA's Memorandum quoted extensively, in its

Statement of Facts and the Case, the Statement of Facts in Senate Committee Report No.
560 dated September 16, 1997.

4In Opinion No. 330 dated December 23, 1994, the Government Corporate Counsel, citing
COA Audit Circular No. 89-296, advised PEA that PEA could negotiate the sale of the
157.84-hectare Freedom Islands in view of the failure of the public bidding held on
December 10, 1991 where there was not a single bidder. See also Senate Committee Report
No. 560, p. 12.

5 PEA's Memorandum, supra note 2 at 9.

6 Ibid.
7 The existence of this report is a matter of judicial notice pursuant to Section 1, Rule 129 of
the Rules of Court which provides, "A court shall take judicial notice, without the introduction
of evidence, of x x x the official acts of the legislature x x x."

8 Teofisto Guingona, Jr.

9 Renato Cayetano.

10 Virgilio C. Abejo.

11Report and Recommendation of the Legal Task Force, Annex "C", AMARI's Memorandum
dated June 19, 1999.

12 AMARI's Comment dated June 24, 1998, p. 3; Rollo, p. 68.

AMARI filed three motions for extension of time to file comment (Rollo, pp. 32, 38, 48),
13

while PEA filed nine motions for extension of time (Rollo, pp. 127, 139).

14 Petitioner's Memorandum dated July 6, 1999, p. 42.

Represented by the Office of the Solicitor General, with Solicitor General Ricardo P.
15

Galvez, Assistant Solicitor General Azucena R. Balanon-Corpuz, and Associate Solicitor

Raymund I. Rigodon signing PEA's Memorandum.

Represented by Azcuna Yorac Arroyo & Chua Law Offices, and Romulo Mabanta Sayoc &
16

De los Angeles Law Offices.

Salonga v. Paño, 134 SCRA 438 (1985); Gonzales v. Marcos, 65 SCRA 624 (1975 );
17

Aquino v. Enrile, 59 SCRA 183 (1974 ); Dela Camara v. Enage, 41 SCRA 1 (1971 ).

18 Section 11, Article XIV.

19 Manila Electric Co. v. Judge F. Castro-Bartolome, 114 SCRA 799 (1982); Republic v. CA
and Iglesia, and Republic v. Cendana and Iglesia ni Cristo, 119 SCRA 449 (1982); Republic
v. Villanueva and Iglesia ni Cristo, 114 SCRA 875 (1982); Director of Lands v. Lood, 124
SCRA 460 (1983); Republic v. Iglesia ni Cristo, 128 SCRA 44 (1984); Director of Lands v.
Hermanos y Hermanas de Sta. Cruz de Mayo, Inc., 141 SCRA 21 (1986); Director of Lands
v. IAC and Acme Plywood & Veneer Co., 146 SCRA 509 (1986); Republic v. IAC and Roman
Catholic Bishop of Lucena, 168 SCRA 165 (1988); Natividad v. CA, 202 SCRA 493 (1991);
Villaflor v. CA and Nasipit Lumber Co., 280 SCRA 297 (1997). In Ayog v. Cusi, 118 SCRA
492 (1982), the Court did not apply the constitutional ban in the 1973 Constitution because
the applicant corporation, Biñan Development Co., Inc., had fully complied with all its
obligations and even paid the full purchase price before the effectivity of the 1973
Constitution, although the sales patent was issued after the 1973 Constitution took effect.

20
PD No. 1073.

Annex "B", AMARI's Memorandum dated June 19, 1999, Section 5.2 (c) and (e) of the
21

Amended JVA, pp. 16-17.

22 Chavez v. PCGG, 299 SCRA 744 (1998).

23 136 SCRA 27 (1985).

24Article 2 of the Civil Code (prior to its amendment by EO No. 200) provided as follows:
"Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is provided otherwise, x x x."

25Section 1 of CA No. 638 provides as follows: "There shall be published in the Official
Gazette all important legislative acts and resolutions of the Congress of the Philippines; all
executive and administrative orders and proclamations, except such as have no general
applicability; x x x."

26Section 79 of the Government Auditing Codes provides as follows: "When government

property has become unserviceable for any cause, or is no longer needed, it shall, upon
application of the officer accountable therefor, be inspected by the head of the agency or his
duly authorized representative in the presence of the auditor concerned and, if found to be
valueless or unsaleable, it may be destroyed in their presence. If found to be valuable, it
may be sold at public auction to the highest bidder under the supervision of the proper
committee on award or similar body in the presence of the auditor concerned or other
authorized representative of the Commission, after advertising by printed notice in the
Official Gazette, or for not less than three consecutive days in any newspaper of
general circulation, or where the value of the property does not warrant the expense of
publication, by notices posted for a like period in at least three public places in the locality
where the property is to be sold. In the event that the public auction fails, the property
may be sold at a private sale at such price as may be fixed by the same committee or
body concerned and approved by the Commission."

Paat v. Court of Appeals, 266 SCRA 167 (1997); Quisumbing v. Judge Gumban, 193
27

SCRA 520 (1991); Valmonte v. Belmonte, Jr., 170 SCRA 256 (1989).

28 See note 22.

29 Section 1, Article XI of the 1987 Constitution states as follows: "Public office is a public
trust. Public officers and employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives."

30 170 SCRA 256 (1989).

31 See note 22.

32 Record of the Constitutional Commission, Vol. V, pp. 24-25, (1986).

33 Supra, Note 22.

34 Ibid.

35 Legaspi v. Civil Service Commission, 150 SCRA 530 (1987).

36 Almonte v. Vasquez, 244 SCRA 286 (1995).

37 See Note 22.

38 Chavez v. PCGG, see note 22; Aquino-Sarmiento v. Morato, 203 SCRA 515 (1991).

39 Almonte v. Vasquez, see note 36.

People's Movement for Press Freedom, et al. v. Hon. Raul Manglapus, G.R. No. 84642,
40

En Banc Resolution dated April 13, 1988; Chavez v. PCGG, see note 22.

41Section 270 of the National Internal Revenue Code punishes any officer or employee of
the Bureau of Internal Revenue who divulges to any person, except as allowed by law,
information regarding the business, income, or estate of any taxpayer, the secrets, operation,
style of work, or apparatus of any manufacturer or producer, or confidential information
regarding the business of any taxpayer, knowledge of which was acquired by him in the
discharge of his official duties. Section 14 of R.A. No. 8800 (Safeguard Measures Act)
prohibits the release to the public of confidential information submitted in evidence to the
Tariff Commission. Section 3 (n) of R.A. No. 8504 (Philippine AIDS Prevention and Control
Act) classifies as confidential the medical records of HIV patients. Section 6 (j) of R.A. No.
8043 (Inter-Country Adoption Act) classifies as confidential the records of the adopted child,
adopting parents, and natural parents. Section 94 (f) of R.A. No. 7942 (Philippine Mining Act)
requires the Department of Environment and Natural Resources to maintain the
confidentiality of confidential information supplied by contractors who are parties to mineral
agreements or financial and technical assistance agreements.

42The Recopilacion de Leyes de las Indias declared that: "We, having acquired full
sovereignty over the Indies, and all lands, territories, and possessions not heretofore ceded
away by our royal predecessors, or by us, or in our name, still pertaining to the royal crown
and patrimony, it is our will that all lands which are held without proper and true deeds of
grant be restored to us according as they belong to us, in order that after reserving before all
what to us or to our viceroys, audiencias, and governors may seem necessary for public
squares, ways, pastures, and commons in those places which are peopled, taking into
consideration not only their present condition, but also their future and their probable
increase, and after distributing to the natives what may be necessary for tillage and
pasturage, confirming them in what they now have and giving them more if necessary, all the
rest of said lands may remain free and unencumbered for us to dispose of as we may
wish." See concurring opinion of Justice Reynato S. Puno in Republic Real Estate
Corporation v. Court of Appeals, 299 SCRA 199 (1998).

43 Cariño v. Insular Government, 41 Phil. 935 (1909). The exception mentioned in Cariño,
referring to lands in the possession of an occupant and of his predecessors-in-interest, since
time immemorial, is actually a species of a grant by the State. The United States Supreme
Court, speaking through Justice Oliver Wendell Holmes, Jr., declared in Cariño: "Prescription
is mentioned again in the royal cedula of October 15, 1754, cited in 3 Philippine, 546; 'Where
such possessors shall not be able to produce title deeds, it shall be sufficient if they shall
show that ancient possession, as a valid title by prescription.' It may be that this means
possession from before 1700; but, at all events, the principle is admitted. As prescription,
even against the Crown lands, was recognized by the laws of Spain, we see no sufficient
reason for hesitating to admit that it was recognized in the Philippines in regard to lands over
which Spain had only a paper sovereignty." See also Republic v. Lee, 197 SCRA 13 (1991).

44 Article 1 of the Spanish Law of Waters of 1866.

45Ignacio v. Director of Lands, 108 Phil. 335 (1960); Joven v. Director of Lands, 93 Phil. 134
(1953); Laurel v. Garcia, 187 SCRA 797 (1990). See concurring opinion of Justice Reynato
S. Puno in Republic Real Estate Corporation v. Court of Appeals, 299 SCRA 199 (1998).

46Act No. 926, enacted on October 7, 1903, was also titled the Public Land Act. This Act,
however, did not cover reclaimed lands. Nevertheless, Section 23 of this Act provided as
follows: "x x x In no case may lands leased under the provisions of this chapter be taken so
as to gain control of adjacent land, water, stream, shore line, way, roadstead, or other
valuable right which in the opinion of the Chief of the Bureau of Public Lands would be
prejudicial to the interests of the public."

47
Section 10 of Act No. 2874 provided as follows: "The words "alienation," "disposition," or
"concession" as used in this Act, shall mean any of the methods authorized by this Act for
the acquisition, lease, use, or benefit of the lands of the public domain other than timber or
mineral lands."

48Title II of Act No. 2874 governed alienable lands of the public domain for agricultural
purposes, while Title III of the same Act governed alienable lands of the public domain for
non-agricultural purposes.

49 Section 57 of Act No. 2874 provided as follows: "x x x; but the land so granted, donated, or
transferred to a province, municipality, or branch or subdivision of the Government shall not
be alienated, encumbered, or otherwise disposed of in a manner affecting its title, except
when authorized by the legislature; x x x."

50 Krivenko v. Register of Deeds, 79 Phil. 461 (1947).

51Section 2 of CA No. 141 states as follows: "The provisions of this Act shall apply to the
lands of the public domain; but timber and mineral lands shall be governed by special laws
and nothing in this Act provided shall be understood or construed to change or modify the
administration and disposition of the lands commonly called "friar lands" and those which,
being privately owned, have reverted to or become the property of the Commonwealth of the
Philippines, which administration and disposition shall be governed by the laws at present in
force or which may hereafter be enacted."

52Like Act No. 2874, Section 10 of CA No. 141 defined the terms "alienation" and
"disposition" as follows: "The words "alienation," "disposition," or "concession" as used in this
Act, shall mean any of the methods authorized by this Act for the acquisition, lease, use, or
benefit of the lands of the public domain other than timber or mineral lands."

53R.A. No. 6657 has suspended the authority of the President to reclassify forest or mineral
lands into agricultural lands. Section 4 (a) of RA No. 6657 (Comprehensive Agrarian Reform
Law of 1988) states, "No reclassification of forest or mineral lands to agricultural lands shall
be undertaken after the approval of this Act until Congress, taking into account ecological,
developmental and equity considerations, shall have delimited by law, the specific limits of
the public domain."

54 Covering Sections 58 to 68 of CA No. 141.

55 299 SCRA 199 (1998).

56Section 1, Article XIII of the 1935 Constitution limited the disposition and utilization of
public agricultural lands to Philippine citizens or to corporations at least sixty percent owned
by Philippine citizens. This was, however, subject to the original Ordinance appended to the
1935 Constitution stating, among others, that until the withdrawal of United States
sovereignty in the Philippines, "Citizens and corporations of the United States shall enjoy in
the Commonwealth of the Philippines all the civil rights of the citizens and corporations,
respectively, thereof."

57Section 44 of PD No. 1529 (previously Section 39 of Act No. 496) provides that "liens,
claims or rights arising or existing under the laws and the Constitution of the Philippines
which are not by law required to appear of record in the Registry of Deeds in order to be
valid against subsequent purchasers or encumbrancers of record" constitute statutory liens
affecting the title. 1âwphi 1.nêt

58 RA No. 730, which took effect on June 18, 1952, authorized the private sale of home lots
to actual occupants of public lands not needed for public service. Section 1 of RA No. 730
provided as follows: "Notwithstanding the provisions of Sections 61 and 67 of
Commonwealth Act No. 141, as amended by RA No. 293, any Filipino citizen of legal age
who is not the owner of a home lot in the municipality or city in which he resides and who
had in good faith established his residence on a parcel of land of the Republic of the
Philippines which is not needed for public service, shall be given preference to purchase at a
private sale of which reasonable notice shall be given to him, not more than one thousand
square meters at a price to be fixed by the Director of Lands with the approval of the
Secretary of Agriculture and Natural Resources. x x x." In addition, on June 16, 1948,
Congress enacted R.A. No. 293 allowing the private sale of marshy alienable or disposable
lands of the public domain to lessees who have improved and utilized the same as farms,
fishponds or other similar purposes for at least five years from the date of the lease contract
with the government. R.A. No. 293, however, did not apply to marshy lands under Section 56
(c), Title III of CA No. 141 which refers to marshy lands leased for residential, commercial,
industrial or other non-agricultural purposes.

59 See note 49.

60 See note 60.

61
Republic Real Estate Corporation v. Court of Appeals, see note 56.

62 Ibid.

63Insular Government v. Aldecoa, 19 Phil. 505 (1911); Government v. Cabangis, 53 Phil. 112
(1929).

64 118 SCRA 492 (1982).

65 Annex "B", AMARI's Memorandum, see note 2 at 1 & 2.

66 PEA's Memorandum, see note 6.

67 Ibid., p. 44.

68 See notes 9, 10 & 11.

69 Annex "C", p. 3, AMARI's Memorandum, see note 12 at 3.

70 This should read Article XII.

71 Section 8 of CA No. 141.

72 Emphasis supplied.

73 187 SCRA 797 (1990).

74Article 422 of the Civil Code states as follows: "Property of public dominion, when no
longer needed for public use or public service, shall form part of the patrimonial property of
the State."

75 AMARI's Comment dated June 24, 1998, p. 20; Rollo, p. 85.

76Dizon v. Rodriguez, 13 SCRA 705 (1965); Republic v. Lat Vda. de Castillo, 163 SCRA 286
(1988).

77 Cariño v. Insular Government, 41 Phil. 935 (1909).

78 Proclamation No. 41, issued by President Ramon Magsaysay on July 5, 1954, reserved for
"National Park purposes" 464.66 hectares of the public domain in Manila Bay "situated in the
cities of Manila and Pasay and the municipality of Paranaque, Province of Rizal, Island of
Luzon," which area, as described in detail in the Proclamation, is "B]ounded on the North, by
Manila Bay; on the East, by Dewey Boulevard; and on the south and west, by Manila Bay."
See concurring opinion of Justice Reynato S. Puno in Republic Real Estate Corporation v.
Court of Appeals, 299 SCRA 1999 (1998). Under Sections 2 and 3, Article XII of the 1987
Constitution, "national parks" are inalienable natural resources of the State.

79 Fifth Whereas clause of EO No. 525.

80 Section 4, Chapter I, Title XIV, Book IV.

81Section 6 of CA No 141 provides as follows: "The President, upon the recommendation

of the Secretary of Agriculture and Commerce, shall from time to time classify the lands
of the public domain into – (a) Alienable or disposable, x x x."

82Section 7 of CA No. 141 provides as follows: "For purposes of the administration and
disposition of alienable or disposable public lands, the President, upon recommendation by
the Secretary of Agriculture and Commerce, shall from time to time declare what lands
are open to disposition or concession under this Act."

83 On "Lands for Residential, Commercial, or Industrial and other Similar Purposes."

84RA No. 293, enacted on June 16, 1948, authorized the sale of marshy lands under certain
conditions. Section 1 of RA No. 293 provided as follows: "The provisions of section sixty-one
of Commonwealth Act Numbered One hundred and forty-one to the contrary
notwithstanding, marshy lands and lands under water bordering on shores or banks or
navigable lakes or rivers which are covered by subsisting leases or leases which may
hereafter be duly granted under the provisions of the said Act and are already improved and
have been utilized for farming, fishpond, or similar purposes for at least five years from the
date of the contract of lease, may be sold to the lessees thereof under the provisions of
Chapter Five of the said Act as soon as the President, upon recommendation of the
Secretary of Agriculture and Natural Resources, shall declare that the same are not
necessary for the public service."

85 PEA's Memorandum, see note 2 at 45.

86 See note 73.

87 Section 4 (b) of PD No. 1084

88R.A. No. 730 allows the private sale of home lots to actual occupants of public
lands. See note 63.

89 Issued on February 26, 1981.

90While PEA claims there was a failure of public bidding on December 10, 1991, there is no
showing that the Commission on Audit approved the price or consideration stipulated in the
negotiated Amended JVA as required by Section 79 of the Government Auditing Code.
Senate Committee Report No. 560 did not discuss this issue.

91
Paragraph 2 (a) of COA Circular No. 89-296, on "Sale Thru Negotiation," states that
disposal through negotiated sale may be resorted to if "[T]here was a failure of public
auction."

92Senate Committee Report No. 560, Statement of Facts, p. 7, citing PEA Board Resolution
No. 835, as appearing in the Minutes of the PEA Board of Directors Meeting held on May 30,
1991, per Certification of Jaime T. De Veyra, Corporate Secretary, dated June 11, 1991.

93 Opinion No. 330, citing COA Audit Circular No. 89-296. See note 5.

94 PEA's Memorandum, see note 2.

Senate Committee Report No. 560, pp. 7-8, citing the Minutes of Meeting of the PEA
95

Board of Directors held on December 19, 1991.

96Section 3, Article XII of the 1987 Constitution provides as follows: "x x x Citizens of the
Philippines may x x x acquire not more than twelve hectares thereof by purchase,
homestead or grant." However, Section 6 of R.A. No. 6657 (Comprehensive Agrarian
Reform Law) limits the ownership of "public or private agricultural land" to a maximum of five
hectares per person.

97 96 Phil. 946 (1955).

98 48 SCRA 372 (1977).

99 168 SCRA 198 (1988).

100 172 SCRA 795 (1989).

101 73 SCRA 146 (1976).

102 Avila v. Tapucar, 201 SCRA 148 (1991).

103Republic v. Ayala Cia, et al., 14 SCRA 259 (1965); Dizon v. Rodriguez, 13 SCRA 705
(1965).

104Section 44 of PD No. 1529 states as follows: "Every registered owner receiving a

certificate of title in pursuance of a decree of registration, and every subsequent purchaser of
registered land taking a certificate of title for value and in good faith, shall hold the same free
from all encumbrances except those noted on said certificate and any of the following
encumbrances which may be subsisting, namely: First. Liens, claims or rights arising or
existing under the laws and Constitution of the Philippines which are not by law
required to appear of record in the Registry of Deeds in order to be valid against
subsequent purchasers or encumbrancers of record. x x x." Under Section 103 of PD
No. 1529, Section 44 applies to certificates of title issued pursuant to a land patent granted
by the government.

105 Section 2, Article XIII of the 1935 Constitution.

106 Harty v. Municipality of Victoria, 13 Phil. 152 (1909).

Annex "B", AMARI's Memorandum, see note 21 at 16, Section 5.2 (c) of the Amended
107

JVA.

108Section 10 of CA No. 141 provides as follows: "Sec. 10. The words "alienation,"
"disposition," or "concession" as used in this Act, shall mean any of the methods authorized
by this Act for the acquisition, lease, use, or benefit of the lands of the public domain other
than timber or mineral lands."

109Section 79 of the Government Auditing Code, which requires public auction in the sale of
government assets, includes all kinds of disposal or divestment of government assets. Thus,
COA Audit Circular No. 86-264 dated October 16, 1986 speaks of "guidelines (which) shall
govern the general procedures on the divestment or disposal of assets of government-
owned and/or controlled corporations and their subsidiaries." Likewise, COA Audit
Circular No. 89-296 dated January 27, speaks of "guidelines (which) shall be observed and
adhered to in the divestment or disposal of property and other assets of all government
entities/instrumentalities" and that "divestment shall refer to the manner or scheme of
taking away, depriving, withdrawing of an authority, power or title." These COA Circulars
implement Section 79 of the Government Auditing Code.

110The share of AMARI in the Freedom Islands is 77.34 hectares, which is 70 percent of the
net usable area of 110.49 hectares. The net usable area is the total land area of the
Freedom Islands less 30 percent allocated for common areas.

The share of AMARI in the submerged areas for reclamation is 290.129 hectares, which is
111

70 percent of the net usable area of 414.47 hectares.

112Article 1409 of the Civil Code provides as follows: "The following contracts are inexistent
and void from the beginning: (1) Those whose cause, object or purpose is contrary to law; x
x x; (4) Those whose object is outside the commerce of men; x x x."
 Supreme Court of the Philippines

671 Phil. 651

FIRST DIVISION
G.R. No. 172331, August 24, 2011
RAMON ARANDA, PETITIONER, VS. REPUBLIC OF
THE PHILIPPINES, RESPONDENT.

DECISION
VILLARAMA, JR., J.:
On appeal is the Decision[1] dated July 26, 2005 and Resolution[2] dated April 11,
2006 of the Court of Appeals (CA) in CA-G.R. CV No. 73067 which reversed
and set aside the Decision[3] dated January 31, 2001 of the Regional Trial Court
(RTC) of Tanauan, Batangas, Branch 6 in Land Reg. Case No. T-335 (LRA
Record No. N-69447).

Subject of a petition for original registration before the RTC is a parcel of land
situated in San Andres, Malvar, Batangas with an area of 9,103 square meters and
designated as Lot 3730, Psc 47, Malvar Cadastre. The petition[4] was originally
filed by ICTSI Warehousing, Inc. (ICTSI-WI) represented by its Chairman,
Enrique K. Razon, Jr. The Republic through the Office of the Solicitor General
(OSG) filed its opposition[5] on grounds that the land applied for is part of the
public domain and the applicant has not acquired a registrable title thereto under
the provisions of Commonwealth Act No. 141 as amended by Republic Act No.
6940.

ICTSI-WI sought leave of court to amend the application citing the following
reasons: (1) the petition was not accompanied by a certification of non-forum
shopping; (2) the statement of technical description was based merely on the
boundaries set forth in the tax declaration; and (3) due to a technicality, the sale
between the vendor and applicant corporation cannot push through and
consequently the tax declaration is still in the name of vendor Ramon Aranda and
the land cannot be transferred and declared in the name of ICTSI-WI.[6]

The trial court admitted the Amended Application for Registration of Title,[7] this
time filed in the name of Ramon Aranda, herein petitioner. Petitioner prayed that
should the Land Registration Act be not applicable to this case, he invokes the
liberal provisions of Section 48 of Commonwealth Act No. 141, as amended,
having been in continuous possession of the subject land in the concept of owner,
publicly, openly and adversely for more than thirty (30) years prior to the filing of
the application.[8]

In support of the application, petitioner's sister Merlita A. Enriquez testified that

in 1965 her father Anatalio Aranda donated the subject land to his brother
(petitioner), as evidenced by documents "Pagpapatunay ng Pagkakaloob ng Lupa"
which she and her siblings executed on June 7, 2000.[9] She came to know the
land for the first time in 1965 when she was eight years old and his brother Ramon
has been tilling the land since then, planting it with rice and corn. His brother did
not introduce any permanent improvement and also did not hire a tenant to work
on the land. As to the donation made by his father to his brother Ramon, she
recalled there was such a document but it was eaten by rats.[10]

Another witness, Luis Olan, testified that his father Lucio Olan originally owned
the land and that he had known about this property since he was six (6) years old
as he used to accompany his father in going to the land. His father farmed the
land and planted it first, with rice, and later corn. They had open, peaceful,
continuous and adverse possession of the land in the concept of owner until his
father sold the land in 1946 to Anatalio Aranda. The children of Anatalio then
took over in tilling the land, planting it with rice and corn and adding a few
coconut trees. He does not have any copy of the document of sale because his
mother gave it to Anatalio.[11]

On January 31, 2001, the trial court rendered its Decision [12] granting the
application and ordering the issuance of a decree of registration in favor of
petitioner.

The Republic appealed to the CA which reversed the trial court. The CA held
that petitioner's evidence does not satisfactorily establish the character and
duration of possession required by law, as petitioner failed to prove specific acts
showing the nature of the possession by his predecessors-in-interest. The CA also
did not give evidentiary weight to the documents "Pagpapatunay ng Pagkakaloob ng
Lupa" and "Pagpapatunay ng Bilihang Lampasan ng Lupa",[13] both prepared only in
the year 2000 when the application for registration was filed, as factual proof of
ownership by the parties to the compromise agreement.

Petitioner's motion for reconsideration was likewise denied by the CA.

Hence, this appeal by way of a petition for review on certiorari under Rule 45
alleging that the decision of the CA is based on a misapprehension of facts with
regard to compliance with the required 30 years of open, exclusive, public and
adverse possession in the concept of owner. Petitioner argues that the deeds of
confirmation of the 1946 sale in favor of Anatalio Aranda and the 1965 donation
to petitioner are competent proof of transfer of ownership notwithstanding that
these were executed only in the year 2000. He asserts that the testimonies of
witnesses Merlita Aranda-Enriquez and Luis Olan on the fact of loss and
destruction of copies of the aforesaid deeds constitute secondary evidence of the
contents thereof based on recollection of persons who are adversely affected.
Such testimonial evidence coupled with the deeds of confirmation warrants the
application of the exception from the best evidence rule. Petitioner thus contends
that the CA had no legal basis to doubt the veracity of the donation and sale of
the subject property, and to conclude that the confirmation deeds can be treated
as compromise agreement considering that the transactions had been previously
completed and perfected by the parties.

We deny the petition.

The Property Registration Decree (P.D. No. 1529) provides for original
registration of land in an ordinary registration proceeding. Under Section 14(1)[14]
thereof, a petition may be granted upon compliance with the following requisites:
(a) that the property in question is alienable and disposable land of the public
domain; (b) that the applicants by themselves or through their predecessors-in-
interest have been in open, continuous, exclusive and notorious possession and
occupation; and (c) that such possession is under a bona fide claim of ownership
since June 12, 1945 or earlier.
Under the Regalian doctrine which is embodied in Section 2, Article XII of the
1987 Constitution, all lands of the public domain belong to the State, which is the
source of any asserted right to ownership of land. All lands not appearing to be
clearly within private ownership are presumed to belong to the State. Unless
public land is shown to have been reclassified or alienated to a private person by
the State, it remains part of the inalienable public domain. To overcome this
presumption, incontrovertible evidence must be established that the land subject
of the application is alienable or disposable.[15]

To prove that the land subject of an application for registration is alienable, an

applicant must establish the existence of a positive act of the government such as
a presidential proclamation or an executive order; an administrative action;
investigation reports of Bureau of Lands investigators; and a legislative act or a
statute.[16] The applicant may also secure a certification from the Government that
the lands applied for are alienable and disposable.[17]

In this case, the Assistant Regional Executive Director For Operations-Mainland

Provinces of the Department of Environment and Natural Resources (DENR),
in compliance with the directive of the trial court, issued a certification stating
that the subject property "falls within the Alienable and Disposable Land, Project
No. 22-A of Lipa, Batangas per LC Map 718 certified on March 26, 1928." [18]
However, in the Certification[19] dated January 14, 2000 issued by the DENR
CENR Officer of Batangas City, Pancrasio M. Alcantara, which was submitted in
evidence by the petitioner, it states that:

This is to certify that based on projection from the technical reference map of
this Office, Lot No. 3730, Ap-04-009883, situated at Barangay San Andres,
Malvar, Batangas containing an area of NINE THOUSAND ONE HUNDRED
THREE AND FORTY SEVEN (9,103.47) SQUARE METERS and shown at
the reverse side hereof has been verified to be within the ALIENABLE AND
DISPOSABLE ZONE under Project No. 39, Land Classification Map No.
3601 certified on 22 December 1997 except for twenty meters strip of land along
the creek bounding on the northeastern portion which is to be maintained as
streambank protection.

x x x x (Emphasis supplied.)

Petitioner has not explained the discrepancies in the dates of classification [20]
mentioned in the foregoing government certifications. Consequently, the status
of the land applied for as alienable and disposable was not clearly established.

We also agree with the CA that petitioner's evidence failed to show that he
possessed the property in the manner and for the duration required by law.

Petitioner presented tax declarations and the deeds of confirmation of the 1946
sale from the original owner (Lucio Olan) to Anatalio Aranda and the 1965
donation made by the latter in favor of petitioner. But as found by the CA, the
history of the land shows that it was declared for taxation purposes for the first
time only in 1981. On the other hand, the Certification issued by the Municipal
Treasurer of Malvar stated that petitioner, who supposedly received the property
from his father in 1965, had been paying the corresponding taxes for said land
"for more than five consecutive years including the current year [1999]," or
beginning 1994 only or just three years before the filing of the application for
original registration. While, as a rule, tax declarations or realty tax payments of
property are not conclusive evidence of ownership, nevertheless they are good
indicia of possession in the concept of owner, for no one in his right mind would
be paying taxes for a property that is not in his actual or constructive possession
- they constitute at least proof that the holder has a claim of title over the
property.[21]

Petitioner likewise failed to prove the alleged possession of his predecessors-in-

interest. His witness Luis Olan testified that he had been visiting the land along
with his father Lucio since he was 6 years old (he was 70 years old at the time he
testified), or as early as 1936. Yet, there was no evidence that Lucio Olan declared
the property for tax purposes at anytime before he sold it to Anatalio Aranda.
There is also no showing that Anatalio Aranda declared the property in his name
from the time he bought it from Lucio Olan. And even assuming that Lucio
actually planted rice and corn on the land, such statement is not sufficient to
establish possession in the concept of owner as contemplated by law. Mere casual
cultivation of the land does not amount to exclusive and notorious possession
that would give rise to ownership.[22] Specific acts of dominion must be clearly
shown by the applicant.

We have held that a person who seeks the registration of title to a piece of land
on the basis of possession by himself and his predecessors-in-interest must prove
his claim by clear and convincing evidence, i.e., he must prove his title and should
not rely on the absence or weakness of the evidence of the oppositors. [23]
Furthermore, the court has the bounden duty, even in the absence of any
opposition, to require the petitioner to show, by a preponderance of evidence and
by positive and absolute proof, so far as possible, that he is the owner in fee simple
of the lands which he is attempting to register.[24] Since petitioner failed to meet
the quantum of proof required by law, the CA was correct in reversing the trial
court and dismissing his application for judicial confirmation of title.

WHEREFORE, the present petition for review on certiorari is DENIED. The

Decision dated July 26, 2005 and Resolution dated April 11, 2006 of the Court of
Appeals in CA-G.R. CV No. 73067 are AFFIRMED and UPHELD.

With costs against the petitioner.

SO ORDERED.

Corona, C.J., (Chairperson), Leonardo-De Castro, Bersamin, and Perez,* JJ. , concur.

*Designated additional member per Raffle dated August 22, 2011 vice Associate
Justice Mariano C. Del Castillo who recused himself due to prior action in the
Court of Appeals.

Rollo, pp. 27-36. Penned by Associate Justice Magdangal M. De Leon with

[1]

Associate Justices Salvador J. Valdez, Jr. and Mariano C. Del Castillo (now a
Member of this Court) concurring.

[2] Id.
at 48-49. Penned by Associate Justice Magdangal M. De Leon with Associate
Justices Mariano C. Del Castillo (now a Member of this Court) and Noel G. Tijam
concurring.

[3] Id. at 22-25. Penned by Judge Voltaire Y. Rosales.

[4] Records, pp. 1-4.

[5] Id. at 22-24.

[6] Id. at 37-38.

[7] Id. at 39-43.

[8] Id. at 41.

TSN, May 24, 2000, pp. 2-6; TSN, June 27, 2000, pp. 2-7; Records, pp. 88-89-
[9]

A.

[10] TSN, May 24, 2000, pp. 14-16.

[11] TSN, June 27, 2000, pp. 9-15.

[12] Supra note 3.

[13] Records, pp. 103-104.

SECTION 14. Who may apply. - The following persons may file in the proper
[14]

Court of First Instance an application for registration of title to land, whether

personally or through their duly authorized representatives:

(1) Those who by themselves or through their predecessors-in-interest have been

in open, continuous, exclusive and notorious possession and occupation of
alienable and disposable lands of the public domain under a bona fide claim of
ownership since June 12, 1945, or earlier.

x x x x

Republic v. Lao, G.R. No. 150413, July 1, 2003, 405 SCRA 291, 298, citing Seville
[15]

v. National Development Company, G.R. No. 129401, February 2, 2001, 351 SCRA
112, 120; Bracewell v. Court of Appeals, 380 Phil. 156, 162 (2000); Menguito v. Republic,
G.R. No. 134308, December 14, 2000, 348 SCRA 128, 139; and Pagkatipunan v.
Court of Appeals, G.R. No. 129682, March 21, 2002, 379 SCRA 621, 628.

Republic v. Court of Appeals, G.R. No. 127060, November 19, 2002, 392 SCRA
[16]

190, 201.

[17] Republic v. Tri-Plus Corporation, G.R. No. 150000, September 26, 2006, 503
SCRA 91, 102.

[18] Records, p. 110.

[19] Id. at 82-b.

See Republic v. T.A.N. Properties, Inc., G.R. No. 154953, June 26, 2008, 555
[20]

SCRA 477, 492.

[21] Buenaventura v. Republic, G.R. No. 166865, March 2, 2007, 517 SCRA 271, 289.

Wee v. Republic, G.R. No. 177384, December 8, 2009, 608 SCRA 72, 83, citing
[22]

Director of Lands v. Judge Reyes, 160-A Phil. 832, 851 (1975) and Ramirez and Bayot de
Ramirez v. Director of Lands, 60 Phil. 114 (1934).

[23]Arbias v. Republic, G.R. No. 173808, September 17, 2008, 565 SCRA 582, 597,
citing Republic v. Intermediate Appellate Court, No. L-66069, September 28, 1984, 132
SCRA 395, 397, cited in Edaño v. Court of Appeals, G.R. No. 83995, September 4,
1992, 213 SCRA 585, 592.

Id., citing Maloles and Malvar v. Director of Lands, 25 Phil. 548, 553 (1913), cited
[24]

in Edaño v. Court of Appeals, id. at 593.

 United States Supreme Court
CARINO v. INSULAR GOVERNMENT OF PHILIPPINE ISLANDS(1909)

No. 72

Argued: January 13, 1909Decided: February 23, 1909

Messrs. Frederic R. Coudert, Howard Thayer Kingsbury, Charles C.

[212 U.S. 449, 450]
Cohn, D. R. Williams, and Paul Fuller for plaintiff in error.

[212 U.S. 449, 453] Solicitor General Hoyt and Paul Charlton for defendant in error.

[212 U.S. 449, 455]

Mr. Justice Holmes delivered the opinion of the court:

This was an application to the Philippine court of land registration for the registration of
certain land. The application was granted by the court on March 4, 1904. An appeal was
taken to the court of first instance of the province of Benguet, on behalf of the
government of the Philippines, and also on behalf of the United States, those
governments having taken possession of the property for public and military purposes.
The court of first instance found the facts and dismissed the application upon grounds of
law. This judgment was affirmed by the supreme court (7 Philippine, 132 ), and the case
then was brought here by writ of error.

The material facts found are very few. The applicant and plaintiff in error is an Igorot of
the province of Benguet, where the land lies. For more than fifty years before the treaty
of [212 U.S. 449, 456] Paris, April 11, 1899 [30 Stat. at L. 1754], as far back as the
findings go, the plaintiff and his ancestors had held the land as owners. His grandfather
had lived upon it, and had maintained fences sufficient for the holding of cattle,
according to the custom of the country, some of the fences, it seems, having been of
much earlier date. His father had cultivated parts and had used parts for pasturing
cattle, and he had used it for pasture in his turn. They all had been recognized as
owners by the Igorots, and he had inherited or received the land from his father, in
accordance with Igorot custom. No document of title, however, had issued from the
Spanish Crown, and although, in 1893-1894, and again in 1896-1897, he made
application for one under the royal decrees then in force, nothing seems to have come
of it, unless, perhaps, information that lands in Benguet could not be conceded until
those to be occupied for a sanatorium, etc., had been designated,-a purpose that has
been carried out by the Philippine government and the United States. In 1901 the
plaintiff filed a petition, alleging ownership, under the mortgage law, and the lands were
registered to him, that process, however, establishing only a possessory title, it is said.

Before we deal with the merits, we must dispose of a technical point. The government
has spent some energy in maintaining that this case should have been brought up by
appeal, and not by writ of error. We are of opinion, however, that the mode adopted was
right. The proceeding for registration is likened to bills in equity to quiet title, but it is
different in principle. It is a proceeding in rem under a statute of the type of the Torrens
act, such as was discussed in Tyler v. Registration Ct. Judges, 175 Mass. 71, 51 L.R.A.
433, 55 N. E. 812. It is nearer to law than to equity, and is an assertion of legal title; but
we think it unnecessary to put it into either pigeon hole. A writ of error is the general
method of bringing cases to this court, an appeal the exception, confined to equity in the
main. There is no reason for not applying the general rule to this case. Ormsby v.
Webb, 134 U.S. 47, 65 , 33 S. L. ed. 805, 812, 10 Sup. Ct. Rep. 478; Campbell v.
Porter, 162 U.S. 478 , 40 L. ed. 1044, 16 Sup. Ct. Rep. 871; Metropolitan R. Co. v.
District of Columbia ( Metropolitan R. Co. v. Macfarland) 195 U.S. 322 , 49 L. ed. 219,
25 Sup. Ct. Rep. 28. [212 U.S. 449, 457] Another preliminary matter may as well be
disposed of here. It is suggested that, even if the applicant have title, he cannot have it
registered, because the Philippine Commission's act No. 926, of 1903, excepts the
province of Benguet among others from its operation. But that act deals with the
acquisition of new titles by homestead entries, purchase, etc., and the perfecting of titles
begun under the Spanish law. The applicant's claim is that he now owns the land, and is
entitled to registration under the Philippine Commission's act No. 496, of 1902, which
established a court for that purpose with jurisdiction 'throughout the Philippine
archipelago,' 2, and authorized in general terms applications to be made by persons
claiming to own the legal estate in fee simple, as the applicant does. He is entitled to
registration if his claim of ownership can be maintained.

We come, then, to the question on which the case was decided below,- namely,
whether the plaintiff owns the land. The position of the government, shortly stated, is
that Spain assumed, asserted, and had title to all the land in the Philippines except so
far as it saw fit to permit private titles to be acquired; that there was no prescription
against the Crown, and that, if there was, a decree of June 25, 1880, required
registration within a limited time to make the title good; that the plaintiff's land was not
registered, and therefore became, if it was not always, public land; that the United
States succeeded to the title of Spain, and so that the plaintiff has no rights that the
Philippine government is bound to respect.

If we suppose for the moment that the government's contention is so far correct that the
Crown of Spain in form asserted a title to this land at the date of the treaty of Paris, to
which the United States succeeded, it is not to be assumed without argument that the
plaintiff's case is at an end. It is true that Spain, in its earlier decrees, embodied the
universal feudal theory that all lands were held from the Crown, and perhaps the
general attitude of conquering nations toward people not recognized as entitled to the
treatment accorded to those [212 U.S. 449, 458] in the same zone of civilization with
themselves. It is true, also, that, in legal theory, sovereignty is absolute, and that, as
against foreign nations, the United States may assert, as Spain asserted, absolute
power. But it does not follow that, as against the inhabitants of the Philippines, the
United States asserts that Spain had such power. When theory is left on one side,
sovereignty is a question of strength, and may vary in degree. How far a new sovereign
shall insist upon the theoretical relation of the subjects to the head in the past, and how
far it shall recognize actual facts, are matters for it to decide.

The province of Benguet was inhabited by a tribe that the Solicitor General, in his
argument, characterized as a savage tribe that never was brought under the civil or
military government of the Spanish Crown. It seems probable, if not certain, that the
Spanish officials would not have granted to anyone in that province the registration to
which formerly the plaintiff was entitled by the Spanish laws, and which would have
made his title beyond question good. Whatever may have been the technical position of
Spain, it does not follow that, in the view of the United States, he had lost all rights and
was a mere trespasser when the present government seized his land. The argument to
that effect seems to amount to a denial of native titles throughout an important part of
the island of Luzon, at least, for the want of ceremonies which the Spaniards would not
have permitted and had not the power to enforce.

The acquisition of the Philippines was not like the settlement of the white race in the
United States. Whatever consideration may have been shown to the North American
Indians, the dominant purpose of the whites in America was to occupy the land. It is
obvious that, however stated, the reason for our taking over the Philippines was
different. No one, we suppose, would deny that, so far as consistent with paramount
necessities, our first object in the internal administration of the islands is to do justice to
the natives, not to exploit their country for private gain. By the organic act of July 1,
1902, chap. 1369, 12, 32 Stat. at L. 691, all the property and rights acquired there by
the [212 U.S. 449, 459] United States are to be administered 'for the benefit of the
inhabitants thereof.' It is reasonable to suppose that the attitude thus assumed by the
United States with regard to what was unquestionably its own is also its attitude in
deciding what it will claim for its own. The same statute made a bill of rights, embodying
the safeguards of the Constitution, and, like the Constitution, extends those safeguards
to all. It provides that 'no law shall be enacted in said islands which shall deprive any
person of life, liberty, or property without due process of law, or deny to any person
therein the equal protection of the laws.' 5. In the light of the declaration that we have
quoted from 12, it is hard to believe that the United States was ready to declare in the
next breath that 'any person' did not embrace the inhabitants of Benguet, or that it
meant by 'property' only that which had become such by ceremonies of which
presumably a large part of the inhabitants never had heard, and that it proposed to treat
as public land what they, by native custom and by long association,-one of the
profoundest factors in human thought,-regarded as their own.

It is true that, by 14, the government of the Philippines is empowered to enact rules and
prescribe terms for perfecting titles to public lands where some, but not all, Spanish
conditions had been fulfilled, and to issue patents to natives for not more than 16
hectares of public lands actually occupied by the native or his ancestors before August
13, 1898. But this section perhaps might be satisfied if confined to cases where the
occupation was of land admitted to be public land, and had not continued for such a
length of time and under such circumstances as to give rise to the understanding that
the occupants were owners at that date. We hesitate to suppose that it was intended to
declare every native who had not a paper title a trespasser, and to set the claims of all
the wilder tribes afloat. It is true again that there is excepted from the provision that we
have quoted as to the administration of the property and rights acquired by the United
States, such land and property as shall be designated by the President for military or
other reser- [212 U.S. 449, 460] vations, as this land since has been. But there still
remains the question what property and rights the United States asserted itself to have
acquired.

Whatever the law upon these points may be, and we mean to go no further than the
necessities of decision demand, every presumption is and ought to be against the
government in a case like the present. It might, perhaps, be proper and sufficient to say
that when, as far back as testimony or memory goes, the land has been held by
individuals under a claim of private ownership, it will be presumed to have been held in
the same way from before the Spanish conquest, and never to have been public land.
Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we ought
to give the applicant the benefit of the doubt. Whether justice to the natives and the
import of the organic act ought not to carry us beyond a subtle examination of ancient
texts, or perhaps even beyond the attitude of Spanish law, humane though it was, it is
unnecessary to decide. If, in a tacit way, it was assumed that the wild tribes of the
Philippines were to be dealt with as the power and inclination of the conqueror might
dictate, Congress has not yet sanctioned the same course as the proper one 'for the
benefit of the inhabitants thereof.'

If the applicant's case is to be tried by the law of Spain, we do not discover such clear
proof that it was bad by that law as to satisfy us that he does not own the land. To begin
with, the older decrees and laws cited by the counsel for the plaintiff in error seem to
indicate pretty clearly that the natives were recognized as owning some lands,
irrespective of any royal grant. In other words, Spain did not assume to convert all the
native inhabitants of the Philippines into trespassers or even into tenants at will. For
instance, Book 4, title 12, Law 14 of the Recopilacion de Leyes de las Indias, cited for a
contrary conclusion in Valenton v. Murciano, 3 Philippine, 537, while it commands
viceroys and others, when it seems proper, to call for the exhibition of grants, directs
them to confirm those who hold by good grants or justa prescripcion. It is true that it [212
U.S. 449, 461] begins by the characteristic assertion of feudal overlordship and the origin
of all titles in the King or his predecessors. That was theory and discourse. The fact was
that titles were admitted to exist that owed nothing to the powers of Spain beyond this
recognition in their books.

Prescription is mentioned again in the royal cedula of October 15, 1754, cited in 3
Philippine, 546: 'Where such possessors shall not be able to produce title deeds, it shall
be sufficient if they shall show that ancient possession, as a valid title by prescription.' It
may be that this means possession from before 1700; but, at all events, the principle is
admitted. As prescription, even against Crown lands, was recognized by the laws of
Spain, we see no sufficient reason for hesitating to admit that it was recognized in the
Philippines in regard to lands over which Spain had only a paper sovereignty.
The question comes, however, on the decree of June 25, 1880, for the adjustment of
royal lands wrongfully occupied by private individuals in the Philippine Islands. This
begins with the usual theoretic assertion that, for private ownership, there must have
been a grant by competent authority; but instantly descends to fact by providing that, for
all legal effects, those who have been in possession for certain times shall be deemed
owners. For cultivated land, twenty years, uninterrupted, is enough. For uncultivated,
thirty. Art. 5. So that, when this decree went into effect, the applicant's father was owner
of the land by the very terms of the decree. But, it is said, the object of this law was to
require the adjustment or registration proceedings that it described, and in that way to
require every one to get a document of title or lose his land. That purpose may have
been entertained, but it does not appear clearly to have been applicable to all. The
regulations purport to have been made 'for the adjustment of royal lands wrongfully
occupied by private individuals.' (We follow the translation in the government's brief.) It
does not appear that this land ever was royal land or wrongfully occupied. In Article 6 it
is provided that 'interested parties not included within the two preceding [212 U.S. 449,
462] articles [the articles recognizing prescription of twenty and thirty years] may
legalize their possession, and thereby acquire the full ownership of the said lands, by
means of adjustment proceedings, to be conducted in the following manner.' This
seems, by its very terms, not to apply to those declared already to be owners by lapse
of time. Article 8 provides for the case of parties not asking an adjustment of the lands
of which they are unlawfully enjoying the possession, within one year, and threatens
that the treasury 'will reassert the ownership of the state over the lands,' and will sell at
auction such part as it does not reserve. The applicant's possession was not unlawful,
and no attempt at any such proceedings against him or his father ever was made.
Finally, it should be noted that the natural construction of the decree is confirmed by the
report of the council of state. That report puts forward as a reason for the regulations
that, in view of the condition of almost all property in the Philippines, it is important to fix
its status by general rules, on the principle that the lapse of a fixed period legalizes
completely all possession; recommends in two articles twenty and thirty years, as
adopted in the decree; and then suggests that interested parties not included in those
articles may legalize their possession and acquire ownership by adjustment at a certain
price.

It is true that the language of arts. 4 and 5 attributes title to those 'who may prove'
possession for the necessary time, and we do not overlook the argument that this
means may prove in registration proceedings. It may be that an English conveyancer
would have recommended an application under the foregoing decree, but certainly it
was not calculated to convey to the mind of an Igorot chief the notion that ancient family
possessions were in danger, if he had read every word of it. The words 'may prove'
(acrediten), as well, or better, in view of the other provisions, might be taken to mean
when called upon to do so in any litigation. There are indications that registration was
expected from all, but none sufficient to show that, for want of it, ownership actually
gained would be lost. [212 U.S. 449, 463] The effect of the proof, wherever made, was not
to confer title, but simply to establish it, as already conferred by the decree, if not by
earlier law. The royal decree of February 13, 1894, declaring forfeited titles that were
capable of adjustment under the decree of 1880, for which adjustment had not been
sought, should not be construed as a confiscation, but as the withdrawal of a privilege.
As a matter of fact, the applicant never was disturbed. This same decree is quoted by
the court of land registration for another recognition of the common-law prescription of
thirty years as still running against alienable Crown land.

It will be perceived that the rights of the applicant under the Spanish law present a
problem not without difficulties for courts of a different legal tradition. We have deemed
it proper on that account to notice the possible effect of the change of sovereignty and
the act of Congress establishing the fundamental principles now to be observed. Upon a
consideration of the whole case we are of opinion that law and justice require that the
applicant should be granted what he seeks, and should not be deprived of what, by the
practice and belief of those among whom he lived, was his property, through a refined
interpretation of an almost forgotten law of Spain.

Judgment reversed.
 EN BANC

G.R. No. 135385 December 6, 2000

ISAGANI CRUZ and CESAR EUROPA, petitioners,

vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF BUDGET
AND MANAGEMENT and CHAIRMAN and COMMISSIONERS OF THE NATIONAL
COMMISSION ON INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI
MANSAYANGAN, BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO
CARPIANO, LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI
KIRAM-CONNIE SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-
ANTONIO D. LUMANDONG, DATU MANTUMUKAW TEOFISTO SABASALES, DATU
EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON BAYAAN, TIMUAY JOSE ANOY,
TIMUAY MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG
MALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY
DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN, DATU
MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY,
LOURDES D. AMOS, GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA
GRACE L. GIRON, ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES,
LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING
DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO, CONCHITA
G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO
VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL,
MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY MALINDA, ALFREDO
ABILLANOS, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO
A. LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY,
HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR
TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG MALID,
MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO
MANGCAL, FELAY DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY
SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, SR.,
JERSON P. GERADA, RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M.
GERARDA, ELIZABETH L. MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS
MARICEL MALID, represented by her father CORNELIO MALID, MARCELINO M. LADRA,
represented by her father MONICO D. LADRA, JENNYLYN MALID, represented by her father
TONY MALID, ARIEL M. EVANGELISTA, represented by her mother LINAY BALBUENA,
EDWARD M. EMUY, SR., SUSAN BOLANIO, OND, PULA BATO B'LAAN TRIBAL FARMER'S
ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and GREEN FORUM-WESTERN
VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION
OF NATURAL RESOURCES, INC., intervenor.
 RESOLUTION

PER CURIAM:

Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as
citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371
(R.A. 8371), otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its
Implementing Rules and Regulations (Implementing Rules).

In its resolution of September 29, 1998, the Court required respondents to comment.1 In compliance,
respondents Chairperson and Commissioners of the National Commission on Indigenous Peoples
(NCIP), the government agency created under the IPRA to implement its provisions, filed on October
13, 1998 their Comment to the Petition, in which they defend the constitutionality of the IPRA and
pray that the petition be dismissed for lack of merit.

On October 19, 1998, respondents Secretary of the Department of Environment and Natural
Resources (DENR) and Secretary of the Department of Budget and Management (DBM) filed
through the Solicitor General a consolidated Comment. The Solicitor General is of the view that the
IPRA is partly unconstitutional on the ground that it grants ownership over natural resources to
indigenous peoples and prays that the petition be granted in part.

On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors
of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constitutional Commission, and the
leaders and members of 112 groups of indigenous peoples (Flavier, et. al), filed their Motion for
Leave to Intervene. They join the NCIP in defending the constitutionality of IPRA and praying for the
dismissal of the petition.

On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene
and/or to Appear as Amicus Curiae. The CHR asserts that IPRA is an expression of the principle of
parens patriae and that the State has the responsibility to protect and guarantee the rights of those
who are at a serious disadvantage like indigenous peoples. For this reason it prays that the petition
be dismissed.

On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon
Foundation for the Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to
Intervene with attached Comment-in-Intervention. They agree with the NCIP and Flavier, et al. that
IPRA is consistent with the Constitution and pray that the petition for prohibition and mandamus be
dismissed.

The motions for intervention of the aforesaid groups and organizations were granted.

Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their
respective memoranda in which they reiterate the arguments adduced in their earlier pleadings and
during the hearing.

Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing
Rules on the ground that they amount to an unlawful deprivation of the State’s ownership over lands
of the public domain as well as minerals and other natural resources therein, in violation of the
regalian doctrine embodied in Section 2, Article XII of the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b)
which, in turn, defines ancestral lands;

"(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable
public lands, bodies of water, mineral and other resources found within ancestral domains are
private but community property of the indigenous peoples;

"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains
and ancestral lands;

"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral domains;

(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral lands;

"(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting,
extraction, development or exploration of minerals and other natural resources within the areas
claimed to be their ancestral domains, and the right to enter into agreements with nonindigenous
peoples for the development and utilization of natural resources therein for a period not exceeding
25 years, renewable for not more than 25 years; and

"(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect
and conserve the ancestral domains and portions thereof which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or
reforestation."2

Petitioners also content that, by providing for an all-encompassing definition of "ancestral domains"
and "ancestral lands" which might even include private lands found within said areas, Sections 3(a)
and 3(b) violate the rights of private landowners.3

In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the
NCIP and making customary law applicable to the settlement of disputes involving ancestral
domains and ancestral lands on the ground that these provisions violate the due process clause of
the Constitution.4

These provisions are:

"(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of
ancestral domains and which vest on the NCIP the sole authority to delineate ancestral
domains and ancestral lands;

"(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is
an ancestral domain and upon notification to the following officials, namely, the Secretary of
Environment and Natural Resources, Secretary of Interior and Local Governments,
Secretary of Justice and Commissioner of the National Development Corporation, the
jurisdiction of said officials over said area terminates;

"(3) Section 63 which provides the customary law, traditions and practices of indigenous
peoples shall be applied first with respect to property rights, claims of ownership, hereditary
 succession and settlement of land disputes, and that any doubt or ambiguity in the
interpretation thereof shall be resolved in favor of the indigenous peoples;

"(4) Section 65 which states that customary laws and practices shall be used to resolve
disputes involving indigenous peoples; and

"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes
involving rights of the indigenous peoples."5

Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order
No. 1, series of 1998, which provides that "the administrative relationship of the NCIP to the Office of
the President is characterized as a lateral but autonomous relationship for purposes of policy and
program coordination." They contend that said Rule infringes upon the President’s power of control
over executive departments under Section 17, Article VII of the Constitution.6

Petitioners pray for the following:

"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related
provisions of R.A. 8371 are unconstitutional and invalid;

"(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the
NCIP to cease and desist from implementing the assailed provisions of R.A. 8371 and its
Implementing Rules;

"(3) The issuance of a writ of prohibition directing the Secretary of the Department of
Environment and Natural Resources to cease and desist from implementing Department of
Environment and Natural Resources Circular No. 2, series of 1998;

"(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management
to cease and desist from disbursing public funds for the implementation of the assailed
provisions of R.A. 8371; and

"(5) The issuance of a writ of mandamus commanding the Secretary of Environment and
Natural Resources to comply with his duty of carrying out the State’s constitutional mandate
to control and supervise the exploration, development, utilization and conservation of
Philippine natural resources."7

After due deliberation on the petition, the members of the Court voted as follows:

Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice
and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged
provisions of R.A. 8371. Justice Puno also filed a separate opinion sustaining all challenged
provisions of the law with the exception of Section 1, Part II, Rule III of NCIP Administrative Order
No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and Section 57 of the
IPRA which he contends should be interpreted as dealing with the large-scale exploitation of natural
resources and should be read in conjunction with Section 2, Article XII of the 1987 Constitution. On
the other hand, Justice Mendoza voted to dismiss the petition solely on the ground that it does not
raise a justiciable controversy and petitioners do not have standing to question the constitutionality
of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a
separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions
of R.A. 8371 are unconstitutional. He reserves judgment on the constitutionality of Sections 58, 59,
65, and 66 of the law, which he believes must await the filing of specific cases by those whose rights
may have been violated by the IPRA. Justice Vitug also filed a separate opinion expressing the view
that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena,
Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban and Vitug.

As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case
was redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly,
pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.

Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug,
Kapunan, Mendoza, and Panganiban.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago,
and De Leon, Jr., JJ., concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion

Footnotes

1
Rollo, p. 114.

2
Petition, Rollo, pp. 16-23.

3
Id. at 23-25.

4
Section 1, Article III of the Constitution states: "No person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied the equal protection of
the laws."

5
Rollo, pp. 25-27.

6
Id. at 27-28.

7
Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
PUNO, J.:

PRECIS

A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled "On the
Uses and Disadvantages of History for Life." Expounding on Nietzsche's essay, Judge Richard
Posner1 wrote:2

"Law is the most historically oriented, or if you like the most backward-looking, the most 'past-
dependent,' of the professions. It venerates tradition, precedent, pedigree, ritual, custom, ancient
practices, ancient texts, archaic terminology, maturity, wisdom, seniority, gerontocracy, and
interpretation conceived of as a method of recovering history. It is suspicious of innovation,
discontinuities, 'paradigm shifts,' and the energy and brashness of youth. These ingrained attitudes
are obstacles to anyone who wants to re-orient law in a more pragmatic direction. But, by the same
token, pragmatic jurisprudence must come to terms with history."

When Congress enacted the Indigenous Peoples Rights Act (IPRA), it

introduced radical concepts into the Philippine legal system which appear to collide with settled
constitutional and jural precepts on state ownership of land and other natural resources. The sense
and subtleties of this law cannot be appreciated without considering its distinct sociology and the
labyrinths of its history. This Opinion attempts to interpret IPRA by discovering its soul shrouded by
the mist of our history. After all, the IPRA was enacted by Congress not only to fulfill the
constitutional mandate of protecting the indigenous cultural communities' right to their ancestral land
but more importantly, to correct a grave historical injustice to our indigenous people.

This Opinion discusses the following:

I. The Development of the Regalian Doctrine in the Philippine Legal System.

A. The Laws of the Indies

B. Valenton v. Murciano

C. The Public Land Acts and the Torrens System

D. The Philippine Constitutions

II. The Indigenous Peoples Rights Act (IPRA).

A. Indigenous Peoples

1. Indigenous Peoples: Their History

2. Their Concept of Land

III. The IPRA is a Novel Piece of Legislation.

A. Legislative History

IV. The Provisions of the IPRA Do Not Contravene the Constitution.

 A. Ancestral domains and ancestral lands are the private property of indigenous peoples and
do not constitute part of the land of the public domain.

1. The right to ancestral domains and ancestral lands: how acquired

2. The concept of native title

(a) Cariño v. Insular Government

(b) Indian Title to land

(c) Why the Cariño doctrine is unique

3. The option of securing a torrens title to the ancestral land

B. The right of ownership and possession by the ICCs/IPs to their ancestral domains is a
limited form of ownership and does not include the right to alienate the same.

1. The indigenous concept of ownership and customary law

C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine enshrined in
Section 2, Article XII of the 1987 Constitution.

1. The rights of ICCs/IPs over their ancestral domains and lands

2. The right of ICCs/IPs to develop lands and natural resources within the ancestral
domains does not deprive the State of ownership over the natural resources, control
and supervision in their development and exploitation.

(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the
parameters of Section 7(a) of the law on ownership of ancestral domains and
is ultra vires.

(b) The small-scale utilization of natural resources in Section 7 (b) of the

IPRA is allowed under Paragraph 3, Section 2, Article XII of the 1987
Consitution.

(c) The large-scale utilization of natural resources in Section 57 of the IPRA

may be harmonized with Paragraphs 1 and 4, Section 2, Article XII of the
1987 Constitution.

V. The IPRA is a Recognition of Our Active Participation in the International Indigenous Movement.

DISCUSSION

I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM.

A. The Laws of the Indies

The capacity of the State to own or acquire property is the state's power of dominium.3 This was the
foundation for the early Spanish decrees embracing the feudal theory of jura regalia. The "Regalian
Doctrine" or jura regalia is a Western legal concept that was first introduced by the Spaniards into
the country through the Laws of the Indies and the Royal Cedulas. The Laws of the Indies, i.e.,
more specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las Indias, set
the policy of the Spanish Crown with respect to the Philippine Islands in the following manner:

"We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not
heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to the
royal crown and patrimony, it is our will that all lands which are held without proper and true deeds of
grant be restored to us as they belong to us, in order that after reserving before all what to us or to
our viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures,
and commons in those places which are peopled, taking into consideration not only their present
condition, but also their future and their probable increase, and after distributing to the natives what
may be necessary for tillage and pasturage, confirming them in what they now have and giving them
more if necessary, all the rest of said lands may remain free and unencumbered for us to dispose of
as we may wish.

We therefore order and command that all viceroys and presidents of pretorial courts designate at
such time as shall to them seem most expedient, a suitable period within which all possessors of
tracts, farms, plantations, and estates shall exhibit to them and to the court officers appointed by
them for this purpose, their title deeds thereto. And those who are in possession by virtue of proper
deeds and receipts, or by virtue of just prescriptive right shall be protected, and all the rest shall be
restored to us to be disposed of at our will."4

The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands
became the exclusive patrimony and dominion of the Spanish Crown. The Spanish Government took
charge of distributing the lands by issuing royal grants and concessions to Spaniards, both military
and civilian.5 Private land titles could only be acquired from the government either by purchase or by
the various modes of land grant from the Crown.6

The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of 1893.7 The
Spanish Mortgage Law provided for the systematic registration of titles and deeds as well as
possessory claims. The law sought to register and tax lands pursuant to the Royal Decree of 1880.
The Royal Decree of 1894, or the "Maura Law," was partly an amendment of the Mortgage Law as
well as the Laws of the Indies, as already amended by previous orders and decrees.8 This was the
last Spanish land law promulgated in the Philippines. It required the "adjustment" or registration of all
agricultural lands, otherwise the lands shall revert to the state.

Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government of
the United States all rights, interests and claims over the national territory of the Philippine Islands.
In 1903, the United States colonial government, through the Philippine Commission, passed Act No.
926, the first Public Land Act.

B. Valenton v. Murciano

In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.9

Valenton resolved the question of which is the better basis for ownership of land: long-time
occupation or paper title. Plaintiffs had entered into peaceful occupation of the subject land in 1860.
Defendant's predecessor-in-interest, on the other hand, purchased the land from the provincial
treasurer of Tarlac in 1892. The lower court ruled against the plaintiffs on the ground that they had
lost all rights to the land by not objecting to the administrative sale. Plaintiffs appealed the judgment,
asserting that their 30-year adverse possession, as an extraordinary period of prescription in
the Partidas and the Civil Code, had given them title to the land as against everyone, including the
State; and that the State, not owning the land, could not validly transmit it.

The Court, speaking through Justice Willard, decided the case on the basis of "those special laws
which from earliest time have regulated the disposition of the public lands in the colonies."10 The
question posed by the Court was: "Did these special laws recognize any right of prescription as
against the State as to these lands; and if so, to what extent was it recognized?"

Prior to 1880, the Court said, there were no laws specifically providing for the disposition of land in
the Philippines. However, it was understood that in the absence of any special law to govern a
specific colony, the Laws of the Indies would be followed. Indeed, in the Royal Order of July 5, 1862,
it was decreed that until regulations on the subject could be prepared, the authorities of the
Philippine Islands should follow strictly the Laws of the Indies, the Ordenanza of the Intendentes of
1786, and the Royal Cedula of 1754.11

Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias, the
court interpreted it as follows:

"In the preamble of this law there is, as is seen, a distinct statement that all those lands belong to the
Crown which have not been granted by Philip, or in his name, or by the kings who preceded
him. This statement excludes the idea that there might be lands not so granted, that did not
belong to the king. It excludes the idea that the king was not still the owner of all ungranted
lands, because some private person had been in the adverse occupation of them. By the mandatory
part of the law all the occupants of the public lands are required to produce before the authorities
named, and within a time to be fixed by them, their title papers. And those who had good title or
showed prescription were to be protected in their holdings. It is apparent that it was not the intention
of the law that mere possession for a length of time should make the possessors the owners of the
land possessed by them without any action on the part of the authorities."12

The preamble stated that all those lands which had not been granted by Philip, or in his name, or by
the kings who preceded him, belonged to the Crown.13 For those lands granted by the king, the
decree provided for a system of assignment of such lands. It also ordered that all possessors of
agricultural land should exhibit their title deed, otherwise, the land would be restored to the Crown.14

The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the Crown's
principal subdelegate to issue a general order directing the publication of the Crown's instructions:

"x x x to the end that any and all persons who, since the year 1700, and up to the date of the
promulgation and publication of said order, shall have occupied royal lands, whether or not x x x
cultivated or tenanted, may x x x appear and exhibit to said subdelegates the titles and patents by
virtue of which said lands are occupied. x x x. Said subdelegates will at the same time warn the
parties interested that in case of their failure to present their title deeds within the term designated,
without a just and valid reason therefor, they will be deprived of and evicted from their lands, and
they will be granted to others."15

On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully occupied"
by private individuals in the Philippine Islands. Valenton construed these regulations together with
contemporaneous legislative and executive interpretations of the law, and concluded that plaintiffs'
case fared no better under the 1880 decree and other laws which followed it, than it did under the
earlier ones. Thus as a general doctrine, the Court stated:
"While the State has always recognized the right of the occupant to a deed if he proves a possession
for a sufficient length of time, yet it has always insisted that he must make that proof before the
proper administrative officers, and obtain from them his deed, and until he did that the State
remained the absolute owner."16

In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in force in these
Islands by which the plaintiffs could obtain the ownership of these lands by prescription, without any
action by the State."17 Valenton had no rights other than those which accrued to mere possession.
Murciano, on the other hand, was deemed to be the owner of the land by virtue of the grant by the
provincial secretary. In effect, Valenton upheld the Spanish concept of state ownership of public
land.

As a fitting observation, the Court added that "[t]he policy pursued by the Spanish Government
from earliest times, requiring settlers on the public lands to obtain title deeds therefor from
the State, has been continued by the American Government in Act No. 926."18

C. The Public Land Acts and the Torrens System

Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the the
Philippine Bill of 1902. The law governed the disposition of lands of the public domain. It prescribed
rules and regulations for the homesteading, selling, and leasing of portions of the public domain of
the Philippine Islands, and prescribed the terms and conditions to enable persons to perfect their
titles to public lands in the Islands. It also provided for the "issuance of patents to certain native
settlers upon public lands," for the establishment of town sites and sale of lots therein, for the
completion of imperfect titles, and for the cancellation or confirmation of Spanish concessions and
grants in the Islands." In short, the Public Land Act operated on the assumption that title to public
lands in the Philippine Islands remained in the government;19 and that the government's title to public
land sprung from the Treaty of Paris and other subsequent treaties between Spain and the United
States.20 The term "public land" referred to all lands of the public domain whose title still remained in
the government and are thrown open to private appropriation and settlement,21 and excluded the
patrimonial property of the government and the friar lands.22

Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This new law
was passed under the Jones Law. It was more comprehensive in scope but limited the exploitation
of agricultural lands to Filipinos and Americans and citizens of other countries which gave Filipinos
the same privileges.23 After the passage of the 1935 Constitution, Act 2874 was amended in 1936
by Commonwealth Act No. 141. Commonwealth Act No. 141 remains the present Public Land Law
and it is essentially the same as Act 2874. The main difference between the two relates to the
transitory provisions on the rights of American citizens and corporations during the Commonwealth
period at par with Filipino citizens and corporations.24

Grants of public land were brought under the operation of the Torrens system under Act 496,
or the Land Registration Law of 1903. Enacted by the Philippine Commission, Act 496 placed all
public and private lands in the Philippines under the Torrens system. The law is said to be almost a
verbatim copy of the Massachussetts Land Registration Act of 1898,25 which, in turn, followed the
principles and procedure of the Torrens system of registration formulated by Sir Robert Torrens who
patterned it after the Merchant Shipping Acts in South Australia. The Torrens system requires that
the government issue an official certificate of title attesting to the fact that the person named is the
owner of the property described therein, subject to such liens and encumbrances as thereon noted
or the law warrants or reserves.26 The certificate of title is indefeasible and imprescriptible and all
claims to the parcel of land are quieted upon issuance of said certificate. This system highly
facilitates land conveyance and negotiation.27
D. The Philippine Constitutions

The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and dominating
objectives of the 1935 Constitutional Convention was the nationalization and conservation of the
natural resources of the country.28There was an overwhelming sentiment in the Convention in
favor of the principle of state ownership of natural resources and the adoption of the
Regalian doctrine.29 State ownership of natural resources was seen as a necessary starting point to
secure recognition of the state's power to control their disposition, exploitation, development, or
utilization.30 The delegates to the Constitutional Convention very well knew that the concept of State
ownership of land and natural resources was introduced by the Spaniards, however, they were not
certain whether it was continued and applied by the Americans. To remove all doubts, the
Convention approved the provision in the Constitution affirming the Regalian doctrine.31

Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of Natural
Resources," reads as follows:

"Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall be granted for a period
exceeding twenty-five years, except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which cases beneficial use may be the
measure and the limit of the grant."

The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the "National
Economy and the Patrimony of the Nation," to wit:

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of agricultural, industrial or commercial,
residential, and resettlement lands of the public domain, natural resources shall not be
alienated, and no license, concession, or lease for the exploration, development, exploitation,
or utilization of any of the natural resources shall be granted for a period exceeding twenty-
five years, renewable for not more than twenty-five years, except as to water rights for irrigation,
water supply, fisheries, or industrial uses other than the development of water power, in which cases
beneficial use may be the measure and the limit of the grant."

The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on "National
Economy and Patrimony," to wit:

"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural lands, all
other natural resources shall not be alienated. The exploration, development and utilization of
natural resources shall be under the full control and supervision of the State. The State may
directly undertake such activities or it may enter into co-production, joint venture, or
production-sharing agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than twenty-five years, and under
such terms and conditions as may be provided by law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, beneficial use may
be the measure and limit of the grant.

x x x."

Simply stated, all lands of the public domain as well as all natural resources enumerated
therein, whether on public or private land, belong to the State. It is this concept of State
ownership that petitioners claim is being violated by the IPRA.

II. THE INDIGENOUS PEOPLES RIGHTS ACT.

Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of
Indigenous Cultural Communities/ Indigenous Peoples, Creating a National Commission on
Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for
Other Purposes." It is simply known as "The Indigenous Peoples Rights Act of 1997" or the
IPRA.

The IPRA recognizes the existence of the indigenous cultural communities or indigenous
peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership
and possession of their ancestral domains and ancestral lands, and defines the extent of
these lands and domains. The ownership given is the indigenous concept of ownership
under customary law which traces its origin to native title.

Other rights are also granted the ICCs/IPs, and these are:

- the right to develop lands and natural resources;

- the right to stay in the territories;

- the right in case of displacement;

- the right to safe and clean air and water;

- the right to claim parts of reservations;

- the right to resolve conflict;32

- the right to ancestral lands which include

a. the right to transfer land/property to/among members of the same ICCs/IPs,

subject to customary laws and traditions of the community concerned;

b. the right to redemption for a period not exceeding 15 years from date of transfer, if
the transfer is to a non-member of the ICC/IP and is tainted by vitiated consent of the
ICC/IP, or if the transfer is for an unconscionable consideration.33

Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-
governance and empowerment,34 social justice and human rights,35 the right to preserve and protect
their culture, traditions, institutions and community intellectual rights, and the right to develop their
own sciences and technologies.36

To carry out the policies of the Act, the law created the National Commission on Indigenous Peoples
(NCIP). The NCIP is an independent agency under the Office of the President and is composed of
seven (7) Commissioners belonging to ICCs/IPs from each of the ethnographic areas- Region I and
the Cordilleras; Region II; the rest of Luzon; Island groups including Mindoro, Palawan, Romblon,
Panay and the rest of the Visayas; Northern and Western Mindanao; Southern and Eastern
Mindanao; and Central Mindanao.37 The NCIP took over the functions of the Office for Northern
Cultural Communities and the Office for Southern Cultural Communities created by former President
Corazon Aquino which were merged under a revitalized structure.38

Disputes involving ICCs/IPs are to be resolved under customary laws and practices. When still
unresolved, the matter may be brought to the NCIP, which is granted quasi-judicial powers.39 The
NCIP's decisions may be appealed to the Court of Appeals by a petition for review.

Any person who violates any of the provisions of the Act such as, but not limited to, unauthorized
and/or unlawful intrusion upon ancestral lands and domains shall be punished in accordance with
customary laws or imprisoned from 9 months to 12 years and/or fined from ₱100,000.00 to
₱500,000.00 and obliged to pay damages.40

A. Indigenous Peoples

The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities
(ICCs) or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987 Constitution while that
of "IPs" is the contemporary international language in the International Labor Organization (ILO)
Convention 16941 and the United Nations (UN) Draft Declaration on the Rights of Indigenous
Peoples.42

ICCs/IPs are defined by the IPRA as:

"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a group of people or
homogeneous societies identified by self-ascription and ascription by others, who have continuously
lived as organized community on communally bounded and defined territory, and who have, under
claims of ownership since time immemorial, occupied, possessed and utilized such territories,
sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who
have, through resistance to political, social and cultural inroads of colonization, non-indigenous
religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall
likewise include peoples who are regarded as indigenous on account of their descent from the
populations which inhabited the country, at the time of conquest or colonization, or at the time of
inroads of non-indigenous religions and cultures, or the establishment of present state boundaries,
who retain some or all of their own social, economic, cultural and political institutions, but who may
have been displaced from their traditional domains or who may have resettled outside their ancestral
domains."

Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or

homogeneous societies who have continuously lived as an organized community on
communally bounded and defined territory. These groups of people have actually occupied,
possessed and utilized their territories under claim of ownership since time immemorial. They share
common bonds of language, customs, traditions and other distinctive cultural traits, or, they, by their
resistance to political, social and cultural inroads of colonization, non-indigenous religions and
cultures, became historically differentiated from the Filipino majority. ICCs/IPs also include
descendants of ICCs/IPs who inhabited the country at the time of conquest or colonization, who
retain some or all of their own social, economic, cultural and political institutions but who may have
been displaced from their traditional territories or who may have resettled outside their ancestral
domains.

1. Indigenous Peoples: Their History

Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao,
Mindoro, Negros, Samar, Leyte, and the Palawan and Sulu group of islands. They are composed of
110 tribes and are as follows:

1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao,
Kalinga, Yapayao, Aeta or Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag
of Isabela, Cagayan; Ilongot of Quirino and Nueva Vizcaya; Gaddang of Quirino, Nueva
Vizcaya, Itawis of Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and Isabela.

2. In Region III- Aetas.

3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan
or Mangyan, Batangan, Buid or Buhid, Hanunuo and Iraya of Oriental and Occidental
Mindoro; Tadyawan of Occidental Mindoro; Cuyonon, Palawanon, Tagbanua and Tao't bato
of Palawan.

4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and
Kabihug of Camarines Norte; Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of
Sorsogon; and the Pullon of Masbate and Camarines Sur.

5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros
Occidental; the Corolano and Sulod.

6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol.

7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the
Kalibugan of Basilan, the Samal, Subanon and Yakat.

8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon,
Matigsalog, Talaanding of Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of
Agusan del Norte, Agusan del Sur, Bukidnon and Misamis Occidental; the Tigwahanon of
Agusan del Sur, Misamis Oriental and and Misamis Occidental, the Manobo of the Agusan
provinces, and the Umayamnon of Agusan and Bukidnon.

9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes of the
Dibabaon, Mansaka of Davao del Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of
Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of the Surigao provinces and
Davao Oriental; Manobo Blit of South Cotabato; the Mangguangon of Davao and South
Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of
South Cotabato; and Bagobo of Davao del sur and South Cotabato.

10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and
Iranon.43
How these indigenous peoples came to live in the Philippines goes back to as early as 25,000
to 30,000 B.C.

Before the time of Western contact, the Philippine archipelago was peopled largely by the
Negritos, Indonesians and Malays.44 The strains from these groups eventually gave rise to common
cultural features which became the dominant influence in ethnic reformulation in the archipelago.
Influences from the Chinese and Indian civilizations in the third or fourth millenium B.C. augmented
these ethnic strains. Chinese economic and socio-cultural influences came by way of Chinese
porcelain, silk and traders. Indian influence found their way into the religious-cultural aspect of pre-
colonial society.45

The ancient Filipinos settled beside bodies of water. Hunting and food gathering became
supplementary activities as reliance on them was reduced by fishing and the cultivation of the
soil.46 From the hinterland, coastal, and riverine communities, our ancestors evolved an essentially
homogeneous culture, a basically common way of life where nature was a primary
factor. Community life throughout the archipelago was influenced by, and responded to, common
ecology. The generally benign tropical climate and the largely uniform flora and fauna favored
similarities, not differences.47 Life was essentially subsistence but not harsh.48

The early Filipinos had a culture that was basically Malayan in structure and form. They had
languages that traced their origin to the Austronesian parent-stock and used them not only as media
of daily communication but also as vehicles for the expression of their literary moods.49 They
fashioned concepts and beliefs about the world that they could not see, but which they sensed to be
part of their lives.50 They had their own religion and religious beliefs. They believed in the immortality
of the soul and life after death. Their rituals were based on beliefs in a ranking deity whom they
called Bathalang Maykapal, and a host of other deities, in the environmental spirits and in soul
spirits. The early Filipinos adored the sun, the moon, the animals and birds, for they seemed to
consider the objects of Nature as something to be respected. They venerated almost any object that
was close to their daily life, indicating the importance of the relationship between man and the object
of nature.51

The unit of government was the "barangay," a term that derived its meaning from the Malay word
"balangay," meaning, a boat, which transported them to these shores.52 The barangay was basically
a family-based community and consisted of thirty to one hundred families. Each barangay was
different and ruled by a chieftain called a "dato." It was the chieftain's duty to rule and govern his
subjects and promote their welfare and interests. A chieftain had wide powers for he exercised all
the functions of government. He was the executive, legislator and judge and was the supreme
commander in time of war.53

Laws were either customary or written. Customary laws were handed down orally from
generation to generation and constituted the bulk of the laws of the barangay. They were
preserved in songs and chants and in the memory of the elder persons in the community.54 The
written laws were those that the chieftain and his elders promulgated from time to time as the
necessity arose.55 The oldest known written body of laws was the Maragtas Code by Datu Sumakwel
at about 1250 A.D. Other old codes are the Muslim Code of Luwaran and the Principal Code of
Sulu.56 Whether customary or written, the laws dealt with various subjects, such as inheritance,
divorce, usury, loans, partnership, crime and punishment, property rights, family relations and
adoption. Whenever disputes arose, these were decided peacefully through a court composed by
the chieftain as "judge" and the barangay elders as "jury." Conflicts arising between subjects of
different barangays were resolved by arbitration in which a board composed of elders from neutral
barangays acted as arbiters.57
Baranganic society had a distinguishing feature: the absence of private property in land. The
chiefs merely administered the lands in the name of the barangay. The social order was an
extension of the family with chiefs embodying the higher unity of the community. Each individual,
therefore, participated in the community ownership of the soil and the instruments of production as a
member of the barangay.58 This ancient communalism was practiced in accordance with the concept
of mutual sharing of resources so that no individual, regardless of status, was without
sustenance. Ownership of land was non-existent or unimportant and the right of usufruct was
what regulated the development of lands.59 Marine resources and fishing grounds were likewise
free to all. Coastal communities depended for their economic welfare on the kind of fishing sharing
concept similar to those in land communities.60 Recognized leaders, such as the chieftains and
elders, by virtue of their positions of importance, enjoyed some economic privileges and benefits.
But their rights, related to either land and sea, were subject to their responsibility to protect the
communities from danger and to provide them with the leadership and means of survival.61

Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao. The
Sultanate of Sulu was established and claimed jurisdiction over territorial areas represented today by
Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic groups were within this jurisdiction:
Sama, Tausug, Yakan and Subanon.62The Sultanate of Maguindanao spread out from Cotabato
toward Maranao territory, now Lanao del Norte and Lanao del Sur.63

The Muslim societies evolved an Asiatic form of feudalism where land was still held in
common but was private in use. This is clearly indicated in the Muslim Code of Luwaran. The
Code contains a provision on the lease of cultivated lands. It, however, has no provision for the
acquisition, transfer, cession or sale of land.64

The societies encountered by Magellan and Legaspi therefore were primitive economies where
most production was geared to the use of the producers and to the fulfillment of kinship obligations.
They were not economies geared to exchange and profit.65 Moreover, the family basis of barangay
membership as well as of leadership and governance worked to splinter the population of the islands
into numerous small and separate communities.66

When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos
living in barangay settlements scattered along water routes and river banks. One of the first
tasks imposed on the missionaries and the encomenderos was to collect all scattered Filipinos
together in a reduccion.67 As early as 1551, the Spanish government assumed an unvarying
solicitous attitude towards the natives.68 The Spaniards regarded it a sacred "duty to conscience and
humanity to civilize these less fortunate people living in the obscurity of ignorance" and to accord
them the "moral and material advantages" of community life and the "protection and vigilance
afforded them by the same laws."69

The Spanish missionaries were ordered to establish pueblos where the church and convent would
be constructed. All the new Christian converts were required to construct their houses around the
church and the unbaptized were invited to do the same.70 With the reduccion, the Spaniards
attempted to "tame" the reluctant Filipinos through Christian indoctrination using the convento/casa
real/plaza complex as focal point. The reduccion, to the Spaniards, was a "civilizing" device to make
the Filipinos law-abiding citizens of the Spanish Crown, and in the long run, to make them ultimately
adopt Hispanic culture and civilization.71

All lands lost by the old barangays in the process of pueblo organization as well as all lands
not assigned to them and the pueblos, were now declared to be crown lands or realengas,
belonging to the Spanish king. It was from the realengas that land grants were made to non-
Filipinos.72
The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept of
public domain were the most immediate fundamental results of Spanish colonial theory and
law.73 The concept that the Spanish king was the owner of everything of value in the Indies or
colonies was imposed on the natives, and the natives were stripped of their ancestral rights
to land.74

Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious, classified the
Filipinos according to their religious practices and beliefs, and divided them into three types . First
were the Indios, the Christianized Filipinos, who generally came from the lowland populations.
Second, were the Moros or the Muslim communities, and third, were the infieles or the indigenous
communities.75

The Indio was a product of the advent of Spanish culture. This class was favored by the Spaniards
and was allowed certain status although below the Spaniards. The Moros and infieles were
regarded as the lowest classes.76

The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven from
Manila and the Visayas to Mindanao; while the infieles, to the hinterlands. The Spaniards did not
pursue them into the deep interior. The upland societies were naturally outside the immediate
concern of Spanish interest, and the cliffs and forests of the hinterlands were difficult and
inaccessible, allowing the infieles, in effect, relative security.77 Thus, the infieles, which were
peripheral to colonial administration, were not only able to preserve their own culture but also
thwarted the Christianization process, separating themselves from the newly evolved Christian
community.78 Their own political, economic and social systems were kept constantly alive and
vibrant.

The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling of
suspicion, fear, and hostility between the Christians on the one hand and the non-Christians on the
other. Colonialism tended to divide and rule an otherwise culturally and historically related populace
through a colonial system that exploited both the virtues and vices of the Filipinos.79

President McKinley, in his instructions to the Philippine Commission of April 7, 1900,

addressed the existence of the infieles:

"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same
course followed by Congress in permitting the tribes of our North American Indians to
maintain their tribal organization and government, and under which many of those tribes are now
living in peace and contentment, surrounded by civilization to which they are unable or unwilling to
conform. Such tribal government should, however, be subjected to wise and firm regulation; and,
without undue or petty interference, constant and active effort should be exercised to prevent
barbarous practices and introduce civilized customs."80

Placed in an alternative of either letting the natives alone or guiding them in the path of civilization,
the American government chose "to adopt the latter measure as one more in accord with humanity
and with the national conscience."81

The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian
Filipinos. The term "non-Christian" referred not to religious belief, but to a geographical area, and
more directly, "to natives of the Philippine Islands of a low grade of civilization, usually living in tribal
relationship apart from settled communities."82
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they passed Act
No. 253 creating the Bureau of Non-Christian Tribes (BNCT). Under the Department of the
Interior, the BNCT's primary task was to conduct ethnographic research among unhispanized
Filipinos, including those in Muslim Mindanao, with a "special view to determining the most
practicable means for bringing about their advancement in civilization and prosperity." The BNCT
was modeled after the bureau dealing with American Indians. The agency took a keen
anthropological interest in Philippine cultural minorities and produced a wealth of valuable materials
about them.83

The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The raging
issue then was the conservation of the national patrimony for the Filipinos.

In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid and
complete manner the economic, social, moral and political advancement of the non-Christian
Filipinos or national cultural minorities and to render real, complete, and permanent the integration of
all said national cultural minorities into the body politic, creating the Commission on National
Integration charged with said functions." The law called for a policy of integration of indigenous
peoples into the Philippine mainstream and for this purpose created the Commission on National
Integration (CNI).84 The CNI was given, more or less, the same task as the BNCT during the
American regime. The post-independence policy of integration was like the colonial policy of
assimilation understood in the context of a guardian-ward relationship.85

The policy of assimilation and integration did not yield the desired result. Like the Spaniards and
Americans, government attempts at integration met with fierce resistance. Since World War II,
a tidal wave of Christian settlers from the lowlands of Luzon and the Visayas swamped the highlands
and wide open spaces in Mindanao.86Knowledge by the settlers of the Public Land Acts and the
Torrens system resulted in the titling of several ancestral lands in the settlers' names. With
government initiative and participation, this titling displaced several indigenous peoples from
their lands. Worse, these peoples were also displaced by projects undertaken by the national
government in the name of national development.87

It was in the 1973 Constitution that the State adopted the following provision:

"The State shall consider the customs, traditions, beliefs, and interests of national cultural
communities in the formulation and implementation of State policies."88

For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities"
were addressed by the highest law of the Republic, and they were referred to as "cultural
communities." More importantly this time, their "uncivilized" culture was given some recognition
and their "customs, traditions, beliefs and interests" were to be considered by the State in the
formulation and implementation of State policies. President Marcos abolished the CNI and
transferred its functions to the Presidential Adviser on National Minorities
(PANAMIN). The PANAMIN was tasked to integrate the ethnic groups that sought full integration
into the larger community, and at the same time "protect the rights of those who wish to preserve
their original lifeways beside the larger community."89 In short, while still adopting the integration
policy, the decree recognized the right of tribal Filipinos to preserve their way of life.90

In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands
Decree. The decree provided for the issuance of land occupancy certificates to members of the
national cultural communities who were given up to 1984 to register their claims.91 In 1979,
the Commission on the Settlement of Land Problems was created under E.O. No. 561 which
provided a mechanism for the expeditious resolution of land problems involving small settlers,
landowners, and tribal Filipinos.92

Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas and
Bontoks of the Cordillera region were displaced by the Chico River dam project of the National
Power Corporation (NPC). The Manobos of Bukidnon saw their land bulldozed by the Bukidnon
Sugar Industries Company (BUSCO). In Agusan del Sur, the National Development Company was
authorized by law in 1979 to take approximately 40,550 hectares of land that later became the NDC-
Guthrie plantation in Agusan del Sur. Most of the land was possessed by the Agusan
natives.93 Timber concessions, water projects, plantations, mining, and cattle ranching and other
projects of the national government led not only to the eviction of the indigenous peoples from their
land but also to the reduction and destruction of their natural environment.94

The Aquino government signified a total shift from the policy of integration to one of
preservation. Invoking her powers under the Freedom Constitution, President Aquino created
the Office of Muslim Affairs, Office for Northern Cultural Communities and the Office for
Southern Cultural Communities all under the Office of the President.95

The 1987 Constitution carries at least six (6) provisions which insure the right of tribal
Filipinos to preserve their way of life.96 This Constitution goes further than the 1973
Constitution by expressly guaranteeing the rights of tribal Filipinos to their ancestral
domains and ancestral lands. By recognizing their right to their ancestral lands and domains,
the State has effectively upheld their right to live in a culture distinctly their own.

2. Their Concept of Land

Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream. They
are non-Christians. They live in less accessible, marginal, mostly upland areas. They have a system
of self-government not dependent upon the laws of the central administration of the Republic of the
Philippines. They follow ways of life and customs that are perceived as different from those of the
rest of the population.97 The kind of response the indigenous peoples chose to deal with colonial
threat worked well to their advantage by making it difficult for Western concepts and religion to erode
their customs and traditions. The "infieles societies" which had become peripheral to colonial
administration, represented, from a cultural perspective, a much older base of archipelagic culture.
The political systems were still structured on the patriarchal and kinship oriented arrangement of
power and authority. The economic activities were governed by the concepts of an ancient
communalism and mutual help. The social structure which emphasized division of labor and
distinction of functions, not status, was maintained. The cultural styles and forms of life portraying
the varieties of social courtesies and ecological adjustments were kept constantly vibrant.98

Land is the central element of the indigenous peoples' existence. There is no traditional
concept of permanent, individual, land ownership. Among the Igorots, ownership of land more
accurately applies to the tribal right to use the land or to territorial control. The people are the
secondary owners or stewards of the land and that if a member of the tribe ceases to work, he loses
his claim of ownership, and the land reverts to the beings of the spirit world who are its true and
primary owners. Under the concept of "trusteeship," the right to possess the land does not only
belong to the present generation but the future ones as well.99

Customary law on land rests on the traditional belief that no one owns the land except the gods
and spirits, and that those who work the land are its mere stewards.100 Customary law has a strong
preference for communal ownership, which could either be ownership by a group of individuals or
families who are related by blood or by marriage,101 or ownership by residents of the same locality
who may not be related by blood or marriage. The system of communal ownership under customary
laws draws its meaning from the subsistence and highly collectivized mode of economic production.
The Kalingas, for instance, who are engaged in team occupation like hunting, foraging for forest
products, and swidden farming found it natural that forest areas, swidden farms, orchards, pasture
and burial grounds should be communally-owned.102 For the Kalingas, everybody has a common
right to a common economic base. Thus, as a rule, rights and obligations to the land are shared in
common.

Although highly bent on communal ownership, customary law on land also sanctions
individual ownership.The residential lots and terrace rice farms are governed by a limited system
of individual ownership. It is limited because while the individual owner has the right to use and
dispose of the property, he does not possess all the rights of an exclusive and full owner as defined
under our Civil Code.103 Under Kalinga customary law, the alienation of individually-owned land is
strongly discouraged except in marriage and succession and except to meet sudden financial needs
due to sickness, death in the family, or loss of crops.104 Moreover, and to be alienated should first be
offered to a clan-member before any village-member can purchase it, and in no case may land be
sold to a non-member of the ili.105

Land titles do not exist in the indigenous peoples' economic and social system. The concept
of individual land ownership under the civil law is alien to them. Inherently colonial in origin,
our national land laws and governmental policies frown upon indigenous claims to ancestral
lands. Communal ownership is looked upon as inferior, if not inexistent.106

III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.

A. The Legislative History of the IPRA

It was to address the centuries-old neglect of the Philippine indigenous peoples that the Tenth
Congress of the Philippines, by their joint efforts, passed and approved R.A. No. 8371, the
Indigenous Peoples Rights Act (IPRA) of 1997. The law was a consolidation of two Bills- Senate
Bill No. 1728 and House Bill No. 9125.

Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No. 1728 was a consolidation of
four proposed measures referred to the Committees on Cultural Communities, Environment and
Natural Resources, Ways and Means, as well as Finance. It adopted almost en toto the
comprehensive version of Senate Bill Nos. 1476 and 1486 which was a result of six regional
consultations and one national consultation with indigenous peoples nationwide.108 At the
Second Regular Session of the Tenth Congress, Senator Flavier, in his sponsorship speech, gave a
background on the situation of indigenous peoples in the Philippines, to wit:

"The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the
dominance and neglect of government controlled by the majority. Massive migration of their
Christian brothers to their homeland shrunk their territory and many of the tribal Filipinos were
pushed to the hinterlands. Resisting the intrusion, dispossessed of their ancestral land and with the
massive exploitation of their natural resources by the elite among the migrant population, they
became marginalized. And the government has been an indispensable party to this insidious
conspiracy against the Indigenous Cultural Communities (ICCs). It organized and supported the
resettlement of people to their ancestral land, which was massive during the Commonwealth and
early years of the Philippine Republic. Pursuant to the Regalian Doctrine first introduced to our
system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government
passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of lands to
migrant homesteaders within the traditional areas of the ICCs."109
Senator Flavier further declared:

"The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land
long before any central government was established. Their ancestors had territories over which they
ruled themselves and related with other tribes. These territories- the land- include people, their
dwelling, the mountains, the water, the air, plants, forest and the animals. This is their environment
in its totality. Their existence as indigenous peoples is manifested in their own lives through political,
economic, socio-cultural and spiritual practices. The IPs culture is the living and irrefutable proof to
this.

Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending
on it. Otherwise, IPs shall cease to exist as distinct peoples."110

To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill based
on two postulates: (1) the concept of native title; and (2) the principle of parens patriae.

According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine
reinstated in Section 2, Article XII of the 1987 Constitution," our "decisional laws" and jurisprudence
passed by the State have "made exception to the doctrine." This exception was first laid down in
the case of Cariño v. Insular Government where:

"x x x the court has recognized long occupancy of land by an indigenous member of the cultural
communities as one of private ownership, which, in legal concept, is termed "native title." This ruling
has not been overturned. In fact, it was affirmed in subsequent cases."111

Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410,
P.D. 1529, R.A. 6734 (the Organic Act for the Autonomous Region of Muslim Mindanao). These
laws, explicitly or implicitly, and liberally or restrictively, recognized "native title" or "private right" and
the existence of ancestral lands and domains. Despite the passage of these laws, however, Senator
Flavier continued:

"x x x the executive department of government since the American occupation has not implemented
the policy. In fact, it was more honored in its breach than in its observance, its wanton disregard
shown during the period unto the Commonwealth and the early years of the Philippine Republic
when government organized and supported massive resettlement of the people to the land of the
ICCs."

Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess their ancestral
land. The bill was prepared also under the principle of parens patriae inherent in the supreme
power of the State and deeply embedded in Philippine legal tradition. This principle mandates that
persons suffering from serious disadvantage or handicap, which places them in a position of actual
inequality in their relation or transaction with others, are entitled to the protection of the State.

Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in
favor and none against, with no abstention.112

House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural
Communities. It was originally authored and subsequently presented and defended on the floor
by Rep. Gregorio Andolana of North Cotabato.113

Rep. Andolana's sponsorhip speech reads as follows:

"This Representation, as early as in the 8th Congress, filed a bill of similar implications that would
promote, recognize the rights of indigenous cultural communities within the framework of national
unity and development.

Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and ascertain
that these rights shall be well-preserved and the cultural traditions as well as the indigenous laws
that remained long before this Republic was established shall be preserved and promoted. There is
a need, Mr. Speaker, to look into these matters seriously and early approval of the substitute bill
shall bring into reality the aspirations, the hope and the dreams of more than 12 million Filipinos that
they be considered in the mainstream of the Philippine society as we fashion for the year 2000." 114

Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated in
the Constitution. He also emphasized that the rights of IPs to their land was enunciated in Cariño v.
Insular Government which recognized the fact that they had vested rights prior to the establishment
of the Spanish and American regimes.115

After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was
approved on Second Reading with no objections.

IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.

A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples
and Do Not Constitute Part of the Land of the Public Domain.

The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and
ancestral lands.Ancestral lands are not the same as ancestral domains. These are defined in
Section 3 [a] and [b] of the Indigenous Peoples Right Act, viz:

"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all areas generally belonging
to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held
under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their
ancestors, communally or individually since time immemorial, continuously to the present except
when interrupted by war, force majeure or displacement by force, deceit, stealth or as a
consequence of government projects or any other voluntary dealings entered into by government
and private individuals/corporations, and which are necessary to ensure their economic, social and
cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other
lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial
grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may
no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for
their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators;

b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied, possessed and utilized
by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by
themselves or through their predecessors-in-interest, under claims of individual or traditional group
ownership, continuously, to the present except when interrupted by war, force majeure or
displacement by force, deceit, stealth, or as a consequence of government projects and other
voluntary dealings entered into by government and private individuals/corporations, including, but
not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots."

Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied
or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually
since time immemorial, continuously until the present, except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of government projects or
any other voluntary dealings with government and/or private individuals or corporations. Ancestral
domains comprise lands, inland waters, coastal areas, and natural resources therein and
includes ancestral lands, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable or not, hunting grounds, burial grounds, worship areas,
bodies of water, mineral and other natural resources. They also include lands which may no
longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their
subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators.116

Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains
except that these are limited to lands and that these lands are not merely occupied and possessed
but are also utilized by the ICCs/IPs under claims of individual or traditional group ownership. These
lands include but are not limited to residential lots, rice terraces or paddies, private forests, swidden
farms and tree lots.117

The procedures for claiming ancestral domains and lands are similar to the procedures embodied in
Department Administrative Order (DAO) No. 2, series of 1993, signed by then Secretary of the
Department of Environment and Natural Resources (DENR) Angel Alcala.118 DAO No. 2 allowed the
delineation of ancestral domains by special task forces and ensured the issuance of Certificates of
Ancestral Land Claims (CALC's) and Certificates of Ancestral Domain Claims (CADC's) to IPs.

The identification and delineation of these ancestral domains and lands is a power conferred by the
IPRA on the National Commission on Indigenous Peoples (NCIP).119 The guiding principle in
identification and delineation is self-delineation.120 This means that the ICCs/IPs have a decisive role
in determining the boundaries of their domains and in all the activities pertinent thereto.121

The procedure for the delineation and recognition of ancestral domains is set forth in Sections 51
and 52 of the IPRA. The identification, delineation and certification of ancestral lands is in Section
53 of said law.

Upon due application and compliance with the procedure provided under the law and upon finding
by the NCIP that the application is meritorious, the NCIP shall issue a Certificate of Ancestral
Domain Title (CADT) in the name of the community concerned.122 The allocation of lands within the
ancestral domain to any individual or indigenous corporate (family or clan) claimants is left to the
ICCs/IPs concerned to decide in accordance with customs and traditions.123 With respect to
ancestral lands outside the ancestral domain, the NCIP issues a Certificate of Ancestral Land
Title (CALT).124

CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of
Deeds in the place where the property is situated.125

(1) Right to Ancestral Domains and Ancestral Lands: How Acquired

The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two
modes: (1) by native title over both ancestral lands and domains; or (2) by torrens title under
the Public Land Act and the Land Registration Act with respect to ancestral lands only.

(2) The Concept of Native Title

Native title is defined as:

"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains which, as far back as
memory reaches, have been held under a claim of private ownership by ICCs/IPs, have never been
public lands and are thus indisputably presumed to have been held that way since before the
Spanish Conquest."126

Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of private
ownership as far back as memory reaches. These lands are deemed never to have been public
lands and are indisputably presumed to have been held that way since before the Spanish
Conquest. The rights of ICCs/IPs to their ancestral domains (which also include ancestral lands) by
virtue of native title shall be recognized and respected.127 Formal recognition, when solicited by
ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which
shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated.128

Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title,
however, is a right of private ownership peculiarly granted to ICCs/IPs over their ancestral lands and
domains. The IPRA categorically declares ancestral lands and domains held by native title as never
to have been public land. Domains and lands held under native title are, therefore, indisputably
presumed to have never been public lands and are private.

(a) Cariño v. Insular Government129

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

In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land registration court 146 hectares
of land in Baguio Municipality, Benguet Province. He claimed that this land had been possessed and
occupied by his ancestors since time immemorial; that his grandfather built fences around the
property for the holding of cattle and that his father cultivated some parts of the land. Cariño
inherited the land in accordance with Igorot custom. He tried to have the land adjusted under the
Spanish land laws, but no document issued from the Spanish Crown.131 In 1901, Cariño obtained a
possessory title to the land under the Spanish Mortgage Law.132 The North American colonial
government, however, ignored his possessory title and built a public road on the land prompting him
to seek a Torrens title to his property in the land registration court. While his petition was pending, a
U.S. military reservation133 was proclaimed over his land and, shortly thereafter, a military
detachment was detailed on the property with orders to keep cattle and trespassers, including
Cariño, off the land.134

In 1904, the land registration court granted Cariño's application for absolute ownership to the land.
Both the Government of the Philippine Islands and the U.S. Government appealed to the C.F.I. of
Benguet which reversed the land registration court and dismissed Cariño's application. The
Philippine Supreme Court135 affirmed the C.F.I. by applying the Valenton ruling. Cariño took the
case to the U.S. Supreme Court.136 On one hand, the Philippine government invoked the Regalian
doctrine and contended that Cariño failed to comply with the provisions of the Royal Decree of June
25, 1880, which required registration of land claims within a limited period of time. Cariño, on the
other, asserted that he was the absolute owner of the land jure gentium, and that the land never
formed part of the public domain.

In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held:

"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were
held from the Crown, and perhaps the general attitude of conquering nations toward people not
recognized as entitled to the treatment accorded to those in the same zone of civilization with
themselves. It is true, also, that in legal theory, sovereignty is absolute, and that, as against foreign
nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that,
as against the inhabitants of the Philippines, the United States asserts that Spain had such power.
When theory is left on one side, sovereignty is a question of strength, and may vary in degree. How
far a new sovereign shall insist upon the theoretical relation of the subjects to the head in the past,
and how far it shall recognize actual facts, are matters for it to decide."137

The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice was with the
new colonizer. Ultimately, the matter had to be decided under U.S. law.

The Cariño decision largely rested on the North American constitutionalist's concept of "due
process" as well as the pronounced policy "to do justice to the natives."138 It was based on the strong
mandate extended to the Islands via the Philippine Bill of 1902 that "No law shall be enacted in said
islands which shall deprive any person of life, liberty, or property without due process of law, or deny
to any person therein the equal protection of the laws." The court declared:

"The acquisition of the Philippines was not like the settlement of the white race in the United States.
Whatever consideration may have been shown to the North American Indians, the dominant purpose
of the whites in America was to occupy land. It is obvious that, however stated, the reason for our
taking over the Philippines was different. No one, we suppose, would deny that, so far as consistent
with paramount necessities, our first object in the internal administration of the islands is to do justice
to the natives, not to exploit their country for private gain. By the Organic Act of July 1, 1902, chapter
1369, section 12 (32 Statutes at Large, 691), all the property and rights acquired there by the United
States are to be administered 'for the benefit of the inhabitants thereof.' It is reasonable to suppose
that the attitude thus assumed by the United States with regard to what was unquestionably its own
is also its attitude in deciding what it will claim for its own. The same statute made a bill of rights,
embodying the safeguards of the Constitution, and, like the Constitution, extends those safeguards
to all. It provides that 'no law shall be enacted in said islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the equal protection of
the laws.' In the light of the declaration that we have quoted from section 12, it is hard to believe that
the United States was ready to declare in the next breath that "any person" did not embrace the
inhabitants of Benguet, or that it meant by "property" only that which had become such by
ceremonies of which presumably a large part of the inhabitants never had heard, and that it
proposed to treat as public land what they, by native custom and by long association,- of the
profoundest factors in human thought,- regarded as their own."139

The Court went further:

"Every presumption is and ought to be against the government in a case like the present. It might,
perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes,
the land has been held by individuals under a claim of private ownership, it will be presumed
to have been held in the same way from before the Spanish conquest, and never to have been
public land. Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we ought
to give the applicant the benefit of the doubt."140

The court thus laid down the presumption of a certain title held (1) as far back as testimony or
memory went, and (2) under a claim of private ownership. Land held by this title is presumed to
"never have been public land."

Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees upheld in the 1904
decision ofValenton v. Murciano. The U.S. Supreme Court found no proof that the Spanish
decrees did not honor native title. On the contrary, the decrees discussed in Valenton appeared to
recognize that the natives owned some land, irrespective of any royal grant. The Regalian doctrine
declared in the preamble of the Recopilacion was all "theory and discourse" and it was observed that
titles were admitted to exist beyond the powers of the Crown, viz:

"If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof
that it was bad by that law as to satisfy us that he does not own the land. To begin with, the
older decrees and laws cited by the counsel for the plaintiff in error seem to indicate pretty
clearly that the natives were recognized as owning some lands, irrespective of any royal
grant. In other words, Spain did not assume to convert all the native inhabitants of the Philippines
into trespassers or even into tenants at will. For instance, Book 4, title 12, Law 14 of the
the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v. Murciano, 3
Philippine 537, while it commands viceroys and others, when it seems proper, to call for the
exhibition of grants, directs them to confirm those who hold by good grants or justa prescripcion. It is
true that it begins by the characteristic assertion of feudal overlordship and the origin of all
titles in the King or his predecessors. That was theory and discourse. The fact was that titles
were admitted to exist that owed nothing to the powers of Spain beyond this recognition in
their books." (Emphasis supplied).141

The court further stated that the Spanish "adjustment" proceedings never held sway over
unconquered territories. The wording of the Spanish laws were not framed in a manner as to convey
to the natives that failure to register what to them has always been their own would mean loss of
such land. The registration requirement was "not to confer title, but simply to establish it;" it was "not
calculated to convey to the mind of an Igorot chief the notion that ancient family possessions were in
danger, if he had read every word of it."

By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton. It was frank
enough, however, to admit the possibility that the applicant might have been deprived of his land
under Spanish law because of the inherent ambiguity of the decrees and concomitantly, the various
interpretations which may be given them. But precisely because of the ambiguity and of the
strong "due process mandate" of the Constitution, the court validated this kind of title.142 This
title was sufficient, even without government administrative action, and entitled the holder to a
Torrens certificate. Justice Holmes explained:

"It will be perceived that the rights of the applicant under the Spanish law present a problem not
without difficulties for courts of a legal tradition. We have deemed it proper on that account to notice
the possible effect of the change of sovereignty and the act of Congress establishing the
fundamental principles now to be observed. Upon a consideration of the whole case we are of the
opinion that law and justice require that the applicant should be granted what he seeks, and should
not be deprived of what, by the practice and belief of those among whom he lived, was his property,
through a refined interpretation of an almost forgotten law of Spain."143

Thus, the court ruled in favor of Cariño and ordered the registration of the 148 hectares in
Baguio Municipality in his name.144

Examining Cariño closer, the U.S. Supreme Court did not categorically refer to the title it upheld as
"native title." It simply said:

"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument,
characterized as a savage tribe that never was brought under the civil or military government
of the Spanish Crown. It seems probable, if not certain, that the Spanish officials would not
have granted to anyone in that province the registration to which formerly the plaintiff was
entitled by the Spanish Laws, and which would have made his title beyond question
good. Whatever may have been the technical position of Spain it does not follow that, in the view of
the United States, he had lost all rights and was a mere trespasser when the present government
seized his land. The argument to that effect seems to amount to a denial of native titles through an
important part of the Island of Luzon, at least, for the want of ceremonies which the Spaniards would
not have permitted and had not the power to enforce."145

This is the only instance when Justice Holmes used the term "native title" in the entire length of
the Cariño decision. It is observed that the widespread use of the term "native title" may be traced to
Professor Owen James Lynch, Jr., a Visiting Professor at the University of the Philippines College of
Law from the Yale University Law School. In 1982, Prof. Lynch published an article in the Philippine
Law Journal entitled Native Title, Private Right and Tribal Land Law.146 This article was made
after Professor Lynch visited over thirty tribal communities throughout the country and studied the
origin and development of Philippine land laws.147 He discussed Cariño extensively and used the
term "native title" to refer to Cariño's title as discussed and upheld by the U.S. Supreme Court in said
case.

(b) Indian Title

In a footnote in the same article, Professor Lynch stated that the concept of "native title" as defined
by Justice Holmes in Cariño "is conceptually similar to "aboriginal title" of the American
Indians.148 This is not surprising, according to Prof. Lynch, considering that during the American
regime, government policy towards ICCs/IPs was consistently made in reference to native
Americans.149 This was clearly demonstrated in the case of Rubi v. Provincial Board of Mindoro.150

In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial governor to
remove the Mangyans from their domains and place them in a permanent reservation in Sitio
Tigbao, Lake Naujan. Any Mangyan who refused to comply was to be imprisoned. Rubi and some
Mangyans, including one who was imprisoned for trying to escape from the reservation, filed for
habeas corpus claiming deprivation of liberty under the Board Resolution. This Court denied the
petition on the ground of police power. It upheld government policy promoting the idea that a
permanent settlement was the only successful method for educating the Mangyans, introducing
civilized customs, improving their health and morals, and protecting the public forests in which they
roamed.151 Speaking through Justice Malcolm, the court said:

"Reference was made in the President's instructions to the Commission to the policy adopted by the
United States for the Indian Tribes. The methods followed by the Government of the Philippine
Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically
identical with that followed by the United States Government in its dealings with the Indian tribes.
Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy.

From the beginning of the United States, and even before, the Indians have been treated as "in a
state of pupilage." The recognized relation between the Government of the United States and the
Indians may be described as that of guardian and ward. It is for the Congress to determine when
and how the guardianship shall be terminated. The Indians are always subject to the plenary
authority of the United States.152

x x x.

As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly
identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do exist
in the United States, that Indians have been taken from different parts of the country and placed on
these reservations, without any previous consultation as to their own wishes, and that, when once so
located, they have been made to remain on the reservation for their own good and for the general
good of the country. If any lesson can be drawn from the Indian policy of the United States, it is that
the determination of this policy is for the legislative and executive branches of the government and
that when once so decided upon, the courts should not interfere to upset a carefully planned
governmental system. Perhaps, just as many forceful reasons exist for the segregation of the
Manguianes in Mindoro as existed for the segregation of the different Indian tribes in the United
States."153

Rubi applied the concept of Indian land grants or reservations in the Philippines. An Indian
reservation is a part of the public domain set apart by proper authority for the use and occupation of
a tribe or tribes of Indians.154 It may be set apart by an act of Congress, by treaty, or by executive
order, but it cannot be established by custom and prescription.155

Indian title to land, however, is not limited to land grants or reservations. It also covers the
"aboriginal right of possession or occupancy."156 The aboriginal right of possession depends on
the actual occupancy of the lands in question by the tribe or nation as their ancestral home, in the
sense that such lands constitute definable territory occupied exclusively by the particular tribe or
nation.157 It is a right which exists apart from any treaty, statute, or other governmental action,
although in numerous instances treaties have been negotiated with Indian tribes, recognizing their
aboriginal possession and delimiting their occupancy rights or settling and adjusting their
boundaries.158

American jurisprudence recognizes the Indians' or native Americans' rights to land they have
held and occupied before the "discovery" of the Americas by the Europeans. The earliest
definitive statement by the U.S. Supreme Court on the nature of aboriginal title was made in
1823 in Johnson & Graham's Lessee v. M'Intosh.159

In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs of
two (2) Indian tribes. The U.S. Supreme Court refused to recognize this conveyance, the plaintiffs
being private persons. The only conveyance that was recognized was that made by the Indians to
the government of the European discoverer. Speaking for the court, Chief Justice Marshall pointed
out that the potentates of the old world believed that they had made ample compensation to the
inhabitants of the new world by bestowing civilization and Christianity upon them; but in addition,
said the court, they found it necessary, in order to avoid conflicting settlements and consequent war,
to establish the principle that discovery gives title to the government by whose subjects, or by
whose authority, the discovery was made, against all other European governments, which
title might be consummated by possession.160 The exclusion of all other Europeans gave to the
nation making the discovery the sole right of acquiring the soil from the natives and establishing
settlements upon it. As regards the natives, the court further stated that:

"Those relations which were to exist between the discoverer and the natives were to be regulated by
themselves. The rights thus acquired being exclusive, no other power could interpose between
them.

In the establishment of these relations, the rights of the original inhabitants were, in no instance,
entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted
to be the rightful occupants of the soil, with a legal as well as just claim to retain possession
of it, and to use it according to their own discretion; but their rights to complete sovereignty, as
independent nations, were necessarily diminished, and their power to dispose of the soil at their own
will, to whomsoever they pleased, was denied by the fundamental principle that discovery gave
exclusive title to those who made it.
While the different nations of Europe respected the right of the natives as occupants, they
asserted the ultimate dominion to be in themselves; and claimed and exercised, as a
consequence of this ultimate dominion, a power to grant the soil, while yet in possession of
the natives. These grants have been understood by all to convey a title to the grantees,
subject only to the Indian right of occupancy."161

Thus, the discoverer of new territory was deemed to have obtained the exclusive right to acquire
Indian land and extinguish Indian titles. Only to the discoverer- whether to England, France, Spain or
Holland- did this right belong and not to any other nation or private person. The mere acquisition of
the right nonetheless did not extinguish Indian claims to land. Rather, until the discoverer, by
purchase or conquest, exercised its right, the concerned Indians were recognized as the "rightful
occupants of the soil, with a legal as well as just claim to retain possession of it." Grants made by the
discoverer to her subjects of lands occupied by the Indians were held to convey a title to the
grantees, subject only to the Indian right of occupancy. Once the discoverer purchased the land from
the Indians or conquered them, it was only then that the discoverer gained an absolute title
unrestricted by Indian rights.

The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title
paramount to the title of the United States itself to other parties, saying:

"It has never been contended that the Indian title amounted to nothing. Their right of possession
has never been questioned. The claim of government extends to the complete ultimate title,
charged with this right of possession, and to the exclusive power of acquiring that right."162

It has been said that the history of America, from its discovery to the present day, proves the
universal recognition of this principle.163

The Johnson doctrine was a compromise. It protected Indian rights and their native lands without
having to invalidate conveyances made by the government to many U.S. citizens.164

Johnson was reiterated in the case of Worcester v. Georgia.165 In this case, the State of Georgia
enacted a law requiring all white persons residing within the Cherokee nation to obtain a license or
permit from the Governor of Georgia; and any violation of the law was deemed a high misdemeanor.
The plaintiffs, who were white missionaries, did not obtain said license and were thus charged with a
violation of the Act.

The U.S. Supreme Court declared the Act as unconstitutional for interfering with the treaties
established between the United States and the Cherokee nation as well as the Acts of Congress
regulating intercourse with them. It characterized the relationship between the United States
government and the Indians as:

"The Indian nations were, from their situation, necessarily dependent on some foreign potentate for
the supply of their essential wants, and for their protection from lawless and injurious intrusions into
their country. That power was naturally termed their protector. They had been arranged under the
protection of Great Britain; but the extinguishment of the British power in their neighborhood, and the
establishment of that of the United States in its place, led naturally to the declaration, on the part of
the Cherokees, that they were under the protection of the United States, and of no other power.
They assumed the relation with the United States which had before subsisted with Great Britain.

This relation was that of a nation claiming and receiving the protection of one more powerful, not that
of individuals abandoning their national character, and submitting as subjects to the laws of a
master."166
It was the policy of the U.S. government to treat the Indians as nations with distinct territorial
boundaries and recognize their right of occupancy over all the lands within their domains. Thus:

"From the commencement of our government Congress has passed acts to regulate trade and
intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm
purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802,
which is still in force, manifestly consider the several Indian nations as distinct political
communities, having territorial boundaries, within which their authority is exclusive, and
having a right to all the lands within those boundaries, which is not only acknowledged, but
guaranteed by the United States.

x x x.

"The Indian nations had always been considered as distinct, independent political
communities, retaining their original natural rights, as the undisputed possessors of the soil
from time immemorial, with the single exception of that imposed by irresistible power, which
excluded them from intercourse with any other European potentate than the first discoverer of the
coast of the particular region claimed: and this was a restriction which those European potentates
imposed on themselves, as well as on the Indians. The very term "nation," so generally applied to
them, means "a people distinct from others." x x x.167

The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries
accurately described, in which the laws of Georgia can have no force, and which the citizens of
Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with
treaties and with the acts of Congress. The whole intercourse between the United States and this
nation is, by our Constitution and laws, vested in the government of the United States."168

The discovery of the American continent gave title to the government of the discoverer as against all
other European governments. Designated as the naked fee,169 this title was to be consummated by
possession and was subject to the Indian title of occupancy. The discoverer acknowledged the
Indians' legal and just claim to retain possession of the land, the Indians being the original
inhabitants of the land. The discoverer nonetheless asserted the exclusive right to acquire the
Indians' land- either by purchase, "defensive" conquest, or cession- and in so doing, extinguish the
Indian title. Only the discoverer could extinguish Indian title because it alone asserted ultimate
dominion in itself. Thus, while the different nations of Europe respected the rights of the natives as
occupants, they all asserted the ultimate dominion and title to be in themselves.170

As early as the 19th century, it became accepted doctrine that although fee title to the lands
occupied by the Indians when the colonists arrived became vested in the sovereign- first the
discovering European nation and later the original 13 States and the United States- a right of
occupancy in the Indian tribes was nevertheless recognized. The Federal Government
continued the policy of respecting the Indian right of occupancy, sometimes called Indian title, which
it accorded the protection of complete ownership.171 But this aboriginal Indian interest simply
constitutes "permission" from the whites to occupy the land, and means mere possession not
specifically recognized as ownership by Congress.172 It is clear that this right of occupancy based
upon aboriginal possession is not a property right.173 It is vulnerable to affirmative action by the
federal government who, as sovereign, possessed exclusive power to extinguish the right of
occupancy at will.174 Thus, aboriginal title is not the same as legal title. Aboriginal title rests on
actual, exclusive and continuous use and occupancy for a long time.175 It entails that land owned by
Indian title must be used within the tribe, subject to its laws and customs, and cannot be sold to
another sovereign government nor to any citizen.176 Such title as Indians have to possess and
occupy land is in the tribe, and not in the individual Indian; the right of individual Indians to share in
the tribal property usually depends upon tribal membership, the property of the tribe generally being
held in communal ownership.177

As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to
designate such lands as are subject to sale or other disposal under general laws.178 Indian land
which has been abandoned is deemed to fall into the public domain.179 On the other hand, an Indian
reservation is a part of the public domain set apart for the use and occupation of a tribe of
Indians.180 Once set apart by proper authority, the reservation ceases to be public land, and until the
Indian title is extinguished, no one but Congress can initiate any preferential right on, or restrict the
nation's power to dispose of, them.181

The American judiciary struggled for more than 200 years with the ancestral land claims of
indigenous Americans.182 And two things are clear. First, aboriginal title is recognized. Second,
indigenous property systems are also recognized. From a legal point of view, certain benefits can be
drawn from a comparison of Philippine IPs to native Americans.183 Despite the similarities between
native title and aboriginal title, however, there are at present some misgivings on whether
jurisprudence on American Indians may be cited authoritatively in the Philippines. The U.S.
recognizes the possessory rights of the Indians over their land; title to the land, however, is deemed
to have passed to the U.S. as successor of the discoverer. The aboriginal title of ownership is not
specifically recognized as ownership by action authorized by Congress.184 The protection of
aboriginal title merely guards against encroachment by persons other than the Federal
Government.185 Although there are criticisms against the refusal to recognize the native Americans'
ownership of these lands,186 the power of the State to extinguish these titles has remained firmly
entrenched.187

Under the IPRA, the Philippine State is not barred form asserting sovereignty over the ancestral
domains and ancestral lands.188 The IPRA, however, is still in its infancy and any similarities between
its application in the Philippines vis-à-vis American Jurisprudence on aboriginal title will depend on
the peculiar facts of each case.

(c) Why the Cariño doctrine is unique

In the Philippines, the concept of native title first upheld in Cariño and enshrined in the IPRA grants
ownership, albeit in limited form, of the land to the ICCs/IPs. Native title presumes that the land is
private and was never public. Cariño is the only case that specifically and categorically
recognizes native title. The long line of cases citing Cariño did not touch on native title and
the private character of ancestral domains and lands. Cariñowas cited by the succeeding
cases to support the concept of acquisitive prescription under the Public Land Act which is a
different matter altogether. Under the Public Land Act, land sought to be registered must
be public agricultural land. When the conditions specified in Section 48 [b] of the Public Land Act
are complied with, the possessor of the land is deemed to have acquired, by operation of law, a right
to a grant of the land.189 The land ceases to be part of the public domain,190 ipso jure,191 and is
converted to private property by the mere lapse or completion of the prescribed statutory period.

It was only in the case of Oh Cho v. Director of Lands192 that the court declared that the rule that all
lands that were not acquired from the government, either by purchase or grant, belong to the public
domain has an exception. This exception would be any land that should have been in the
possession of an occupant and of his predecessors-in-interest since time immemorial. It is this kind
of possession that would justify the presumption that the land had never been part of the public
domain or that it had been private property even before the Spanish conquest.193 Oh Cho, however,
was decided under the provisions of the Public Land Act and Cariño was cited to support the
applicant's claim of acquisitive prescription under the said Act.
All these years, Cariño had been quoted out of context simply to justify long, continuous, open and
adverse possession in the concept of owner of public agricultural land. It is this long, continuous,
open and adverse possession in the concept of owner of thirty years both for ordinary citizens194 and
members of the national cultural minorities195 that converts the land from public into private and
entitles the registrant to a torrens certificate of title.

(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is
Private.

The private character of ancestral lands and domains as laid down in the IPRA is
further strengthened by the option given to individual ICCs/IPs over their individually-owned
ancestral lands. For purposes of registration under the Public Land Act and the Land
Registration Act, the IPRA expressly converts ancestral land into public agricultural land
which may be disposed of by the State. The necessary implication is that ancestral land is
private. It, however, has to be first converted to public agricultural land simply for registration
purposes. To wit:

"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the
Land Registration Act 496- Individual members of cultural communities, with respect to their
individually-owned ancestral lands who, by themselves or through their predecessors-in-interest,
have been in continuous possession and occupation of the same in the concept of owner since time
immemorial or for a period of not less than thirty (30) years immediately preceding the approval of
this Act and uncontested by the members of the same ICCs/IPs shall have the option to secure title
to their ancestral lands under the provisions of Commonwealth Act 141, as amended, or the Land
Registration Act 496.

For this purpose, said individually-owned ancestral lands, which are agricultural in character and
actually used for agricultural, residential, pasture, and tree farming purposes, including those with a
slope of eighteen percent (18%) or more, are hereby classified as alienable and disposable
agricultural lands.

The option granted under this section shall be exercised within twenty (20) years from the approval
of this Act."196

ICCs/IPs are given the option to secure a torrens certificate of title over their individually-owned
ancestral lands. This option is limited to ancestral lands only, not domains, and such lands must be
individually, not communally, owned.

Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or through
their predecessors-in-interest, have been in continuous possession and occupation of the same in
the concept of owner since time immemorial197 or for a period of not less than 30 years, which claims
are uncontested by the members of the same ICCs/IPs, may be registered under C.A. 141,
otherwise known as the Public Land Act, or Act 496, the Land Registration Act. For purposes of
registration, the individually-owned ancestral lands are classified as alienable and disposable
agricultural lands of the public domain, provided, they are agricultural in character and are actually
used for agricultural, residential, pasture and tree farming purposes. These lands shall be classified
as public agricultural lands regardless of whether they have a slope of 18% or more.

The classification of ancestral land as public agricultural land is in compliance with the requirements
of the Public Land Act and the Land Registration Act. C.A. 141, the Public Land Act, deals
specifically with lands of the public domain.198 Its provisions apply to those lands "declared open to
disposition or concession" x x x "which have not been reserved for public or quasi-public purposes,
nor appropriated by the Government, nor in any manner become private property, nor those on
which a private right authorized and recognized by this Act or any other valid law x x x or which
having been reserved or appropriated, have ceased to be so."199 Act 496, the Land Registration Act,
allows registration only of private lands and public agricultural lands. Since ancestral domains and
lands are private, if the ICC/IP wants to avail of the benefits of C.A. 141 and Act 496, the IPRA
itself converts his ancestral land, regardless of whether the land has a slope of eighteen per
cent (18%) or over,200 from private to public agricultural land for proper disposition.

The option to register land under the Public Land Act and the Land Registration Act has nonetheless
a limited period. This option must be exercised within twenty (20) years from October 29, 1997, the
date of approval of the IPRA.

Thus, ancestral lands and ancestral domains are not part of the lands of the public domain.
They are private and belong to the ICCs/IPs. Section 3 of Article XII on National Economy and
Patrimony of the 1987 Constitution classifies lands of the public domain into four categories: (a)
agricultural, (b) forest or timber, (c) mineral lands, and (d) national parks. Section 5 of the same
Article XII mentions ancestral lands and ancestral domains but it does not classify them under any
of the said four categories. To classify them as public lands under any one of the four classes
will render the entire IPRA law a nullity. The spirit of the IPRA lies in the distinct concept of
ancestral domains and ancestral lands. The IPRA addresses the major problem of the ICCs/IPs
which is loss of land. Land and space are of vital concern in terms of sheer survival of the
ICCs/IPs.201

The 1987 Constitution mandates the State to "protect the rights of indigenous cultural
communities to their ancestral lands" and that "Congress provide for the applicability of
customary laws x x x in determining the ownership and extent of ancestral domain."202 It is
the recognition of the ICCs/IPs distinct rights of ownership over their ancestral domains and
lands that breathes life into this constitutional mandate.

B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a
limited form of ownership and does not include the right to alienate the same.

Registration under the Public Land Act and Land Registration Act recognizes the concept of
ownership under the civil law. This ownership is based on adverse possession for a specified
period, and harkens to Section 44 of the Public Land Act on administrative legalization (free patent)
of imperfect or incomplete titles and Section 48 (b) and (c) of the same Act on the judicial
confirmation of imperfect or incomplete titles. Thus:

"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twenty-four
hectares and who since July fourth, 1926 or prior thereto, has continuously occupied and cultivated,
either by himself or through his predecessors-in-interest, a tract or tracts of agricultural public lands
subject to disposition, or who shall have paid the real estate tax thereon while the same has not
been occupied by any person shall be entitled, under the provisions of this chapter, to have a free
patent issued to him for such tract or tracts of such land not to exceed twenty-four hectares.

A member of the national cultural minorities who has continuously occupied and cultivated,
either by himself or through his predecessors-in-interest, a tract or tracts of land, whether
disposable or not since July 4, 1955, shall be entitled to the right granted in the preceding
paragraph of this section: Provided, That at the time he files his free patent application he is
not the owner of any real property secured or disposable under the provision of the Public
Land Law.203
x x x.

"Sec. 48. The following described citizens of the Philippines, occupying lands of the public domain or
claiming to own any such lands or an interest therein, but whose titles have not been perfected or
completed, may apply to the Court of First Instance of the province where the land is located for
confirmation of their claims and the issuance of a certificate of title therefor, under the Land
Registration Act, to wit:

(a) [perfection of Spanish titles] xxx.

(b) Those who by themselves or through their predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession and occupation of agricultural lands of the
public domain, under a bona fide claim of acquisition or ownership, for at least thirty years
immediately preceding the filing of the application for confirmation of title except when
prevented by war or force majeure. These shall be conclusively presumed to have performed
all the conditions essential to a Government grant and shall be entitled to a certificate of title
under the provisions of this Chapter.

(c) Members of the national cultural minorities who by themselves or through their
predecessors-in-interest have been in open, continuous, exclusive and notorious
possession and occupation of lands of the public domain suitable to agriculture,
whether disposable or not, under a bona fide claim of ownership for at least 30 years
shall be entitled to the rights granted in sub-section (b) hereof."204

Registration under the foregoing provisions presumes that the land was originally public agricultural
land but because of adverse possession since July 4, 1955 (free patent) or at least thirty years
(judicial confirmation), the land has become private. Open, adverse, public and continuous
possession is sufficient, provided, the possessor makes proper application therefor. The possession
has to be confirmed judicially or administratively after which a torrens title is issued.

A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights
of ownership under the civil law. The Civil Code of the Philippines defines ownership in Articles 427,
428 and 429. This concept is based on Roman Law which the Spaniards introduced to the
Philippines through the Civil Code of 1889. Ownership, under Roman Law, may be exercised over
things or rights. It primarily includes the right of the owner to enjoy and dispose of the thing owned.
And the right to enjoy and dispose of the thing includes the right to receive from the thing what it
produces,205 the right to consume the thing by its use,206 the right to alienate, encumber, transform or
even destroy the thing owned,207 and the right to exclude from the possession of the thing owned by
any other person to whom the owner has not transmitted such thing.208

1. The Indigenous Concept of Ownership and Customary Law.

Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but to a
Certificate of Ancestral Domain Title (CADT). The CADT formally recognizes
the indigenous concept of ownership of the ICCs/IPs over their ancestral domain. Thus:

"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view that
ancestral domains and all resources found therein shall serve as the material bases of their cultural
integrity. The indigenous concept of ownership generally holds that ancestral domains are the
ICCs/IPs private but community property which belongs to all generations and therefore cannot be
sold, disposed or destroyed. It likewise covers sustainable traditional resource rights."
The right of ownership and possession of the ICCs/IPs to their ancestral domains is held
under the indigenous concept of ownership. This concept maintains the view that ancestral
domains are the ICCs/IPs private but community property. It is private simply because it is
not part of the public domain. But its private character ends there. The ancestral domain is
owned in common by the ICCs/IPs and not by one particular person. The IPRA itself provides
that areas within the ancestral domains, whether delineated or not, are presumed to be communally
held.209 These communal rights, however, are not exactly the same as co-ownership rights
under the Civil Code.210 Co-ownership gives any co-owner the right to demand partition of the
property held in common. The Civil Code expressly provides that "no co-owner shall be obliged to
remain in the co-ownership." Each co-owner may demand at any time the partition of the thing in
common, insofar as his share is concerned.211 To allow such a right over ancestral domains may be
destructive not only of customary law of the community but of the very community itself.212

Communal rights over land are not the same as corporate rights over real property, much
less corporate condominium rights. A corporation can exist only for a maximum of fifty (50) years
subject to an extension of another fifty years in any single instance.213 Every stockholder has the
right to disassociate himself from the corporation.214 Moreover, the corporation itself may be
dissolved voluntarily or involuntarily.215

Communal rights to the land are held not only by the present possessors of the land but
extends to all generations of the ICCs/IPs, past, present and future, to the domain. This is the
reason why the ancestral domain must be kept within the ICCs/IPs themselves. The domain cannot
be transferred, sold or conveyed to other persons. It belongs to the ICCs/IPs as a community.

Ancestral lands are also held under the indigenous concept of ownership. The lands are
communal. These lands, however, may be transferred subject to the following limitations: (a) only to
the members of the same ICCs/IPs; (b) in accord with customary laws and traditions; and (c) subject
to the right of redemption of the ICCs/IPs for a period of 15 years if the land was transferred to a
non-member of the ICCs/IPs.

Following the constitutional mandate that "customary law govern property rights or relations in
determining the ownership and extent of ancestral domains,"216 the IPRA, by legislative fiat,
introduces a new concept of ownership. This is a concept that has long existed under
customary law.217

Custom, from which customary law is derived, is also recognized under the Civil Code as a
source of law.218 Some articles of the Civil Code expressly provide that custom should be applied in
cases where no codal provision is applicable.219 In other words, in the absence of any applicable
provision in the Civil Code, custom, when duly proven, can define rights and liabilities.220

Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies
to ICCs/IPs. Its recognition does not depend on the absence of a specific provision in the civil
law. The indigenous concept of ownership under customary law is specifically acknowledged and
recognized, and coexists with the civil law concept and the laws on land titling and land
registration.221

To be sure, the indigenous concept of ownership exists even without a paper title. The CADT
is merely a "formal recognition" of native title. This is clear from Section 11 of the IPRA, to wit:

"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to their ancestral domains
by virtue of Native Title shall be recognized and respected. Formal recognition, when solicited by
ICCs/IPs concerned shall be embodied in a Certificate of Ancestral Domain Title, which shall
recognize the title of the concerned ICCs/IPs over the territories identified and delineated."

The moral import of ancestral domain, native land or being native is "belongingness" to the land,
being people of the land- by sheer force of having sprung from the land since time beyond recall,
and the faithful nurture of the land by the sweat of one's brow. This is fidelity of usufructuary relation
to the land- the possession of stewardship through perduring, intimate tillage, and the mutuality of
blessings between man and land; from man, care for land; from the land, sustenance for man.222

C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in
Section 2, Article XII of the 1987 Constitution.

1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands

The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands.
Section 7 provides for the rights over ancestral domains:

"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and possession of ICCs/IPs to their
ancestral domains shall be recognized and protected. Such rights include:

a) Right of Ownership.- The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and
fishing grounds, and all improvements made by them at any time within the domains;

b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, the right
to develop, control and use lands and territories traditionally occupied, owned, or
used; to manage and conserve natural resources within the territories and uphold the
responsibilities for future generations; to benefit and share the profits from allocation
and utilization of the natural resources found therein; the right to negotiate the terms
and conditions for the exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation measures,
pursuant to national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project, government or private, that
will affect or impact upon the ancestral domains and to receive just and fair compensation for
any damages which they may sustain as a result of the project; and the right to effective
measures by the government to prevent any interference with, alienation and encroachment
upon these rights;"

c) Right to Stay in the Territories.- The right to stay in the territory and not to be removed
therefrom. No ICCs/IPs will be relocated without their free and prior informed consent, nor
through any means other than eminent domain. x x x;

d) Right in Case of Displacement.- In case displacement occurs as a result of natural

catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in suitable areas
where they can have temporary life support systems: x x x;

e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of migrant settlers and
organizations into their domains;

f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs shall have access
to integrated systems for the management of their inland waters and air space;
 g) Right to Claim Parts of Reservations.- The right to claim parts of the ancestral domains
which have been reserved for various purposes, except those reserved and intended for
common and public welfare and service;

h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance with customary
laws of the area where the land is located, and only in default thereof shall the complaints be
submitted to amicable settlement and to the Courts of Justice whenever necessary."

Section 8 provides for the rights over ancestral lands:

"Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of the ICCs/IPs to their
ancestral lands shall be recognized and protected.

a) Right to transfer land/property.- Such right shall include the right to transfer land or
property rights to/among members of the same ICCs/IPs, subject to customary laws and
traditions of the community concerned.

b) Right to Redemption.- In cases where it is shown that the transfer of land/property rights
by virtue of any agreement or devise, to a non-member of the concerned ICCs/IPs is tainted
by the vitiated consent of the ICCs/IPs, or is transferred for an unconscionable consideration
or price, the transferor ICC/IP shall have the right to redeem the same within a period not
exceeding fifteen (15) years from the date of transfer."

Section 7 (a) defines the ICCs/IPs the right of ownership over their ancestral domains which
covers (a) lands, (b) bodies of water traditionally and actually occupied by the ICCs/IPs, (c) sacred
places, (d) traditional hunting and fishing grounds, and (e) all improvements made by them at any
time within the domains. The right of ownership includes the following rights: (1) the right to
develop lands and natural resources; (b) the right to stay in the territories; (c) the right to
resettlement in case of displacement; (d) the right to regulate the entry of migrants; (e) the right to
safe and clean air and water; (f) the right to claim parts of the ancestral domains as reservations;
and (g) the right to resolve conflict in accordance with customary laws.

Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral domains,
Section 8 gives the ICCs/IPs also the right to transfer the land or property rights to members of the
same ICCs/IPs or non-members thereof. This is in keeping with the option given to ICCs/IPs to
secure a torrens title over the ancestral lands, but not to domains.

2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains
Does Not Deprive the State of Ownership Over the Natural Resources and Control and Supervision
in their Development and Exploitation.

The Regalian doctrine on the ownership, management and utilization of natural resources is
declared in Section 2, Article XII of the 1987 Constitution, viz:

"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly
undertake such activities, or, it may enter into co-production, joint venture, or production-
sharing agreements with Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms
and conditions as may be provided by law. In cases of water rights for irrigation, water supply,
fisheries, water supply, fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers
in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the state shall promote the development and use of local scientific and technical
resources.

The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution."223

All lands of the public domain and all natural resources- waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources- are owned by the State. The Constitution provides that in the
exploration, development and utilization of these natural resources, the State exercises full control
and supervision, and may undertake the same in four (4) modes:

1. The State may directly undertake such activities; or

2. The State may enter into co-production, joint venture or production-sharing agreements
with Filipino citizens or qualified corporations;

3. Congress may, by law, allow small-scale utilization of natural resources by Filipino

citizens;

4. For the large-scale exploration, development and utilization of minerals, petroleum and
other mineral oils, the President may enter into agreements with foreign-owned
corporations involving technical or financial assistance.

As owner of the natural resources, the State is accorded primary power and responsibility in
the exploration, development and utilization of these natural resources. The State may directly
undertake the exploitation and development by itself, or, it may allow participation by the private
sector through co-production,224joint venture,225 or production-sharing agreements.226 These
agreements may be for a period of 25 years, renewable for another 25 years. The State, through
Congress, may allow the small-scale utilization of natural resources by Filipino citizens. For the
large-scale exploration of these resources, specifically minerals, petroleum and other mineral oils,
the State, through the President, may enter into technical and financial assistance agreements with
foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of
1991 (R.A. 7076) the three types of agreements, i.e., co-production, joint venture or production-
sharing, may apply to both large-scale227 and small-scale mining.228 "Small-scale mining" refers to
"mining activities which rely heavily on manual labor using simple implements and methods and do
not use explosives or heavy mining equipment."229

Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over
the natural resources within their ancestral domains. The right of ICCs/IPs in their ancestral
domains includes ownership, but this "ownership" is expressly defined and limited in Section
7 (a) as:

"Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies of water traditionally
and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains;"

The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and
actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains." It will be noted that this enumeration
does not mention bodies of water not occupied by the
ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting grounds, fish in the
traditional fishing grounds, forests or timber in the sacred places, etc. and all other natural resources
found within the ancestral domains. Indeed, the right of ownership under Section 7 (a) does not
cover "waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, floraand fauna and all other natural resources"
enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the State.

The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a) complies
with the Regalian doctrine.

(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec. 7
(a) of the IPRA And is Unconstitutional.

The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:

"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands, waters, and natural
resources and all improvements made by them at any time within the ancestral domains/ lands.
These rights shall include, but not limited to, the right over the fruits, the right to possess, the right to
use, right to consume, right to exclude and right to recover ownership, and the rights or interests
over land and natural resources. The right to recover shall be particularly applied to lands lost
through fraud or any form or vitiated consent or transferred for an unconscionable price."

Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters and
natural resources." The term "natural resources" is not one of those expressly mentioned in Section
7 (a) of the law. Our Constitution and jurisprudence clearly declare that the right to claim ownership
over land does not necessarily include the right to claim ownership over the natural resources found
on or under the land.231 The IPRA itself makes a distinction between land and natural
resources. Section 7 (a) speaks of the right of ownership only over the land within the
ancestral domain. It is Sections 7 (b) and 57 of the law that speak of natural resources, and
these provisions, as shall be discussed later, do not give the ICCs/IPs the right of ownership
over these resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically and
categorically challenged by petitioners. Petitioners actually assail the constitutionality of the
Implementing Rules in general.232Nevertheless, to avoid any confusion in the implementation of the
law, it is necessary to declare that the inclusion of "natural resources" in Section 1, Part II, Rule III of
the Implementing Rules goes beyond the parameters of Section 7 (b) of the law and is contrary to
Section 2, Article XII of the 1987 Constitution.

(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under
Paragraph 3, Section 2 of Article XII of the Constitution.

Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely grants
the ICCs/IPs the right to manage them, viz:

"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, right to
develop, control and use lands and territories traditionally occupied, owned, or used; to manage and
conserve natural resourceswithin the territories and uphold the responsibilities for future
generations; to benefit and share the profits from allocation and utilization of the natural resources
found therein; the right to negotiate the terms and conditions for the exploration of natural resources
in the areas for the purpose of ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an informed and intelligent
participation in the formulation and implementation of any project, government or private, that will
affect or impact upon the ancestral domains and to receive just and fair compensation for any
damages which they may sustain as a result of the project; and the right to effective measures by
the government to prevent any interference with, alienation and encroachment upon these rights;"

The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates the
following rights:

a) the right to develop, control and use lands and territories traditionally occupied;

b) the right to manage and conserve natural resources within the territories and uphold the
responsibilities for future generations;

c) the right to benefit and share the profits from the allocation and utilization of the natural
resources found therein;

d) the right to negotiate the terms and conditions for the exploration of natural resources for
the purpose of ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws;

e) the right to an informed and intelligent participation in the formulation and implementation
of any project, government or private, that will affect or impact upon the ancestral domains
and to receive just and fair compensation for any damages which they may sustain as a
result of the project;

f) the right to effective measures by the government to prevent any interference with,
alienation and encroachment upon these rights.233

Ownership over the natural resources in the ancestral domains remains with the State and
the ICCs/IPs are merely granted the right to "manage and conserve" them for future
generations, "benefit and share" the profits from their allocation and utilization, and
"negotiate the terms and conditions for their exploration" for the purpose of "ensuring
ecological and environmental protection and conservation measures." It must be noted that the
right to negotiate the terms and conditions over the natural resources covers only their exploration
which must be for the purpose of ensuring ecological and environmental protection of, and
conservation measures in the ancestral domain. It does not extend to the exploitation and
development of natural resources.

Simply stated, the ICCs/IPs' rights over the natural resources take the form of management or
stewardship. For the ICCs/IPs may use these resources and share in the profits of their utilization
or negotiate the terms for their exploration. At the same time, however, the ICCs/IPs must ensure
that the natural resources within their ancestral domains are conserved for future generations and
that the "utilization" of these resources must not harm the ecology and environment pursuant to
national and customary laws.234

The limited rights of "management and use" in Section 7 (b) must be taken to contemplate
small-scale utilization of natural resources as distinguished from large-scale. Small-scale
utilization of natural resources is expressly allowed in the third paragraph of Section 2,
Article XII of the Constitution "in recognition of the plight of forest dwellers, gold panners, marginal
fishermen and others similarly situated who exploit our natural resources for their daily sustenance
and survival."235 Section 7 (b) also expressly mandates the ICCs/IPs to manage and conserve these
resources and ensure environmental and ecological protection within the domains, which duties, by
their very nature, necessarily reject utilization in a large-scale.

(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed
Under Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.

Section 57 of the IPRA provides:

"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall have priority rights in
the harvesting, extraction, development or exploitation of any natural resources within the
ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the
development and utilization of the natural resources for a period of not exceeding twenty-five (25)
years renewable for not more than twenty-five (25) years: Provided, That a formal and written
agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own
decision-making process, has agreed to allow such operation: Provided finally, That the NCIP may
exercise visitorial powers and take appropriate action to safeguard the rights of the ICCs/IPs under
the same contract."

Section 57 speaks of the "harvesting, extraction, development or exploitation of natural

resources within ancestral domains" and "gives the ICCs/IPs 'priority rights' therein." The
terms "harvesting, extraction, development or exploitation" of any natural resources within
the ancestral domains obviously refer to large-scale utilization. It is utilization not merely for
subsistence but for commercial or other extensive use that require technology other than manual
labor.236 The law recognizes the probability of requiring a non-member of the ICCs/IPs to participate
in the development and utilization of the natural resources and thereby allows such participation for
a period of not more than 25 years, renewable for another 25 years. This may be done on condition
that a formal written agreement be entered into by the non-member and members of the ICCs/IPs.

Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the natural
resources. Instead, the law only grants the ICCs/IPs "priority rights" in the development or
exploitation thereof. Priority means giving preference. Having priority rights over the natural
resources does not necessarily mean ownership rights. The grant of priority rights implies that there
is a superior entity that owns these resources and this entity has the power to grant preferential
rights over the resources to whosoever itself chooses.

Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of the said
doctrine that all natural resources found within the ancestral domains belong to the State. It
incorporates by implication the Regalian doctrine, hence, requires that the provision be read in the
light of Section 2, Article XII of the 1987 Constitution. Interpreting Section 2, Article XII of the
1987 Constitution237 in relation to Section 57 of IPRA, the State, as owner of these natural
resources, may directly undertake the development and exploitation of the natural resources
by itself, or in the alternative, it may recognize the priority rights of the ICCs/IPs as owners of
the land on which the natural resources are found by entering into a co-production, joint
venture, or production-sharing agreement with them. The State may likewise enter into any of
said agreements with a non-member of the ICCs/IPs, whether natural or juridical, or enter into
agreements with foreign-owned corporations involving either technical or financial
assistance for the large-scale exploration, development and utilization of minerals,
petroleum, and other mineral oils, or allow such non-member to participate in its agreement
with the ICCs/IPs. If the State decides to enter into an agreement with a non-ICC/IP member, the
National Commission on Indigenous Peoples (NCIP) shall ensure that the rights of the ICCs/IPs
under the agreement shall be protected. The agreement shall be for a period of 25 years, renewable
for another 25 years.

To reiterate, in the large-scale utilization of natural resources within the ancestral domains, the
State, as owner of these resources, has four (4) options: (1) it may, of and by itself, directly
undertake the development and exploitation of the natural resources; or (2) it may recognize the
priority rights of the ICCs/IPs by entering into an agreement with them for such development and
exploitation; or (3) it may enter into an agreement with a non-member of the ICCs/IPs, whether
natural or juridical, local or foreign; or (4) it may allow such non-member to participate in the
agreement with the ICCs/IPs.

The rights granted by the IPRA to the ICCs/IPs over the natural resources in their ancestral
domains merely gives the ICCs/IPs, as owners and occupants of the land on which the
resources are found, the right to the small-scale utilization of these resources, and at the
same time, a priority in their large-scale development and exploitation. Section 57 does not
mandate the State to automatically give priority to the ICCs/IPs. The State has several options
and it is within its discretion to choose which option to pursue. Moreover, there is nothing in
the law that gives the ICCs/IPs the right to solely undertake the large-scale development of the
natural resources within their domains. The ICCs/IPs must undertake such endeavour
always under State supervision or control. This indicates that the State does not lose control and
ownership over the resources even in their exploitation. Sections 7 (b) and 57 of the law simply give
due respect to the ICCs/IPs who, as actual occupants of the land where the natural resources lie,
have traditionally utilized these resources for their subsistence and survival.

Neither is the State stripped of ownership and control of the natural resources by the following
provision:

"Section 59. Certification Precondition.- All departments and other governmental agencies shall
henceforth be strictly enjoined from issuing, renewing or granting any concession, license or lease,
or entering into any production-sharing agreement. without prior certification from the NCIP that the
area affected does not overlap with any ancestral domain. Such certification shall only be issued
after a field-based investigation is conducted by the Ancestral Domains Office of the area
concerned: Provided, That no certification shall be issued by the NCIP without the free and prior
informed and written consent of the ICCs/IPs concerned: Provided, further, That no department,
government agency or government-owned or -controlled corporation may issue new concession,
license, lease, or production sharing agreement while there is a pending application for a
CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance
with this Act, any project that has not satisfied the requirement of this consultation process."

Concessions, licenses, lease or production-sharing agreements for the exploitation of natural

resources shall not be issued, renewed or granted by all departments and government agencies
without prior certification from the NCIP that the area subject of the agreement does not overlap with
any ancestral domain. The NCIP certification shall be issued only after a field-based investigation
shall have been conducted and the free and prior informed written consent of the ICCs/IPs obtained.
Non-compliance with the consultation requirement gives the ICCs/IPs the right to stop or suspend
any project granted by any department or government agency.

As its subtitle suggests, this provision requires as a precondition for the issuance of any concession,
license or agreement over natural resources, that a certification be issued by the NCIP that the area
subject of the agreement does not lie within any ancestral domain. The provision does not vest the
NCIP with power over the other agencies of the State as to determine whether to grant or deny any
concession or license or agreement. It merely gives the NCIP the authority to ensure that the
ICCs/IPs have been informed of the agreement and that their consent thereto has been obtained.
Note that the certification applies to agreements over natural resources that do not necessarily lie
within the ancestral domains. For those that are found within the said domains, Sections 7(b) and 57
of the IPRA apply.

V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE INDIGENOUS

INTERNATIONAL MOVEMENT.

The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to
prehistoric times. The movement received a massive impetus during the 1960's from two sources.
First, the decolonization of Asia and Africa brought into the limelight the possibility of peoples
controlling their own destinies. Second, the right of self-determination was enshrined in the UN
Declaration on Human Rights.238 The rise of the civil rights movement and anti-racism brought to the
attention of North American Indians, Aborigines in Australia, and Maori in New Zealand the
possibility of fighting for fundamental rights and freedoms.

In 1974 and 1975, international indigenous organizations were founded,239 and during the 1980's,
indigenous affairs were on the international agenda. The people of the Philippine Cordillera were the
first Asians to take part in the international indigenous movement. It was the Cordillera People's
Alliance that carried out successful campaigns against the building of the Chico River Dam in 1981-
82 and they have since become one of the best-organized indigenous bodies in the world.240

Presently, there is a growing concern for indigenous rights in the international scene. This came as a
result of the increased publicity focused on the continuing disrespect for indigenous human rights
and the destruction of the indigenous peoples' environment, together with the national governments'
inability to deal with the situation.241Indigenous rights came as a result of both human rights and
environmental protection, and have become a part of today's priorities for the international agenda.242

International institutions and bodies have realized the necessity of applying policies, programs and
specific rules concerning IPs in some nations. The World Bank, for example, first adopted a policy
on IPs as a result of the dismal experience of projects in Latin America.243 The World Bank now
seeks to apply its current policy on IPs to some of its projects in Asia. This policy has provided an
influential model for the projects of the Asian Development Bank.244
The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a
State policy the promotion of their rights within the framework of national unity and
development.245 The IPRA amalgamates the Philippine category of ICCs with the international
category of IPs,246 and is heavily influenced by both the International Labor Organization (ILO)
Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous
Peoples.247

ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples in
Independent Countries"248 and was adopted on June 27, 1989. It is based on the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights,
the International Covenant on Civil and Political Rights, and many other international instruments on
the prevention of discrimination.249 ILO Convention No. 169 revised the "Convention Concerning the
Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in
Independent Countries" (ILO No. 107) passed on June 26, 1957. Developments in international law
made it appropriate to adopt new international standards on indigenous peoples "with a view to
removing the assimilationist orientation of the earlier standards," and recognizing the aspirations of
these peoples to exercise control over their own institutions, ways of life and economic
development."250

CONCLUSION

The struggle of the Filipinos throughout colonial history had been plagued by ethnic and religious
differences. These differences were carried over and magnified by the Philippine government
through the imposition of a national legal order that is mostly foreign in origin or derivation.251 Largely
unpopulist, the present legal system has resulted in the alienation of a large sector of society,
specifically, the indigenous peoples. The histories and cultures of the indigenes are relevant to the
evolution of Philippine culture and are vital to the understanding of contemporary problems.252 It is
through the IPRA that an attempt was made by our legislators to understand Filipino society not in
terms of myths and biases but through common experiences in the course of history. The Philippines
became a democracy a centennial ago and the decolonization process still continues. If the
evolution of the Filipino people into a democratic society is to truly proceed democratically, i.e., if the
Filipinos as a whole are to participate fully in the task of continuing democratization,253 it is this
Court's duty to acknowledge the presence of indigenous and customary laws in the country and
affirm their co-existence with the land laws in our national legal system.

With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous Peoples
Rights Act of 1997.

Footnotes

1Chief Judge, US Court of Appeals for the Seventh Circuit; Senior Lecturer, University of
Chicago Law School.

2 The University of Chicago Law Review, Vol. 67, Summer 2000, No. 3, p. 573.

3 Dominium is distinguished from imperium which is the government authority possessed by

the state expressed in the concept of sovereignty- Lee Hong Hok v. David, 48 SCRA 372,
377 [1972].
4Valenton v. Murciano, 3 Phil. 537, 543 [1904]; See also Florencio D.R. Ponce, The
Philippine Torrens System, p. 13 [1964].

5Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986]; these grants were better known as
repartimientos and encomiendas. Repartimientos were handouts to the military as fitting
reward for their services to the Spanish crown. The encomiendas were given to Spaniards to
administer and develop with the right to receive and enjoy for themselves the tributes of the
natives assigned to them.- Ponce, supra, p. 12, citing Benitez, History of the Philippines, pp.
125-126.

6 Narciso Pena, Registration of Land Titles and Deeds, p. 2 [1994].

7The Mortgage Law is a misnomer because it is primarily a law on registration of property

and secondarily a mortgage law- Ponce, supra, at 16.

8 Ponce, supra, at 15.

9 3 Phil. 537 [1904].

10 Id. at 540.

11 Id. at 548.

12 Id. at 543-544.

13 Id. at 543.

14Id. at 542-543. These comments by the court are clear expressions of the concept that
Crown holdings embraced both imperium and dominium—Ma. Lourdes Aranal-Sereno and
Roan Libarios, The Interface Between National Land Law and Kalinga Land Law, 58 P.L.J.
420, 423 [1983].

15 Id. at 545-546.

16 Id. at 543.

17 Id. at 557.

18 Id. at 553-554; Valenton was applied in Cansino v. Valdez, 6 Phil. 320 [1906]; Tiglao v.
Insular Government, 7 Phil. 80 [1906]; and Cariño v. Insular Government, 7 Phil. 132 [1906];
all decided by the Philippine Supreme Court.

19 Please see Section 70, Act 926.

20 Ponce, supra, at 33.

21 Montano v. Insular Government, 12 Phil. 572 [1909]; also cited in Ponce, supra, at 32.

22Archbishop of Manila v. Director of Lands, 27 Phil. 245 [1914]; also cited in Ponce, supra,
at 32.
23 Antonio H. Noblejas, Land Titles and Deeds, p. 250 [1961].

24 Ponce, supra, at 32.

25 Peña, Registration of Land Titles and Deeds, p. 26 [1982]; Noblejas, supra, at 32.

26 Noblejas, supra, at 32.

27 Ponce, supra, at 123-124; Noblejas, supra, at 33.

28 2 Aruego, The Framing of the Philippine Constitution, p. 592 [1937].

29 Id. at 600.

30 Id. at 600-601.

31 Ibid.

32 Section 7.

33 Section 8.

34 Sections 13 to 20.

35 Sections 21 to 28.

36 Sections 29 to 37.

37 Sections 38 and 40.

38 Sections 74 to 77.

39 Section 69.

40 Section 73.

41Convention Conerning Indigenous and Tribal Peoples in Independent Countries, June 27,
1989.

42Guide to R.A. 8371, published by the Coalition for Ips Rights and ancestral Domains in
cooperation with the ILO and Bilance-Asia Department, p. 4 [1999]—hereinafter referred to
as Guide to R.A. 8371.

43Taken from the list of IPs sbmitted by Rep. Andolana to the house of Representatives
during the deliberations on H.B. No. 9125—Interpellations of Aug. 20, 1997, pp. 00086-
00095. "lost tribes" such as the Lutangan and Tatang have not been included.

44How these people came to the Philippines may be explained by two theories. One view,
generally linked to Professor Otley H. Beyer, suggests the "wave theory"—a series of arrivals
in the archipelago bringing in different types and levels of culture. The Negritos, dark-skinned
pygmies, came between 25,000 to 30,000 B.C. Their cultural remains are preserved by the
Negrito-type Filipinos found in Luzon, Visayas and Mindanao. Their relatively inferior culture
did not enable them to overcome the pressures from the second wave of people, the
Indonesians A and B who came in 5,000 and 3,500 B.C. They are represented today by the
Kalinga, Gaddang, Isneg, Mangyan, Tagbanua, Manobo, Mandaya, Subanon, and Sama.
The first group was pushed inland as the second occupied the coastal and downriver
settlements. The last wave involved Malay migrations between 500 B.C. and 1,500 A.D. they
had a more advanced culture based on metal age technology. They are represented by the
Christianized and Islamized Filipinos who pushed the Indonesian groups inland and
occupied much of the coastal, lowland and downstream areas.

A second view is postulated by Robert Fox, F. Landa Jocana, Alfredo Evangelista,

and Jesus Peralta. Jocano maintains that the Negritos, Indonesians and Malays
stand co-equal as ethnic groups without any one being dominant, racially or
culturally. The geographic distribution of the ethno-linguistic groups, which shows
overlapping of otherwise similar racial strains in both upland and lowland cultures or
coastal and inland communities, suggests a random and unstructured advent of
different kinds of groups in the archipelago—Samuel K. Tan, A History of the
Philippines, published by the Manila Studies Association, Inc. and the Philippine
National Historical society, Inc., pp. 33-34 [1997]; Teodoro A. Agoncillo, History of
the Filipino People, p. 21 [1990].

45 Tan, supra, at 35-36.

46Onofre D. Corpuz, The Roots of the Filipino Nation, Philippine Centennial (1898-1998)
Edition, vol. 1, p. 13, Aklahi foundation, Inc. [1989]. It was in 800-1,000 A.D. that the Ifugaos
of Northern Luzon built the rice terraces—Id. at 37.

47 Id. at 5-6.

48 Id. at 13.

49 Teodoro A. Agoncillo, History of the Filipino People, p. 54 [1990].

50
Corpuz, supra, at 5.

51 Id. at 44-45.

52 Agoncillo, supra, at 40.

53 Id. at 40-41.

54Rafael Iriarte, History of the Judicial System, the Philippine Indigenous Era Prior to 1565,
unpublished work submitted as entry to the Centennial Essay-Writing Contest sponsored by
the National Centennial Commission and the Supreme Court in 1997, p. 103, citing Perfecto
V. Fernandez, Customs Laws in Pre-Conquest Philippines, UP Law Center, p. 10 [1976].

55 Agoncillo, supra, at 41.

56Amelia Alonzo, The History of the Judicial System in the Philippines, Indigenous Era Prior
to 1565,unpublished work submitted as entry to the Centennial Essay-Writing Contest
sponsored by the National Centennial Commission and the Supreme Court in 1997.

57 Agoncillo, supra, at 42.

58 Renato Constantino, A Past Revisited , p. 38 [1975].

59Samuel K. Tan, A History of the Philippines, published by the Manila Studies Ass’n., Inc.
and the Phil. National Historical Society, Inc., p. 43 [1997].

60 Id.

61 Id. at 43-44.

62 Tan, supra, at 47-48.

63 Id. at 48-49.

64Cacho v. Government of the P.I., 28 Phil. 616, 625-627 [1914]; see also Ponce, The
Philippine Torrens System, pp. 11-12 [1964]. In Philippine pre-colonial history, there was
only one recorded transaction on the purchase of land. The Maragtas Code tells us of the
purchase of Panay Island by ten Bornean datus led by Datu Puti from the Atis under
Marikudo in the 13th century. The purchase price for the island was a gold salakot and a
long gold necklace – Agoncillo, supra, at 25.

65 Constantino, supra, at 38.

66 Corpuz, supra, at 39.

67Resettlement- "bajo el son de la campana" (under the sound of the bell) or "bajo el toque
de la campana"(Under the peal of the bell).

68 People v. Cayat, 68 Phil. 12, 17 [1939].

69 Id. at 17, citing the Decree of the Governor-General of the Philippines, Jan. 14, 1887.

70 Agoncillo, supra, at 80.

71 Id. at 80.

72 Corpuz, supra, at 277-278.

73 Id. at 277.

74Id., N.B. But see discussion in Cariño v. Insular Government, infra, where the United
States Supreme Court found that the Spanish decrees in the Philippines appeared to
recognize that the natives owned some land. Whether in the implementation of these
decrees the natives’ ancestral rights to land were actually respected was not
discussed by the U.S. Supreme Court; see also Note 131, infra.
75 Tan, supra, at 49-50.

76 Id. at 67.

77 Id. at 52-53.

78 Id. at 53.

79 Id. at 55.

80 People v. Cayat, 68 Phil. 12, 17 [1939].

Memorandum of the Secretary of the Interior, quoted in Rubi v. Provincial Board of

81

Mindoro, 39 Phil. 660, 714 [1919]; also cited in People v. Cayat, supra, at 17-18.

82 Rubi v. Provincial Board of Mindoro, supra, at 693.

83Charles Macdonald, Indigenous Peoples of the Philippines: Between Segregation and

Integration, Indigenous Peoples of Asia, p. 348, ed. by R.H. Barnes, A. Gray and B.
Kingsburry, pub. by Association for Asian Studies [1995]. The BNCT made a Bontok and
subanon ethnography, a history of Sulu genealogy, and a compilation on unhispanized
peoples in northern Luzon.—Owen J. Lynch, Jr., The Philippine Colonial Dichotomy:
Attraction and Disenfranchisement, 63 P. L. J. 139-140 [1988].

84 R.A. No. 1888 of 1957.

85See People v. Cayat, supra, at 21; See also Rubi v. Provincial Board of Mindoro, 39 Phil.
660, 694 [1919]

86 MacDonald, Indigenous Peoples of the Philippines, supra, at 351.

87The construction of the Ambuklao and Binga dams in the 1950’s resulted in the eviction of
hundreds of Ibaloi families – Cerilo Rico S. Abelardo, Ancestral Domain Rights: Issues,
Responses, and Recommendations, Ateneo Law Journal, vol. 38, No. 1, p. 92 [1993].

88 Section 11, Art. XV, 1973 Constitution.

89 Presidential Decrees Nos. 1017 and 1414.

90The PANAMIN, however, concentrated funds and resources on image-building, publicity,

and impact projects. In Mindanao, the agency resorted to a policy of forced resettlement on
reservations, militarization and intimidation- MacDonald, Indigenous Peoples of the
Philippines, supra, at 349-350.

91No occupancy certificates were issued, however, because the government failed to
release the decree’s implementing rules and regulations- Abelardo, supra, at 120-121.

92 Id., Note 177.

93 Id., at 93-94.
94 MacDonald, Indigenous People of the Philippines, supra, at 351.

95 E.O. Nos. 122-A, 122-B and 122-C. The preamble of E.O. No. 122-B states:

"Believing that the new government is committed to formulate more vigorous policies,
plans, programs, and projects for tribal Filipinos, otherwise known as Indigenous
Cultural Communities, taking into consideration their communal aspirations, customs,
traditions, beliefs, and interests, in order to promote and preserve their rich cultural
heritage and insure their participation in the country’s development for national unity;
xxx"

96Article II, sec. 22; Article VI, sec. 5, par. 2; Article XII, sec. 5; Article XIII, sec. 6; Article XIV,
sec. 17; and Article XVI, sec. 12.

97 MacDonald, Indigenous Peoples of the Philippines, supra, at 345.

98 Samuel K. Tan, A History of the Philippines, p. 54 [1997].

99Cordillera Studies Program, Land Use and Ownership and Public Policy in the Cordillera,
29-30 [n.d.]; also cited in Dante B. Gatmaytan, Ancestral Domain Recognition in the
Philippines: Trends in Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 47-48
[1992].

100Abelardo, Ancestral Domain Rights, supra, at 98-99, citing Ponciano L. Bennagen,

Indigenous Attitudes Toward Land and Natural Resources of Tribal Filipinos, 31 National
Council of Churches in the Philippines Newsletter, Oct.-Dec. 1991, at 4-9.

101 Id. at 99, citing June Prill-Brett, Bontok Land Tenure (UP Law library, mimeographed).

Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface of National Land Law and
102

Kalinga Law, 58 P.L.J. 420, 440-441 [1983].

103 Ibid.

104
Ibid.

105 Ibid.

106 Ma. Lourdes Aranal-Sereno and Roan Libarios, The Interface, supra, at 420.

107Senate Bill No. 1728 was co-sponsored by Senator Macapagal-Arroyo and co-authored
by Senators Alvarez, Magsaysay, Revilla, Mercado, Enrile, Honasan, Tatad, Maceda,
Shahani, Osmena and Romulo.

The Eighth Congress, through Senators Rasul, Estrada and Romulo filed a bill to
operationalize the mandate of the 1987 Constitution on indigenous peoples. The bill
was reported out, sponsored an interpellated but never enacted into law. In the Ninth
Congress, the bill filed by Senators Rasul and Macapagal-Arroyo was never
sponsored and deliberated upon in the floor.
 Sponsorship Speech of Senator Flavier, Legislative History of SBN 1728, Tenth
108

Congress, Second Regular Session, Senate, Oct. 16, 1996, pp. 15-16.

109 Id. at 12.

110 Id. at 17-18.

111 Id. at 13.

Journal of the Tenth Congress of the Philippines, Senate, Session No. 5, Aug. 5-6, 1997,
112

pp. 86-87.

Co-authors of the bill were Reps. Ermita, Teves, Plaza, Calalay, Recto, Fua, Luciano,
113

Abad, Cosalan, Aumentado, de la Cruz, Bautista, Singson, Damasing, Romualdo, Montilla,

Germino, Verceles—Proceedings of Sept. 4, 1997, pp. 00107-00108.

114 Sponsorship speech of Rep. Andolana of House Bill No. 9125, March 20, 1997.

115 Interpellation of Aug. 20, 1997, 6:16 p.m., p. 00061.

116 Section 3 [a], IPRA.

117 Section 3 [b], IPRA.

118 Guide to R.A. 8371, p. 14.

119 Section 44 [e], IPRA.

120 Section 51, IPRA.

121 Guide to R.A. 8371, p. 15.

A CADT refers to a title formally recognizing the right of possession and ownership of
122

ICCs/IPs over their ancestral domains identified and delineated in acordance with the
IPRA—Rule II [c], Rules & Regulations Implementing the IPRA, NCIP Admin. Order No. 1.

123 Section 53 [a], IPRA.

124A CALT refers to a title formally recognizing the rights of the ICCs/IPs over their ancestral
lands- Rule II [d], Implementing Rules, NCIP A.O. No. 1.

125 Section 52 [k], IPRA.

126 Section 3 [1], IPRA.

127 Section 11, IPRA.

128 Ibid.

129 41 Phil. 935 (1909), 212 U.S. 449, 53 L.Ed. 594.

 Sponsorship Speech of Senator Juan Flavier, Leg. History of SBN 1728, Tenth Congress,
130

Second Regular Session, Oct. 16, 1996, p. 13.

131It was the practice of the Spanish colonial government not to issue titles to Igorots—Owen
J. Lynch, Jr., Invisible Peoples and a Hidden Agenda: The Origins of Contemporary
Philippine Land Laws (1900-1913), 63 P.L.J. 249, 288 [1988], citing the testimony of Benguet
Provincial Governnor William F. Pack, Records at 47, Cariño.

132 Maura Law or the Royal Decree of Feb. 13, 1894.

133 Later named Camp John Hay.

134 Lynch, Invisible Peoples, supra, at 288-289.

135 7 Phil. 132 [1906].

136 In 1901, Cariño had entered into a promissory agreement with a U.S. merchant in Manila.
The note obliged Cariño to sell the land at issue "as soon as he obtains from the
Government of the United States, or its representatives in the Philippines, real and definitive
title." See Lynch, Invisible Peoples, supra, at 290, citing Government’s Exhibit G, Records, at
137-138, Cariño.

137
Cariño v. Insular Government, supra, at 939.

138 Ibid.

139 Id. at 940.

140 Id. at 941.

141 Id. at 941-942.

Aranal-Sereno and Libarios, The Interface Between Kalinga Land Law, supra at 428-This
142

artcile was one of those circulated among the Constitutional Commissioners in the
formulation of Sec. 5, Article XII of the 1987 Constitution (4 Record of the Constitutional
Commission 33).

143 Id. at 944.

Certificate of Title No. 2 covering the 148 hectares of Baguio Municipality was issued not in
144

the name of Cariño who died on June 6, 1908, but to his lawyers John Hausserman and
Charles Cohn and his attorney-in-fact Metcalf Clarke. Hausserman, Cohn and Clarke sold
the land to the U.S. Government in a Deed of Quitclaim-Richel B. Langit, Igorot Descendants
Claim Rights to Camp John Hay, Manila Times, p. 1, Jan. 12, 1998.

145 Id. at 939.

146 57 P.L.J. 268, 293-296 [1982].

 From 1987 to 1988, Prof. Lynch allowed the P.L.J. to publish parts of his doctoral
147

dissertation at the Yale Law School entitled "Invisible Peoples: A History of Philippine Land
Law." Please see the Legal Bases of Philippine Colonial Sovereignty: An Inquiry, 62 P.L.J.
279 [1987]; Land Rights, Land Laws and Land Usurpation: The Spanish Era (1568-1898), 63
P.L.J. 82 [1988]; The Colonial Dichotomy: Attraction and Disenfranchisement, 63 P.L.J. 112;
Invisible Peoples and a Hidden Agenda: The Origins of Contemporary Philippine Land Laws
(1900-1913), 63 P.L.J. 249.

"Native title" is a common law recognition of pre-existing aboriginal land interests in

148

Autsralia- Maureen Tehan, Customary Title, Heritage Protection, and Property Rights in
Australia: Emerging Patterns of Land Use in the Post-Mabo Era, 7 Pacific Rim Law & Policy
Journal, No. 3, p. 765 [June 1998].

149 Lynch, Native Titles, supra, Note 164, p. 293.

150 39 Phil. 660 [1919].

151 Id. at 712-713.

152 Id. at 694.

153 Id. at 700.

154 42 C.J.S., Indians, Sec. 29 [1944 ed.].

There are 3 kinds of Indian reservations: (a) those created by treaties prior to 1871; (b)
155

those created by acts of Congress since 1871; and (c) those made by Executive Orders
where the President has set apart public lands for the use of the Indians in order to keep
them within a certain territory- 42 C.J.S., Indians, Sec. 29 citing Sioux Tribe of Indians v. U.S.
94 Ct. Cl. 150, 170, certiorari granted 62 S. Ct. 631, 315 U.S. 790, 86 L. Ed. 1194, affirmed
62 S. Ct. 1095, 316 U.S. 317, 86 L. Ed. 1501. It is observed that the first two kinds may
include lands possessed by aboriginal title. The last kind covers Indian reservations
proper.

Until 1871, Indian tribes were recognized by the United States as possessing the
attributes of nations to the extent that treaties were made with them. In that year,
however, Congress, by statute, declared its intention thereafter to make the Indian
tribes amenable directly to the power and authority of the United States by the
immediate exercise of its legislative power over them, instead of by treaty. Since
then, Indian affairs have been regulated by acts if Congress and by contracts with
the Indian tribes practically amounting to treaties- 41 Am Jur 2d, Indians, Sec. 55
[1995 ed].

156 42 C.J.S. Indians, Sec. 28 [1944 ed.].

Ibid.; see also U.S. v. Santa Fe Pac. R. Co., Ariz., 62 S. Ct. 248, 314 U.S. 339, 86 L. Ed.
157

260 [1941].

158 Ibid.

159 8 Wheat 543, 5 L. Ed. 681 [1823].

160 Id. at 680.

161 Id. at 689.

Id. at 696; see also 41 ALR Fed 425, Annotation: Proof and Extinguishment of Aboriginal
162

Title to Indian Lands, Sec. 2[a] [1979].

163 Buttz v. Northern Pac.R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55, 30 L. Ed. 330, 335 [1886].

Lynch, Native Title, supra, at 293-294; Cohen, Original Indian Title, 32 Minn. L.R. 48-49
164

[1947].

165 6 Pet 515, 8 L.Ed. 483 [1832].

166 Id. at 499.

167 Id. at 500.

168 Id. at 501.

The title of the government to Indian lands, the naked fee, is a sovereign title, the
169

government having no landlord from whom it holds the fee- Shoshone Tribe of Indians of
Wind River Reservation in Wyoming v. U.S., 85 Ct. Cl. 331, certiorari granted U.S. v.
Shoshone Tribe of Indians, 58 S. Ct. 609, 303 U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct.
794, 304 U.S. 111, 82 L. Ed. 1213, 1218-1219 [1938].

Buttz v. Northern Pac. R. Co., Dak., at 30 L. Ed. 330, 335; Beecher v. Wetherby, Wis., 95
170

U.S. 517, 24 L. Ed. 440, 441 [1877]; see also 42 C.J.S., Indians, Sec. 28 [1944 ed.].

Annotation, Proof and Extinguishment of Aboriginal title to Indian Lands, 41 ALR Fed 425,
171

Sec. 2 [b] [1979]- hereinafter cited as Aboriginal Title to Indian Lands.

Ibid.; see also Tee Hit Ton Indians v. U.S., 348 U.S. 272, 99 L. Ed. 314, 320, 75 S. Ct. 313
172

[1955], reh den 348 U.S. 965, 99 L. Ed. 753, 75 S. Ct. 521.

173 Ibid.; Tee Hit Ton Indians v. U.S., at 99 L. Ed. 320.

Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 39 L. Ed. 2d 73, 94 S Ct. 772
174

[1974]; U.S. v. Alcea Bank of Tillamooks, 329 U.S. 40, 91 L. Ed. 29. 67 S. Ct. 167 [1946].

175For compensation under the Indian Claims Commission Act, the proof of aboriginal title
rests on actual, exclusive and continuous use and occupancy for a long time prior to the loss
of the property. (The Indian Claims Commission Act awards compensation to Indians whose
aboriginal titles were extinguished by the government through military conquest, creation of a
reservation, forced confinement of Indians and removal of Indians from certain portions of
the land an the designation of Indian land into forest preserve, grazing district, etc.)
- Aboriginal Title to Indian Lands, supra, at Secs. 2[a], 3[a], pp. 431, 433, 437.

176 Aboriginal Title to Indian Lands, supra, at Sec. 2[b], p. 435.

177 41 Am Jr 2d, Indians, Sec. 59 [1995 ed.].

An allotment of Indian land contains restrictions on alienation of the land. These

178

restrictions extend to a devise of the land by will- Missouri, K. & T.R. Co. v. U.S., 235 U.S.
37, 59 L. Ed. 116,. 35 S. Ct. 6 [1914]; A railroad land grant that falls within Indian land is null
and void- Northern P. R. Co. v. U.S., 227 U.S. 355, 57 L.Ed. 544,33 S. Ct. 368 [1913];
Portions of Indian land necessary for a railroad right of way were, by the terms of the treaty,
declared "public land," implying that land beyond the right of way was private- Kindred v.
Union P.R. Co., 225 U.S. 582, 56 L. Ed. 1216, 32 S. Ct. 780 [1912]; see also 41 Am Jur 2d,
Indians, Sec. 58 [1995 ed].

179
Aboriginal Title to Indian Lands, supra, at Sec. 2[a], p. 433.

180 42 C.J.S. Indians, Sec. 29 [1944 ed.]

181 Ibid.

182North American Indians have made much progress in establishing a relationship with the
national government and developing their own laws. Some have their own government-
recognized constitutions. Usually the recognition of Indian tribes depends on whether the
tribe has a reservation. North American tribes have reached such an advanced stage that
the main issues today evolve around complex jurisdictional and litigation matters. Tribes
have acquired the status of sovereign nations within another nation, possessing the right to
change and grow- Jose Paulo Kastrup, The Internationalization of Indigenous Rights from
the Environmental and Human Rights Perspective, Texas International Law Journal, vol. 32:
97, 104 [1997].

183 Lynch, Native Title, supra, at 293.

Dante Gatmaytan, Ancestral Domain Recognition in the Philippines: Trends in

184

Jurisprudence and Legislation, 5 Phil. Nat. Res. L.J. No. 1, pp. 43, 40 [Aug. 1992]; see also
Tee Hit Ton Indians v. U.S., supra, at 320.

185 Ibid.

D. Gatmaytan, supra, citing Churchill, The Earth is Our Mother: Struggles for American
186

Indian Land and Liberation in the Contemporary United States, The State of Native America:
Genocide, Colonization and Resistance 139 (M. Jaimes 1992); and Indian Law Resource
Center, United States Denial of Indian Property Rights: A Study in Lawless Power and Racial
Discrimination, Rethinking Indian Law 15 (National Lawyers Guild, Committee on Native
American Struggles 1982).

Id., Note 28, stating that some earlier decisions of the U.S. Supreme Court have held that
187

Congress is subject to the strictures of the Constitution in dealing with Indians. When an
Indian property is taken for non-Indian use, the U.S. government is liable for payment of
compensation, and an uncompensated taking may be enjoined. F. Cohen, Handbook of
Federal Indian Law 217 [1982], citing Shoshone Tribe v. U.S. 299 U.S. 476 [1937]; Choate v.
Trapp, 224 U.S. 665 [1912]; and Lane v. Pueblo of Santa Rosa, 249 U.S. 110 [1919].

188 See Discussion, infra, Part IV (c) (2).

189 Susi v. Razon, 48 Phil. 424 [1925]; Herico v. Dar, 95 SCRA 437 [1980].

190 Ibid.

Director of Lands v. Intermediate Appellate Court, 146 SCRA 509 [1986]; Director of
191

Lands v. Buyco, 216 SCRA 78 [1992]; Republic v. Court of Appeals and Lapina, 235 SCRA
567 [1994].

192 75 Phil. 890 [1946].

193 Id. at 892.

194 Sec. 48 [b], C.A. 141.

195 Sec. 48 [c], C.A. 141, as amended. This provision was added in 1964 by R.A. 3872.

196 Section 12, IPRA.

"Time immemorial" refers "to a period of time when as far back as memory can go, certain
197

ICCs/Ips are known to have occupied, possessed in the concept of owner, and utilized a
defined territory devolved to them, by operation of customary law or inherited from their
ancestors, in accordance with their customs and traditions." (Sec. 3 [p], IPRA).

198 Section 2, C.A. 141.

199 Section 8, C.A. 141.

The classification of ancestral lands 18% in slope or over as alienable in the IPRA is an
200

exception to Section 15, P.D. 705, the Revised Forestry Code.

201Charles MacDonald, Indigenous Peoples of the Philippines: Between Segregation and

Integration, Indigenous Peoples of Asia, supra, at pp. 345, 350.

202
Section 5, Article XII, 1987 Constitution.

203 Words in bold were amendments introduced by R.A. 3872 in 1964.

204Words in bold were amendments introduced by R.A. 3872 on June 18, 1964. On January
25, 1977, however, Sec. 48 [b] and 48 [c] were further amended by P.D. 1073 stating that
these provisions on cultural minorities apply only to alienable and disposable lands of the
public domain- Please see Republic v. CA and Paran, 201 SCRA 1, 10-11 [1991].

205 Jus utendi, jus fruendi.

206 Jus abutendi.

207 Jus disponendi.

Jus vindicandi. Please see Tolentino, Civil Code, vol. II, pp. 45-46 [1992]; see also
208

Tolentino, vol. I, pp. 12-14.

209 Sec. 55, IPRA provides:

"Sec. 55. Communal rights.- Subject to Section 56 hereof, areas within the ancestral
domains, whether delineated or not, shall be presumed to be communally held:
provided, That communal rights under this Act shall not be construed as co-
ownership as provided in Republic Act No. 386, otherwise known as the New Civil
Code."

210 Ibid.

211 Article 494, Civil Code.

Antonio M. La Vina, Arguments for Communal Title, Part II, 2 Phil. Nat. Res. L. J. 23 [Dec.
212

1989].

213 Section 11, Corporation Code.

214 Sections 60-72, Corporation Code.

Section 117, Corporation Code. Please see also La Vina, Arguments for Communal Title,
215

Part II, supra, at 23.

216
Section 5, par. 2, Article XII, 1987 Constitution.

Customary law is recognized by the Local Government Code of 1991 in solving disputes
217

among members of the indigenous communities, viz:

"Sec. 412 (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."

218Law writes custom into contract-Hongkong & Shanghai Bank v. Peters, 16 Phil. 284
[1910].

The Civil Code provides:

"Art. 11. Customs which are contrary to law, public order or public policy shall not be
countenanced."

"Art. 12. A custom must be proved as a fact, according to the rules of evidence."

219Article 78 on marriages between Mohammedans or pagans who live in the non-Christian

provinces- this is now Art. 33 of the Family Code; Art. 118, now Art. 74 of the Family Code
on property relations between spouses; Art. 577 on the usufructuary of woodland; Art. 657
on easement of right of way for passage of livestock; Arts. 678, 1315, 1376, 1522, 1564 and
1577. Please see Aquino, Civil Code, vol. 1, p. 25.

Castle Bros. v. Gutierrez Hermanos, 11 Phil. 629 [1908]; In Re: Firm Name of Ozaeta
220

Romulo, 92 SCRA 1 [1979]; Yao Kee v. Sy-Gonzales, 167 SCRA 736 [1988]; Please see
Aquino, Civil Code, vol. 1, p. 26 for a list of other cases.
221This situation is analogous to the Muslim code or the Code of Muslim Personal Laws (P.D.
1083) which took effect on February 4, 1977 despite the effectivity of the Civil Code and the
Family Code. P.D. 1083 governs persons, family relations and succession among Muslims,
the adjudication and settlement of disputes, the organization of the Shari’a courts, etc.

Mariflor P. Pagusara, The Kalinga Ili: Cultural-Ecological Reflections on Indigenous

222

Theora and Praxis of Man-Nature Relationship, Dakami Ya Nan Dagami, p. 36, Papers and
Proceedings of the 1st Cordillera Muti-Sectoral Land Congress, 11-14 March 1983,
Cordillera Consultative Committee [1984].

223 Section 2, Article XII.

224A "co-production agreement" is defined as one wherein the government provides input to
the mining operation other than the mineral resource- Section 26 (b), R.A. 7942, the
Philippine Mining Act of 1995.

A "joint venture agreement" is one where a joint-venture company is organized by the

225

government and the contractor with both parties having equity shares, and the government
entitled to a share in the gross output- Section 26 (c), R.A. 7942.

226 A mineral "production-sharing agreement" is one where the government grants to the
contractor the exclusive right to conduct mining operations within a contract area and shares
in the gross output. The contractor provides the financing, technology, management and
personnel necessary for the implementation of the agreement- Section 26 (a), R.A. 7942.

227 Section 26, R.A. 7942.

228 Section 3 [d], People's Small-Scale Mining Act of 1991 (R.A. 7076) provides:

"Sec. 3 [d] 'Small-scale mining contract' refers to co-production, joint venture or

mineral production sharing agreement between the State and a small-scale mining
contractor for the small-scale utilization of a plot of mineral land."

229 Section 3 [b], R.A. 7076.

230 NCIP Administrative Order No. 1, Series of 1998.

231In Republic v. Court of Appeals, 160 SCRA 228, 239 [1988], Cruz, J., ponente, it was
declared that if a person is the owner of a piece of agricultural land on which minerals are
discovered, his ownership of such land does not give him the right to extract or utilize the
said minerals without the permission of the State to which such minerals belong- also cited in
H. de Leon, Phil. Constitutional Law, Principles and Cases, vol. 2, pp. 800-801 [1999].

232 See Ground I, Grounds to Issue Writ of Prohibition, Petition, p. 14.

233
Section 7 (b) is subject to Section 56 of the same law which provides:

"Sec. 56. Existing Property Rights Regimes.- Property rights within the ancestral
domains already existing and/or vested upon effectivity of this Act, shall be
recognized and respected."
 The law took effect 15 days upon publication in the O.G. or in any 2 newspapers of
general circulation (Sec. 84, IPRA). The IPRA was published in the Chronicle and
Malaya on Nov. 7, 1997.

Section 9 of the IPRA also gives the ICCs/IPs the ff. responsibilities over their ancestral
234

domains:

(a) Maintain Ecological Balance- To preserve, restore, and maintain a balanced

ecology in the ancestral domain by protecting the flora and fauna, watershed areas,
and other reserves;

(b) Restore Denuded Areas.- To actively initiate, undertake and participate in the
reforestation of denuded areas and other development programs and projects
subject to just and reasonable renumeration;

(c) Observe Laws.- To observe and comply with the provisions of this Act and the
rules and regulations for its effective implementation."

Section 58 of the same law also mandates that ancestral domains or portions
thereof, which are found to be necessary for critical watersheds, mangroves, wildlife
sanctuaries, wilderness, protected areas, forest cover, or reforestation as determined
by appropriate agencies with the full participation of the ICCs/IPs concerned shall be
maintained, managed and developed for such purposes. The ICCs/IPs concerned
shall be given the responsibility to maintain, develop, protect and conserve such
areas with the full and effective assistance of government agencies.

235Hector S. de Leon, Textbook on the New Philippine Constitution pp. 473-474 [1987] citing
the 1986 UP Law Constitution Project, The National Economy and Patrimony, p. 11.

Under the Small-Scale Mining Act of 1991, "small-scale mining" refers to "mining activities
236

which rely heavily on manual labor using simple implements and methods and do not use
explosives or heavy mining equipment"- Section 3 [b], R.A. 7076.

237 See infra., pp. 77-79?.

Andrew Gray, The Indigenous Movement in Asia, Indigenous Peoples of Asia, ed. By
238

Barnes, Gray and Kingsbury, pub. By Ass'n. for Asian Studies, at 35, 42 [1995].

239 E.g. International Indian Treaty Council, World Council of IPs.

240Gray, The Indigenous Movement in Asia, supra, at 44, citing the International Work Group
for Indigenous Affairs, 1988.

Jose Paulo Kastrup, The Internationalization of Indigenous Rights from the Environmental
241

and Human Rights Perspective, 32 Texas International Law Journal 97, 102 [1997].

242Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach

to the Asian Controversy, The American Journal of International Law, vol. 92: 414, 429
[1998].
 The World Bank supported the Chico Dam project. Due to the Kalingas' opposition, the
243

WB pulled out of the project but the conflict between the Philippine government and the
natives endured long after- Marcus Colchester, Indigenous Peoples' Rights and Sustainable
Resource Use in South and Southeast Asia, Indigenous Peoples of Asia, supra, pp. 59, 71-
72.

244 Kingsbury, supra, at 417.

245 Section 22, Article II, 1987 Constitution.

Interpellation of Senator Flavier on S.B. No. 1728, Deliberation on Second Reading,

246

November 20, 1996, p. 20.

Guide to R.A. 8371, Coalition for IPs Rights and Ancestral Domains, the International
247

Labor Organization, and the ILO-Bilance- Asia Dep't, p. 3 [1999].

248 Also referred to as the "Indigenous and Tribal Peoples Convention, 1989."

249 See Introduction to ILO Convention No. 169, par. 4.

250 Id., pars. 5 and 6.

Perfecto V. Fernandez, Towards a Definition of National Policy on Recognition of Ethnic

251

Law within the Philippine Legal Order, 55 P.L.J. 383, 385 [1980].

Samuel K. Tan, A History of the Philippines, Manila Studies Association, Inc. and the Phil.
252

National Historical Society, Inc., p. 6 [1997].

253 Fernandez, supra, at 385, 391.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

VITUG, J.:

An issue of grave national interest indeed deserves a proper place in any forum and, when it
shows itself in a given judicial controversy, the rules of procedure, like locus standi, the
propriety of the specific remedy invoked, or the principle of hierarchy of courts, that may
ordinarily be raised by party-litigants, should not be so perceived as good and inevitable
justifications for advocating timidity, let alone isolationism, by the Court.

A cardinal requirement, to which I agree, is that one who invokes the Court’s adjudication must have
a personal and substantial interest in the dispute;1 indeed, the developing trend would require
a logical nexus between the status asserted and the claim sought to be adjudicated in order to
ensure that one is the proper and appropriate party to invoke judicial power.2 The rule requires a
party to aptly show a personal stake in the outcome of the case or an injury to himself that can be
redressed by a favorable decision so as to warrant his invocation of the Court’s jurisdiction and to
render legally feasible the exercise of the Court’s remedial powers in his behalf. If it were otherwise,
the exercise of that power can easily become too unwieldy by its sheer magnitude and scope to a
point that may, in no small measure, adversely affect its intended essentiality, stability and
consequentiality.

Nevertheless, where a most compelling reason exits, such as when the matter is of transcendental
importance and paramount interest to the nation,3 the Court must take the liberal approach that
recognizes the legal standing of nontraditional plaintiffs, such as citizens and taxpayers, to raise
constitutional issues that affect them.4 This Court thus did so in a case5 that involves the
conservation of our forests for ecological needs. Until and exact balance is struck, the Court
must accept an eclectic notion that can free itself from the bondage of legal nicety and hold
trenchant technicalities subordinate to what may be considered to be of overriding concern.

The petition seeks a declaration by the Court of unconstitutionality of certain provisions of Republic
Act No. 8371, a law that obviously is yet incapable of exact equation in its significance to the nation
and its people now and in the generations yet to come. Republic Act No. 8371, otherwise also
known as the Indigenous Peoples Rights Act of 1997 ("IPRA"), enacted into law in 1997 and made
effective on 22 November 1997, is apparently intended to be a legislative response to the 1987
Constitution which recognizes the rights of indigenous cultural communities "within the framework of
national unity and development"6 and commands the State, "subject to the provisions of this
Constitution and national development policies and programs," to protect the rights of
indigenous cultural communities to their ancestral lands in order to ensure their economic, social,
and cultural well-being.7

Among the assailed provisions in IPRA is its Section 3(a) which defines "ancestral domains" to
embrace "all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal
areas, and natural resources" including "ancestral lands, forest, pasture, residential,
agricultural, and other lands individually owned whether alienable and disposable or
otherwise," over which indigenous cultural communities/indigenous
peoples ("ICCs/IPs") could exercise virtual ownership and control.

IPRA effectively withdraws from the public domain the so-called ancestral domains covering
literally millions of hectares. The notion of community property would comprehend not only
matters of proprietary interest but also some forms of self-governance over the curved-out
territory. This concept is elaborated in Section 7 of the law which states that the "rights of ownership
and possession of ICCs/IPs to their ancestral domains shall be recognized and protected,"
subsumed under which would encompass the right of ownership(paragraph a); the right to
develop, control and use lands and natural resources, including "the right to negotiate the
terms and conditions for the exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation measures, pursuant to national
and customary laws;" (par. b); the right to stay in the territories (par. c); the right to return to
their abandoned lands in case of displacement (par. d); the right to regulate entry of
migrants (par. e); the right to claim parts of ancestral domains previously reserved (par. g);
and the right to resolve land conflicts in accordance primarily with customary law (par. h).
Concurrently, Section 57 states that ICCs/IPs shall be given "priority rights in the harvesting,
extraction, development or exploitation of any natural resources within the ancestral
domains." These provisions of IPRA, in their totality, are, in my view, beyond the context of
the fundamental law and virtually amount to an undue delegation, if not an unacceptable
abdication, of State authority over a significant area of the country and its patrimony.
Article XII of the 1987 Constitution expresses that all "lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries,
forest or timber, wildlife, flora and fauna, and other natural resources are owned by the
State," and, with the exception of agricultural lands, "shall not be alienated." It ordains that the
"exploration, development, and utilization of natural resources shall be under the full control
and supervision of the State."8

These provisions had roots in the 1935 Constitution which, along with some other specific mandates
in the 1935 Constitution, forming Article XII under the title "Conservation and Utilization of Natural
Resources", were derived largely from the report of the Committee on Nationalization and
Preservation of Lands and other Natural Resources.9 According to the Committee report, among the
principles upon which these provisions were based, was "that the land, minerals, forest and other
natural resources constitute the exclusive heritage of the Filipino Nation," and should thereby "be
preserved for those under the sovereign authority of the Nation and for their posterity."10 The
delegates to the 1934 Constitutional Convention were of the unanimous view that the "policy on
natural resources, being fundamental to the nation’s survival should not be left to the changing mood
of the lawmaking body."11

The 1987 Constitution, like the precursor provisions in the 1935 and 1973 Constitutions, thus
expresses this regalian doctrine of the old, and the domainial doctrine of the new, that all lands and
natural resources belong to the state other than those which it recognizes to be of private
ownership. Except for agricultural lands of the public domain which alone may be alienated,
forest or timber, and mineral lands, as well as all other natural resources, of the country must
remain with the state, the exploration, development and utilization of which shall be subject
to its full control and supervision albeit allowing it to enter into co-production, joint venture or
production-sharing agreements, or into agreements with foreign-owned corporations involving
technical or financial assistance for large-scale exploration, development and utilization.12

The decision of the United States Supreme Court in Cariño vs. Insular Government,13 holding that a
parcel of land held since time immemorial by individuals under a claim of private ownership is
presumed never to have been public land and cited to downgrade the application of the regalian
doctrine, cannot override the collective will of the people expressed in the Constitution. It is in
them that sovereignty resides and from them that all government authority emanates.14 It is not then
for a court ruling or any piece of legislation to be conformed to by the fundamental law, but it is for
the former to adapt to the latter, and it is the sovereign act that must, between them, stand
inviolate.

The second paragraph of Section 5 of Article XII of the Constitution allows Congress to provide "for
the applicability of customary laws governing property rights or relations in determining the
ownership and extent of ancestral domains." I do not see this statement as saying that Congress
may enact a law that would simply express that "customary laws shall govern" and end it there. Had
it been so, the Constitution could have itself easily provided without having to still commission
Congress to do it. Mr. Chief Justice Davide has explained this authority of Congress, during the
deliberations of the 1986 Constitutional Convention, thus:

"Mr. Davide. x x x Insofar as the application of the customary laws governing property rights or
relations in determining the ownership and extent of the ancestral domain is concerned, it is
respectfully submitted that the particular matter must be submitted to Congress. I understand that
the idea of Comm. Bennagen is for the possibility of the codification of these customary laws. So
before these are codified, we cannot now mandate that the same must immediately be applicable.
We leave it to Congress to determine the extent of the ancestral domain and the ownership thereof
in relation to whatever may have been codified earlier. So, in short, let us not put the cart ahead of
the horse."15

The constitutional aim, it seems to me, is to get Congress to look closely into the customary
laws and, with specificity and by proper recitals, to hew them to, and make them part of, the
stream of laws. The "due process clause," as I so understand it in Tanada vs. Tuvera16 would
require an apt publication of a legislative enactment before it is permitted to take force and effect.
So, also, customary laws, when specifically enacted to become part of statutory law, must first
undergo that publication to render them correspondingly binding and effective as such.

Undoubtedly, IPRA has several good points, and I would respectfully urge Congress to re-
examine the law. Indeed, the State is exhorted to protect the rights of indigenous cultural
communities to their ancestral lands, a task that would entail a balancing of interest between
their specific needs and the imperatives of national interest.

WHEREFORE, I vote to grant the petition.

Footnotes

1
People vs. Vera, 65 Phil. 56, 89; Macasiano vs. National Housing Authority, 224 SCRA
236, 244.

2 Am Jur § 189, p. 591, S. vD., 410 US 641, 35 L Ed 2d 536, 93 S Ct 1146.

3Legaspi vs. Civil Service Commission, 150 SCRA 530, 540; Tañada vs. Tuvera, 136 SCRA
27, 36, 37.

4Defensor Santiago, Miriam, Constitutional Law, First Edition, 1994, p. 11; see also Rev. Fr.
Joaquin Bernas, S.J., on the 1987 Constitution of the Republic of the Philippines, 1996 Ed.,
pp. 336-337.

5
Oposa vs. Factoran, Jr., 224 SCRA 792.

6 Art. 11, Sec. 22.

7 Art. XII, Sec. 5.

8 Sec. 2.

9 II Aruego, The Framing of the Philippine Constitution, p. 594.

10 Ibid., p. 595.

11 Ibid., p. 600.

CONST., Art. XII, Sec. 2; Miners Association of the Philippines, Inc., vs. Factoran, Jr., 240
12

SCRA 100.
 13 41 Phil. 935.

14 CONST., Art. II, Sec. 1.

15 4 Record of the Constitutional Commission 32.

16 146 SCRA 446.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

KAPUNAN, J.:

You ask if we own the land. . . How can you own that which will outlive you? Only the race own the
land because only the race lives forever. To claim a piece of land is a birthright of every man. The
lowly animals claim their place; how much more man? Man is born to live. Apu Kabunian, lord of us
all, gave us life and placed us in the world to live human lives. And where shall we obtain life? From
the land. To work (the land) is an obligation, not merely a right. In tilling the land, you possess it. And
so land is a grace that must be nurtured. To enrich it and make it fructify is the eternal exhortation of
Apu Kabunian to all his children. Land is sacred. Land is beloved. From its womb springs …life.

- Macli-ing Dulag, Chieftain of the Kalinga Tribe (quoted in Ponciano L. Bennagen, "Tribal Filipinos"
in Indigenous View of Land and the Environment, ed. Shelton H. Davis, the World Bank Discussion
Papers, No. 188, pp. 71-72.)

It is established doctrine that a statute should be construed whenever possible in harmony with,
rather than in violation of, the Constitution.1 The presumption is that the legislature intended to enact
a valid, sensible and just law and one which operates no further than may be necessary to effectuate
the specific purpose of the law.2

The challenged provisions of the Indigenous Peoples Rights Act (IPRA) must be construed in view of
such presumption of constitutionality. Further, the interpretation of these provisions should take into
account the purpose of the law, which is to give life to the constitutional mandate that the rights of
the indigenous peoples be recognized and protected.

The struggle of our indigenous peoples to reclaim their ancestral lands and domains and therefore,
their heritage, is not unique. It is one that they share with the red-skinned "Indians" of the United
States, with the aborigines of Australia, the Maori of New Zealand and the Sazmi of Sweden, to
name a few. Happily, the nations in which these indigenous peoples live all have enacted measures
in an attempt to heal an oppressive past by the promise of a progressive future. Thus has the
international community realized the injustices that have been perpetrated upon the indigenous
peoples. This sentiment among the family of nations is expressed in a number of documents, the
most recent and most comprehensive of which is the Draft United Nations Declaration on the Rights
of Indigenous Peoples which was adopted by the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities by its resolution on August 26, 1994. Among the rights
recognized by the UN Draft is the restitution of lands, territories and even the resources which the
indigenous peoples have traditionally owned or otherwise occupied or used, and which have been
confiscated, occupied, used or damaged without the free and informed consent of the indigenous
peoples.

A Historical Backdrop on the Indigenous Peoples

The term "indigenous" traces its origin to the Old Latin word indu, meaning "within." In the sense the
term has come to be used, it is nearer in meaning to the Latin word indigenus, which means
"native."3 "Indigenous" refers to that which originated or has been produced naturally in a particular
land, and has not been introduced from the outside.4In international law, the definition of what
constitutes "indigenous peoples" attains some degree of controversy. No definition of the term
"indigenous peoples" has been adopted by the United Nations (UN), although UN practice has been
guided by a working definition in the 1986 Report of UN Special Rapporteur Martinez Cobo:5

Indigenous communities, peoples and nations are those which, having a historical continuity with
pre-invasion and pre-colonial societies that developed on their territories, consider themselves
distinct from other sections of the societies now prevailing in those territories, or parts of them. They
form at present non-dominant sections of society and are determined to preserve, develop and
transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their
continued existence as peoples, in accordance with their own cultural patterns, social institutions
and legal systems.

This historical continuity may consist of the continuation, for an extended period reaching into the
present, of one or more of the following factors:

(a) Occupation of ancestral lands, or at least of part of them;

(b) Common ancestry with the original occupants of these lands;

(c) Culture in general, or in specific manifestations (such as religion, living under a tribal
system, membership of an indigenous community, dress, means of livelihood, life-style, etc.);

(d) Language (whether used as the only language, as mother-tongue, as the habitual means
of communication at home or in the family, or as the main, preferred, habitual, general or
normal language);

(e) Residence in certain parts of the country; or in certain regions of the world;

(f) Other relevant facts.6

In Philippine constitutional law, the term "indigenous peoples" pertains to those groups of Filipinos
who have retained a high degree of continuity from pre-Conquest culture.7 Philippine legal history,
however, has not been kind to the indigenous peoples, characterized them as
"uncivilized,"8 "backward people,"9 with "barbarous practices"10and "a low order of intelligence."11

Drawing inspiration from both our fundamental law and international law, IPRA now employs the
politically-correct conjunctive term "indigenous peoples/indigenous cultural communities" as follows:

Sec. 3. Definition of Terms.- For purposes of this Act, the following terms shall mean:

xxx
(h) Indigenous peoples/Indigenous cultural communities. - refer to a group of people or homogenous
societies identified by self-ascription and ascription by others, who have continuously lived as
organized community on communally bounded and defined territory, and who have, under claims of
ownership since time immemorial, occupied, possessed and utilized such territories, sharing
common bonds of language, customs, traditions, and other distinctive cultural traits, or who have,
through resistance to political, social and cultural inroads of colonization, non-indigenous religions
and cultures, became historically differentiated from the majority of Filipinos. Indigenous peoples
shall likewise include peoples who are regarded as indigenous on account of their descent from the
populations which inhabited the country at the time of conquest or colonization, or at the time of
inroads of non-indigenous religions and cultures, or the establishment of present State boundaries,
who retain some or all of their own social, economic, cultural and political institutions, but who may
have been displaced from their traditional domains or who may have resettled outside their ancestral
domains x x x.

Long before the Spaniards set foot in these islands, the indigenous peoples were already plowing
our soil and hunting in our forests. The Filipinos of Aeta and Malay stock, who were the original
inhabitants of our archipelago, were, at that time, practicing a native culture. From the time the
Spaniards arrived up to the early part of the American regime,12 these native inhabitants resisted
foreign invasion, relentlessly fighting for their lands. Today, from the remote uplands of Northern
Luzon, to Palawan, Mindoro and Mindanao, the indigenous peoples continue to live on and cultivate
their ancestral lands, the lands of their forefathers.

Though Filipinos today are essentially of the same stock as the indigenous peoples, our national
culture exhibits only the last vestiges of this native culture. Centuries of colonial rule and neocolonial
domination have created a discernible distinction between the cultural majority and the group of
cultural minorities.13 The extant Philippine national culture is the culture of the majority; its indigenous
roots were replaced by foreign cultural elements that are decidedly pronounced, if not
dominant.14 While the culture of the majority reoriented itself to Western influence, the culture of the
minorities has retained its essentially native character.

One of every six Filipinos is a member of an indigenous cultural community. Around twelve million
Filipinos are members of the one hundred and ten or so indigenous cultural
communities,15 accounting for more than seventeen per centum of the estimated seventy million
Filipinos16 in our country. Sadly, the indigenous peoples are one of the poorest sectors of Philippine
society. The incidence of poverty and malnutrition among them is significantly higher than the
national average. The indigenous peoples are also among the most powerless. Perhaps because of
their inability to speak the language of law and power, they have been relegated to the fringes of
society. They have little, if any, voice in national politics and enjoy the least protection from
economic exploitation.

The Constitutional Policies on Indigenous Peoples

The framers of the 1987 Constitution, looking back to the long destitution of our less fortunate
brothers, fittingly saw the historic opportunity to actualize the ideals of people empowerment and
social justice, and to reach out particularly to the marginalized sectors of society, including the
indigenous peoples. They incorporated in the fundamental law several provisions recognizing and
protecting the rights and interests of the indigenous peoples, to wit:

Sec. 22. The State recognizes and promotes the rights of indigenous peoples within the framework
of national unity and development.17
Sec. 5. The State, subject to the provisions of this Constitution and national development policies
and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to
ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domains.18

Sec. 1. The Congress shall give the highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.

To this end, the State shall regulate the acquisition, ownership, use and disposition of property and
its increments.19

Sec. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable
in accordance with law, in the disposition and utilization of other natural resources, including lands of
the public domain under lease or concession, subject to prior rights, homestead rights of small
settlers, and the rights of indigenous communities to their ancestral lands.20

Sec. 17. The State shall recognize, respect, and protect the rights of indigenous cultural
communities to preserve and develop their cultures, traditions, and institutions. It shall consider
these rights in the formulation of national plans and policies.21

Sec. 12. The Congress may create a consultative body to advise the President on policies affecting
indigenous cultural communities, the majority of the members of which shall come from such
communities.22

IPRA was enacted precisely to implement the foregoing constitutional provisions. It provides, among
others, that the State shall recognize and promote the rights of indigenous peoples within the
framework of national unity and development, protect their rights over the ancestral lands and
ancestral domains and recognize the applicability of customary laws governing property rights or
relations in determining the ownership and extent of the ancestral domains.23 Moreover, IPRA
enumerates the civil and political rights of the indigenous peoples;24 spells out their social and
cultural rights;25 acknowledges a general concept of indigenous property right and recognizes title
thereto;26 and creates the NCIP as an independent agency under the Office of the President.27

Preliminary Issues

A. The petition presents an actual controversy.

The time-tested standards for the exercise of judicial review are: (1) the existence of an appropriate
case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the
plea that the function be exercised at the earliest opportunity; and (4) the necessity that the
constitutional question be passed upon in order to decide the case.28

Courts can only decide actual controversies, not hypothetical questions or cases.29 The threshold
issue, therefore, is whether an "appropriate case" exists for the exercise of judicial review in the
present case.
An "actual case or controversy" means an existing case or controversy which is both ripe for
resolution and susceptible of judicial determination, and that which is not conjectural or
anticipatory,30 or that which seeks to resolve hypothetical or feigned constitutional problems.31 A
petition raising a constitutional question does not present an "actual controversy," unless it alleges a
legal right or power. Moreover, it must show that a conflict of rights exists, for inherent in the term
"controversy" is the presence of opposing views or contentions.32 Otherwise, the Court will be forced
to resolve issues which remain unfocused because they lack such concreteness provided when a
question emerges precisely framed from a clash of adversary arguments exploring every aspect of a
multi-faceted situation embracing conflicting and demanding interests.33 The controversy must also
be justiciable; that is, it must be susceptible of judicial determination.34

In the case at bar, there exists a live controversy involving a clash of legal rights. A law has been
enacted, and the Implementing Rules and Regulations approved. Money has been appropriated and
the government agencies concerned have been directed to implement the statute. It cannot be
successfully maintained that we should await the adverse consequences of the law in order to
consider the controversy actual and ripe for judicial resolution. It is precisely the contention of the
petitioners that the law, on its face, constitutes an unconstitutional abdication of State ownership
over lands of the public domain and other natural resources. Moreover, when the State machinery is
set into motion to implement an alleged unconstitutional statute, this Court possesses sufficient
authority to resolve and prevent imminent injury and violation of the constitutional process.

B. Petitioners, as citizens and taxpayers, have the requisite standing to raise the constitutional
questions herein.

In addition to the existence of an actual case or controversy, a person who assails the validity of a
statute must have a personal and substantial interest in the case, such that, he has sustained, or will
sustain, a direct injury as a result of its enforcement.35 Evidently, the rights asserted by petitioners as
citizens and taxpayers are held in common by all the citizens, the violation of which may result only
in a "generalized grievance".36 Yet, in a sense, all citizen’s and taxpayer’s suits are efforts to air
generalized grievances about the conduct of government and the allocation of power.37

In several cases, the Court has adopted a liberal attitude with regard to standing.38 The proper party
requirement is considered as merely procedural,39 and the Court has ample discretion with regard
thereto.40 As early as 1910, the Court in the case of Severino vs. Governor General 41 held:

x x x When the relief is sought merely for the protection of private rights, the relator must show some
personal or special interest in the subject matter, since he is regarded as the real party in interest
and his right must clearly appear. Upon the other hand, when the question is one of public
right and the object of the mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest, and the relator at whose instigation the proceedings are
instituted need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution of the laws.42

This Court has recognized that a "public right," or that which belongs to the people at large, may also
be the subject of an actual case or controversy. In Severino, we ruled that a private citizen may
enforce a "public right" in behalf of other citizens. We opined therein that:

… The right which [petitioner] seeks to enforce is not greater or different from that of any other
qualified elector in the municipality of Silay. It is also true that the injury which he would suffer in
case he fails to obtain the relief sought would not be greater or different from that of the other
electors; but he is seeking to enforce a public right as distinguished from a private right. The real
party in interest is the public, or the qualified electors of the town of Silay. Each elector has the
same right and would suffer the same injury. Each elector stands on the same basis with
reference to maintaining a petition whether or not the relief sought by the relator should be
granted.43

In Tañada v. Tuvera,44 the Court enforced the "public right" to due process and to be informed of
matters of public concern.

In Garcia vs. Board of Investments,45 the Court upheld the "public right" to be heard or consulted on
matters of national concern.

In Oposa v. Factoran,46 the Court recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our nation’s constitutional history, is solemnly
incorporated in the fundamental law."47 Mr. Justice (now Chief Justice) Hilario G. Davide, Jr.,
delivering the opinion of the Court, stated that:

Such a right belongs to a different category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation-aptly and fittingly stressed by petitioners-the advancement of
which may even be said to predate all governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for they are assumed to exist from
the inception of humankind.48

Petitioners, as citizens, possess the "public right" to ensure that the national patrimony is not
alienated and diminished in violation of the Constitution. Since the government, as the guardian of
the national patrimony, holds it for the benefit of all Filipinos without distinction as to ethnicity, it
follows that a citizen has sufficient interest to maintain a suit to ensure that any grant of concessions
covering the national economy and patrimony strictly complies with constitutional requirements.
Thus, the preservation of the integrity and inviolability of the national patrimony is a proper subject of
a citizen’s suit.

In addition, petitioners, as taxpayers, possess the right to restrain officials from wasting public funds
through the enforcement of an unconstitutional statute. It is well-settled that a taxpayer has the right
to enjoin public officials from wasting public funds through the implementation of an unconstitutional
statute,49 and by necessity, he may assail the validity of a statute appropriating public funds.50 The
taxpayer has paid his taxes and contributed to the public coffers and, thus, may inquire into the
manner by which the proceeds of his taxes are spent. The expenditure by an official of the State for
the purpose of administering an invalid law constitutes a misapplication of such funds.51

The IPRA appropriates funds as indicated in its title: "An Act to Recognize, Protect and Promote the
Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating the National Commission
on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor,
and for Other Purposes." In the same manner, Section 79 authorizes for the expenditure of public
funds by providing that "the amount necessary to finance [its] initial implementation shall be charged
against the current year's appropriation for the Office for Northern Cultural Communities (the
"ONCC") and the Office for Southern Cultural Communities (the "OSCC"),"52which were merged as
organic offices of the NCIP.53 Thus, the IPRA is a valid subject of a taxpayer’s suit.

C. The petition for prohibition and mandamus is not an improper remedy.

Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or
person to desist from further proceedings when said proceedings are without or in excess of said
entity’s or person’s jurisdiction, or are accompanied with grave abuse of discretion, and there is no
appeal or any other plain, speedy and adequate remedy in the ordinary course of law.54 Mandamus,
on the other hand, is an extraordinary writ commanding a tribunal, corporation, board, officer or
person, immediately or at some other specified time, to do the act required to be done, when said
entity or person unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust or station, or when said entity or person unlawfully excludes
another from the use and enjoyment of a right or office to which such other is entitled, and there is
no other plain, speedy and adequate remedy in the ordinary course of law.55

In this case, the petitioners pray that respondents be restrained from implementing the challenged
provisions of the IPRA and its Implementing Rules and the assailed DENR Circular No. 2, series of
1998, and that the same officials be enjoined from disbursing public funds for the implementation of
the said law and rules. They further ask that the Secretary of the DENR be compelled to perform his
duty to control and supervise the activities pertaining to natural resources.

Prohibition will lie to restrain the public officials concerned from implementing the questioned
provisions of the IPRA and from disbursing funds in connection therewith if the law is found to be
unconstitutional. Likewise, mandamus will lie to compel the Secretary of the DENR to perform his
duty to control and supervise the exploration, development, utilization and conservation of the
country’s natural resources. Consequently, the petition for prohibition and mandamus is not an
improper remedy for the relief sought.

D. Notwithstanding the failure of petitioners to observe the hierarchy of courts, the Court assumes
jurisdiction over the petition in view of the importance of the issues raised therein.

Between two courts of concurrent original jurisdiction, it is the lower court that should initially pass
upon the issues of a case. That way, as a particular case goes through the hierarchy of courts, it is
shorn of all but the important legal issues or those of first impression, which are the proper subject of
attention of the appellate court. This is a procedural rule borne of experience and adopted to
improve the administration of justice.

This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this Court
has concurrent jurisdiction with the Regional Trial Courts and the Court of Appeals to issue writs
of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction,56 such
concurrence does not give a party unrestricted freedom of choice of court forum. The resort to this
Court’s primary jurisdiction to issue said writs shall be allowed only where the redress desired
cannot be obtained in the appropriate courts or where exceptional and compelling circumstances
justify such invocation.57 We held in People v. Cuaresma58 that:

A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court,
and those against the latter, with the Court of Appeals. A direct invocation of the Supreme
Court’s original jurisdiction to issue these writs should be allowed only where there are
special and important reasons therefor, clearly and specifically set out in the petition. This is
established policy. It is a policy necessary to prevent inordinate demands upon the Court’s time and
attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Court’s docket x x x.59 (Emphasis supplied.)

IPRA aims to rectify the historical injustice inflicted upon indigenous peoples. Its impact upon the
lives not only of the indigenous peoples but also upon the lives of all Filipinos cannot be denied. The
resolution of this case by the Court at the earliest opportunity is necessary if the aims of the law are
to be achieved. This reason is compelling enough to allow petitioners’ invocation of this Court’s
jurisdiction in the first instance.
Substantive Issues

Primary Issue

The issue of prime concern raised by petitioners and the Solicitor General revolves around the
constitutionality of certain provisions of IPRA, specifically Sections 3(a), 3(b), 5, 6, 7, 8, 57, 58 and
59. These provisions allegedly violate Section 2, Article XII of the Constitution, which states:

Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress, may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers,
lakes, bays and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.

The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution.

Under IPRA, indigenous peoples may obtain the recognition of their right of ownership60 over
ancestral lands and ancestral domains by virtue of native title.61 The term "ancestral lands" under
the statute refers to lands occupied by individuals, families and clans who are members of
indigenous cultural communities, including residential lots, rice terraces or paddies, private forests,
swidden farms and tree lots. These lands are required to have been "occupied, possessed and
utilized" by them or through their ancestors "since time immemorial, continuously to the
present".62 On the other hand, "ancestral domains" is defined as areas generally belonging to
indigenous cultural communities, including ancestral lands, forests, pasture, residential and
agricultural lands, hunting grounds, worship areas, and lands no longer occupied exclusively by
indigenous cultural communities but to which they had traditional access, particularly the home
ranges of indigenous cultural communities who are still nomadic or shifting cultivators. Ancestral
domains also include inland waters, coastal areas and natural resources therein.63 Again, the same
are required to have been "held under a claim of ownership, occupied or possessed by ICCs/IPs, by
themselves or through their ancestors, communally or individually since time immemorial,
continuously to the present".64 Under Section 56, property rights within the ancestral domains
already existing and/or vested upon effectivity of said law "shall be recognized and respected."

Ownership is the crux of the issue of whether the provisions of IPRA pertaining to ancestral lands,
ancestral domains, and natural resources are unconstitutional. The fundamental question is, who,
between the State and the indigenous peoples, are the rightful owners of these properties?

It bears stressing that a statute should be construed in harmony with, and not in violation, of the
fundamental law.65The reason is that the legislature, in enacting a statute, is assumed to have acted
within its authority and adhered to the constitutional limitations. Accordingly, courts should presume
that it was the intention of the legislature to enact a valid, sensible, and just law and one which
operates no further than may be necessary to effectuate the specific purpose of the law.66

A. The provisions of IPRA recognizing the ownership of indigenous peoples over the ancestral lands
and ancestral domains are not unconstitutional.

In support of their theory that ancestral lands and ancestral domains are part of the public domain
and, thus, owned by the State, pursuant to Section 2, Article XII of the Constitution, petitioners and
the Solicitor General advance the following arguments:

First, according to petitioners, the King of Spain under international law acquired exclusive dominion
over the Philippines by virtue of discovery and conquest. They contend that the Spanish King under
the theory of jura regalia, which was introduced into Philippine law upon Spanish conquest in 1521,
acquired title to all the lands in the archipelago.

Second, petitioners and the Solicitor General submit that ancestral lands and ancestral domains are
owned by the State. They invoke the theory of jura regalia which imputes to the State the ownership
of all lands and makes the State the original source of all private titles. They argue that the Philippine
State, as successor to Spain and the United States, is the source of any asserted right of ownership
in land.

Third, petitioners and the Solicitor General concede that the Cariño doctrine exists. However,
petitioners maintain that the doctrine merely states that title to lands of the public domain may be
acquired by prescription. The Solicitor General, for his part, argues that the doctrine applies only to
alienable lands of the public domain and, thus, cannot be extended to other lands of the public
domain such as forest or timber, mineral lands, and national parks.

Fourth, the Solicitor General asserts that even assuming that native title over ancestral lands and
ancestral domains existed by virtue of the Cariño doctrine, such native title was extinguished upon
the ratification of the 1935 Constitution.

Fifth, petitioners admit that Congress is mandated under Section 5, Article XII of the Constitution to
protect that rights of indigenous peoples to their ancestral lands and ancestral domains. However,
they contend that the mandate is subject to Section 2, Article XII and the theory of jura
regalia embodied therein. According to petitioners, the recognition and protection under R.A. 8371 of
the right of ownership over ancestral lands and ancestral domains is far in excess of the legislative
power and constitutional mandate of Congress.

Finally, on the premise that ancestral lands and ancestral domains are owned by the State,
petitioners posit that R.A. 8371 violates Section 2, Article XII of the Constitution which prohibits the
alienation of non-agricultural lands of the public domain and other natural resources.
I am not persuaded by these contentions.

Undue reliance by petitioners and the Solicitor General on the theory of jura regalia is
understandable. Not only is the theory well recognized in our legal system; it has been regarded,
almost with reverence, as the immutable postulate of Philippine land law. It has been incorporated
into our fundamental law and has been recognized by the Court.67

Generally, under the concept of jura regalia, private title to land must be traced to some grant,
express or implied, from the Spanish Crown or its successors, the American Colonial government,
and thereafter, the Philippine Republic. The belief that the Spanish Crown is the origin of all land
titles in the Philippines has persisted because title to land must emanate from some source for it
cannot issue forth from nowhere.68

In its broad sense, the term "jura regalia" refers to royal rights,69 or those rights which the King has
by virtue of his prerogatives.70 In Spanish law, it refers to a right which the sovereign has over
anything in which a subject has a right of property or propriedad.71 These were rights enjoyed during
feudal times by the king as the sovereign.

The theory of the feudal system was that title to all lands was originally held by the King, and while
the use of lands was granted out to others who were permitted to hold them under certain
conditions, the King theoretically retained the title.72 By fiction of law, the King was regarded as the
original proprietor of all lands, and the true and only source of title, and from him all lands were
held.73 The theory of jura regalia was therefore nothing more than a natural fruit of conquest.74

The Regalian theory, however, does not negate native title to lands held in private ownership since
time immemorial. In the landmark case of Cariño vs. Insular Government75 the United States
Supreme Court, reversing the decision76of the pre-war Philippine Supreme Court, made the following
pronouncement:

x x x Every presumption is and ought to be taken against the Government in a case like the present.
It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory
goes, the land has been held by individuals under a claim of private ownership, it will be
presumed to have been held in the same way from before the Spanish conquest, and never to
have been public land. x x x.77 (Emphasis supplied.)

The above ruling institutionalized the recognition of the existence of native title to land, or ownership
of land by Filipinos by virtue of possession under a claim of ownership since time immemorial and
independent of any grant from the Spanish Crown, as an exception to the theory of jura regalia.

In Cariño, an Igorot by the name of Mateo Cariño applied for registration in his name of an ancestral
land located in Benguet. The applicant established that he and his ancestors had lived on the land,
had cultivated it, and had used it as far they could remember. He also proved that they had all been
recognized as owners, the land having been passed on by inheritance according to native custom.
However, neither he nor his ancestors had any document of title from the Spanish Crown. The
government opposed the application for registration, invoking the theory of jura regalia. On appeal,
the United States Supreme Court held that the applicant was entitled to the registration of his native
title to their ancestral land.

Cariño was decided by the U.S. Supreme Court in 1909, at a time when decisions of the U.S. Court
were binding as precedent in our jurisdiction.78 We applied the Cariño doctrine in the 1946 case
of Oh Cho vs. Director of Lands,79where we stated that "[a]ll lands that were not acquired from the
Government either by purchase or by grant, belong to the public domain, but [a]n exception to the
rule would be any land that should have been in the possession of an occupant and of his
predecessors in interest since time immemorial, for such possession would justify the presumption
that the land had never been part of the public domain or that it had been private property even
before the Spanish conquest."80

Petitioners however aver that the U.S. Supreme Court’s ruling in Cariño was premised on the fact
that the applicant had complied with the requisites of acquisitive prescription, having established that
he and his predecessors-in-interest had been in possession of the property since time immemorial.
In effect, petitioners suggest that title to the ancestral land applied for by Cariño was transferred from
the State, as original owner, to Cariño by virtue of prescription. They conclude that the doctrine
cannot be the basis for decreeing "by mere legislative fiat…that ownership of vast tracts of land
belongs to [indigenous peoples] without judicial confirmation."81

The Solicitor General, for his part, claims that the Cariño doctrine applies only to alienable lands of
the public domain and, as such, cannot be extended to other lands of the public domain such as
forest or timber, mineral lands, and national parks.

There is no merit in these contentions.

A proper reading of Cariño would show that the doctrine enunciated therein applies only to lands
which have always been considered as private, and not to lands of the public domain, whether
alienable or otherwise. A distinction must be made between ownership of land under native title and
ownership by acquisitive prescription against the State. Ownership by virtue of native title
presupposes that the land has been held by its possessor and his predecessors-in-interest in the
concept of an owner since time immemorial. The land is not acquired from the State, that is, Spain or
its successors-in-interest, the United States and the Philippine Government. There has been no
transfer of title from the State as the land has been regarded as private in character as far back as
memory goes. In contrast, ownership of land by acquisitive prescription against the State involves a
conversion of the character of the property from alienable public land to private land, which
presupposes a transfer of title from the State to a private person. Since native title assumes that the
property covered by it is private land and is deemed never to have been part of the public domain,
the Solicitor General’s thesis that native title under Cariño applies only to lands of the public domain
is erroneous. Consequently, the classification of lands of the public domain into agricultural, forest or
timber, mineral lands, and national parks under the Constitution82 is irrelevant to the application of
the Cariño doctrine because the Regalian doctrine which vests in the State ownership of lands of the
public domain does not cover ancestral lands and ancestral domains.

Legal history supports the Cariño doctrine.

When Spain acquired sovereignty over the Philippines by virtue of its discovery and occupation
thereof in the 16th century and the Treaty of Tordesillas of 1494 which it entered into with
Portugal,83 the continents of Asia, the Americas and Africa were considered as terra nullius although
already populated by other peoples.84 The discovery and occupation by the European States, who
were then considered as the only members of the international community of civilized nations, of
lands in the said continents were deemed sufficient to create title under international law.85

Although Spain was deemed to have acquired sovereignty over the Philippines, this did not mean
that it acquired title to all lands in the archipelago. By virtue of the colonial laws of Spain, the
Spanish Crown was considered to have acquired dominion only over the unoccupied and
unclaimed portions of our islands.86
In sending the first expedition to the Philippines, Spain did not intend to deprive the natives of their
property. Miguel Lopez de Legazpi was under instruction of the Spanish King to do no harm to the
natives and to their property. In this regard, an authority on the early Spanish colonial period in the
Philippines wrote:

The government of [the King of Spain] Philip II regarded the Philippines as a challenging opportunity
to avoid a repetition of the sanguinary conquests of Mexico and Peru. In his written instructions for
the Adelantado Legazpi, who commanded the expedition, Philip II envisaged a bloodless pacification
of the archipelago. This extraordinary document could have been lifted almost verbatim from the
lectures of the Dominican theologian, Francisco de Vitoria, delivered in the University of Salamanca.
The King instructed Legazpi to inform the natives that the Spaniards had come to do no harm to their
persons or to their property. The Spaniards intended to live among them in peace and in friendship
and "to explain to them the law of Jesus Christ by which they will be saved." Although the Spanish
expedition could defend themselves if attacked, the royal instructions admonished the commander to
commit no aggressive act which might arouse native hostility.87

Spanish colonial laws recognized and respected Filipino landholdings including native land
occupancy.88 Thus, the Recopilación de Leyes de las Indias expressly conferred ownership of lands
already held by the natives.89 The royal decrees of 1880 and 1894 did not extinguish native title to
land in the Philippines. The earlier royal decree, dated June 25, 1880, provided that all those in
"unlawful possession of royal lands" must legalize their possession by means of adjustment
proceedings,90 and within the period specified. The later royal decree, dated February 13, 1894,
otherwise known as the Maura Law, declared that titles that were capable of adjustment under the
royal decree of 1880, but for which adjustment was not sought, were forfeited. Despite the harsh
wording of the Maura Law, it was held in the case of Cariño that the royal decree of 1894 should not
be construed as confiscation of title, but merely as the withdrawal of the privilege of registering such
title.91

Neither was native title disturbed by the Spanish cession of the Philippines to the United States,
contrary to petitioners’ assertion that the US merely succeeded to the rights of Spain, including the
latter’s rights over lands of the public domain.92 Under the Treaty of Paris of December 10, 1898, the
cession of the Philippines did not impair any right to property existing at the time.93 During the
American colonial regime, native title to land was respected, even protected. The Philippine Bill of
1902 provided that property and rights acquired by the US through cession from Spain were to be
administered for the benefit of the Filipinos.94 In obvious adherence to libertarian principles,
McKinley’s Instructions, as well as the Philippine Bill of 1902, contained a bill of rights embodying the
safeguards of the US Constitution. One of these rights, which served as an inviolable rule upon
every division and branch of the American colonial government in the Philippines,95 was that "no
person shall be deprived of life, liberty, or property without due process of law."96 These vested rights
safeguarded by the Philippine Bill of 1902 were in turn expressly protected by the due process
clause of the 1935 Constitution. Resultantly, property rights of the indigenous peoples over their
ancestral lands and ancestral domains were firmly established in law.

Nonetheless, the Solicitor General takes the view that the vested rights of indigenous peoples to
their ancestral lands and domains were "abated by the direct act by the sovereign Filipino people of
ratifying the 1935 Constitution."97 He advances the following arguments:

The Sovereign, which is the source of all rights including ownership, has the power to restructure the
consolidation of rights inherent in ownership in the State. Through the mandate of the Constitutions
that have been adopted, the State has wrested control of those portions of the natural resources it
deems absolutely necessary for social welfare and existence. It has been held that the State may
impair vested rights through a legitimate exercise of police power.
Vested rights do not prohibit the Sovereign from performing acts not only essential to but
determinative of social welfare and existence. To allow otherwise is to invite havoc in the established
social system. x x x

Time-immemorial possession does not create private ownership in cases of natural resources that
have been found from generation to generation to be critical to the survival of the Sovereign and its
agent, the State.98

Stated simply, the Solicitor General’s argument is that the State, as the source of all titles to land,
had the power to re-vest in itself, through the 1935 Constitution, title to all lands, including ancestral
lands and ancestral domains. While the Solicitor General admits that such a theory would
necessarily impair vested rights, he reasons out that even vested rights of ownership over ancestral
lands and ancestral domains are not absolute and may be impaired by the legitimate exercise of
police power.

I cannot agree. The text of the provision of the 1935 Constitution invoked by the Solicitor General,
while embodying the theory of jura regalia, is too clear for any misunderstanding. It simply declares
that "all agricultural, timber, and mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State."99 Nowhere does it state that certain lands which are "absolutely
necessary for social welfare and existence," including those which are not part of the public domain,
shall thereafter be owned by the State. If there is any room for constitutional construction, the
provision should be interpreted in favor of the preservation, rather than impairment or
extinguishment, of vested rights. Stated otherwise, Section 1, Article XII of the 1935 Constitution
cannot be construed to mean that vested right which had existed then were extinguished and that
the landowners were divested of their lands, all in the guise of "wrest[ing] control of those portions of
the natural resources [which the State] deems absolutely necessary for social welfare and
existence." On the contrary, said Section restated the fundamental rule against the diminution of
existing rights by expressly providing that the ownership of lands of the public domain and other
natural resources by the State is "subject to any existing right, grant, lease, or concessions." The
"existing rights" that were intended to be protected must, perforce, include the right of
ownership by indigenous peoples over their ancestral lands and domains. The words of the law
should be given their ordinary or usual meaning,100 and the term "existing rights" cannot be assigned
an unduly restrictive definition.

Petitioners concede that Congress is mandated under Section 5, Article XII of the 1987
Constitution101to protect the rights of indigenous peoples to their ancestral lands and ancestral
domains. Nonetheless, they contend that the recognition and protection under IPRA of the right of
ownership of indigenous peoples over ancestral lands and ancestral domains are far in excess of the
legislative power and constitutional mandate of the Congress,102 since such recognition and
protection amount to the alienation of lands of the public domain, which is proscribed under Section
2, Article XII of the Constitution.

Section 5, Article XII of the Constitution expresses the sovereign intent to "protect the rights of
indigenous peoples to their ancestral lands." In its general and ordinary sense, the term "right" refers
to any legally enforceable claim.103It is a power, privilege, faculty or demand inherent in one person
and incident upon another.104 When used in relation to property, "right" includes any interest in or title
to an object, or any just and legal claim to hold, use and enjoy it.105 Said provision in the Constitution
cannot, by any reasonable construction, be interpreted to exclude the protection of the right of
ownership over such ancestral lands. For this reason, Congress cannot be said to have exceeded
its constitutional mandate and power in enacting the provisions of IPRA, specifically Sections 7(a)
and 8, which recognize the right of ownership of the indigenous peoples over ancestral lands.
The second paragraph of Section 5, Article XII also grants Congress the power to "provide for the
applicability of customary laws governing property rights or relations in determining the ownership
and extent of ancestral domains." In light of this provision, does Congress have the power to decide
whether ancestral domains shall be private property or part of the public domain? Also, does
Congress have the power to determine whether the "extent" of ancestral domains shall include the
natural resources found therein?

It is readily apparent from the constitutional records that the framers of the Constitution did not
intend Congress to decide whether ancestral domains shall be public or private property. Rather,
they acknowledged that ancestral domains shall be treated as private property, and that customary
laws shall merely determine whether such private ownership is by the entire indigenous cultural
community, or by individuals, families, or clans within the community. The discussion below between
Messrs. Regalado and Bennagen and Mr. Chief Justice Davide, then members of the 1986
Constitutional Commission, is instructive:

MR. REGALADO. Thank you, Madame President. May I seek some clarifications from either
Commissioner Bennagen or Commissioner Davide regarding this phrase "CONGRESS SHALL
PROVIDE FOR THE APPLICABILITY OF CUSTOMARY LAWS GOVERNING PROPERTY RIGHTS
OR RELATIONS in determining the ownership and extent of the ancestral domain," because
ordinarily it is the law on ownership and the extent thereof which determine the property rights or
relations arising therefrom. On the other hand, in this proposed amendment the phraseology is that it
is the property rights or relations which shall be used as the basis in determining the ownership and
extent of the ancestral domain. I assume there must be a certain difference in the customary laws
and our regular civil laws on property.

MR. DAVIDE. That is exactly the reason, Madam President, why we will leave it to Congress to
make the necessary exception to the general law on property relations.

MR. REGALADO. I was thinking if Commissioner Bennagen could give us an example of such a
customary law wherein it is the property rights and relations that determine the ownership and the
extent of that ownership, unlike the basic fundamental rule that it is the ownership and the extent of
ownership which determine the property rights and relations arising therefrom and consequent
thereto. Perhaps, these customary laws may have a different provision or thrust so that we could
make the corresponding suggestions also by way of an amendment.

MR. DAVIDE. That is exactly my own perception.

MR. BENNAGEN. Let me put it this way.

There is a range of customary laws governing certain types of ownership. There would be
ownership based on individuals, on clan or lineage, or on community. And the thinking
expressed in the consultation is that this should be codified and should be recognized in relation to
existing national laws. That is essentially the concept. 106(Emphasis supplied.)

The intention to treat ancestral domains as private property is also apparent from the following
exchange between Messrs. Suarez and Bennagen:

MR. SUAREZ. When we speak of customary laws governing property rights or relations in
determining the ownership and extent of the ancestral domain, are we thinking in terms of the tribal
ownership or community ownership or of private ownership within the ancestral lands or ancestral
domain?
MR. BENNAGEN. The concept of customary laws is that it is considered as ownership by
private individuals, clans and even communities.

MR. SUAREZ. So, there will be two aspects to this situation. This means that the State will set aside
the ancestral domain and there is a separate law for that. Within the ancestral domain it could accept
more specific ownership in terms of individuals within the ancestral lands.

MR. BENNAGEN. Individuals and groups within the ancestral domain. 107 (Emphasis supplied.)

It cannot be correctly argued that, because the framers of the Constitution never expressly
mentioned Cariño in their deliberations, they did not intend to adopt the concept of native title to
land, or that they were unaware of native title as an exception to the theory of jura regalia.108 The
framers of the Constitution, as well as the people adopting it, were presumed to be aware of the
prevailing judicial doctrines concerning the subject of constitutional provisions, and courts should
take these doctrines into consideration in construing the Constitution.109

Having thus recognized that ancestral domains under the Constitution are considered as private
property of indigenous peoples, the IPRA, by affirming or acknowledging such ownership through its
various provisions, merely abides by the constitutional mandate and does not suffer any vice of
unconstitutionality.

Petitioners interpret the phrase "subject to the provisions of this Constitution and national
development policies and programs" in Section 5, Article XII of the Constitution to mean "as subject
to the provision of Section 2, Article XII of the Constitution," which vests in the State ownership of all
lands of the public domain, mineral lands and other natural resources. Following this interpretation,
petitioners maintain that ancestral lands and ancestral domains are the property of the State.

This proposition is untenable. Indeed, Section 2, Article XII reiterates the declarations made in the
1935 and 1973 Constitutions on the state policy of conservation and nationalization of lands of the
public domain and natural resources, and is of paramount importance to our national economy and
patrimony. A close perusal of the records of the 1986 Constitutional Commission reveals that the
framers of the Constitution inserted the phrase "subject to the provisions of this Constitution" mainly
to prevent the impairment of Torrens titles and other prior rights in the determination of what
constitutes ancestral lands and ancestral domains, to wit:

MR. NATIVIDAD. Just one question. I want to clear this section protecting ancestral lands. How
does this affect the Torrens title and other prior rights?

MR. BENNAGEN. I think that was also discussed in the committee hearings and we did say that in
cases where due process is clearly established in terms of prior rights, these two have to be
respected.

MR. NATIVIDAD. The other point is: How vast is this ancestral land? Is it true that parts of Baguio
City are considered as ancestral lands?

MR. BENNAGEN. They could be regarded as such. If the Commissioner still recalls, in one of the
publications that I provided the Commissioners, the parts could be considered as ancestral domain
in relation to the whole population of Cordillera but not in relation to certain individuals or certain
groups.
MR. NATIVIDAD. The Commissioner means that the whole Baguio City is considered as ancestral
land?

MR. BENNAGEN. Yes, in the sense that it belongs to Cordillera or in the same manner that Filipinos
can speak of the Philippine archipelago as ancestral land, but not in terms of the right of a particular
person or particular group to exploit, utilize, or sell it.

MR. NATIVIDAD. But is clear that the prior rights will be respected.

MR. BENNAGEN. Definitely. 110

Thus, the phrase "subject to the provisions of this Constitution" was intended by the framers of the
Constitution as a reiteration of the constitutional guarantee that no person shall be deprived of
property without due process of law.

There is another reason why Section 5 of Article XII mandating the protection of rights of the
indigenous peoples to their ancestral lands cannot be construed as subject to Section 2 of the same
Article ascribing ownership of all public lands to the State. The Constitution must be construed as a
whole. It is a rule that when construction is proper, the whole Constitution is examined in order to
determine the meaning of any provision. That construction should be used which would give effect to
the entire instrument.111

Thus, the provisions of the Constitution on State ownership of public lands, mineral lands and other
natural resources should be read together with the other provisions thereof which firmly recognize
the rights of the indigenous peoples. These, as set forth hereinbefore,112 include: Section 22, Article
II, providing that the State recognizes and promotes the rights of indigenous peoples within the
framework of national unity and development; Section 5, Article XII, calling for the protection of the
rights of indigenous cultural communities to their ancestral lands to ensure their economic, social,
and cultural well-being, and for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domains; Section 1, Article XIII,
directing the removal or reduction of social, economic, political and cultural inequities and
inequalities by equitably diffusing wealth and political power for the common good; Section 6,
Article XIII, directing the application of the principles of agrarian reform or stewardship in the
disposition and utilization of other natural resources, subject to prior rights, homestead rights of
small settlers, and the rights of indigenous communities to their ancestral lands; Section 17, Article
XIV, decreeing that the State shall recognize, respect, and protect the rights of indigenous cultural
communities to preserve and develop their cultures, traditions, and institutions; and Section 12,
Article XVI, authorizing the Congress to create a consultative body to advise the President on
policies affecting indigenous cultural communities.

Again, as articulated in the Constitution, the first goal of the national economy is the more equitable
distribution of opportunities, income, and wealth.113 Equity is given prominence as the first
objective of national economic development.114 The framers of the Constitution did not, by the phrase
"subject to the provisions of this Constitution and national development policies and programs,"
intend to establish a hierarchy of constitutional norms. As explained by then Commissioner (now
Chief Justice) Hilario G. Davide, Jr., it was not their objective to make certain interests primary or
paramount, or to create absolute limitations or outright prohibitions; rather, the idea is towards the
balancing of interests:

BISHOP BACANI. In Commissioner Davide’s formulation of the first sentence, he says: "The State,
SUBJECT TO THE provisions of this Constitution AND NATIONAL DEVELOPMENT POLICIES AND
PROGRAMS shall guarantee the rights of cultural or tribal communities to their ancestral lands to
insure their economic, social and cultural well-being." There are at least two concepts here which
receive different weights very often. They are the concepts of national development policies and
programs, and the rights of cultural or tribal communities to their ancestral lands, et cetera. I would
like to ask: When the Commissioner proposed this amendment, which was the controlling concept? I
ask this because sometimes the rights of cultural minorities are precisely transgressed in the interest
of national development policies and programs. Hence, I would like to know which is the controlling
concept here. Is it the rights of indigenous peoples to their ancestral lands or is it national
development policies and programs.

MR. DAVIDE. It is not really a question of which is primary or which is more paramount. The
concept introduced here is really the balancing of interests. That is what we seek to attain. We
have to balance the interests taking into account the specific needs and the specific interests also of
these cultural communities in like manner that we did so in the autonomous regions.115 (Emphasis
supplied.)

B. The provisions of R.A. 8371 do not infringe upon the State’s ownership over the natural resources
within the ancestral domains.

Petitioners posit that IPRA deprives the State of its ownership over mineral lands of the public
domain and other natural resources,116 as well as the State’s full control and supervision over the
exploration, development and utilization of natural resources.117 Specifically, petitioners and the
Solicitor General assail Sections 3 (a),118 5,119and 7120 of IPRA as violative of Section 2, Article XII of
the Constitution which states, in part, that "[a]ll lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna, and other natural resources are owned by the State."121 They would have the Court
declare as unconstitutional Section 3(a) of IPRA because the inclusion of natural resources in the
definition of ancestral domains purportedly results in the abdication of State ownership over these
resources.

I am not convinced.

Section 3(a) merely defines the coverage of ancestral domains, and describes the extent, limit and
composition of ancestral domains by setting forth the standards and guidelines in determining
whether a particular area is to be considered as part of and within the ancestral domains. In other
words, Section 3(a) serves only as a yardstick which points out what properties are within the
ancestral domains. It does not confer or recognize any right of ownership over the natural resources
to the indigenous peoples. Its purpose is definitional and not declarative of a right or title.

The specification of what areas belong to the ancestral domains is, to our mind, important to ensure
that no unnecessary encroachment on private properties outside the ancestral domains will result
during the delineation process. The mere fact that Section 3(a) defines ancestral domains to include
the natural resources found therein does not ipso facto convert the character of such natural
resources as private property of the indigenous peoples. Similarly, Section 5 in relation to Section
3(a) cannot be construed as a source of ownership rights of indigenous people over the natural
resources simply because it recognizes ancestral domains as their "private but community property."

The phrase "private but community property" is merely descriptive of the indigenous peoples’
concept of ownership as distinguished from that provided in the Civil Code. In Civil Law, "ownership"
is the "independent and general power of a person over a thing for purposes recognized by law and
within the limits established thereby."122 The civil law concept of ownership has the following
attributes: jus utendi or the right to receive from the thing that which it produces, jus abutendi or the
right to consume the thing by its use, jus disponendi or the power to alienate, encumber, transform
and even destroy that which is owned and jus vidicandi or the right to exclude other persons from
the possession the thing owned.123 In contrast, the indigenous peoples’ concept of ownership
emphasizes the importance of communal or group ownership. By virtue of the communal character
of ownership, the property held in common "cannot be sold, disposed or destroyed"124 because it
was meant to benefit the whole indigenous community and not merely the individual member.125

That IPRA is not intended to bestow ownership over natural resources to the indigenous peoples is
also clear from the deliberations of the bicameral conference committee on Section 7 which recites
the rights of indigenous peoples over their ancestral domains, to wit:

CHAIRMAN FLAVIER. Accepted. Section 8126 rights to ancestral domain, this is where we
transferred the other provision but here itself -

HON. DOMINGUEZ. Mr. Chairman, if I maybe allowed to make a very short Statement. Earlier, Mr.
Chairman, we have decided to remove the provisions on natural resources because we all
agree that that belongs to the State. Now, the plight or the rights of those indigenous communities
living in forest and areas where it could be exploited by mining, by dams, so can we not also provide
a provision to give little protection or either rights for them to be consulted before any mining areas
should be done in their areas, any logging done in their areas or any dam construction because this
has been disturbing our people especially in the Cordilleras. So, if there could be, if our lawyers or
the secretariat could just propose a provision for incorporation here so that maybe the right to
consultation and the right to be compensated when there are damages within their ancestral lands.

CHAIRMAN FLAVIER. Yes, very well taken but to the best of my recollection both are already
considered in subsequent sections which we are now looking for.

HON. DOMINGUEZ. Thank you.

CHAIRMAN FLAVIER. First of all there is a line that gives priority use for the indigenous people
where they are. Number two, in terms of the mines there is a need for prior consultation of source
which is here already. So, anyway it is on the record that you want to make sure that the secretariat
takes note of those two issues and my assurance is that it is already there and I will make sure that
they cross check.

HON. ADAMAT. I second that, Mr. Chairman.

CHAIRMAN FLAVIER. Okay, thank you. So we now move to Section 8, there is a Senate version
you do not have and if you agree we will adopt that.127 (Emphasis supplied.)

Further, Section 7 makes no mention of any right of ownership of the indigenous peoples over the
natural resources. In fact, Section 7(a) merely recognizes the "right to claim ownership over lands,
bodies of water traditionally and actually occupied by indigenous peoples, sacred places, traditional
hunting and fishing grounds, and all improvements made by them at any time within the domains."
Neither does Section 7(b), which enumerates certain rights of the indigenous peoples over the
natural resources found within their ancestral domains, contain any recognition of ownership vis-a-
vis the natural resources.

What is evident is that the IPRA protects the indigenous peoples’ rights and welfare in relation to the
natural resources found within their ancestral domains,128 including the preservation of the ecological
balance therein and the need to ensure that the indigenous peoples will not be unduly displaced
when State-approved activities involving the natural resources located therein are undertaken.
Finally, the concept of native title to natural resources, unlike native title to land, has not been
recognized in the Philippines. NCIP and Flavier, et al. invoke the case of Reavies v. Fianza129 in
support of their thesis that native title to natural resources has been upheld in this
jurisdiction.130 They insist that "it is possible for rights over natural resources to vest on a private (as
opposed to a public) holder if these were held prior to the 1935 Constitution."131However, a judicious
examination of Reavies reveals that, contrary to the position of NCIP and Flavier, et al., the Court did
not recognize native title to natural resources. Rather, it merely upheld the right of the indigenous
peoples to claim ownership of minerals under the Philippine Bill of 1902.

While as previously discussed, native title to land or private ownership by Filipinos of land by virtue
of time immemorial possession in the concept of an owner was acknowledged and recognized as far
back during the Spanish colonization of the Philippines, there was no similar favorable treatment as
regards natural resources. The unique value of natural resources has been acknowledged by the
State and is the underlying reason for its consistent assertion of ownership and control over said
natural resources from the Spanish regime up to the present.132 Natural resources, especially
minerals, were considered by Spain as an abundant source of revenue to finance its battles in wars
against other nations. Hence, Spain, by asserting its ownership over minerals wherever these may
be found, whether in public or private lands, recognized the separability of title over lands and that
over minerals which may be found therein. 133

On the other hand, the United States viewed natural resources as a source of wealth for its
nationals. As the owner of natural resources over the Philippines after the latter’s cession from
Spain, the United States saw it fit to allow both Filipino and American citizens to explore and exploit
minerals in public lands, and to grant patents to private mineral lands. A person who acquired
ownership over a parcel of private mineral land pursuant to the laws then prevailing could exclude
other persons, even the State, from exploiting minerals within his property.134 Although the United
States made a distinction between minerals found in public lands and those found in private lands,
title in these minerals was in all cases sourced from the State. The framers of the 1935 Constitution
found it necessary to maintain the State’s ownership over natural resources to insure their
conservation for future generations of Filipinos, to prevent foreign control of the country through
economic domination; and to avoid situations whereby the Philippines would become a source of
international conflicts, thereby posing danger to its internal security and independence.135

The declaration of State ownership and control over minerals and other natural resources in the
1935 Constitution was reiterated in both the 1973136 and 1987 Constitutions.137

Having ruled that the natural resources which may be found within the ancestral domains belong to
the State, the Court deems it necessary to clarify that the jurisdiction of the NCIP with respect to
ancestral domains under Section 52 [i] of IPRA extends only to the lands and not to
the natural resources therein.

Section 52[i] provides:

Turnover of Areas Within Ancestral Domains Managed by Other Government Agencies. - The
Chairperson of the NCIP shall certify that the area covered is an ancestral domain. The secretaries
of the Department of Agrarian Reform, Department of Environment and Natural Resources,
Department of Interior and Local Government, and Department of Justice, the Commissioner of the
National Development Corporation, and any other government agency claiming jurisdiction over the
area shall be notified thereof. Such notification shall terminate any legal basis for the jurisdiction
previously claimed.
Undoubtedly, certain areas that are claimed as ancestral domains may still be under the
administration of other agencies of the Government, such as the Department of Agrarian Reform,
with respect to agricultural lands, and the Department of Environment and Natural Resources with
respect to timber, forest and mineral lands. Upon the certification of these areas as ancestral domain
following the procedure outlined in Sections 51 to 53 of the IPRA, jurisdiction of the government
agency or agencies concerned over lands forming part thereof ceases. Nevertheless, the jurisdiction
of government agencies over the natural resources within the ancestral domains does not
terminate by such certification because said agencies are mandated under existing laws to
administer the natural resources for the State, which is the owner thereof. To construe Section 52[i]
as divesting the State, through the government agencies concerned, of jurisdiction over the natural
resources within the ancestral domains would be inconsistent with the established doctrine that all
natural resources are owned by the State.

C. The provisions of IPRA pertaining to the utilization of natural resources are not unconstitutional.

The IPRA provides that indigenous peoples shall have the right to manage and conserve the natural
resources found on the ancestral domains, to benefit from and share in the profits from the allocation
and utilization of these resources, and to negotiate the terms and conditions for the exploration of
such natural resources.138 The statute also grants them priority rights in the harvesting, extraction,
development or exploitation of any natural resources within the ancestral domains.139 Before the
NCIP can issue a certification for the renewal, or grant of any concession, license or lease, or for the
perfection of any production-sharing agreement the prior informed written consent of the indigenous
peoples concerned must be obtained.140 In return, the indigenous peoples are given the
responsibility to maintain, develop, protect and conserve the ancestral domains or portions thereof
which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness,
protected areas, forest cover, or reforestation.141

The Solicitor General argues that these provisions deny the State an active and dominant role in the
utilization of our country’s natural resources. Petitioners, on the other hand, allege that under the
Constitution the exploration, development and utilization of natural resources may only be
undertaken by the State, either directly or indirectly through co-production, joint venture, or
production-sharing agreements.142 To petitioners, no other method is allowed by the Constitution.
They likewise submit that by vesting ownership of ancestral lands and ancestral domains in the
indigenous peoples, IPRA necessarily gives them control over the use and enjoyment of such
natural resources, to the prejudice of the State.143

Section 2, Article XII of the Constitution provides in paragraph 1 thereof that the exploration,
development and utilization of natural resources must be under the full control and supervision of the
State, which may directly undertake such activities or enter into co-production, joint venture, or
production-sharing agreements. This provision, however, should not be read in isolation to avoid a
mistaken interpretation that any and all forms of utilization of natural resources other than the
foregoing are prohibited. The Constitution must be regarded as consistent with itself
throughout.144 No constitutional provision is to be separated from all the others, or to be considered
alone, all provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the fundamental law.145

In addition to the means of exploration, development and utilization of the country’s natural
resources stated in paragraph 1, Section 2 of Article XII, the Constitution itself states in the third
paragraph of the same section that Congress may, by law, allow small-scale utilization of natural
resources by its citizens.146 Further, Section 6, Article XIII, directs the State, in the disposition
and utilization of natural resources, to apply the principles of agrarian reform or
stewardship.147 Similarly, Section 7, Article XIII mandates the State to protect the rights of
subsistence fishermen to the preferential use of marine and fishing resources.148 Clearly, Section 2,
Article XII, when interpreted in view of the pro-Filipino, pro-poor philosophy of our fundamental law,
and in harmony with the other provisions of the Constitution rather as a sequestered
pronouncement,149 cannot be construed as a prohibition against any and all forms of utilization of
natural resources without the State’s direct participation.

Through the imposition of certain requirements and conditions for the exploration, development and
utilization of the natural resources under existing laws,150 the State retains full control over such
activities, whether done on small-scale basis151 or otherwise.

The rights given to the indigenous peoples regarding the exploitation of natural resources under
Sections 7(b) and 57 of IPRA amplify what has been granted to them under existing laws, such as
the Small-Scale Mining Act of 1991 (R.A. 7076) and the Philippine Mining Act of 1995 (R.A. 7942).
R.A. 7076 expressly provides that should an ancestral land be declared as a people’s small-scale
mining area, the members of the indigenous peoples living within said area shall be given priority in
the awarding of small-scale mining contracts.152 R.A. 7942 declares that no ancestral land shall
be opened for mining operations without the prior consent of the indigenous cultural
community concerned153 and in the event that the members of such indigenous cultural community
give their consent to mining operations within their ancestral land, royalties shall be paid to
them by the parties to the mining to the contract.154

In any case, a careful reading of Section 7(b) would reveal that the rights given to the indigenous
peoples are duly circumscribed. These rights are limited only to the following: "to manage and
conserve natural resources within territories and uphold it for future generations; to benefit and
share the profits from allocation and utilization of the natural resources found therein; to negotiate
the terms and conditions for the exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation measures, pursuant to national
and customary laws; to an informed and intelligent participation in the formulation and
implementation of any project, government or private, that will affect or impact upon the ancestral
domains and to receive just and fair compensation for any damages which they may sustain as a
result of the project, and the right to effective measures by the government to prevent any
interference with, alienation and encroachment of these rights."

It must be noted that the right to negotiate terms and conditions granted under Section 7(b) pertains
only to the exploration of natural resources. The term "exploration" refers only to the search or
prospecting of mineral resources, or any other means for the purpose of determining the existence
and the feasibility of mining them for profit.155 The exploration, which is merely a preliminary activity,
cannot be equated with the entire process of "exploration, development and utilization" of natural
resources which under the Constitution belong to the State.

Section 57, on the other hand, grants the indigenous peoples "priority rights" in the utilization of
natural resources and not absolute ownership thereof. Priority rights does not mean exclusive rights.
What is granted is merely the right of preference or first consideration in the award of privileges
provided by existing laws and regulations, with due regard to the needs and welfare of indigenous
peoples living in the area.

There is nothing in the assailed law which implies an automatic or mechanical character in the grant
of concessions. Nor does the law negate the exercise of sound discretion by government entities.
Several factors still have to be considered. For example, the extent and nature of utilization and the
consequent impact on the environment and on the indigenous peoples’ way of life are important
considerations. Moreover, the indigenous peoples must show that they live in the area and that they
are in the best position to undertake the required utilization.
It must be emphasized that the grant of said priority rights to indigenous peoples is not a blanket
authority to disregard pertinent laws and regulations. The utilization of said natural resources is
always subject to compliance by the indigenous peoples with existing laws, such as R.A. 7076 and
R.A. 7942 since it is not they but the State, which owns these resources.

It also bears stressing that the grant of priority rights does not preclude the State from undertaking
activities, or entering into co-production, joint venture or production-sharing agreements with private
entities, to utilize the natural resources which may be located within the ancestral domains. There is
no intention, as between the State and the indigenous peoples, to create a hierarchy of values;
rather, the object is to balance the interests of the State for national development and those of the
indigenous peoples.

Neither does the grant of priority rights to the indigenous peoples exclude non-indigenous peoples
from undertaking the same activities within the ancestral domains upon authority granted by the
proper governmental agency. To do so would unduly limit the ownership rights of the State over the
natural resources.

To be sure, the act of the State of giving preferential right to a particular sector in the utilization of
natural resources is nothing new. As previously mentioned, Section 7, Article XIII of the Constitution
mandates the protection by the State of "the rights of subsistence fishermen, especially of local
communities, to the preferential use of communal marine and fishing resources, both inland and
offshore."

Section 57 further recognizes the possibility that the exploration and exploitation of natural resources
within the ancestral domains may disrupt the natural environment as well as the traditional activities
of the indigenous peoples therein. Hence, the need for the prior informed consent of the indigenous
peoples before any search for or utilization of the natural resources within their ancestral domains is
undertaken.

In a situation where the State intends to directly or indirectly undertake such activities, IPRA requires
that the prior informed consent of the indigenous peoples be obtained. The State must, as a matter
of policy and law, consult the indigenous peoples in accordance with the intent of the framers of the
Constitution that national development policies and programs should involve a systematic
consultation to balance local needs as well as national plans. As may be gathered from the
discussion of the framers of the Constitution on this point, the national plan presumably takes into
account the requirements of the region after thorough consultation.156 To this end, IPRA grants to the
indigenous peoples the right to an informed and intelligent participation in the formulation and
implementation of any project, government or private, and the right not to be removed therefrom
without their free and prior informed consent.157 As to non-members, the prior informed consent
takes the form of a formal and written agreement between the indigenous peoples and non-
members under the proviso in Section 57 in case the State enters into a co-production, joint venture,
or production-sharing agreement with Filipino citizens, or corporations. This requirement is not
peculiar to IPRA. Existing laws and regulations such as the Philippine Environmental Policy,158the
Environmental Impact System,159 the Local Government Code160 and the Philippine Mining Act of
1995161already require increased consultation and participation of stakeholders, such as indigenous
peoples, in the planning of activities with significant environment impact.

The requirement in Section 59 that prior written informed consent of the indigenous peoples must be
procured before the NCIP can issue a certification for the "issuance, renewal, or grant of any
concession, license or lease, or to the perfection of any production-sharing agreement," must be
interpreted, not as a grant of the power to control the exploration, development and utilization of
natural resources, but merely the imposition of an additional requirement for such concession or
agreement. The clear intent of the law is to protect the rights and interests of the indigenous peoples
which may be adversely affected by the operation of such entities or licensees.

Corollary Issues

A. IPRA does not violate the Due Process clause.

The first corollary issue raised by petitioners is whether IPRA violates Section 1, Article III of the
Constitution, which provides that "no person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be deprived the equal protection of the laws."

Petitioners maintain that the broad definition of ancestral lands and ancestral domains under Section
3(a) and 3(b) of IPRA includes private lands. They argue that the inclusion of private lands in the
ancestral lands and ancestral domains violates the due process clause.162 Petitioners’ contention is
erroneous.

Sections 3(a) and 3(b) expressly provide that the definition of ancestral lands and ancestral domains
are "subject to Section 56," which reads:

Sec. 56. Existing Property Rights Regimes. – Property rights within the ancestral domains already
existing and/or vested upon effectivity of this Act, shall be recognized and protected.

Petitioners, however, contend that Section 56 aims to protect only the vested rights of indigenous
peoples, but not those who are not members of such communities. Following their interpretation,
IPRA, under Section 56, recognizes the rights of indigenous peoples to their ancestral lands and
ancestral domains, subject to the vested rights of the same communities to such ancestral
lands and ancestral domains. Such interpretation is obviously incorrect.

The "property rights" referred to in Section 56 belong to those acquired by individuals, whether
indigenous or non-indigenous peoples. Said provision makes no distinction as to the ethnic origins of
the ownership of these "property rights." The IPRA thus recognizes and respects "vested rights"
regardless of whether they pertain to indigenous or non-indigenous peoples. Where the law does not
distinguish, the courts should not distinguish.163 What IPRA only requires is that these "property
rights" already exist and/or vested upon its effectivity.

Further, by the enactment of IPRA, Congress did not purport to annul any and all Torrens titles
within areas claimed as ancestral lands or ancestral domains. The statute imposes strict procedural
requirements for the proper delineation of ancestral lands and ancestral domains as safeguards
against the fraudulent deprivation of any landowner of his land, whether or not he is member of an
indigenous cultural community. In all proceedings for delineation of ancestral lands and ancestral
domains, the Director of Lands shall appear to represent the interest of the Republic of the
Philippines.164 With regard to ancestral domains, the following procedure is mandatory: first,
petition by an indigenous cultural community, or motu proprio by the NCIP; second, investigation
and census by the Ancestral domains Office ("ADO") of the NCIP; third, preliminary report by the
ADO; fourth, posting and publication; and lastly, evaluation by the NCIP upon submission of the
final report of the ADO.165 With regard to ancestral lands, unless such lands are within an ancestral
domain, the statute imposes the following procedural requirements: first, application; second,
posting and publication; third, investigation and inspection by the ADO; fourth, delineation; lastly,
evaluation by the NCIP upon submission of a report by the ADO.166 Hence, we cannot sustain the
arguments of the petitioners that the law affords no protection to those who are not indigenous
peoples.
Neither do the questioned sections of IPRA on the composition and powers and jurisdiction of the
NCIP167 and the application of customary law,168 violate the due process clause of the Constitution.

Petitioners point out that IPRA provides that the NCIP shall be composed exclusively of members of
indigenous peoples,169 and that the NCIP shall have jurisdiction over all claims and disputes
involving indigenous peoples,170including even disputes between a member of such communities
and one who is not a member, as well as over disputes in the delineation of ancestral
domains.171 Petitioners clarify that they do not claim that the members of the NCIP are incapable of
being fair and impartial judges. They merely contend that the NCIP will not appear to be impartial,
because a party who is not a member of an indigenous cultural community "who must defend his
case against [one who is] before judges who are all members of [indigenous peoples] cannot but
harbor a suspicion that they do not have the cold neutrality of an impartial judge."172

In addition, petitioners claim that IPRA prescribes that customary laws shall be applied first in
disputes involving property, succession and land,173 and that such laws shall likewise be used in
disputes involving indigenous peoples.174 They assert that "[w]hen the dispute involves a member of
an [indigenous cultural community and another who is not], a resolution of such a dispute based on
customary laws. . . would clearly be a denial of due process. . . [because those who are not
indigenous peoples] do not know what these customary laws are."175

Petitioners’ concerns are unfounded. The fact that the NCIP is composed of members of the
indigenous peoples does not mean that it (the NCIP) is incapable, or will appear to be so incapable,
of delivering justice to the non-indigenous peoples. A person’s possession of the trait of impartiality
desirable of a judge has nothing to do with his or her ethnic roots. In this wise, the indigenous
peoples are as capable of rendering justice as the non-indigenous peoples for, certainly, the latter
have no monopoly of the concept of justice.

In any case, there are sufficient checks in the law against any abuse by the NCIP of its quasi-judicial
powers. Section 67 states that the decision of the NCIP shall be appealable to the Court of Appeals
by petition for review. The regular remedies under our rules of procedure are likewise available to
any party aggrieved by the decision of the NCIP.

Anent the use of customary laws in determining the ownership and extent of ancestral domains,
suffice it to say that such is allowed under paragraph 2, Section 5 of Article XII of the Constitution.
Said provision states, "The Congress may provide for the applicability of customary laws governing
property rights and relations in determining the ownership and extent of the ancestral domains."
Notably, the use of customary laws under IPRA is not absolute, for the law speaks merely
of primacy of use.176 The IPRA prescribes the application of such customary laws where these
present a workable solution acceptable to the parties, who are members of the same indigenous
group. This interpretation is supported by Section 1, Rule IX of the Implementing Rules which states:

RULE IX. JURISDICTION AND PROCEDURES FOR ENFORCEMENT OF RIGHTS

Section 1. Primacy of Customary Law. All conflicts related to ancestral domains and lands, involving
ICCs/IPs, such as but not limited to conflicting claims and boundary disputes, shall be resolved by
the concerned parties through the application of customary laws in the area where the disputed
ancestral domain or land is located.

All conflicts related to the ancestral domains or lands where one of the parties is a non-ICC/IP
or where the dispute could not be resolved through customary law shall be heard and
adjudicated in accordance with the Rules on Pleadings, Practice and Procedures Before the
NCIP to be adopted hereafter. (Emphasis supplied.)
The application of customary law is limited to disputes concerning property rights or relations
in determining the ownership and extent of the ancestral domains,177 where all the parties
involved are members of indigenous peoples,178 specifically, of the same indigenous group. It
therefore follows that when one of the parties to a dispute is a non-member of an indigenous group,
or when the indigenous peoples involved belong to different groups, the application of customary law
is not required.

Like any other law, the objective of IPRA in prescribing the primacy of customary law in disputes
concerning ancestral lands and domains where all parties involved are indigenous peoples is justice.
The utilization of customary laws is in line with the constitutional policy of recognizing the application
thereof through legislation passed by Congress.

Furthermore, the recognition and use of customary law is not a novel idea in this jurisdiction. Under
the Civil Code, use of customary law is sanctioned, as long as it is proved as a fact according to the
rules of evidence,179 and it is not contrary to law, public order or public policy.180 Moreover, the Local
Government Code of 1991 calls for the recognition and application of customary laws to the
resolution of issues involving members of indigenous peoples. This law admits the operation of
customary laws in the settling of disputes if such are ordinarily used in barangays where majority of
the inhabitants are members of indigenous peoples.181

B. Section 1, Part II, Rule VII of the Implementing Rules of IPRA does not infringe upon the
President’s power of control over the Executive Department.

The second corollary issue is whether the Implementing Rules of IPRA violate Section 17, Article VII
of the Constitution, which provides that:

The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.

The assailed provision of the Implementing Rules provides:

Rule VII. The National Commission on Indigenous Peoples (NCIP)

xxx

Part II: NCIP as an Independent Agency Under the Office of the President

Section 1. The NCIP is the primary agency of government for the formulation and implementation of
policies, plans and programs to recognize, promote and protect the rights and well-being of
indigenous peoples. It shall be an independent agency under the Office of the President. As such,
the administrative relationship of the NCIP to the Office of the President is characterized as a
lateral but autonomous relationship for purposes of policy and program coordination. This
relationship shall be carried out through a system of periodic reporting. Matters of day-to-day
administration or all those pertaining to internal operations shall be left to the discretion of the
Chairperson of the Commission, as the Chief Executive Officer.

Petitioners asseverate that the aforecited rule infringes upon the power of control of the President
over the NCIP by characterizing the relationship of the NCIP to the Office of the President as "lateral
but autonomous...for purposes of policy and program coordination."
Although both Section 40 of the IPRA and Section 1, Part II, Rule VII of the Implementing Rules
characterize the NCIP as an independent agency under the Office of the President, such
characterization does not remove said body from the President’s control and supervision.

The NCIP has been designated under IPRA as the primary government agency responsible for the
formulation and implementation of policies, plans and programs to promote and protect the rights
and well being of the indigenous peoples and the recognition of their ancestral domain as well as
their rights thereto.182 It has been granted administrative,183 quasi-legislative184 and quasi-judicial
powers185 to carry out its mandate. The diverse nature of the NCIP’s functions renders it impossible
to place said agency entirely under the control of only one branch of government and this,
apparently, is the reason for its characterization by Congress as an independent agency. An
"independent agency" is defined as an administrative body independent of the executive branch or
one not subject to a superior head of department, as distinguished from a "subordinate agency" or
an administrative body whose action is subject to administrative review or revision.186

That Congress did not intend to place the NCIP under the control of the President in all instances is
evident in the IPRA itself, which provides that the decisions of the NCIP in the exercise of its quasi-
judicial functions shall be appealable to the Court of Appeals,187 like those of the National Labor
Relations Commission (NLRC) and the Securities and Exchange Commission (SEC). Nevertheless,
the NCIP, although independent to a certain degree, was placed by Congress "under the office of
the President" and, as such, is still subject to the President’s power of control and supervision
granted under Section 17, Article VII of the Constitution188 with respect to its performance of
administrative functions, such as the following: (1) the NCIP must secure the President’s approval in
obtaining loans to finance its projects;189 (2) it must obtain the President’s approval for any
negotiation for funds and for the acceptance of gifts and/or properties in whatever from and from
whatever source;190 (3) the NCIP shall submit annual reports of its operations and achievements to
the President, and advise the latter on all matters relating to the indigenous peoples;191 and (4) it
shall exercise such other powers as may be directed by the President.192 The President is also given
the power to appoint the Commissioners of the NCIP193 as well as to remove them from office for
cause motu proprio or upon the recommendation of any indigenous community.194

To recapitulate:

(1) The provisions of the IPRA (specifically Sections 3, paragraphs (a) and (b), 5, 6, 7, and 8)
affirming the ownership by the indigenous peoples of their ancestral lands and domains by
virtue of native title do not diminish the State’s ownership of lands of the public domain,
because said ancestral lands and domains are considered as private land, and never to have
been part of the public domain, following the doctrine laid down in Cariño vs. Insular
Government;195

(2) The constitutional provision vesting ownership over minerals, mineral lands and other
natural resources in the State is not violated by Sections 3, 5, 7, 56, 57, 58 and 59 of the
IPRA which grant certain rights to the indigenous peoples over the natural resources found
within the ancestral domains, e.g., to benefit from and share in the profits from the allocation
and utilization of the same, as well as priority rights in the harvesting, extraction,
development or exploitation thereof. The State retains full control over the exploration,
development and utilization of natural resources even with the grant of said rights to the
indigenous peoples, through the imposition of requirements and conditions for the utilization
of natural resources under existing laws, such as the Small-Scale Mining Act of 1991196and
the Philippine Mining Act of 1995.197 Moreover, the rights granted to indigenous peoples for
the utilization of natural resources within their ancestral domains merely amplify what has
been earlier granted to them under the aforesaid laws;
 (3) While the IPRA recognizes the rights of indigenous peoples with regard to their ancestral
lands and domains, it also protects the vested rights of persons, whether indigenous or non-
indigenous peoples, who may have acquired rights of ownership lands or rights to explore
and exploit natural resources within the ancestral lands and domains;198

(4) The Due Process Clause of the Constitution is not violated by the provisions (Sections
40, 51-54, 62, 63, 65 and 66) of the IPRA which, among others, establish the composition of
the NCIP, and prescribe the application of customary law in certain disputes involving
indigenous peoples. The fact the NCIP is composed wholly of indigenous peoples does not
mean that it is incapable of being impartial. Moreover, the use of customary laws is
sanctioned by paragraph 2, Section 5 of Article XII of the Constitution; and

(5) The provision of the Implementing Rules characterizing the NCIP as an independent
agency under the Office of the President does not infringe upon the President’s power of
control under Section 17, Article VII of the Constitution, since said provision as well as
Section 40 of the IPRA expressly places the NCIP under the Office of the President, and
therefore under the President’s control and supervision with respect to its administrative
functions. However, insofar as the decisions of the NCIP in the exercise of its quasi-judicial
powers are concerned, the same are reviewable by the Court of Appeals, like those of the
NLRC and the SEC.

In view of the foregoing, I vote to DISMISS the petition.

Footnotes

1Teehankee vs. Rovira, 75 Phil. 634 (1945); San Miguel Corporation vs. Avelino, 89 SCRA
69 (1979); Phil. Long Distance Telephone Co. vs. Collector of Internal Revenue, 90 Phil 674
(1952).

2 In re Guarina, 24 Phil. 37 (1913).

3 In Philippine Colonial history, the term indio applied to indigenous throughout the vast
Spanish empire. India was a synonym for all of Asia east of the Indus River. Even after it
became apparent that the explorer Christopher Columbus was not able to reach territories
lying off the east coast of Asia, the Spanish persisted in referring to all natives within their
empire as los Indios. (Owen J. Lynch, Jr., THE PHILIPPINE COLONIAL DICHOTOMY:
Attraction and Disenfranchisement, 63 PL J 112 [1988] citing R. BERKHOFER, THE WHITE
MAN’S INDIAN: IMAGES OF THE AMERICAN INDIAN FROM COLUMBUS TO THE
PRESIDENT 5 [1979].

4 Webster’s Third New International Dictionary (1976), p. 1151.

5 Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach

to the Asian Controversy, 92 The American Journal of International Law 414, 419 (1998)
citing Jose Martinez Cobo, Study of the Problem of Discrimination against indigenous
population, UN Doc. E/CN.4/Sub. 2/1986/ 7/ Add. 4, paras. 379-80.
6 Ibid. This definition is criticized for taking the potentially limited, and controversial view of
indigenous peoples by requiring "historical continuity with pre-invasion and pre-colonial
societies that developed on their territories."

7 4 Record of the Constitutional Commission 34.

8 Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 680 (1919).

9Hearing before the Committee on the Philippines, United States Senate, Sixty-Third
Congress, Third Session on HR 18459, pp. 346, 351. Quoted in Rubi at 686.

10United States President McKinleys’ Instruction to the Philippine Commission, April 7, 1900,
quoted in Rubi at 680.

11 US v. Tubban, 29 Phil. 434, 436 (1915).

See Owen J. Lynch, Jr., Invisible Peoples And A Hidden Agenda: The Origins of
12

Contemporary Philippine Land Laws (1900-1913), 63 PLJ 249 (1988).

13For an introduction to the chasm that exists between Philippine Law and Indigenous
Custom Law, see Owen J. Lynch, Jr., Native Title, Private Right and Tribal Land Law: An
Introductory Survey 52 PLJ 268 (1982); and the Philippine Indigenous Law Collection: An
Introduction and Preliminary Bibliography, 58 PLJ 457 (1983), by the same author.

See Renato Constantino, The Philippines: A Past Revisited (1975), pp. 26-41; Teodoro
14

Agoncillo, A History of the Filipino People, 8th ed., pp. 5, 74-75.

Response of Rep. Gregorio A. Andolana to the interpellation of Rep. John Henry R.

15

Osmeña on ouse Bill No. 9125, Journal of August 20 and 21, 1997 of the House of
Representatives, p.20.

16 Philippines Yearbook (1998 ed.), p. 366.

17 Article II of the Constitution, entitled State Principles and Policies.

18 Article XII of the Constitution, entitled National Economy and Patrimony.

19 Article XIII of the Constitution, entitled Social Justice and Human Rights.

20 Ibid.

Article XIV of the Constitution, entitled Education, Science, Technology, Arts, Culture, and
21

Sports.

22 Article XVI of the Constitution, entitled General Provisions.

23 SECTION 2. Declaration of State Policies . - The State shall recognize and promote all the
rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) hereunder
enumerated within the framework of the Constitution:
 a) The State shall recognize and promote the rights of ICCs/IPs within the framework
of national unity and development;

b) The State shall protect the rights of ICCs/IPs to their ancestral domains to ensure
their economic, social and cultural well being and shall recognize the applicability of
customary laws governing property rights or relations in determining the ownership
and extent of ancestral domain;

c) The State shall recognize, respect and protect the rights of ICCs/IPs to preserve
and develop their cultures, traditions and institutions. It shall consider these rights in
the formulation of national laws and policies;

d) The State shall guarantee that members of the ICCs/IPs regardless of sex, shall
equally enjoy the full measure of human rights and freedoms without distinction or
discrimination;

e) The State shall take measures, with the participation of the ICCs/IPs concerned, to
protect their rights and guarantee respect for their cultural integrity, and to ensure
that members of the ICCs/IPs benefit on an equal footing from the rights and
opportunities which national laws and regulations grant to other members of the
population; and

f) The State recognizes its obligations to respond to the strong expression of the
ICCs/IPs for cultural integrity by assuring maximum ICC/IP participation in the
direction of education, health, as well as other services of ICCs/IPs, in order to
render such services more responsive to the needs and desires of these
communities.

Towards these ends, the State shall institute and establish the necessary
mechanisms to enforce and guarantee the realization of these rights, taking into
consideration their customs, traditions, values, beliefs, interests and institutions, and
to adopt and implement measures to protect their rights to their ancestral domains.

24 See Sections 13-20, R.A. 8371.

25 See Sections 21-37, R.A. 8371.

26 See Sections 4-12, R.A. 8371.

27 See Sections 38-50, R.A. 8371.

28Dumlao v. COMELEC, 95 SCRA 392, 400 (1980), citing People vs. Vera, 65 Phil. 56
(1937).

29 Subic Bay Metropolitan Authority v. COMELEC, 262 SCRA 492, 513 (1996).

30 Board of Optometry v. Colet, 260 SCRA 88, 104 (1996).

31 Muskrat v. United States, 219 US 346, 362 (1913).

32 WEBSTERS’S THIRD NEW INTERNATIONAL DICTIONARY, 1976, p. 497.

33 United States v. Freuhauf, 365 US 146 (1961).

34Association of Small Landowners v. Secretary of Agrarian Reform, 175 SCRA 343, 364
(1989); Joya v. PCGG, 225 SCRA 568 (1993).

35 People v. Vera, 65 Phil. 56, 89 (1937).

36 Lozada v. COMELEC, 120 SCRA 337, 342 (1983).

37 US v. Richardson, 418 US 166, 194 S Ct 2940, 41 L Ed 2d 678 (1974).

38Kilosbayan v. Guingona, 232 SCRA 110, 135 (1994), citing, among others, Philconsa v.
Gimenez, 15 SCRA 479 (1965); CLU V. Executive Secretary, 194 SCRA 317 (1991);
Guingona v. Carague, 196 SCRA 221 (1991); Osmena v. COMELEC, 199 SCRA 750
(1991); Basco v. PAGCOR, 197 SCRA 52 (1991); Carpio v. Executive Secretary, 206 SCRA
290 (1992).

In Kilosbayan v. Morato (250 SCRA 130 [1995]) the Court discoursed on the rule on
standing as follows: taxpayers may sue on the claim of illegal disbursement of funds,
or to assail the constitutionality of a tax measure; voters may question the validity of
election laws; citizens may raise constitutional questions of transcendental
importance which must be settled early; and, legislators may question the validity of
official acts which infringe their prerogatives.

39 Araneta v. Dinglasan, 84 Phil. 368, 373 (1949).

40Assn. of Small Landowners in the Philippines v. Secretary of Agrarian Reform, 175 SCRA
343, 364-365 (1989).

41 16 Phil. 366 (1910), citing HIGH, EXTRAORDINARY LEGAL REMEDIES.

42 Id., at 371.

43 Id., at 374-375.

44 136 SCRA 27, 37 (1985).

45 177 SCRA 374, 383 (1989).

46 224 SCRA 792 (1993).

47 Id., at 805.

48 Ibid.

49 Philconsa v. Mathay, 18 SCRA 300, 306 (1966).

50 Philconsa v. Gimenez, 15 SCRA 479, 487 (1965), citing 11 Am Jur 761.

 Sanidad v. COMELEC, 73 SCRA 333, 358-359 (1976); Pascual v. Secretary of Public
51

Works, 110 Phil. 331 (1960); Tan v. Macapagal, 43 SCRA 677, 680 (1972).

52Section 79. Appropriations.- The amount necessary to finance the initial implementation of
this Act shall be charged against the current year's appropriation of the ONCC and the
OSCC. Thereafter, such sums as may be necessary for its continued implementation shall
be included in the annual General Appropriations Act.

53Section 74. Merger of ONCC/OSCC.—The Office for Northern Cultural Communities

(ONCC) and the Office for Southern Cultural Communities (OSCC), created under Executive
Order Nos. 122-B and 122-C respectively, are hereby merged as organic offices of the NCIP
and shall continue to function under a revitalized and strengthened structure to achieve the
objectives of the NCIP x x x.

54 Section 2, Rule 65, 1997 RULES OF CIVIL PROCEDURE.

55
Section 3, Rule 65, 1997 RULES OF CIVIL PROCEDURE.

56 Article VIII of the Constitution states:

Sec. 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public
ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.

xxx

Batas Pambansa Blg. 129 (B.P. 129), as amended, provides:

Sec. 9. Jurisdiction.-The Court of Appeals shall exercise:

(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas

corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of
its appellate jurisdiction;

x x x.

Sec. 21. Original jurisdiction in other cases.- Regional Trial Courts shall exercise
original jurisdiction:

(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto,

habeas corpus and injunction which may be enforced in any part of their respective
regions; and

(2) In actions affecting ambassadors and other public ministers and consuls.

57 Tano vs. Socrates, 278 SCRA 154, 173-174 (1997).

58 172 SCRA 415 (1989).

59 Id., at 424.

60Section 7. Rights to Ancestral Domains.—The rights of ownership and possession of

ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall
include:

(a) Right of Ownership. – The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional

(b) hunting and fishing grounds, and all improvements made by them at any time
within the domains;

xxx

61Section 3(l) Native Title – refers to pre-conquest rights to lands and domains which, as far
back as memory reaches, have been held under a claim of private ownership by ICCs/IPs,
have never been public lands and are thus indisputably presumed to have been held that
way since before the Spanish Conquest; x x x

Section 3(p) Time Immemorial - refers to a period of time when as far back as
memory can go, certain ICCs/IPs are known to have occupied, possessed in the
concept of owners, and utilized a defined territory devolved to them, by operation of
customary law or inherited from their ancestors, in accordance with their customs
and traditions.

62 Section 3(b) Ancestral Lands – Subject to Section 56 hereof, refers to land occupied,
possessed and utilized by individuals, families and clans who are members of the ICCs/IPs
since time immemorial, by themselves or through their predecessors-in-interest, under
claims of individual or traditional group ownership, continuously to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth, or as a
consequence of government projects or any other voluntary dealings entered into by the
government and private individuals/corporations, including, but not limited to, residential lots,
rice terraces or paddies, private forests, swidden farms and tree lots;

63 Section 3(a) Ancestral Domains – Subject to Section 56 hereof, refer to all areas generally
belonging to ICCs/IPs comprising lands, inland waters, coastal areas and natural resources
therein, held under a claim of ownership, occupied or possessed by Indigenous peoples, 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 the government and private individuals/corporations, and which are
necessary to ensure their economic, social and cultural welfare. It shall include ancestral
lands, forests, pasture, residential, agricultural, and other lands individually owned whether
alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas,
bodies of water, mineral and other resources, and lands which may no longer be exclusively
be occupied by Indigenous peoples 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.

64 Ibid.
65Hebron v. Reyes, 104 Phil. 175 (1958); San Miguel Corporation v. Avelino, 89 SCRA 69
(1979).

66 In re Guarina, 24 Phil 37 (1913).

67 See Lee Hong Hok vs. David, 48 SCRA 372 (1972).

68 Peña, Registration of Land Titles and Deeds, 1994 rev. ed., p. 15.

69 1 Bouvier’s Law Dictionary, 3rd revision, p. 1759.

70 Black’s Law Dictionary, 6th ed., p. 1282.

71 76 Corpus Juris Secundum, citing Hart v. Burnett, 15 Cal. 530, 566.

72Washburn, p. 44; see also Williams, Principles Of The Law On Real Property, 6th ed.
(1886), p.2; Bigelow, p. 2.

73 Warvelle, Abstracts and Examination of Title to Real Property (1907), p.18.

74 1 Dictionary of English Law (Jowitt, ed.), p. 797.

75 41 Phil. 935, 212 U.S. 449, 53 L Ed. 594 (1909).

76 Cariño vs. Insular Government, 7 Phil. 132 (1906). The Philippine Supreme Court in this
case held that in the Philippines, there is no conclusive presumption of a grant of title to land
from the Government founded merely upon long possession of the same by the applicant.

77 Cariño vs. Insular Government, supra note 75, at 941.

78 Section 10, Philippine Bill of 1902.

79 75 Phil 890 (1946).

80 Id., at 892.

81 Memorandum of Petitioners, Rollo, p. 861.

82 Section 3, Article XII, Constitution.

83Under the Treaty of Tordesillas, the world was divided between Spain and Portugal, with
the former having exclusive power to claim all lands and territories west of the Atlantic Ocean
demarcation line (Lynch, The Legal Bases of Philippine Colonial Sovereignty, 62 Phil L J
279, 283 [1987]).

84See AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW, 5th ed., 142-

143.

85 See Cruz, International Law, 1996 ed., pp. 106-107.

86 Cariño v. Insular Government, supra note 75, at 939.

This point finds significance in light of the distinction between sovereignty and
dominion. Sovereignty is the right to exercise the functions of a State to the exclusion
of any other State (Case Concerning the Island of Las Palmas [1928], UNRIAA II
829, 838). It is often referred to as the power of imperium, which is defined as the
government authority possessed by the State (Bernas, The Constitution of the
Republic of the Philippines: A Commentary Vol. 2, p. 419). On the other hand,
dominion, or dominium, is the capacity of the State to own or acquire property such
as lands and natural resources.

Dominium was the basis for the early Spanish decrees embracing the theory of jura
regalia. The declaration in Section 2, Article XII of the 1987 Constitution that all lands
of the public domain are owned by the State is likewise founded on dominium (Ibid.).
If dominium, not imperium, is the basis of the theory of jura regalia, then the lands
which Spain acquired in the 16th century were limited to non-private lands, because
it could only acquire lands which were not yet privately-owned or occupied by the
Filipinos. Hence, Spain acquired title only over lands which were unoccupied and
unclaimed, i.e., public lands.

87Phelan, The Hispanization of the Philippines: Spanish Aims and Filipinos Responses,
1565-1700 (1959), pp. 8-9.

88 Cariño vs. Insular Government, supra note 75, at 943.

89Book 4, Title 12, Law 9, decreed by Philip II, 1 June 1594. We order that grants of farms
and lands to Spaniards be without injury to the Indians and that those which have been
granted to their loss and injury, be returned to the lawful owners.

Book 4, Title 12, Law 14. We having acquired full sovereignty over the Indies, and all
lands, territories, and possessions not heretofore ceded away by our royal
predecessors, or by us, or in our name, still pertaining the royal crown and
patrimony, it is our will that all lands which are held without proper and true deeds of
grant be restored to us according as they belong to us, in order that x x x after
distributing to the natives what may be necessary for tillage and
pasteurage, confirming them in what they now have and giving them more if
necessary, all the rest of said lands may remain free and unencumbered for us to
dispose of as we wish. [Quoted in Valenton v. Murciano, 3 Phil. 537, 542-543
(1904).] (Emphasis supplied.)

Book 6, Title 1, Law 15, decreed by King Philip II, at Madrid, 7 November 1574. We
command that in the Philippine Islands the Indians not be removed from one to
another settlement by force and against their will.

Book 6, Title 1, Law 23, otherwise known as Ordinance 10 of 1609 decreed by Philip
III. It is right that time should be allowed the Indians to work their own individual lands
and those of the community.

Book 6, Title 1, Law 32, decreed by Philip II, 16 April 1580. We command the
Viceroys, Presidents, and Audiencias that they see to it that the Indians have
complete liberty in their dispositions.
 Royal Cedula of October 15, 1754. Where such possessors shall not be able to
produce title deeds it shall be sufficient if they shall show that ancient possession,
as a valid title by prescription; x x x. [Quoted in Valenton v. Murciano, supra, at
546.] (Emphasis supplied.)

90Article 6 of the royal decree of June 25, 1880, quoted in Valenton v. Murciano, supra note
89 at 549.

91 Cariño v. Insular Government, supra note 75, at 944.

92 Memorandum of Petitioners, par. 3.4, Rollo, pp. 845-846.

93 The Treaty of Paris reads in part:

Article III. Spain cedes to the United States the archipelago known as the Philippine
Islands, x x x.

The United States will pay to Spain the sum of twenty million dollars, within three
months after the exchange of the ratifications of the present treaty.

xxx

Article VIII. In conformity with the provisions of Articles One, Two, and Three of this
treaty, Spain relinquishes in Cuba, and cedes in Porto Rico and other islands of the
West Indies, in the Island of Guam, and in the Philippine Archipelago, all the
buildings, wharves, barracks, forts, structures, public highways, and other immovable
property which, in conformity with law, belong to the public domain and as such
belong to the Crown of Spain.

And it is hereby declared that the relinquishment or cession, as the case may be, to
which the preceding paragraph refers, can not in any respect impair the property or
rights which by law belong to the peaceful possession of property of all kinds, of
provinces, municipalities, public or private establishments, ecclesiastical or civic
bodies, or any other associations having legal capacity to acquire and possess
property in the aforesaid territories renounced or ceded, or of private individuals, of
whatsoever nationality such individuals may be.

94 The statute reads in part:

Section 12. That all the property and rights which may have been acquired in the
Philippine Islands under the treaty of peace with Spain, signed December tenth,
eighteen hundred and ninety-eight, except such land or other property as shall be
designated by the President of the United States for military and other reservations of
the Government of the United States, are hereby placed under the control of the
Government of said Islands, to be administered for the benefit of the inhabitants
thereof, except as provided by this Act.

McKinley’s Instructions to the Second Philippine Commission, in Mendoza, From

95

McKinley’s Instructions to the New Constitution: Documents on the Philippine Constitutional

System (1978) p. 71.
96 Id., at 65-75; Section 5, Philippine Bill of 1902.

97 Solicitor General’s Memorandum, Rollo, p. 668-669.

98 Id, at 668.

99 Section 1, Article XII, 1935 Constitution reads:

All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other
natural resources of the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to citizens of the Philippines,
or to corporations or associations at least sixty per centum of the capital of which is
owned by such citizens, subject to any existing right, grant, lease, or concession at
the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be
alienated, and no license, concession, or lease for the exploitation, development, or
utilization of any of the natural resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty five years, except as to water rights
for irrigation, water supply, fisheries or industrial uses other than the development of
water power, in which cases beneficial use may be the measure and limit of the
grant.

100 Central Azucarera Don Pedro v. Central Bank, 104 Phil 598 (1954).

Sec. 5, Article XII. The State, subject to the provisions of this Constitution and national
101

development policies and programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property
rights and relations in determining the ownership and extent of ancestral domains.

102 See Memorandum of Petitioners, Rollo, pp. 863-864.

103 Sibal, Philippine Legal Encyclopedia, p. 893.

104 Black's Law Dictionary, 5th ed., p. 1189.

105 Ibid.

106 4 Record of the Constitutional Commission 32.

107 Id., at 37.

108 Solicitor General’s Memorandum, Rollo, p. 665.

109 Torres v. Tan Chim, 69 Phil 518 (1940); CIR v.Guerrero, 21 SCRA 180 (1967).

110 4 Record of the Constitutional Commission 36.

111 See 1 COOLEY, CONST., LIMITATIONS, 8th ed., pp. 127-129.

112 See pp. 8-9 of this Opinion for the full text of the constitutional provisions mentioned.

113 Section 1, Article XII provides:

The goals of the national economy are a more equitable distribution of

opportunities, income, and wealth; a sustained increase in the amount of goods
and services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.

The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. Private enterprises, including
corporations, cooperatives and similar collective organizations, shall be encouraged
to broaden the base of their ownership. (Emphasis supplied.)

114Bernas, The Intent of the 1986 Constitution Writers, p. 800, citing the sponsorship speech
of Dr. Bernardo Villegas, Chairman of the Committee on National Economy and Patrimony.

115 4 Record of the Constitutional Commission 34.

116 Petition, Rollo, pp.18-19.

117 Id., at 20.

118 Section 3. Definition of Terms. -For Purposes of this Act, the following terms shall mean:

a) Ancestral Domains. -Subject to Section 56 hereof, refer to all areas generally

belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural
resources therein, held under a claim of ownership, occupied or possessed by
ICCs/IPs, by themselves or through their ancestors, communally or individually since
time immemorial, continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence of
government projects or any other voluntary dealings entered into by government and
private individuals/corporations, and which are necessary to ensure their economic,
social and cultural welfare. It shall include ancestral lands, forests, pasture,
residential, agricultural, and other lands, individually owned whether alienable and
disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of
water, mineral and other natural resources, and lands which may no longer be
exclusively occupied by ICCs/IPs but from which they traditionally had access to for
their subsistence and traditional activities, particularly the home ranges of ICCs/IPs
who are still nomadic and/or shifting cultivators.
119Section 5. Indigenous Concept of Ownership- Indigenous concept of ownership sustains
the view that ancestral domains and all resources found therein shall serve as the material
bases of their cultural integrity. The indigenous concept of ownership generally holds that
ancestral domains are the ICCs/IPs private but community property which belongs to all
generations and therefore cannot be sold, disposed or destroyed. It likewise covers
sustainable traditional resource rights.

120Section 7. Rights to Ancestral Domains.—The rights of ownership and possession of

ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall
include:

(a) Right of Ownership. – The right to claim ownership over lands, bodies of water
traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and
fishing grounds, and all improvements made by them at any time within the domains;

(b) Right to Develop Lands and Natural Resources. – Subject to Section 56 hereof,
right to develop, control and use lands and territories traditionally occupied, owned,
or used; to manage and conserve natural resources within the territories and uphold
the responsibilities for future generations; to benefit and share the profits from
allocation and utilization of the natural resources found therein; the right to negotiate
the terms and conditions for the exploration of natural resources in the areas for the
purpose of ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an informed and
intelligent participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral domains and to
receive just and fair compensation for any damages which they may sustain as a
result of the project; and the right to effective measures by the government to prevent
any interference with, alienation and encroachment upon these rights; x x x
(Emphasis supplied.)

121 Section 2, Article XII, Constitution.

122Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. II,
p. 42 (1983); see also Articles 427 and 428, Civil Code.

123 Id., at 43.

124 Section 5, R.A. 8371.

125 Ibid.

126Should be Section 7. The Transcript of Session Proceedings of the deliberations of the

Bicameral Conference Committee on National Cultural Communities regarding House Bill
No. 9125 refers to Section 8 but the Committee was actually discussing Section 7 on Rights
to Ancestral Domains.

Transcript of Session Proceedings, Bicameral Conference Committee on National Cultural

127

Communities, October 9, 1997, XIV-2.

128 Sections 7 (b) and Section 57, R.A. 8371.

129 40 Phil. 1017 (1909), 215 US 16, 54 L Ed 72.

130Ibid. The facts of the case were discussed in Fianza vs. Reavies, (7 Phil. 610 [1909]) thus:
Jose Fianza, et al., members of the Igorot tribe, claimed that he and his predecessors had,
for more than fifty years prior to 1901, possessed a certain parcel of mineral land on which
were found two gold mines. The same parcel of land was also claimed by an American, J.F.
Reavies, who entered the land in 1901 and proceeded to locate mining claims according to
the mining laws of the United States. The Philippine Supreme Court held that Fianza, et al.
were the rightful owners of the mineral lands pursuant to Section 45 of the Philippine Bill of
1902 which in sum states that where a person have held or worked on their mining claims for
a period equivalent to ten years, evidence of such possession and working of the claims for
such period shall be sufficient to establish a right to a patent thereto. On appeal, the United
States Supreme Court affirmed the decision of the Philippine Supreme Court and held that
the indigenous peoples were the rightful owners of the contested parcel of land, stating that
the possession and working by Fianza, et al. of the mining claim in the Philippine Islands for
the time required under the Section 45 of the Philippine Bill of 1902 to establish the right to a
patent, need not have been under a claim of title.

131 Memorandum of Intervenors Flavier, et al., Rollo, p. 918.

132 Article I of the Decree of Superior Civil Government of January 29, 1864 provided that
"The supreme ownership of mines throughout the kingdom belong to the crown and the king.
They shall not be exploited except by persons who obtained special grant from this superior
government and by those who may secure it thereafter, subject to this regulation."
(FRANCISCO, PHILIPPINE LAWS ON NATURAL RESOURCES, 2nd ed. [1956], p. 14,
citing the unpublished case of Lawrence v. Garduno, G.R. No. 19042.)

Article 2 of the Royal Decree of May 14, 1867 (the Spanish Mining Law), the law in
force at the time of the cession of the Philippines to the United States contained a
similar declaration, thus:

The ownership of the substances enumerated in the preceding article (among them
those of inflammable nature) belongs to the state, and they cannot be disposed of
without an authorization issued by the Superior Civil Governor.

The Spanish Civil Code contained the following analogous provisions affirming the
State’s ownership over minerals:

Art. 339. Property of public dominium is-

xxx

2. That belonging exclusively to the State which, without being of general public use,
is employed in some public service, or in the development of the national wealth,
such as walls, fortresses, and other works for the defense of the territory, and mines,
until granted to private individuals.

Art. 350. The proprietor of land is the owner of the surface and of everything under it
and may build, plant or excavate thereon, as he may see fit, subject to any existing
easements and to the provisions of the Laws on Mines and Waters and to police
regulations.
After the Philippines was ceded to Spain, the Americans continued to adhere to the
concept of State-ownership of natural resources. However, the open and free
exploration, occupation and purchase of mineral deposits and the land where they
may be found were allowed under the Philippine Bill of 1902. Section 21 thereof
stated:

Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands,
both surveyed and unsurveyed, are hereby declared to be free and open to
exploration, occupation and purchase, and the land in which they are found, to
occupation and purchase, by citizens of the United States, or of said
Islands: Provided, That when on any lands in said Islands entered and occupied as
agricultural lands under the provisions of this Act, but not patented, mineral deposits
have been found, the working of such mineral deposits is hereby forbidden until the
person, association, or corporation who or which has entered and is occupying such
lands shall have paid to the Government of said Islands such additional sum or sums
as will make the total amount paid for the mineral claim or claims in which said
deposits are located equal to the amount charged by the Government for the same
as mineral claims.

Other natural resources such as water and forests were similarly regarded as
belonging to the State during both the Spanish and American rule in the Philippines,
viz:

Article 33 of the Law of Waters of August 3, 1866 defined waters of public ownership
as (1) the waters springing continuously or intermittently from lands of the public
domain; (2) the waters of rivers; and (3) the continuous or intermittent waters of
springs and creeks running through their natural channels.

Article 1 of the same law states:

The following are also part of the national domain open to public use:

1. The coasts or maritime frontiers of the Philippine territory with their coves,
inlets, creeks, roadsteads, bays and ports

2. The coast of the sea, that is, the maritime zone encircling the coasts, to
the full width recognized by international law. The state provides for and
regulates the police supervision and the uses of this zone as well as the right
of refuge and immunity therein, in accordance with law and international
treaties.

With respect to forests, there are references made regarding State-ownership of

forest lands in Supreme Court decisions (See Director of Forestry vs. Munoz, 23
SCRA 1183, 1198-1199 [1968]; Director of Lands vs. Abanzado, 65 SCRA 5, 11
[1975]; Mapa vs. Insular Government, 10 Phil. 175, 184 [1908]; Montano vs. Insular
Government, 12 Phil 572, 584 [1909]).

The State’s ownership over natural resources was embodied in the 1935, 1973 and
1987 Constitutions. Section 1, Article XII of the 1935 Constitution declared:

All agricultural, timber and mineral lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, and other natural
 resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines, or to
corporations or associations at least sixty per centum of the capital of which is owned
by such citizens, subject to any existing right, grant, lease or concession at the time
of the inauguration of the Government established under this Constitution. Natural
resources, with the exception of public agricultural land, shall not be alienated, and
no license, concession, or lease for the exploitation, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for
another twenty -five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of water power, in which
cases beneficial use may be the measure and the limit of the grant.

Section 8, Article XIV of the 1973 Constitution provided:

All lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural resources of
the Philippines belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public domain, natural
resources shall not be alienated, and no license, concession, or lease for the
exploration, development, exploitation, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, renewable for not more
than twenty-five years, except as to water rights for irrigation water supply, fisheries,
or industrial uses other than the development of water power, in which cases,
beneficial use may be the measure and limit of the grant.

133 Noblejas, Philippine Law on Natural Resources 1961 Revised Ed., p. 6

See Laurel (ed.), Proceedings of the Philippine Constitutional Convention, Vol. VI, pp.
134

494-495.

Explanatory Note of the Committee on Nationalization of Lands and Natural Resources,

135

September 14, 1934, reproduced in Laurel (ed.), Proceedings of the Philippine Constitutional
Convention, Vol. VII, pp. 464-468; see also De Leon and De Leon, Jr., Philippine
Constitutional Law: Principles and Cases, Vol. 2, pp. 801-802.

136 Section 8, Article XIV, see note 139 for the full text of the provision.

137 Paragraph 1, Section 2, Article XII of the 1987 Constitution provides:

All lands of the public domain, waters, minerals, coal, petroleum, and other minerals
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State. with the exception of agricultural
lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations and associations at least sixty per centum of whose capital
is owned by such citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and under such
rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the
grant.
 138Section 7. Rights to Ancestral Domains.—The rights of ownership and possession
of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights
shall include:

xxx

b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof,

right to develop, control and use lands and territories traditionally occupied, owned,
or used; to manage and conserve natural resources within the territories and
uphold the responsibilities for future generations; to benefit and share the profits
from allocation and utilization of the natural resources found therein; the right
to negotiate the terms and conditions for the exploration of natural resources
in the areas for the purpose of ensuring ecological, environmental protection and the
conservation measures, pursuant to national and customary laws; the right to an
informed and intelligent participation in the formulation and implementation of any
project, government or private, that will affect or impact upon the ancestral domains
and to receive just and fair compensation for any damages which they may sustain
as a result of the project; and the right to effective measures by the government to
prevent any interference with, alienation and encroachment upon these rights;

139Section 57. Natural Resources within Ancestral Domains.-The ICCs/IPs shall have priority
rights in the harvesting, extraction, development or exploitation of any natural resources
within the ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to
take part in the development and utilization of the natural resources for a period of not
exceeding twenty-five (25) years renewable for not more than twenty-five (25) years:
Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned
or that the community, pursuant to its own decision making process, has agreed to allow
such operation: Provided, finally, That the NCIP may exercise visitorial powers and take
appropriate action to safeguard the rights of the ICCs/IPs under the same contract.

140 Section 59. Certification Precondition - All departments and other governmental agencies
shall henceforth be strictly enjoined from issuing, renewing, or granting any concession,
license or lease, or entering into any production-sharing agreement, without prior certification
from the NCIP that the area affected does not overlap with any ancestral domain. Such
certification shall only be issued after a field-based investigation is conducted by the
Ancestral Domains Office of the area concerned: Provided, That no certification shall be
issued by the NCIP without the free and prior informed and written consent of
Indigenous peoples concerned: Provided, further, That no department, government
agency or government-owned or controlled corporation may issue new concession, license,
lease, or production sharing agreement while there is a pending application for a CADT:
Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance
with this Act, any project that has not satisfied the requirement of this consultation process.

141Section 58. Environmental Considerations.- Ancestral domains or portions thereof, which

are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries,
wilderness, protected areas, forest cover, or reforestation as determined by appropriate
agencies with the full participation of the Indigenous peoples concerned shall be maintained,
managed and developed for such purposes. The Indigenous peoples concerned shall be
given the responsibility to maintain, develop, protect and conserve such areas with
the full and effective assistance of government agencies. Should the Indigenous peoples
decide to transfer the responsibility over the areas, said decision must be made in writing.
The consent of the Indigenous peoples should be arrived at in accordance with its customary
laws without prejudice to the basic requirements of existing laws on free and prior informed
consent: Provided, That the transfer shall be temporary and will ultimately revert to the
Indigenous peoples in accordance with the program for technology transfer; Provided,
further, That no Indigenous peoples shall be displaced or relocated for the purpose
enumerated under this section without the written consent of the specific persons authorized
to give consent.

142 Citing Section 2, Article XII of the Constitution.

143 Memorandum of Petitioners, Id., at 840-841.

State v. Lathrop, 93 Ohio St 79, 112 NE 209, cited in 16 Am Jur 2d, Constitutional Law, §
144

100.

Old Wayne Mutual Life Assn. v. McDonough, 204 US 8, 51 L Ed 345, cited in 16 Am Jur
145

2d Constitutional Law, § 100.

146 Third paragraph, Section 2, Article XII, Constitution –

The Congress may, by law, allow small scale-utilization of natural resources by

Filipino citizens, as well as cooperative fish farming, with priority to subsistence
fishermen and fishworkers in rivers, lakes, bays, and lagoons.

147 Section 6, Article XIII, Constitution –

The State shall apply the principles of agrarian reform or stewardship, whenever
applicable in accordance with law, in the disposition and utilization of other natural
resources, including lands of the public domain under lease or concession suitable to
agriculture, subject to prior rights, homestead rights of small settlers, and the rights of
the indigenous communities to their ancestral lands.

The State may resettle landless farmers and farmworkers in its own agricultural
estates which shall be distributed to them in the manner provided by law.

148 Section 7, Article XIII, Constitution –

The State shall protect the rights of subsistence fishermen, especially of local
communities, to the preferential use of the communal marine and fishing resources,
both inland and offshore. It shall provide support to such fishermen through
appropriate technology and research, adequate financial, production, and marketing
assistance, and other services. The State shall also protect, develop, and conserve
such resources. The protection shall extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers shall receive a just
share from their labor in the utilization of marine and fishing resources.

Bower v. Big Horn Canal Assn. (Wyo) 307 P2d 593, cited in 16 Am Jur 2d Constitutional
149

Law, § 100.

Republic Act No. 7076 (the Small-Scale Mining Act of 1991), Republic Act No. 7942 (the
150

Philippine Mining Act of 1995).

 Section 3(b) of R.A. 7076 defines "small-scale mining" as referring to mining activities
151

which rely heavily on manual labor using simple implements and methods and do not use
explosives or heavy mining equipment.

152 Section 7, R.A. 7076 provides:

Ancestral lands. - No ancestral land may be declared as a people’s small-scale

mining area without the prior consent of the cultural communities
concerned: Provided, That, if ancestral lands are declared as peole’s small-scale
mining areas, the members of the cultural communities therein shall be given priority
for the awarding of a people’s small-scale mining contract.

153 Section 16, R.A. 7492.

154 Section 17, R.A. 7942.

155 Sec. 3(q), Chapter 1, Republic Act No. 7942 (the Philippine Mining Act of 1995).

156 4 Record of the Constitutional Commission 37.

157 Sections 7(a) and (b), R.A. 8371.

158
Presidential Decree No. 1151 (1971).

159 Presidential Decree No. 1586 (1978) and DENR Administrative Order No. 37 (1996).

160 Republic Act No. 7160 (1991).

161 Republic Act No. 7942.

162 Petition, Rollo, pp. 23-25.

163 Ramirez v. CA, 248 SCRA 590, 596 (1995).

164 Section 53 (f), R.A. 8371.

165 Section 52, R.A. 8371.

166 Section 53, R.A. 8371.

167 Sections 40, 51, 52, 53, 54, 62 and 66, R.A. No. 8371.

168 Sections 63 and 65, R.A. No. 8371.

169
Section 40. Composition.- The NCIP shall be an independent agency under the Office of
the President and shall be composed of seven (7) Commissioners belonging to the ICCs/IPs,
one (1) of whom shall be the Chairperson. The Commissioners shall be appointed by the
President of the Philippines from a list of recommendees submitted by authentic ICCs/IPs:
Provided, That the seven (7) Commissioners shall be appointed specifically from each of the
following ethnographic areas, Region I and the Cordilleras; Region II, the rest of Luzon;
Island Groups including Mindoro, Palawan, Romblon, Panay and the rest of the Visayas;
Northern and Western Mindanao; Southern and Eastern Mindanao; and Central Mindanao:
Provided, That at least two (2) of the seven (7) Commissioners shall be women.

170 Section 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.

171Section 62. Resolution of Conflicts.- In cases of conflicting interest, where there are
adverse claims within the ancestral domains as delineated in the survey plan, and which can
not be resolved, the NCIP shall hear and decide, after notice to the proper parties, the
disputes arising from the delineation of such ancestral domains: Provided, That if the dispute
is between and/or among ICCs/IPs regarding the traditional boundaries of their respective
ancestral domains, customary process shall be followed. The NCIP shall promulgate the
necessary rules and regulations to carry out its adjudicatory functions: Provided, further, That
any decision, order, award or ruling of the NCIP on any ancestral domain dispute or on any
matter pertaining to the application, implementation, enforcement and interpretation of this
Act may be brought for Petition for Review to the Court of Appeals within fifteen (15) days
from receipt of a copy thereof.

172 Memorandum of Petitioners, Rollo ,pp. 873-874.

173Section 3 (f). Customary Laws - refer to a body of written and/or unwritten rules, usages,
customs and practices traditionally and continually recognized, accepted and observed by
respective ICCs/IPs;

xxx

Sec. 63. Applicable Laws. - Customary laws, traditions and practices of the ICCs/IPs
of the land where the conflict arises shall be applied first with respect to property
rights, claims and ownerships, hereditary succession and settlement of land
disputes. Any doubt or ambiguity in the application and interpretation of laws shall be
resolved in favor of the ICCs/IPs.

Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve ICCs/IPs,
174

customary laws and practices shall be used to resolve the dispute.

175 Memorandum of Petitioners, Rollo, pp.875-876.

176 R.A. 8371 states:

Sec. 65. Primacy of Customary Laws and Practices. - When disputes involve
ICCs/IPs, customary laws and practices shall be used to resolve the dispute.

177 See Secs. 62 and 63, R.A. 8371.

178 Sec. 65, R.A. 8371.

179 The Civil Code provides:

Article 12. A custom must be proved as a fact, according to the rules of evidence.

180 The Civil Code provides:

Article 11. Customs which are contrary to law, public order or public policy shall not
be countenanced.180

181 R.A. No. 7160 reads:

Sec. 399. Lupong Tagapamayapa. –

xxx

(f) In barangays where majority of the inhabitants are members of indigenous

peoples, local systems of settling disputes of indigenous peoples, local systems of
settling disputes through their councils of datus or elders shall be recognized without
prejudice to the applicable provisions of this Code.

182 Sec. 38, R.A. 8371.

183 Secs. 44 (a), (b), (c),(d), (f), (g), (h), (I), (j), (k), (l), (m), (n), (p), (q), R.A. 8371.

184 Sec. 44 (o), R.A. 8371.

185 Secs. 44 (e), 51-54, 62, R.A. 8371.

186 1 Am Jur 2d, Administrative Law, § 55.

187 Sec. 62, R.A. 8371.

188 Sec. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

189 Sec. 44 (f), R.A. 8371.

190 Sec. 44 (g), R.A, 8371.

191 Sec. 44 (j), R.A. 8371.

192 Sec. 44 (p), R.A. 8371.

193 Sec. 40, R.A. 8371.

194 Sec. 42, R.A. 8371.

195 Supra note 75.

196 R.A. 7076.

 197 R.A. 7942.

198 Section 56, R.A. 8371.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

MENDOZA, J.:

This suit was instituted to determine the constitutionality of certain provisions of R.A. No. 8371,
otherwise known as the Indigenous Peoples Rights Act. Petitioners do not complain of any injury as
a result of the application of the statute to them. They assert a right to seek an adjudication of
constitutional questions as citizens and taxpayers, upon the plea that the questions raised are of
"transcendental importance."

The judicial power vested in this Court by Art. VIII, §1 extends only to cases and controversies for
the determination of such proceedings as are established by law for the protection or enforcement of
rights, or the prevention, redress or punishment of wrongs.1 In this case, the purpose of the suit is
not to enforce a property right of petitioners against the government and other respondents or to
demand compensation for injuries suffered by them as a result of the enforcement of the law, but
only to settle what they believe to be the doubtful character of the law in question. Any judgment that
we render in this case will thus not conclude or bind real parties in the future, when actual litigation
will bring to the Court the question of the constitutionality of such legislation. Such judgment cannot
be executed as it amounts to no more than an expression of opinion upon the validity of the
provisions of the law in question.2

I do not conceive it to be the function of this Court under Art. VIII, §1 of the Constitution to determine
in the abstract whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the legislative and executive departments in enacting the IPRA.
Our jurisdiction is confined to cases or controversies. No one reading Art. VIII, §5 can fail to note
that, in enumerating the matters placed in the keeping of this Court, it uniformly begins with the
phrase "all cases. . . ."

The statement that the judicial power includes the duty to determine whether there has been a grave
abuse of discretion was inserted in Art. VIII, §1 not really to give the judiciary a roving commission to
right any wrong it perceives but to preclude courts from invoking the political question doctrine in
order to evade the decision of certain cases even where violations of civil liberties are alleged.

The statement is based on the ruling of the Court in Lansang v. Garcia,3 in which this Court, adopting
the submission of the Solicitor General, formulated the following test of its jurisdiction in such cases:

[J]udicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the
Court not that the President’s decision is correct and that public safety was endangered by the
rebellion and justified the suspension of the writ, but that in suspending the writ, the President did
not act arbitrarily.
That is why Art. VII, §18 now confers on any citizen standing to question the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus. It is noteworthy that Chief Justice
Roberto Concepcion, who chaired the Committee on the Judiciary of the Constitutional Commission,
was the author of the opinions of the Court in Lopez v. Roxas and Lansang v. Garcia.

Indeed, the judicial power cannot be extended to matters which do not involve actual cases or
controversies without upsetting the balance of power among the three branches of the government
and erecting, as it were, the judiciary, particularly the Supreme Court, as a third branch of Congress,
with power not only to invalidate statutes but even to rewrite them. Yet that is exactly what we would
be permitting in this case were we to assume jurisdiction and decide wholesale the constitutional
validity of the IPRA contrary to the established rule that a party can question the validity of a statute
only if, as applied to him, it is unconstitutional. Here the IPRA is sought to be declared void on its
face.

The only instance where a facial challenge to a statute is allowed is when it operates in the area of
freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the
validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to
others not before the Court whose activities are constitutionally protected. Invalidation of the statute
"on its face" rather than "as applied" is permitted in the interest of preventing a "chilling" effect on
freedom of expression. But in other cases, even if it is found that a provision of a statute is
unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far
inseparable from the rest of the statute that a declaration of partial invalidity is not possible.

For the Court to exercise its power of review when there is no case or controversy is not only to act
without jurisdiction but also to run the risk that, in adjudicating abstract or hypothetical questions, its
decision will be based on speculation rather than experience. Deprived of the opportunity to observe
the impact of the law, the Court is likely to equate questions of constitutionality with questions of
wisdom and is thus likely to intrude into the domain of legislation. Constitutional adjudication, it
cannot be too often repeated, cannot take place in a vacuum.

Some of the brethren contend that not deciding the constitutional issues raised by petitioners will be
a "galling cop out"4 or an "advocacy of timidity, let alone isolationism."5 To decline the exercise of
jurisdiction in this case is no more a "cop out" or a sign of "timidity" than it was for Chief Justice
Marshall in Marbury v. Madison6 to hold that petitioner had the right to the issuance of his
commission as justice of the peace of the District of Columbia only to declare in the end that after all
mandamus did not lie, because §13 of the Judiciary Act of 1789, which conferred original jurisdiction
on the United States Supreme Court to issue the writ of mandamus, was unconstitutional as the
court’s jurisdiction is mainly appellate.

Today Marbury v. Madison is remembered for the institution of the power of judicial review, and so
that there can be no doubt of this power of our Court, we in this country have enshrined its principle
in Art. VIII, §1. Now, the exercise of judicial review can result either in the invalidation of an act of
Congress or in upholding it. Hence, the checking and legitimating functions of judicial review so well
mentioned in the decisions7 of this Court.

To decline, therefore, the exercise of jurisdiction where there is no genuine controversy is not to
show timidity but respect for the judgment of a coequal department of government whose acts,
unless shown to be clearly repugnant to the fundamental law, are presumed to be valid. The polestar
of constitutional adjudication was set forth by Justice Laurel in the Angara case when he said that
"this power of judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question raised or the
very lis mota, presented."8 For the exercise of this power is legitimate only in the last resort, and as a
necessity in the determination of real, earnest, and vital controversy between individuals.9 Until,
therefore, an actual case is brought to test the constitutionality of the IPRA, the presumption of
constitutionality, which inheres in every statute, must be accorded to it.

Justice Kapunan, on the other hand, cites the statement in Severino v. Governor
General,10 reiterated in Tanada v. Tuvera,11 that "when the question is one of public right and the
object of mandamus to procure the enforcement of a public duty, the people are regarded as the real
party in interest, and the relator at whose instigation the proceedings are instituted need not show
that he has any legal or special interest in the result, it being sufficient that he is a citizen and as
such is interested in the execution of the laws." On the basis of this statement, he argues that
petitioners have standing to bring these proceedings.12

In Severino v. Governor General,13 the question was whether mandamus lay to compel the Governor
General to call a special election on the ground that it was his duty to do so. The ruling was that he
did not have such a duty. On the other hand, although mandamus was issued in Tanada v. Tuvera, it
was clear that petitioners had standing to bring the suit, because the public has a right to know and
the failure of respondents to publish all decrees and other presidential issuances in the Official
Gazette placed petitioners in danger of violating those decrees and issuances. But, in this case,
what public right is there for petitioners to enforce when the IPRA does not apply to them except in
general and in common with other citizens.

For the foregoing reasons I vote to dismiss the petition in this case.

Footnotes

1 Lopez v. Roxas, 17 SCRA 756, 761 (1966).

2 Muskrat v. United States, 279 U.S. 346, 55 L.Ed. 246 (1911).

3 42 SCRA 448, 481 (1971) (emphasis on the original).

4 Panganiban, J., Separate Opinion, p. 2.

5 Vitug, J., Separate Opinion, p. 1.

6 1 Cranch 137, 2 L.Ed. 60 (1803).

7Occeña v. Commission on Elections; Gonzales v. The National Treasurer, 104 SCRA 1

(1981); Mitra v. Commission on Elections, 104 SCRA 59 (1981).

8 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

9Philippine Association of Colleges and Universities v. Secretary of Education, 97 Phil. 806

(1955).

10 16 Phil. 366 (1913).

 11 136 SCRA 27 (1985).

12 Kapunan, J., Separate Opinion, pp. 21-23.

13 Supra note 10.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION
(Concurring and Dissenting)

PANGANIBAN, J.:

I concur with the draft ponencia of Mr. Justice Santiago M. Kapunan in its well-crafted handling of
the procedural or preliminary issues. In particular, I agree that petitioners have shown an actual case
or controversy involving at least two constitutional questions of transcendental importance,1 which
deserve judicious disposition on the merits directly by the highest court of the land.2 Further, I am
satisfied that the various aspects of this controversy have been fully presented and impressively
argued by the parties. Moreover, prohibition and mandamus are proper legal remedies3 to address
the problems raised by petitioners. In any event, this Court has given due course to the Petition,
heard oral arguments and required the submission of memoranda. Indeed, it would then be a galling
copout for us to dismiss it on mere technical or procedural grounds.

Protection of Indigenous Peoples’ Rights Must Be Within the Constitutional Framework

With due respect, however, I dissent from the ponencia’s resolution of the two main substantive
issues, which constitute the core of this case. Specifically, I submit that Republic Act (RA) No. 8371,
otherwise known as the Indigenous Peoples’ Rights Act (IPRA) of 1997, violates and contravenes
the Constitution of the Philippines insofar as -

1. It recognizes or, worse, grants rights of ownership over "lands of the public domain,
waters, x x x and other natural resources" which, under Section 2, Article XII of the
Constitution, "are owned by the State" and "shall not be alienated." I respectfully reject the
contention that "ancestral lands and ancestral domains are not public lands and have never
been owned by the State." Such sweeping statement places substantial portions of
Philippine territory outside the scope of the Philippine Constitution and beyond the collective
reach of the Filipino people. As will be discussed later, these real properties constitute a third
of the entire Philippine territory; and the resources, 80 percent of the nation's natural wealth.

2. It defeats, dilutes or lessens the authority of the State to oversee the "exploration,
development, and utilization of natural resources," which the Constitution expressly requires
to "be under the full control and supervision of the State."

True, our fundamental law mandates the protection of the indigenous cultural communities’ right to
their ancestral lands, but such mandate is "subject to the provisions of this Constitution."4 I concede
that indigenous cultural communities and indigenous peoples (ICCs/IPs) may be accorded
preferential rights to the beneficial use of public domains, as well as priority in the exploration,
development and utilization of natural resources. Such privileges, however, must be subject to the
fundamental law.

Consistent with the social justice principle of giving more in law to those who have less in life,
Congress in its wisdom may grant preferences and prerogatives to our marginalized brothers and
sisters, subject to the irreducible caveat that the Constitution must be respected. I personally believe
in according every benefit to the poor, the oppressed and the disadvantaged, in order to empower
them to equally enjoy the blessings of nationhood. I cannot, however, agree to legitimize perpetual
inequality of access to the nation's wealth or to stamp the Court's imprimatur on a law that offends
and degrades the repository of the very authority of this Court - the Constitution of the Philippines.

The Constitution Is a Compact

My basic premise is that the Constitution is the fundamental law of the land, to which all other laws
must conform.5 It is the people's quintessential act of sovereignty, embodying the principles upon
which the State and the government are founded.6 Having the status of a supreme and all-
encompassing law, it speaks for all the people all the time, not just for the majority or for the minority
at intermittent times. Every constitution is a compact made by and among the citizens of a State to
govern themselves in a certain manner.7 Truly, the Philippine Constitution is a solemn covenant
made by all the Filipinos to govern themselves. No group, however blessed, and no sector, however
distressed, is exempt from its compass.

RA 8371, which defines the rights of indigenous cultural communities and indigenous peoples,
admittedly professes a laudable intent. It was primarily enacted pursuant to the state policy
enshrined in our Constitution to "recognize and promote the rights of indigenous cultural
communities within the framework of national unity and development."8Though laudable and well-
meaning, this statute, however, has provisions that run directly afoul of our fundamental law from
which it claims origin and authority. More specifically, Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and
other related provisions contravene the Regalian Doctrine - the basic foundation of the State's
property regime.

Public Domains and Natural Resources Are Owned by the State and Cannot Be Alienated or Ceded

Jura regalia was introduced into our political system upon the "discovery" and the "conquest" of our
country in the sixteenth century. Under this concept, the entire earthly territory known as the
Philippine Islands was acquired and held by the Crown of Spain. The King, as then head of State,
had the supreme power or exclusive dominion over all our lands, waters, minerals and other natural
resources. By royal decrees, though, private ownership of real property was recognized upon the
showing of (1) a title deed; or (2) ancient possession in the concept of owner, according to which a
title could be obtained by prescription.9 Refusal to abide by the system and its implementing laws
meant the abandonment or waiver of ownership claims.

By virtue of the 1898 Treaty of Paris, the Philippine archipelago was ceded to the United States. The
latter assumed administration of the Philippines and succeeded to the property rights of the Spanish
Crown. But under the Philippine Bill of 1902, the US Government allowed and granted patents to
Filipino and US citizens for the "free and open x x x exploration, occupation and purchase [of mines]
and the land in which they are found."10 To a certain extent, private individuals were entitled to own,
exploit and dispose of mineral resources and other rights arising from mining patents.

This US policy was, however, rejected by the Philippine Commonwealth in 1935 when it crafted and
ratified our first Constitution. Instead, the said Constitution embodied the Regalian Doctrine, which
more definitively declared as belonging to the State all lands of the public domain, waters, minerals
and other natural resources.11 Although respecting mining patentees under the Philippine Bill of
1902, it restricted the further exploration, development and utilization of natural resources, both as to
who might be entitled to undertake such activities and for how long. The pertinent provision reads:

"SECTION 1 [Art. XIII]. All agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their disposition, exploitation, development, or
utilization shall be limited to citizens of the Philippines, or to corporations or associations at least
sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant,
lease, or concession at the time of the inauguration of the Government established under this
Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated,
and license, concession, or lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, in which cases beneficial use may be the measure and the
limit of the grant."

The concept was carried over in the 1973 and the 1987 Constitutions. Hence, Sections 8 and 9,
Article XIV of the 1973 Constitution, state:

"SEC. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to
the State. With the exception of agricultural, industrial or commercial, residential, and resettlement
lands of the public domain, natural resources shall not be alienated and no license, concession, or
lease for the exploration, development, exploitation, utilization of any of the natural resources shall
be granted for a period exceeding twenty-five years, renewable for not more than twenty-five years,
except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit of the
grant.

SEC. 9. The disposition, exploration, development, exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens. The National
Assembly, in the national interest, may allow such citizens, corporations, or associations to enter into
service contracts for financial, technical, management, or other forms of assistance with any foreign
person or entity for the exploration, development, exploitation, or utilization of any of the natural
resources. Existing valid and binding service contracts for financial, technical, management, or other
forms of assistance are hereby recognized as such."

Similarly, Section 2, Article XII of the 1987 Constitution, provides:

"SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizen, or corporations or associations at least sixty per centum of whose capital is owned by
such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for
not more than twenty-five years, and under such terms and conditions as may be provided by law. In
cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
"The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

"The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish workers in rivers,
lakes, bays and lagoons.

"The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.

"The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution."

The adoption of the Regalian Doctrine by the Philippine Commonwealth was initially impelled by the
desire to preserve the nation's wealth in the hands of the Filipinos themselves. Nationalism was
fervent at the time, and our constitutional framers decided to embody the doctrine in our fundamental
law. Charging the State with the conservation of the national patrimony was deemed necessary for
Filipino posterity. The arguments in support of the provision are encapsulated by Aruego as follows:
"[T]he natural resources, particularly the mineral resources which constituted a great source of
wealth, belonged not only to the generation then but also to the succeeding generation and
consequently should be conserved for them."12

Thus, after expressly declaring that all lands of the public domain, waters, minerals, all forces of
energy and other natural resources belonged to the Philippine State, the Commonwealth absolutely
prohibited the alienation of these natural resources. Their disposition, exploitation, development and
utilization were further restricted only to Filipino citizens and entities that were 60 percent Filipino-
owned. The present Constitution even goes further by declaring that such activities "shall be under
the full control and supervision of the State." Additionally, it enumerates land classifications and
expressly states that only agricultural lands of the public domain shall be alienable. We quote below
the relevant provision:13

"SEC. 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands,
and national parks. Agricultural lands of the public domain may be further classified by law according
to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to
agricultural lands. Private corporations or associations may not hold such alienable lands of the
public domain except by lease, for a period not exceeding twenty-five years, renewable for not more
than twenty-five years, and not to exceed one thousand hectares in area. x x x."

Mr. Justice Kapunan upholds private respondents and intervenors in their claim that all ancestral
domains and lands are outside the coverage of public domain; and that these properties - including
forests, bodies of water, minerals and parks found therein - are private and have never been part of
the public domain, because they have belonged to the indigenous people’s ancestors since time
immemorial.

I submit, however, that all Filipinos, whether indigenous or not, are subject to the Constitution.
Indeed, no one is exempt from its all-encompassing provisions. Unlike the 1935 Charter, which was
subject to "any existing right, grant, lease or concession," the 1973 and the 1987 Constitutions spoke
in absolute terms. Because of the State’s implementation of policies considered to be for the
common good, all those concerned have to give up, under certain conditions, even vested rights of
ownership.

In Republic v. Court of Appeals,14 this Court said that once minerals are found even in private land,
the State may intervene to enable it to extract the minerals in the exercise of its sovereign
prerogative. The land is converted into mineral land and may not be used by any private person,
including the registered owner, for any other purpose that would impede the mining operations. Such
owner would be entitled to just compensation for the loss sustained.

In Atok Big-Wedge Mining Company v. IAC,15 the Court clarified that while mining claim holders and
patentees have the exclusive right to the possession and enjoyment of the located claim, their rights
are not absolute or strictly one of ownership. Thus, failure to comply with the requirements of
pertinent mining laws was deemed an abandonment or a waiver of the claim.

Verily, as petitioners undauntedly point out, four hundred years of Philippine political history cannot
be set aside or ignored by IPRA, however well-intentioned it may be. The perceived lack of
understanding of the cultural minorities cannot be remedied by conceding the nation’s resources to
their exclusive advantage. They cannot be more privileged simply because they have chosen to
ignore state laws. For having chosen not to be enfolded by statutes on perfecting land titles,
ICCs/IPs cannot now maintain their ownership of lands and domains by insisting on their concept of
"native title" thereto. It would be plain injustice to the majority of Filipinos who have abided by the law
and, consequently, deserve equal opportunity to enjoy the country’s resources.

Respondent NCIP claims that IPRA does not violate the Constitution, because it does not grant
ownership of public domains and natural resources to ICCs/IPs. "Rather, it recognizes and
mandates respect for the rights of indigenous peoples over their ancestral lands and domains that
had never been lands of the public domain."16 I say, however, that such claim finds no legal support.
Nowhere in the Constitution is there a provision that exempts such lands and domains from its
coverage. Quite the contrary, it declares that all lands of the public domain and natural resources
"are owned by the State"; and "with the exception of agricultural lands, all other natural resources
shall not be alienated."

As early as Oh Cho v. Director of Lands,17 the Court declared as belonging to the public domain all
lands not acquired from the government, either by purchase or by grant under laws, orders or
decrees promulgated by the Spanish government; or by possessory information under Act 496
(Mortgage Law).

On the other hand, Intervenors Flavier et al.18 differentiate the concept of ownership of ICCs/IPs from
that which is defined in Articles 427 and 428 of the Civil Code. They maintain that "[t]here are
variations among ethnolinguistic groups in the Cordillera, but a fair synthesis of these refers to ‘x x x
the tribal right to use the land or to territorial control x x x, a collective right to freely use the particular
territory x x x [in] the concept of trusteeship.'"

In other words, the "owner" is not an individual. Rather, it is a tribal community that preserves the
property for the common but nonetheless exclusive and perpetual benefit of its members, without the
attributes of alienation or disposition. This concept, however, still perpetually withdraws such
property from the control of the State and from its enjoyment by other citizens of the Republic. The
perpetual and exclusive character of private respondents’ claims simply makes them repugnant to
basic fairness and equality.

Private respondents and intervenors trace their "ownership" of ancestral domains and lands to the
pre-Spanish conquest. I should say that, at the time, their claims to such lands and domains was
limited to the surfaces thereof since their ancestors were agriculture-based. This must be the
continuing scope of the indigenous groups’ ownership claims: limited to land, excluding the natural
resources found within.

In any event, if all that the ICCs/IPs demand is preferential use - not ownership - of ancestral
domains, then I have no disagreement. Indeed, consistent with the Constitution is IPRA’s Section
5719- without the too-broad definitions under Section 3 (a) and (b) - insofar as it grants them priority
rights in harvesting, extracting, developing or exploiting natural resources within ancestral domains.

The concerted effort to malign the Regalian Doctrine as a vestige of the colonial past must fail. Our
Constitution vests the ownership of natural resources, not in colonial masters, but in all the Filipino
people. As the protector of the Constitution, this Court has the sworn duty to uphold the tenets of
that Constitution - not to dilute, circumvent or create exceptions to them.

Cariño v. Insular Government Was Modified by the Constitution

In this connection, I submit that Cariño v. Insular Government20 has been modified or superseded by
our 1935, 1973 and 1987 Constitutions. Its ratio should be understood as referring only to a means
by which public agricultural land may be acquired by citizens. I must also stress that the claim of
Petitioner Cariño refers to land ownership only, not to the natural resources underneath or to the
aerial and cosmic space above.

Significantly, in Director of Land Management v. Court of Appeals,21 a Decision handed down after
our three Constitutions had taken effect, the Court rejected a cultural minority member's registration
of land under CA 141, Section 48 (c).22 The reason was that the property fell within the Central
Cordillera Forest Reserve. This Court quoted with favor the solicitor general’s following statements:

"3. The construction given by respondent Court of Appeals to the particular provision of law involved,
as to include even forest reserves as susceptible to private appropriation, is to unconstitutionally
apply such provision. For, both the 1973 and present Constitutions do not include timber or forest
lands as alienable. Thus, Section 8, Article XIV of 1973 Constitution states that ‘with the exception of
agricultural, industrial or commercial, residential and resettlement lands of the public domain, natural
resources shall not be alienated.’ The new Constitution, in its Article XII, Section 2, also expressly
states that ‘with the exception of agricultural lands, all other natural resources shall not be
alienated’."

Just recently, in Gordula v. Court of Appeals,23 the Court also stated that "forest land is incapable of
registration, and its inclusion in a title nullifies that title. To be sure, the defense of indefeasiblity of a
certificate of title issued pursuant to a free patent does not lie against the state in an action for
reversion of the land covered thereby when such land is a part of a public forest or of a forest
reservation, the patent covering forest land being void ab initio."

RA 8371 Violates the Inalienability of Natural Resources and of Public Domains

The ponencia theorizes that RA 8371 does not grant to ICCs/IPs ownership of the natural resources
found within ancestral domains. However, a simple reading of the very wordings of the law belies
this statement.

Section 3 (a)24 defines and delineates ancestral domains as "all areas generally belonging to
ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a
claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors,
communally or individually since time immemorial, continuously to the present except when
interrupted by war, force majeure or displacement x x x. It shall include ancestral lands, forests,
pasture, residential, agricultural, and other lands individually owned whether alienable and
disposable or otherwise, hunting grounds x x x bodies of water, mineral and other natural
resources x x x." (Emphasis ours.)

Clearly, under the above-quoted provision of IPRA, ancestral domains of ICCs/IPs encompass the
natural resources found therein. And Section 7 guarantees recognition and protection of
their rights of ownership and possession over such domains.

The indigenous concept of ownership, as defined under Section 5 of the law, "holds that ancestral
domains are the ICC’s/IP’s private but community property which belongs to all generations and
therefore cannot be sold, disposed or destroyed." Simply put, the law declares that ancestral
domains, including the natural resources found therein, are owned by ICCs/IPs and cannot be sold,
disposed or destroyed. Not only does it vest ownership, as understood under the Civil Code; it adds
perpetual exclusivity. This means that while ICCs/IPs could own vast ancestral domains, the majority
of Filipinos who are not indigenous can never own any part thereof.

On the other hand, Section 3 (b)25 of IPRA defines ancestral lands as referring to "lands occupied,
possessed and utilized by individuals, families and clans of the ICCs/IPs since time immemorial x x
x, under claims of individual or traditional group ownership, x x x including, but not limited to,
residential lots, rice terraces or paddies, private forests, swidden farms and tree lots." Section 8
recognizes and protects "the right of ownership and possession of ICCs/IPs to their ancestral lands."
Such ownership need not be by virtue of a certificate of title, but simply by possession since time
immemorial.

I believe these statutory provisions directly contravene Section 2, Article XII of the Constitution, more
specifically the declaration that the State owns all lands of the public domain, minerals and natural
resources – none of which, except agricultural lands, can be alienated. In several cases, this Court
has consistently held that non-agricultural land must first be reclassified and converted into alienable
or disposable land for agricultural purposes by a positive act of the government.26 Mere possession
or utilization thereof, however long, does not automatically convert them into private
properties.27 The presumption is that "all lands not appearing to be clearly within private ownership
are presumed to belong to the State. Hence, x x x all applicants in land registration proceedings
have the burden of overcoming the presumption that the land thus sought to be registered forms part
of the public domain. Unless the applicant succeeds in showing by clear and convincing evidence
that the property involved was acquired by him or his ancestors either by composition title from the
Spanish Government or by possessory information title, or any other means for the proper
acquisition of public lands, the property must be held to be part of the public domain. The applicant
must present competent and persuasive proof to substantiate his claim; he may not rely on general
statements, or mere conclusions of law other than factual evidence of possession and title."28

Respondents insist, and the ponencia agrees, that paragraphs (a) and (b) of Sections 3 are merely
definitions and should not be construed independently of the other provisions of the law. But,
precisely, a definition is "a statement of the meaning of a word or word group."29 It determines or
settles the nature of the thing or person defined.30Thus, after defining a term as encompassing
several items, one cannot thereafter say that the same term should be interpreted as excluding one
or more of the enumerated items in its definition. For that would be misleading the people who would
be bound by the law. In other words, since RA 8371 defines ancestral domains as including the
natural resources found therein and further states that ICCs/IPs own these ancestral domains, then
it means that ICCs/IPs can own natural resources.
In fact, Intervenors Flavier et al. submit that everything above and below these ancestral domains,
with no specific limits, likewise belongs to ICCs/IPs. I say that this theory directly contravenes the
Constitution. Such outlandish contention further disregards international law which, by constitutional
fiat, has been adopted as part of the law of the land.31

No Land Area Limits Are Specified by RA 8371

Under Section 3, Article XII of the Constitution, Filipino citizens may acquire no more than 12
hectares of alienable public land, whether by purchase, homestead or grant. More than that, but not
exceeding 500 hectares, they may hold by lease only.

RA 8371, however, speaks of no area or term limits to ancestral lands and domains. In fact, by their
mere definitions, they could cover vast tracts of the nation's territory. The properties under the
assailed law cover everything held, occupied or possessed "by themselves or through their
ancestors, communally or individually since time immemorial." It also includes all "lands which may
no longer be exclusively occupied by [them] but from which they traditionally had access to for their
subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators."

Nomadic groups have no fixed area within which they hunt or forage for food. As soon as they have
used up the resources of a certain area, they move to another place or go back to one they used to
occupy. From year to year, a growing tribe could occupy and use enormous areas, to which they
could claim to have had "traditional access." If nomadic ICCs/IPs succeed in acquiring title to their
enlarging ancestral domain or land, several thousands of hectares of land may yet be additionally
delineated as their private property.

Similarly, the Bangsa Moro people's claim to their ancestral land is not based on compounded or
consolidated title, but "on a collective stake to the right to claim what their forefathers secured for
them when they first set foot on our country."32 They trace their right to occupy what they deem to be
their ancestral land way back to their ancient sultans and datus, who had settled in many islands that
have become part of Mindanao. This long history of occupation is the basis of their claim to their
ancestral lands.33

Already, as of June 1998, over 2.5 million hectares have been claimed by various ICCs/IPs as
ancestral domains; and over 10 thousand hectares, as ancestral lands.34 Based on ethnographic
surveys, the solicitor general estimates that ancestral domains cover 80 percent of our mineral
resources and between 8 and 10 million of the 30 million hectares of land in the country.35 This
means that four fifths of its natural resources and one third of the country's land will be concentrated
among 12 million Filipinos constituting 110 ICCs,36 while over 60 million other Filipinos constituting
the overwhelming majority will have to share the remaining. These figures indicate a violation of the
constitutional principle of a "more equitable distribution of opportunities, income, and wealth" among
Filipinos.

RA 8371 Abdicates the State Duty to Take Full Control and Supervision of Natural Resources

Section 2, Article XII of the Constitution, further provides that "[t]he exploration, development, and
utilization of natural resources shall be under the full control and supervision of the State." The State
may (1) directly undertake such activities; or (2) enter into co-production, joint venture or production-
sharing agreements with Filipino citizens or entities, 60 percent of whose capital is owned by
Filipinos.37 Such agreements, however, shall not exceed 25 years, renewable for the same period
and under terms and conditions as may be provided by law.
But again, RA 8371 relinquishes this constitutional power of full control in favor of ICCs/IPs, insofar
as natural resources found within their territories are concerned. Pursuant to their rights of
ownership and possession, they may develop and manage the natural resources, benefit from and
share in the profits from the allocation and the utilization thereof.38 And they may exercise such right
without any time limit, unlike non-ICCs/IPs who may do so only for a period not exceeding 25 years,
renewable for a like period.39 Consistent with the Constitution, the rights of ICCs/IPs to exploit,
develop and utilize natural resources must also be limited to such period.

In addition, ICCs/IPs are given the right to negotiate directly the terms and conditions for the
exploration of natural resources,40 a right vested by the Constitution only in the State. Congress,
through IPRA, has in effect abdicated in favor of a minority group the State's power of ownership and
full control over a substantial part of the national patrimony, in contravention of our most
fundamental law.

I make clear, however, that to the extent that ICCs/IPs may undertake small-scale utilization of
natural resources and cooperative fish farming, I absolutely have no objection. These undertakings
are certainly allowed under the third paragraph of Section 2, Article XII of the Constitution.

Having already disposed of the two major constitutional dilemmas wrought by RA 8371 – (1)
ownership of ancestral lands and domains and the natural resources therein; and (2) the ICCs/IPs'
control of the exploration, development and utilization of such resources – I believe I should no
longer tackle the following collateral issues petitioners have brought up:

1. Whether the inclusion of private lands within the coverage of ancestral domains amounts
to undue deprivation of private property

2. Whether ICCs/IPs may regulate the entry/exit of migrants

3. Whether ancestral domains are exempt from real property taxes, special levies and other
forms of exaction

4. Whether customary laws and traditions of ICCs/IPs should first be applied in the
settlements of disputes over their rights and claims

5. Whether the composition and the jurisdiction of the National Commission of Indigenous
Peoples (NCIP) violate the due process and equal protection clauses

6. Whether members of the ICCs/IPs may be recruited into the armed forces against their will

I believe that the first three of the above collateral issues have been rendered academic or, at least,
no longer of "transcendental importance," in view of my contention that the two major IPRA
propositions are based on unconstitutional premises. On the other hand, I think that in the case of
the last three, it is best to await specific cases filed by those whose rights may have been injured by
specific provisions of RA 8371.

Epilogue

Section 5, Article XII of the Constitution, provides:

"SEC. 5. The State, subject to the provisions of this Constitution and national development policies
and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to
ensure their economic, social, and cultural well being.

"The Congress may provide for the applicability of customary laws governing property rights and
relations in determining the ownership and extent of ancestral domain."

Clearly, there are two parameters that must be observed in the protection of the rights of ICCs/IPs:
(1) the provisions of the 1987 Constitution and (2) national development policies and programs.

Indigenous peoples may have long been marginalized in Philippine politics and society. This does
not, however, give Congress any license to accord them rights that the Constitution withholds from
the rest of the Filipino people. I would concede giving them priority in the use, the enjoyment and the
preservation of their ancestral lands and domains.41 But to grant perpetual ownership and control of
the nation's substantial wealth to them, to the exclusion of other Filipino citizens who have chosen to
live and abide by our previous and present Constitutions, would be not only unjust but also
subversive of the rule of law.

In giving ICCs/IPs rights in derogation of our fundamental law, Congress is effectively mandating
"reverse discrimination." In seeking to improve their lot, it would be doing so at the expense of the
majority of the Filipino people. Such short-sighted and misplaced generosity will spread the roots of
discontent and, in the long term, fan the fires of turmoil to a conflagration of national proportions.

Peace cannot be attained by brazenly and permanently depriving the many in order to coddle the
few, however disadvantaged they may have been. Neither can a just society be approximated by
maiming the healthy to place them at par with the injured. Nor can the nation survive by enclaving its
wealth for the exclusive benefit of favored minorities.

Rather, the law must help the powerless by enabling them to take advantage of opportunities and
privileges that are open to all and by preventing the powerful from exploiting and oppressing them.
This is the essence of social justice – empowering and enabling the poor to be able to compete with
the rich and, thus, equally enjoy the blessings of prosperity, freedom and dignity.

WHEREFORE, I vote to partially GRANT the Petition and

to DECLARE as UNCONSTITUTIONAL Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and related
provisions of RA 8371.

Footnotes

1Kilosbayan v. Morato, 250 SCRA 130, 140, November 16, 1995; Association of Small
Landowners v. Secretary of Agrarian Reform, 175 SCRA 343, 365, July 14, 1989; Antonio v.
Dinglasan, 84 Phil 368 (1949).

2Tañada v. Angara, 272 SCRA 18, 46, May 2, 1997; Santiago v. Comelec, 270 SCRA 106,
123-24, March 19, 1997; Basco v. PAGCOR, 197 SCRA 52, 60, May 14, 1991.

3 Tanada v. Angara, ibid.

4 §5, Art. XII, 1987 Constitution.

5 16 CJS §3.

6 16 Am Jur 2d §2.

7 Ibid.

8 §22, Art. II of the Constitution.

9 Abaoag v. Director of Lands, 45 Phil 518 (1923), cited in petitioners' Memorandum.

10Soledad M. Cagampang-de Castro, "The Economic Policies on Natural Resources Under

the 1987 Constitution Revisited," Journal of the Integrated Bar of the Philippines, Vol. XXV,
Nos. 3 & 4 (1999), p. 51.

11In a republican system of government, the concept of jura regalia is stripped of royal
overtones; ownership is vested in the State, instead. (Joaquin G. Bernas, SJ, The
Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 1009-1010.)

12II Aruego, The Framing of the Philippine Constitution 603, quoted in Bernas, supra, p.
1010.

13 §3, Art. XII, 1987 Constitution.

14 160 SCRA 228, 239, April 15, 1988.

15 261 SCRA 528, September 9, 1996.

16 NCIP’s Memorandum, p. 24.

17 75 Phil 890, 892, August 31, 1946.

18
Intervenors’ Memorandum, pp. 33 et seq.

19 "SEC. 57. Natural Resources within Ancestral Domains. – The ICCs/IPs shall have priority
rights in the harvesting, extraction, development or exploitation of any natural resources
within the ancestral domains. x x x."

20 41 Phil 935, February 23, 1909.

21 172 SCRA 455, 463, April 18, 1989, per Gutierrez Jr., J.

22"(c) Members of the national cultural minorities who by themselves or through their
predecessors-in-interest have been in open, continuous, exclusive and notorious possession
and occupation of lands of the public domain suitable to agriculture, whether disposable or
not, under a bona fide claim of ownership for at least 30 years shall be entitled to the rights
granted in subsection (b) hereof. (As amended by R.A. No. 3872, section 1, approved June
18, 1964)."
23 284 SCRA 617, 633, January 22, 1998, per Puno, J.

24"a) Ancestral Domains - Subject to Section 56 hereof, refers to all areas generally
belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources
therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves
or through their ancestors, communally or individually since time immemorial, continuously to
the present except when interrupted by war, force majeureor displacement by force, deceit,
stealth or as a consequence of government projects or any other voluntary dealings entered
into by government and private individuals/corporations, and which are necessary to ensure
their economic, social and cultural welfare. It shall include ancestral lands 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."

25 "b) Ancestral Lands - Subject to Section 56 hereof, refers to lands occupied, possessed
and utilized by individuals, families and clans who are members of the ICCs/IPs since time
immemorial, by themselves or through their predecessors-in-interest, under claims of
individual or traditional group ownership, continuously, to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth, or as a
consequence of government projects and other voluntary dealings entered into by
government and private individuals/corporations, including, but not limited to, residential lots,
rice terraces or paddies, private forests, swidden farms and tree lots."

26Director of Lands and Director of Forest Development v. Intermediate Appellate

Court, March 2, 1993;Director of Lands v. Aquino, 192 SCRA 296, December 17,
1990; Sunbeam Convenience Foods, Inc. v. Court of Appeals, January 29, 1990.

27Ibid., Margolles v. Court of Appeals, February 14, 1994; Gordula v. Court of Appeals,
supra.

28Republic v. Sayo, October 31, 1990, per Narvasa, J. (later CJ). See also Republic v. Court
of Appeals,supra.

29 Webster’s Third New International Dictionary; Petitioners’ Memorandum, p. 41.

30 Ibid.

31 §2, Art. II of the Constitution.

32Cecilio R. Laurente, "The King's Hand: The Regalian Doctrine as a Contributing Factor in
the Mindanao Conflict," Human Rights Agenda, Vol. 5, Issue No. 7, July & August 2000, pp.
6-7.

33 Ibid.

34 Solicitor General's Memorandum, p. 3; rollo, p. 651.

35 Ibid., pp. 4-5.

36Ibid. See also Datu Vic Saway, "Indigenous Peoples and the Uplands: A
Situationer," Proceedings of the 6th Upland NGO Consultative Conference, 23-27 August
1998, p. 30.

37Or (3) in case of large-scale exploration, development and utilization of minerals, enter –
through the President – into "agreements with foreign-owned corporations involving either
technical or financial assistance." (Miners Association of the Philippines v. Factoran Jr., 240
SCRA 100, January 16, 1995.)

38 §7(b), RA 7381.

39 §57, ibid.

40 §7(b), ibid.

41 As stated earlier, Sec. 57 of IPRA, insofar as it grants them such priority, is constitutional.
 Supreme Court of the Philippines

335 Phil. 537

FIRST DIVISION
G.R. No. 68166, February 12, 1997
HEIRS OF EMILIANO NAVARRO, PETITIONER, VS.
INTERMEDIATE APPELLATE COURT AND HEIRS OF
SINFOROSO PASCUAL, RESPONDENTS.
DECISION
HERMOSISIMA, JR., J.:
Unique is the legal question visited upon the claim of an applicant in a Land
Registration case by oppositors thereto, the Government and a Government
lessee, involving as it does ownership of land formed by alluvium.

The applicant owns the property immediately adjoining the land sought to be
registered. His registered property is bounded on the east by the Talisay River, on
the west by the Bulacan River, and on the north by the Manila Bay. The Talisay
River and the Bulacan River flow down towards the Manila Bay and act as
boundaries of the applicant's registered land on the east and on the west.

The land sought to be registered was formed at the northern tip of the applicant's
land. Applicant's registered property is bounded on the north by the Manila Bay.

The issue: May the land sought to be registered be deemed an accretion in the
sense that it naturally accrues in favor of the riparian owner or should the land be
considered as foreshore land?

Before us is a petition for review of: (1) the decision[1] and (2) two subsequent
resolutions[2] of the Intermediate Appellate Court[3] (now the Court of Appeals)
in Land Registration Case No. N-84,[4] the application over which was filed by
private respondents' predecessor-in-interest, Sinforoso Pascual, now deceased,
before the Court of First Instance[5] (now the Regional Trial Court) of Balanga,
Bataan.

There is no dispute as to the following facts:

On October 3, 1946, Sinforoso Pascual, now deceased, filed an application for

foreshore lease covering a tract of foreshore land in Sibocon, Balanga, Bataan,
having an area of approximately seventeen (17) hectares. This application was
denied on January 15, 1953. So was his motion for reconsideration.

Subsequently, petitioners' predecessor-in-interest, also now deceased, Emiliano

Navarro, filed a fishpond application with the Bureau of Fisheries covering twenty
five (25) hectares of foreshore land also in Sibocon, Balanga, Bataan. Initially,
such application was denied by the Director of Fisheries on the ground that the
property formed part of the public domain. Upon motion for reconsideration, the
Director of Fisheries, on May 27, 1988, gave due course to his application but
only to the extent of seven (7) hectares of the property as may be certified by the
Bureau of Forestry as suitable for fishpond purposes.

The Municipal Council of Balanga, Bataan, had opposed Emiliano Navarro's

application. Aggrieved by the decision of the Director of Fisheries, it appealed to
the Secretary of Natural Resources who, however, affirmed the grant. The then
Executive Secretary, acting in behalf of the President of the Philippines, similarly
affirmed the grant.

On the other hand, sometime in the early part of 1960, Sinforoso Pascual filed an
application to register and confirm his title to a parcel of land, situated in Sibocon,
Balanga, Bataan, described in Plan Psu-175181 and said to have an area of 146,611
square meters. Pascual claimed that this land is an accretion to his property,
situated in Barrio Puerto Rivas, Balanga, Bataan, and covered by Original
Certificate of Title No. 6830. It is bounded on the eastern side by the Talisay
River, on the western side by the Bulacan River, and on the northern side by the
Manila Bay. The Talisay River as well as the Bulacan River flow downstream and
meet at the Manila Bay thereby depositing sand and silt on Pascual's property
resulting in an accretion thereon. Sinforoso Pascual claimed the accretion as the
riparian owner.
On March 25, 1960, the Director of Lands, represented by the Assistant Solicitor
General, filed an opposition thereto stating that neither Pascual nor his
predecessors-in-interest possessed sufficient title to the subject property, the same
being a portion of the public domain and, therefore, it belongs to the Republic of
the Philippines. The Director of Forestry, through the Provincial Fiscal, similarly
opposed Pascual's application for the same reason as that advanced by the
Director of Lands. Later on, however, the Director of Lands withdrew his
opposition. The Director of Forestry become the sole oppositor.

On June 2, 1960, the court a quo issued an order of general default excepting the
Director of Lands and the Director of Forestry.

Upon motion of Emiliano Navarro, however, the order of general default was
lifted and, on February 13, 1961, Navarro thereupon filed an opposition to
Pascual's application. Navarro claimed that the land sought to be registered has
always been part of the public domain, it being a part of the foreshore of Manila
Bay; that he was a lessee and in possession of a part of the subject property by
virtue of a fishpond permit issued by the Bureau of Fisheries and confirmed by
the Office of the President; and that he had already converted the area covered
by the lease into a fishpond.

During the pendency of the land registration case, that is, on November 6, 1960,
Sinforoso Pascual filed a complaint for ejectment against Emiliano Navarro, one
Marcelo Lopez and their privies, alleged by Pascual to have unlawfully claimed
and possessed, through stealth, force and strategy, a portion of the subject
property covered by Plan Psu-175181. The defendants in the case were alleged to
have built a provisional dike thereon: thus they have thereby deprived Pascual of
the premises sought to be registered. This, notwithstanding repeated demands for
defendants to vacate the property.

The case was decided adversely against Pascual. Thus, Pascual appealed to the
Court of First Instance (now Regional Trial Court) of Balanga, Bataan, the appeal
having been docketed as Civil Case No. 2873. Because of the similarity of the
parties and the subject matter, the appealed case for ejectment was consolidated
with the land registration case and was jointly tried by the court a quo.

During the pendency of the trial of the consolidated cases, Emiliano Navarro died
on November 1, 1961 and was substituted by his heirs, the herein petitioners.

Subsequently, on August 26, 1962, Pascual died and was substituted by his heirs,
the herein private respondents.

On November 10, 1975, the court a quo rendered judgment finding the subject
property to be foreshore land and, being a part of the public domain, it cannot be
the subject of land registration proceedings.
The decision's dispositive portion reads:

"WHEREFORE, judgment is rendered:

(1) Dismissing plaintiff [private respondent] Sinforoso Pascual's complaint for

ejectment in Civil Case No. 2873;

(2) Denying the application of Sinforoso Pascual for land registration over the
land in question; and

(3) Directing said Sinforoso Pascual, through his heirs, as plaintiff in Civil Case
No. 2873 and as applicant in Land Registration Case No. N-84 to pay costs in
both instances."[6]

The heirs of Pascual appealed and, before the respondent appellate court,
assigned the following errors:
"1. The lower court erred in not finding the land in question as an accretion by
the action of the Talisay and Bulacan Rivers to the land admittedly owned by
applicants-appellants [private respondents].

2. The lower court erred in holding that the land in question is foreshore land.

3. The lower court erred in not ordering the registration of the and is controversy
in favor of applicants-appellants [private respondents].

4. The lower court erred in not finding that the applicants-appellants [private
respondents] are entitled to eject the oppositor-appellee [petitioners]."[7]
On appeal, the respondent court reversed the findings of the court a quo and
granted the petition for registration of the subject property but excluding
therefrom fifty (50) meters from corner 2 towards corner 1; and fifty meters (50)
meters from corner 5 towards corner 6 of the Psu-175181.

The respondent appellate court explained the reversal in this wise:

"The paramount issue to be resolved in this appeal as set forth by the parties in
their respective briefs is — whether or not the land sought to be registered is
accretion or foreshore land, or, whether or not said land was formed by the action
of the two rivers of Talisay and Bulacan or by the action of the Manila Bay. If
formed by the action of the Talisay and Bulacan rivers, the subject land is
accretion but if formed by the action of the Manila Bay then it is foreshore land.

xxx

It is undisputed that applicants-appellants [private respondents] owned the land

immediately adjoining the land sought to be registered. Their property which is
covered by OCT No. 6830 is bounded on the east by the Talisay River, on the
west by the Bulacan River, and on the north by the Manila Bay. The Talisay and
Bulacan rivers come from inland flowing downstream towards the Manila Bay. In
other words, between the Talisay River and the Bulacan River is the property of
applicants with both rivers acting as the boundary to said land and the flow of
both rivers meeting and emptying into the Manila Bay. The subject land was
formed at the tip or apex of appellants' [private respondents'] land adding thereto
the land now sought to be registered.

This makes this case quite unique because while it is undisputed that the subject
land is immediately attached to appellants' [private respondents'] land and forms
the tip thereof, at the same time, said land immediately faces the Manila Bay which
is part of the sea. We can understand therefore the confusion this case might have
caused the lower court, faced as it was with the uneasy problem of deciding
whether or not the subject land was formed by the action of the two rivers or by
the action of the sea. Since the subject land is found at the shore of the Manila
Bay facing appellants' [private respondents'] land, it would be quite easy to
conclude that it is foreshore and therefore part of the patrimonial property of the
State as the lower court did in fact rule x x x .

xxx

It is however undisputed that appellants' [private respondents'] land lies between

these two rivers and it is precisely appellants' [private respondents'] land which
acts as a barricade preventing these two rivers to meet. Thus, since the flow of
the two rivers is downwards to the Manila Bay the sediments of sand and silt are
deposited at their mouths.

It is, therefore, difficult to see how the Manila Bay could have been the cause of
the deposit thereat for in the natural course of things, the waves of the sea eat the
land on the shore, as they suge [sic] inland. It would not therefore add anything
to the land but instead subtract from it due to the action of the waves and the
wind. It is then more logical to believe that the two rivers flowing towards the bay
emptied their cargo of sand, silt and clay at their mouths, thus causing appellants'
[private respondents'] land to accumulate therein.

However, our distinguished colleage [sic], Mr. Justice Serrano, do [sic] not seem
to accept this theory and stated that the subject land arose only when x x x Pascual
planted 'palapat' and 'bakawan' trees thereat to serve as a boundary or strainer.
But we do not see how this act of planting trees by Pascual would explain how
the land mass came into being. Much less will it prove that the same came from
the sea. Following Mr. Justice Serrano's argument that it were the few trees that
acted as strainers or blocks, then the land that grew would have stopped at the
place where the said trees were planted. But this is not so because the land mass
went far beyond the boundary, or where the trees were planted.

On the other hand, the picture-exhibits of appellants' [private respondents']

clearly show that the land that accumulated beyond the so-called boundary, as
well as the entire area being applied for is dry land, above sea level, and bearing
innumerable trees x x x. The existence of vegetation on the land could only
confirm that the soil thereat came from inland rather than from the sea, for what
could the sea bring to the shore but sand, pebbles, stones, rocks and corrals? On
the other hand, the two rivers would be bringing soil on their downward flow
which they brought along from the eroded mountains, the lands along their path,
and dumped them all on the northern portion of appellants' [private respondents']
land.

In view of the foregoing, we have to deviate from the lower court's finding. While
it is true that the subject land is found at the shore of the Manila Bay fronting
appellants' [private respondents'] land, said land is not foreshore but an accretion
from the action of the Talisay and Bulacan rivers. In fact, this is exactly what the
Bureau of Lands found out, as shown in the following report of the Acting
Provincial Officer, Jesus M. Orozco, to wit:
'Upon ocular inspection of the land subject of this registration made on June 11,
1960, it was found out that the said land is x x x sandwitched [sic] by two big
rivers x x x These two rivers bring down considerable amount of soil and
sediments during floods every year thus raising the soil of the land adjoining the
private property of the applicant [private respondents]. About four-fifth [sic] of
the area applied for is now dry land whereon are planted palapat trees thickly
growing thereon. It is the natural action of these two rivers that has caused the
formation of said land x x x subject of this registration case. It has been formed,
therefore, by accretion. And having been formed by accretion, the said land may
be considered the private property of the riparian owner who is the applicant
herein [private respondents'] x x x .

In view of the above, the opposition hereto filed by the government should be
withdrawn, except for the portion recommended by the land investigator in his
report dated May 2, 1960, to be excluded and considered foreshore. x x x'
Because of this report, no less than the Solicitor General representing the Bureau
of Lands withdrew his opposition dated March 25, 1960, and limited 'the same to
the northern portion of the land applied for, compromising a strip 50 meters wide
along the Manila Bay, which should be declared public land as part of the
foreshore' x x x.”[8]
Pursuant to the aforecited decision, the respondent appellate court ordered the
issuance of the corresponding decree of registration in the name of private
respondents and the reversion to private respondents of the possession of the
portion of the subject property included in Navarro's fishpond permit.

On December 20, 1978, petitioners filed a motion for reconsideration of the

aforecited decision. The Director of Forestry also moved for the reconsideration
of the same decision. Both motions were opposed by private respondents on
January 27, 1979.

On November 21, 1980, respondent appellate court promulgated a resolution

denying the motion for reconsideration filed by the Director of Forestry. It,
however, modified its decision, to read, viz:
"(3). Ordering private oppositors Heirs of Emiliano Navarro to vacate that
portion included in their fishpond permit covered by Plan Psu-175181 and hand
over possession of said portion to applicants-appellants, if the said portion is not
within the strip of land fifty (50) meters wide along Manila Bay on the northern
portion of the land subject of the registration proceedings and which area is more
particularly referred to as fifty (50) meters from corner 2 towards corner 1; and
fifty (50) meters from corner 5 towards corner 6 of Plan Psu-175181.” x x x[9]
On December 15, 1980, we granted the Solicitor General, acting as counsel for
the Director of Forestry, an extension of time within which to file in this court, a
petition for review of the decision dated November 29, 1978 of the respondent
appellate court and of the aforecited resolution dated November 21, 1980.

Thereafter, the Solicitor General, in behalf of the Director of Forestry, filed a

petition for review entitled, "The Director of Forestry vs. the Court of
Appeals."[10] We, however, denied the same in a minute resolution dated July 20,
1981, such petition having been prematurely filed at a time when the Court of
Appeals was yet to resolve petitioners' pending motion to set aside the resolution
dated November 21, 1980.

On October 9, 1981, respondent appellate court denied petitioners' motion for

reconsideration of the decision dated November 29, 1978.

On October 17, 1981, respondent appellate court made an entry of judgment

stating that the decision dated November 29, 1978 had become final and
executory as against herein petitioners as oppositors in L.R.C. Case No. N-84 and
Civil Case No. 2873 of the Court of First Instance (now the Regional Trial Court)
of Balanga, Bataan.

On October 26, 1981, a second motion for reconsideration of the decision dated
November 29, 1978 was filed by petitioners' new counsel.

On March 26, 1982, respondent appellate court issued a resolution granting

petitioners' request for leave to file a second motion for reconsideration.

On July 13, 1984, after hearing, respondent appellate court denied petitioners'
second motion for reconsideration on the ground that the same was filed out of
time, citing Rule 52, Section 1 of the Rules of Court which provides that a motion
for reconsideration shall be made ex-parte and filed within fifteen (15) days from
the notice of the final order or judgment.
Hence this petition where the respondent appellate court is imputed to have
palpably erred in appreciating the facts of the case and to have gravely misapplied
statutory and case law relating to accretion, specifically, Article 457 of the Civil
Code.

We find merit in the petition.

The disputed property was brought forth by both the withdrawal of the waters of
Manila Bay and the accretion formed on the exposed foreshore land by the action
of the sea which brought soil and sand sediments in turn trapped by the palapat
and bakawan trees planted thereon by petitioner Sulpicio Pascual in 1948.

Anchoring their claim of ownership on Article 457 of the Civil Code, private
respondents vigorously argue that the disputed 14-hectare land is an accretion
caused by the joint action of the Talisay and Bulacan Rivers which run their course
on the eastern and western boundaries, respectively, of private respondents' own
tract of land.

Accretion as a mode of acquiring property under said Article 457, requires the
concurrence of the following requisites: (1) that the accumulation of soil or
sediment be gradual and imperceptible; (2) that it be the result of the action of the
waters of the river; and (3) that the land where the accretion takes place is adjacent
to the bank of the river.[11] Accretion is the process whereby the soil is deposited,
while alluvium is the soil deposited on the estate fronting the river bank; [12] the
owner of such estate is called the riparian owner. Riparian owners are, strictly
speaking, distinct from littoral owners, the latter being owners of lands bordering
the shore of the sea or lake or other tidal waters.[13] The alluvium, by mandate of
Article 457 of the Civil Code, is automatically owned by the riparian owner from
the moment the soil deposit can be seen[14] but is not automatically registered
property, hence, subject to acquisition through prescription by third persons. [15]

Private respondents' claim of ownership over the disputed property under the
principle of accretion, is misplaced.

First, the title of private respondents' own tract of land reveals its northeastern
boundary to be Manila Bay. Private respondents' land, therefore, used to adjoin,
border or front the Manila Bay and not any of the two rivers whose torrential
action, private respondents insist, is to account for the accretion on their land. In
fact, one of the private respondents, Sulpicio Pascual, testified in open court that
the waves of Manila Bay used to hit the disputed land being part of the bay's
foreshore but, after he had planted palapat and bakawan trees thereon in 1948,
the land began to rise.[16]

Moreover, there is no dispute as to the location of: (a) the disputed land; (b)
private respondents' own tract of land; (c) the Manila Bay; and, (d) the Talisay and
Bulacan Rivers. Private respondents' own land lies between the Talisay and
Bulacan Rivers; in front of their land on the northern side lies now the disputed
land where before 1948, there lay the Manila Bay. If the accretion were to be
attributed to the action of either or both of the Talisay and Bulacan Rivers, the
alluvium should have been deposited on either or both of the eastern and western
boundaries of private respondents' own tract of land, not on the northern portion
thereof which is adjacent to the Manila Bay. Clearly lacking, thus, is the third
requisite of accretion, which is, that the alluvium is deposited on the portion of
claimant's land which is adjacent to the river bank.

Second, there is no dispute as to the fact that private respondents' own tract of
land adjoins the Manila Bay. Manila Bay is obviously not a river, and jurisprudence
is already settled as to what kind of body of water the Manila Bay is. It is to be
remembered that we held that:

"Appellant next contends that x x x Manila Bay cannot be considered as a sea.

We find said contention untenable. A bay is part of the sea, being a mere
indentation of the same:

'Bay. — An opening into the land where the water is shut in on all sides except at
the entrance; an inlet of the sea; an arm of the sea, distinct from a river, a bending
or curbing of the shore of the sea or of a lake.' 7 C.J. 1013-1014."[17]

The disputed land, thus, is an accretion not on a river bank but on a sea bank, or
on what used to be the foreshore of Manila Bay which adjoined private
respindents' own tract of land on the northern side. As such, the applicable law is
not Article 457 of the Civil Code but Article 4 of the Spanish Law of Waters of
1866.
The process by which the disputed land was formed, is not difficult to discern
from the facts of the case. As the trial court correctly observed:

"A perusal of the survey plan x x x of the land subject matter of these cases shows
that on the eastern side, the property is bounded by Talisay River, on the western
side by Bulacan River, on the southern side by Lot 1436 and on the northern side
by Manila Bay. It is not correct to state that the Talisay and Bulacan Rivers meet
a certain portion because the two rivers both flow towards Manila Bay. The
Talisay River is straight while the Bulacan River is a little bit meandering and there
is no portion where the two rivers meet before they end up at Manila Bay. The
land which is adjacent to the property belonging to Pascual cannot be considered
an accretion [caused by the action of the two rivers].

Applicant Pascual x x x has not presented proofs to convince the Court that the
land he has applied for registration is the result of the settling down on his
registered land of soil, earth or other deposits so as to be rightfully be considered
as an accretion [caused by the action of the two rivers]. Said Art. 457 finds no
applicability where the accretion must have been caused by action of the bay."[18]

The conclusion formed by the trial court on the basis of the foregoing observation
is that the disputed land is part of the foreshore of Manila Bay and therefore, part
of the public domain. The respondent appellate court, however, perceived the
fact that petitioners' own land lies between the Talisay and Bulacan Rivers, to be
basis to conclude that the disputed land must be an accretion formed by the action
of the two rivers because private respondents' own land acted as a barricade
preventing the two rivers to meet and that the current of the two rivers carried
sediments of sand and silt downwards to the Manila Bay which accumulated
somehow to a 14-hectare land. These conclusions, however, are fatally
incongruous in the light of the one undisputed critical fact: the accretion was
deposited, not on either the eastern or western portion of private respondents'
land where a river each runs, but on the northern portion of petitioners' land
which adjoins the Manila Bay. Worse, such conclusions are further eroded of their
practical logic and consonance with natural experience in the light of Sulpicio
Pascual's admission as to having planted palapat and bakawan trees on the
northern boundary of their own land. In amplification of this, plainly more
reasonable and valid are Justice Mariano Serrano's observations in his dissenting
opinion when he stated that:
 "As appellants' (titled) land x x x acts as a barricade that prevents the two rivers
to meet, and considering the wide expanse of the boundary between said land and
the Manila Bay, measuring some 593.00 meters x x x it is believed rather
farfetched for the land in question to have been formed through 'sediments of
sand and salt [sic] . . . deposited at their [rivers'] mouths.' Moreover, if 'since the
flow of the two rivers is downwards to the Manila Bay the sediments of sand and
silt are deposited at their mouths,' why then would the alleged cargo of sand, silt
and clay accumulate at the northern portion of appellants' titled land facing Manila
Bay instead of merely at the mouths and banks of these two rivers? That being
the case, the accretion formed at said portion of appellants' titled [land] was not
caused by the current of the two rivers but by the action of the sea (Manila Bay)
into which the rivers empty.

The conclusion x x x is not supported by any reference to the evidence which, on

the contrary, shows that the disputed land was formed by the action of the sea.
Thus, no less than Sulpicio Pascual, one of the heirs of the original applicant,
testified on cross-examination that the land in dispute was part of the shore and
it was only in 1948 that he noticed that the land was beginning to get higher after
he had planted trees thereon in 1948. x x x

x x x it is established that before 1948 sea water from the Manila Bay at high tide
could reach as far as the dike of appellants' fishpond within their titled property,
which dike now separates this titled property from the land in question. Even in
1948 when appellants had already planted palapat and bakawan trees in the land
involved, inasmuch as these trees were yet small, the waves of the sea could still
reach the dike. This must be so because in x x x the survey plan of the titled
property approved in 1918, said titled land was bounded on the north by Manila
Bay. So Manila Bay was adjacent to it on the north. It was only after the planting
of the aforesaid trees in 1948 that the land in question began to rise or to get
higher in elevation.

The trees planted by appellants in 1948 became a sort of strainer of the sea water
and at the same time a kind of block to the strained sediments from being carried
back to the sea by the very waves that brought them to the former shore at the
end of the dike, which must have caused the shoreline to recede and dry up
eventually raising the former shore leading to the formation of the land in
question."[19]
In other words, the combined and interactive effect of the planting of palapat and
bakawan trees, the withdrawal of the waters of Manila Bay eventually resulting in
the drying up of its former foreshore, and the regular torrential action of the
waters of Manila Bay, is the formation of the disputed land on the northern
boundary of private respondents' own tract of land.

The disputed property is an accretion on a sea bank, Manila Bay being an inlet
or an arm of the sea; as such, the disputed property is, under Article 4 of the
Spanish Law of Waters of 1866, part of the public domain.

At the outset, there is a need to distinguish between Manila Bay and Laguna de
Bay.

While we held in the case of Ignacio v. Director of Lands and Valeriano [20] that
Manila Bay is considered a sea for purposes of determining which law on
accretion is to be applied in multifarious situations, we have ruled differently
insofar as accretions on lands adjoining the Laguna de Bay are concerned.

In the cases of Government of the P.I v. Colegio de San Jose,[21] Republic v. Court
of Appeals,[22] Republic v. Alagad[23], and Meneses v. Court of Appeals,[24] we
categorically ruled that Laguna de Bay is a lake the accretion on which, by the
mandate of Article 84 of the Spanish Law of Waters of 1866, belongs to the owner
of the land contiguous thereto.

The instant controversy, however, brings a situation calling for the application of
Article 4 of the Spanish Law of Waters of 1866, the disputed land being an
accretion on the foreshore of Manila Bay which is, for all legal purposes,
considered a sea.

Article 4 of the Spanish Law of Waters of August 3, 1866 provides as follows:

"Lands added to the shores by accretions and alluvial deposits caused by the
action of the sea, form part of the public domain. When they are no longer washed
by the waters of the sea and are not necessary for purposes of public utility, or for
the establishment of special industries, or for the coast-guard service, the
Government shall declare them to be the property of the owners of the estates
adjacent thereto and as increment thereof."

In the light of the aforecited vintage but still valid law, unequivocal is the public
nature of the disputed land in this controversy, the same being an accretion on a
sea bank which, for all legal purposes, the foreshore of Manila Bay is. As part of
the public domain, the herein disputed land is intended for public uses, and "so
long as the land in litigation belongs to the national domain and is reserved for
public uses, it is not capable of being appropriated by any private person, except
through express authorization granted in due form by a competent authority."[25]
Only the executive and possibly the legislative departments have the right and the
power to make the declaration that the lands so gained by action of the sea is no
longer necessary for purposes of public utility or for the cause of establishment
of special industries or for coast guard services.[26] Petitioners utterly fail to show
that either the executive or legislative department has already declared the
disputed land as qualified, under Article 4 of the Spanish Law of Waters of 1866,
to be the property of private respondents as owners of the estates adjacent
thereto.

WHEREFORE, the instant Petition for Review is hereby GRANTED.

The decision of the Intermediate Appellate Court (now Court of Appeals) in CA

G.R. No. 59044-R dated November 29, 1978 is hereby REVERSED and SET
ASIDE. The resolution dated November 21, 1980 and March 28, 1982,
respectively, promulgated by the Intermediate Appellate Court are likewise
REVERSED and SET ASIDE.

The decision of the Court of First Instance (now the Regional Trial Court),
Branch 1, Balanga, Bataan, is hereby ORDERED REINSTATED.

Costs against private respondents.

SO ORDERED.

Padilla, (Chairman), Bellosillo and Kapunan, JJ., concur.

Vitug, J., concurs; The amendatory provisions of the Water Code (P.D. 1067) did
not affect Article 4 of the Spanish Law of Waters of 1866.

[1]In CA G.R No. 59044-K dated November 29, 1978, penned by Associate
Justice Porfirio V. Sison and concurred in by Associate Justices Nestor B.
Alampay, Jorge R. Coquia, and Rafael C. Climaco, with Associate Justice Mariano
Serrano, dissenting; Rollo, pp. 39-54.

[2]Resolution (on the First Motion for Reconsideration) dated November 21,
1980, penned by Associate Justice Porfirio V. Sison and concurred in by Associate
Justices B.S. de la Fuente, Nestor B. Alampay, Jorge R Coquia, and Elias B.
Asuncion; Rollo, pp. 68-69: and Resolution (on the Second Motion for
Reconsideration) dated March 28, 1982, penned by Associate Justice Porfirio V.
Sison and concurred in by Associate Justices B.S. de la Fuente, Nestor B.
Alampay, Elias B. Asuncion, and Hugo E. Gutierrez, Jr., Rollo, pp. 90-91.

[3] Fourth Civil Cases Division.

[4] L.RC. Case No. 18607.

[5] Branch 1.

[6] Decision in CA G.R. No. 59044 dated November 29, 1978, pp. 2-3; Rollo, pp.
40-41.

[7] Id., p. 3; Rollo, p. 41.

[8] Id., pp. 3-6; Rollo, pp. 41-44.

Resolution in CA-G.R. No. 59044-R dated November 21, 1980, p. 1; Rollo, p.

[9]

68.

[10] Docketed as G. R. No. 55584.

Desamparado Vda. de Nazareno and Leticia Nazareno Tapia v. Court of

[11]

Appeals, et al., G.R. No. 98045, June 26, 1996; Meneses v. Court of Appeals, 246
SCRA 374 [1995]; Reynante v. Court of Appeals, 207 SCRA 794, 799 [1992];
Binalay v. Manalo, 195 SCRA 374, 385 [1991].

[12] Paras, Edgardo, Civil Code of the Philippines, Vol. 3, 1984 Edition, p. 211.

[13] Santulan v. The Executive Secretary, 80 SCRA 548, 556 [1977].

Paras, supra, at p. 212, citing Cortez v. City of Manila, 10 Phil. 567; Roxas v.
[14]

Tuason, 9 Phil. 408; 3 Manresa 236.

[15] Id., at p. 216, citing Grande, et al. v. Court of Appeals, L-17652, June 30, 1962.

[16] The pertinent portion of Sulpicio Pascual's testimony is as follows:

"Q: Is that portion contiguous to Manila Bay?

A: Near but not contiguous.

Q: During the high tide is that portion reached by water?

A: Before 1948.

Q: Before you introduced palapat and bakawan in that area?

A: Yes, sir.

Q: It was only after you have planted palapat and bakawan x x x when the sea
water no longer reaches that area?
A: I only planted few trees in 1948 to serve as boundary and as marker. x x x

Q: Was it only in 1948 that you observed that portion was becoming higher?
A: At the beginning of 1948 I noticed that land was getting higher."

(TSN, June 11, 1969, pp. 9-11).

[17] Ignacio v. Director of Lands and Valeriano, 108 Phil. 336, 338 [1960].

[18] Petition pp. 6-7; Rollo pp. 122- 123.

[19] Dissenting Opinion of Associate Justice Mariano Serrano; Rollo, pp. 48-51.

[20] 108 Phil 335 [1960].

[21] 53 Phil. 423 [1929].

[22] 31 SCRA 532 [1984].

[23] 169 SCRA 455 [1989].

[24] 246 SCRA 162 [1995].

[25] Insular Government v. Aldecoa & Co., 19 Phil. 505, 517 [1911].

Joven y Monteverde, et al. v. The Director of Lands, 93 Phil. 134, 136-137

[26]

[1953].
 Supreme Court of the Philippines

334 Phil. 357

SECOND DIVISION
G.R. No. 95608, January 21, 1997
SPOUSES IGNACIO PALOMO AND TRINIDAD PASCUAL, AND CARMEN
PALOMO VDA. DE BUENAVENTURA, PETITIONERS, VS. THE
HONORABLE COURT OF APPEALS, THE REPUBLIC OF THE
PHILIPPINES, FAUSTINO J. PERFECTO, RAFFY SANTILLAN, BOY
ARIADO, LORENZO BROCALES, SALVADOR DOE, AND OTHER DOES,
RESPONDENTS.
DECISION

ROMERO, J.:

The issue in the case at bar pertains to ownership of 15 parcels of land in Tiwi,
Albay which form part of the "Tiwi Hot Spring National Park." The facts of the
case are as follows.

On June 13, 1913, then Governor General of the Philippine Islands, William
Cameron Forbes issued Executive Order No. 40 which reserved for provincial
park purposes some 440,530 square meters of land situated in Barrio Naga,
Municipality of Tiwi, Province of Albay pursuant to the provisions of Act 648
of the Philippine Commission.[1]

Subsequently, the then Court of First Instance of Albay, 15th Judicial District,
United States of America, ordered the registration of 15 parcels of land covered
by Executive Order No. 40 in the name of Diego Palomo on December 9, 1916;
[2]December 28, 1916;[3]and January 17, 1917.[4]Diego Palomo donated these

parcels of land consisting of 74,872 square meters which were allegedly covered
by Original Certificates of Title Nos. 513, 169, 176 and 173[5]to his heirs, herein
petitioners, Ignacio and Carmen Palomo two months before his death in April
1937.[6]
Claiming that the aforesaid original certificates of title were lost during the
Japanese occupation, Ignacio Palomo filed a petition for reconstitution with the
Court of First Instance of Albay on May 30, 1950.[7] The Register of Deeds of
Albay issued Transfer Certificates of Title Nos. 3911, 3912, 3913 and 3914
sometime in October 1953.[8]

On July 10, 1954 President Ramon Magsaysay issued Proclamation No. 47

converting the area embraced by Executive Order No. 40 into the "Tiwi Hot
Spring National Park," under the control, management, protection and
administration of the defunct Commission of Parks and Wildlife, now a division
of the Bureau of Forest Development. The area was never released as alienable
and disposable portion of the public domain and, therefore, is neither
susceptible to disposition under the provisions of the Public Land Law (CA
141) nor registrable under the Land Registration Act (Act No. 496).

The Palomos, however, continued in possession of the property, paid real estate
taxes thereon[9] and introduced improvements by planting rice, bananas, pandan
and coconuts. On April 8, 1971, petitioner Carmen vda. de Buenaventura and
spouses Ignacio Palomo and Trinidad Pascual mortgaged the parcels of land
covered by TCT 3911, 3912, 3913 and 3914 to guarantee a loan of P200,000
from the Bank of the Philippine Islands.

In May 7, 1974 petitioner Carmen vda. de Buenaventura and spouses Ignacio

Palomo and Trinidad Pascual filed Civil Case No. T-143 before the then Court
of First Instance of Albay for Injunction with damages against private
respondents Faustino J. Perfecto, Raffy Santillan, Boy Ariado, Lorenzo Brocales,
Salvador Doe and other Does who are all employees of the Bureau of Forest
Development who entered the land covered by TCT No. 3913 and/or TCT
3914 and cut down bamboos thereat, totally leveling no less than 4 groves worth
not less than P2,000.00.

On October 11, 1974, the Republic of the Philippines filed Civil Case No. T-176
for annulment and cancellation of Certificates of Title involving the 15 parcels
of land registered in the name of the petitioners and subject of Civil Case T-143.
Impleaded with the petitioners as defendants were the Bank of the Philippine
Islands, Legazpi Branch and the Register of Deeds of Albay.

The case against the Bank of Philippine Islands was dismissed because the loan
of P200,000 with the Bank was already paid and the mortgage in its favor
cancelled.

A joint trial of Civil Case T-143 and T-176 was conducted upon agreement of
the parties and on July 31, 1986, the trial court rendered the following decision:

"WHEREFORE, premises considered, judgment is hereby rendered:

IN CIVIL CASE No. T-143, in favor of the defendants and against the
plaintiffs, dismissing the complaint for injunction and damages, as it is hereby
DISMISSED.

Costs against the plaintiffs.

In CIVIL CASE No. T-176, in favor of the plaintiffs and against the
defendants:

(1) Declaring null and void and no force and effect the Order dated September
14, 1953, as well as the Original Certificate of Titles Nos. 153,[10]169, 173 and
176 and Transfer Certificates of Titles Nos. 3911, T-3912, T-3913, and T-3914,
all of the Register of Deeds of Albay and all transactions based on said titles.

(2) Forfeiting in favor of the plaintiff Government any and all improvements on
the lands in question that are found therein and introduced by the defendants;

(3) Declaring Lot Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, Plan II-9299 and
Lots 1, 21,[11] 3 and 4 of Plan II-9205 as part of the Tiwi Hot Spring National
Park;

(4) and Finally, the Register of Deeds of Albay is hereby ordered to cancel the
alleged Original Certificates of Titles Nos. 513, 169, 173 and 176, Transfer
Certificates of Title Nos. T-3911, T-3912, T-3913 and T-3914.

Costs against the defendants.

So Ordered."[12]

The court a quo in ruling for the Republic found no sufficient proof that the
Palomos have established property rights over the parcels of land in question
before the Treaty of Paris which ended the Spanish-American War at the end of
the century. The court further stated that assuming that the decrees of the Court
of First Instance of Albay were really issued, the Palomos obtained no right at
all over the Properties because these were issued only when Executive Order
No. 40 was already in force. At this point, we take note that although the
Geodetic Engineer of the Bureau of Lands appointed as one of the
Commissioners in the relocation survey of the properties stated in his
reamended report that of the 3,384 square meters covered by Lot 2, Plan II-
9205, only 1,976 square meters fall within the reservation area,[13]the RTC
ordered TCT 3913 covering the entire Lot 21 (sic) Plan II-9205 cancelled.

The petitioners appealed to the Court of Appeals which affirmed in toto the
findings of the lower Court; hence this petition raising the following issues:

1. The respondent Court of Appeals committed grave abuse of discretion in

affirming in toto the decision of the lower court.

2. The declaration of nullity of the original certificates of title and subsequent

transfer certificates of titles of the petitioners over the properties in question is
contrary to law and jurisprudence on the matter.

3. The forfeiture of all improvements introduced by the petitioners in the

premises in favor of the government is against our existing law and
jurisprudence.

The issues raised essentially boil down to whether or not the alleged original
certificate of titles issued pursuant to the order of the Court of First Instance in
1916-1917 and the subsequent TCTs issued in 1953 pursuant to the petition for
reconstitution are valid.

Petitioners contend that the Treaty of Paris which ended the Spanish-American
War at the end of the 19th century recognized the property rights of Spanish
and Filipino citizens and the American government had no inherent power to
confiscate properties of private citizens and declare them part of any kind of
government reservation. They allege that their predecessors in interest have
been in open, adverse and continuous possession of the subject lands for 20-50
years prior to their registration in 1916-1917. Hence, the reservation of the lands
for provincial purposes in 1913 by then Governor-general Forbes was
tantamount to deprivation of private property without due process of law.

In support of their claim, the petitioners presented copies of a number of

decisions of the Court of First Instance of Albay, 15th Judicial District of the
United States of America which state that the predecessors in interest of the
petitioners' father Diego Palomo, were in continuous, open and adverse
possession of the lands from 20 to 50 years at the time of their registration in
1916.

We are not convinced.

The Philippines passed to the Spanish Crown by discovery and conquest in the
16th century. Before the Treaty of Paris in April 11, 1899, our lands, whether
agricultural, mineral or forest were under the exclusive patrimony and dominion
of the Spanish Crown. Hence, private ownership of land could only be acquired
through royal concessions which were documented in various forms, such as (1)
Titulo Real or Royal Grant," (2) Concession Especial or Special Grant, (3)
Titulo de Compra or Title by Purchase and (4) Informacion Posesoria or
Possessory Information title obtained under the Spanish Mortgage Law or under
the Royal Decree of January 26, 1889.

Unfortunately, no proof was presented that the petitioners' predecessors in

interest derived title from an old Spanish grant. Petitioners placed much reliance
upon the declarations in Expediente No. 5, G.L.R.O. Record Decision No.
9820, dated January 17, 1917; Expediente No. 6, G.L.R.O. Record No. 9821,
dated December 28, 1916; Expediente No. 7, G.L.R.O. Record No. 9822, dated
December 9, 1916; Expediente No. 8, G.L.R.O. Record No. 9823, dated
December 28, 1916 and Expediente No. 10, G.L.R.O. Record No. 9868, dated
December 9, 1916 of the Court of First Instance of Albay, 15th Judicial District
of the United States of America presided by Judge Isidro Paredes that their
predecessors in interest were in open, adverse and continuous possession of the
subject lands for 20-50 years.[14] The aforesaid "decisions" of the Court of First
Instance, however, were not signed by the judge but were merely certified copies
of notification to Diego Palomo bearing the signature of the clerk of court.

Moreover, despite claims by the petitioners that their predecessors in interest

were in open , adverse and continuous possession of the lands for 20 to 50 years
prior to their registration in 1916-1917, the lands were surveyed only in
December 1913, the very same year they were acquired by Diego Palomo.
Curiously, in February 1913 or 10 months before the lands were surveyed for
Diego Palomo, the government had already surveyed the area in preparation for
its reservation for provincial park purposes. If the petitioners' predecessors in
interest were indeed in possession of the lands for a number of years prior to
their registration in 1916-1917, they would have undoubtedly known about the
inclusion of these properties in the reservation in 1913. It certainly is a trifle late
at this point to argue that the government had no right to include these
properties in the reservation when the question should have been raised 83 years
ago.

As regards the petitioners' contention that inasmuch as they obtained the titles
without government opposition, the government is now estopped from
questioning the validity of the certificates of title which were granted. As
correctly pointed out by the respondent Court of Appeals, the principle of
estoppel does not operate against the Government for the act of its agents. [15]

Assuming that the decrees of the Court of First Instance were really issued, the
lands are still not capable of appropriation. The adverse possession which may
be the basis of a grant of title in confirmation of imperfect title cases applies
only to alienable lands of the public domain.

There is no question that the lands in the case at bar were not alienable lands of
the public domain. As testified by the District Forester, records in the Bureau of
Forestry show that the subject lands were never declared as alienable and
disposable and subject to private alienation prior to 1913 up to the present.[16]
Moreover, as part of the reservation for provincial park purposes, they form
part of the forest zone.

It is elementary in the law governing natural resources that forest land cannot be
owned by private persons. It is not registrable and possession thereof, no matter
how lengthy, cannot convert it into private property,[17]unless such lands are
reclassified and considered disposable and alienable.

Neither do the tax receipts which were presented in evidence prove ownership
of the parcels of land inasmuch as the weight of authority is that tax declarations
are not conclusive proof of ownership in land registration cases.[18]

Having disposed of the issue of ownership, we now come to the matter

regarding the forfeiture of improvements introduced on the subject lands. It
bears emphasis that Executive Order No. 40 was already in force at the time the
lands in question were surveyed for Diego Palomo. Petitioners also apparently
knew that the subject lands were covered under the reservation when they filed
a petition for reconstitution of the lost original certificates of title inasmuch as
the blueprint of Survey Work Order Number 21781 of Plan II-9299 approved
by the Chief of the Land Registration Office Enrique Altavas in 1953 as a true
and correct copy of the Original Plan No. II-9299 filed in the Bureau of Lands
dated September 11, 1948[19]contains the following note, "in conflict with
provincial reservation."[20] In any case, petitioners are presumed to know the law
and the failure of the government to oppose the registration of the lands in
question is no justification for the petitioners to plead good faith in introducing
improvements on the lots.

Finally, since 1,976 square meters of the 3,384 square meters covered by TCT
3913 fall within the reservation, TCT 3913 should be annulled only with respect
to the aforesaid area. Inasmuch as the bamboo groves leveled in TCT 3913 and
subject of Civil Case T-143,[21]were within the perimeter of the national
park,[22]no pronouncement as to damages is in order.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED

with the modification that TCT 3913 be annulled with respect to the 1,976
square meter area falling within the reservation zone.
SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

Act 648 of the Philippine Commission entitled, "An Act authorizing the
[1]

Governor-general to reserve for civil public purposes and from sale or

settlement, any part of the public domain not appropriated by law for special
public purposes, unless otherwise directed by law and extending provisions of
Act Numbered 627 so that public lands desired to be reserved by the Insular
Government for public use, or private lands desired to be purchased by the
Insular Government for such uses, may be brought under the operation of Land
Registration."

As shown by Expediente No. 7, GLRO Record 9822 which became the basis
[2]

for the issuance of alleged OCT No. 1955 (169) and Expediente No. 10 GLRO
Record 9868. It should be noted however that the Register of the Deeds does
not have any record of any OCT issued pursuant to GLRO Record 9868.

As shown by Expediente No. 6, GLRO record 9821 which became the basis
[3]

for the issuance of the alleged OCT No. RO-1956 (173) and Expediente No. 8
GLRO Record 9823 which became the basis for the issuance of alleged OCT
No. RO 1954 (176).

[4]As shown by Expediente No. 5 which became the basis for the issuance of
alleged OCT No. RO 1953 (513).

OCT 513 covered Lot Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 of Plan II-
[5]

9299 while OCT 169,176 and 173 covered Lot Nos. 2, 1 and 3 of Plan II-9205.
Another alleged OCT with an unspecified number covered Lot No. 4 of Plan II-
9205.

[6] Exh. 21.

[7] Exh. B.

TCT 3911 (Exh 1-A) originated from OCT No. RO-1953 (513) (Exh 1); TCT
[8]

3912 (Exh 2-A) originated from OCT No. RO 1954 (176) [Exh 2] while TCT
3913 (Exh 3-A) originated from OCT No. RO 1955 (169) [Exh 3] and TCT No.
3914 (Exh 4-A) originated from OCT No. RO-1956 (173) [Exh 4].

Aside from tax receipts marked as Exh 9-U to 9-H covering the years 1977,
[9]

1983 and 1984, tax declaration Nos. 1838, 1528, 1527, 1526, 1536, 1840, 1835,
1842, 1833, 1841, 1832, 1834 and 1839 marked as Exh 6, 6-A to 6-L, also
presented in evidence marked as Exh 19 was a Certificate of Appreciation
awarded by the Province of Albay in 1956 to petitioner Ignacio Palomo for
prompt and up to date payment of tax obligations.

[10] Should be OCT 513.

[11] Should be Lot 2.

[12] Rollo, pp. 63-64.

Records, pp. 62. The Republic, in fact, never claimed the entire 3,384 square
[13]

meters as shown by the Relocation Plan of II-6679 (marked as Exh H-3-T )

when surveyed for Civil Case T-143 and 176.

[14] Exhibits 14, 15, 15-A, 16, 16-A, 17, 18, 18-A.

Auyong Hian v. Court of Tax Appeals, 59 SCRA 110 (1974); Cruz v. CA, 194
[15]

SCRA 145; Sharp International Marketing v CA, 201 SCRA 299; Republic v.
IAC, 209 SCRA 90; GSIS v.CA , 218 SCRA 233.

[16] TSN, 27 September 1977, pp. 18-19.

Vano v. Government of P.I, 41 P 161 [1920]; Li Seng Giap y Cia v. Director,

[17]

55 Phil 693 [1931]; Fernandez Hnos. v. Director, 57 Phil 929 [1931]; Military
Reservations v. Marcos, 52 SCRA 238 [1973]; Republic v. CA, 154 SCRA 476;
Vallarta v. IAC, 152 SCRA 679; Director of Forest Administration v.
Fernandez, 192 SCRA 121.

[18]Reyes v. Sierra, 93 SCRA 472; Masagana v. Argamosa, 109 SCRA 53; Ferrer
Lopez v. CA, 150 SCRA 393; Carag v. IAC, 177 SCRA 313; Director of Lands
v. IAC, 195 SCRA 38.

[19] Exhibit H-4.

[20] Exhibit H-5.

Petitioners alleged that 4 bamboo groves in the lots covered by TCT 3913
[21]

and/or 3914 were "eradicated" by employees of the Office of Parks and

Wildlife, now Bureau of Forest and Development.

[22] TSN, 28 October 1985, pp. 26-27.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-27088 July 31, 1975

HEIRS OF BATIOG LACAMEN, petitioners-appellants,

vs.
HEIRS OF LARUAN, * respondents-appellants.

Leonardo A. Amores for petitioners-appellants.

Reyes and Cabato for respondents-appellees.

MARTIN, J.:

Petition for review by certiorari of a decision of the Honorable Court of Appeals affirming the
judgment of the Court of First Instance of Baguio City in Civil Case No. 738 entitled "Heirs of Batiog
Lacamen vs. Heirs of Laruan" "... declaring the contract of sale between Lacamen and Laruan null
and void [for lack of approval of the Director of the Bureau of Non-Christian Tribes] ..."

Petitioners-appellants are the surviving heirs of Batiog Lacamen, while respondents-appellants are
the heirs of Laruan.1

Sometime on January 28, 1928, Laruan executed a Deed of Sale in favor of Batiog
Lacamen2 conveying for the sum of P300.00 his parcel of land situated in the sitio of La Trinidad,
Benguet, Mountain Province, comprising 86 ares and 16 centares3 and covered by Certificate of Title
No. 420 of the Registry of Benguet. The deed was acknowledged before Antonio Rimando, a notary
public in the City of Baguio.4

Immediately after the sale, Laruan delivered the certificate of title to Lacamen. Thereupon, Lacamen
entered in possession and occupancy of the land without first securing the corresponding transfer
certificate of title in his name. He introduced various improvements and paid the proper taxes. His
possession was open, continuous, peaceful, and adverse. After his death in 1942, his heirs
remained in and continued possession and occupancy of the land. They too paid the taxes.

After the last Global War, Lacamen's heirs "started fixing up the papers of all the properties" left by
him5 In or about June, 1957, they discovered that Laruan's heirs, respondents-appellants, were able
to procure a new owner's copy of Certificate of Title No. 420 by a petition filed in court alleging that
their copy has been lost or destroyed. Through this owner's copy, respondents-appellants caused
the transfer of the title on the lot in their names.6 Transfer Certificate of Title No. T-775 was issued to
them by the Registry of Deeds of Benguet.

Refused of their demands for reconveyance of the title, petitioners-appellants sued respondents-
appellants in the Court of First Instance of Baguio City on December 9, 1957, prayings among other
things, that they be declared owners of the subject property; that respondents-appellants be ordered
to convey to them by proper instruments or documents the land in question; and that the Register of
Deeds of Benguet be ordered to cancel Transfer Certificate of Title No. T-775 and issue in lieu
thereof a new certificate of title in their names.7

In answer, respondents-appellants traversed the averments in the complaint and claim absolute
ownership over the land. They asserted that their deceased father, Laruan, never sold the property
and that the Deed of Sale was not thumbmarked by him.8

On 5 April 1962, the Court of First Instance of Baguio City found for respondents-appellants and
against petitioners-appellants. Forthwith, petitioners-appellants appealed to the Court of Appeals.

On 7 December 1966, the Court of Appeals sustained the trial court.

In this review, petitioners-appellants press that the Court of Appeals erred —

... IN DECLARING THE SALE BETWEEN LACAMEN AND LARUAN TO BE NULL

AND VOID.

II

... IN APPLYING STRICTLY THE PROVISIONS OF SECTIONS 118 AND 122 OF

ACT NO. 2874 AND SECTIONS 145 AND 164 OF THE CODE OF MINDANAO AND
SULU.

III

... IN AFFIRMING THE DECISION OF THE COURT OF FIRST INSTANCE OF

BAGUIO CITY.

which assignments could be whittled down into the pervading issue of whether the deceased Batiog
Lacamen and/or his heirs, herein petitioners-appellants, have validly acquired ownership over the
disputed parcel of land.

The 1917 Administrative Code of Mindanao and Sulu declares in its Section 145 that no contract or
agreement relating to real property shall be made by any person with any non-Christian inhabitant of
the Department of Mindanao and Sulu, unless such contract shall bear the approval of the provincial
governor of the province wherein the contract was executed, or his representative duly authorized
for such purpose in writing endorsed upon it. 9 Any contract or agreement in violation of this section is "null and void" under
the succeeding Section 146. 10

On 24 February 1919, Act No. 2798 was approved by the Philippine Legislature extending to the
Mountain Province and the Province of Nueva Vizcaya the laws and other legal provisions pertaining
to the provinces and minor political subdivisions of the Department of Mindanao and Sulu, with
the specific proviso that the approval of the land transaction shall be by the Director of the Bureau of
Non-Christian Tribes. 11

Then on 29 November 1919, came Act No. 2874 otherwise known as "The Public Land Act". It
provided in Section 118 thereof that "Conveyances and encumbrances made by persons belonging
to the so-called 'non-Christian tribes', when proper, shall not be valid unless duly approved by the
Director of the Bureau of non-Christian Tribes." Any violation of this injunction would result in the
nullity and avoidance of the transaction under the following Section 122.

During the regime of the Commonwealth, C.A. 141 otherwise known as "The Public Land Act" was
passed — November 7, 1936 — amending Act No. 2874. However, it contained a similar provision in
its Section 120 that "Conveyances and encumbrances made by illiterate non-Christians shall not be
valid unless duly approved by the Commissioner of Mindanao and Sulu.

The contracting parties, Lacamen and Laruan, are bound by the foregoing laws, since both of them
are illiterate Igorots, belonging to the "non-Christian Tribes" of the Mountain Province 12 , and the
controverted land was derived from a Free Patent 13 or acquired from the public domain. 14

The trial court did show cordiality to judicial pronouncements when it avoided the realty sale between
Lacamen and Laruan for want of approval of the Director of the Bureau of Non-Christian Tribes. For
jurisprudence decrees that non-approved conveyances and encumbrances of realty by illiterate non-
Christians are not valid, i.e., not binding or obligatory. 15

Nevertheless, the thrust of the facts in the case before Us weakens the gathered strength of the
cited rule. The facts summon the equity of laches.

"Laches" has been defined as "such neglect or ommission to assert a right, taken in conjunction with
lapse of time and other circumstances causing prejudice to an adverse party, as will operate as a
bar in equity." 16 It is a delay in the assertion of a right "which works disadvantage to
another" 17 because of the "inequity founded on some change in the condition or relations of the
property or parties." 18 It is based on public policy which, for the peace of society, 19 ordains that relief
will be denied to a stale demand which otherwise could be a valid claim. 20 It is different from and
applies independently of prescription. While prescription is concerned with the fact of delay, laches is
concerned with the effect of delay. Prescription is concerned with the effect of delay. Prescription is
a matter of time; laches is principally a question of inequity of permitting a claim to be enforced, this
inequity being founded on some change in the condition of the property or the relation of the parties.
Prescription is statutory; laches is not. Laches applies in equity, whereas prescription applies at law.
Prescription is based on a fixed time, laches is not. 21

Laruan's sale of the subject lot to Lacamen could have been valid were it not for the sole fact that it
lacked the approval of the Director of the Bureau of Non-Christian Tribes. There was impressed
upon its face full faith and credit after it was notarized by the notary public. 22 The non-approval was
the only "drawback" of which the trial court has found the respondents-appellants to "have taken
advantage as their lever to deprive [petitioners-appellants] of this land and that their motive is out
and out greed." 23 As between Laruan and Lacamen, the sale was regular, not infected with any
flaw. Laruan's delivery of his certificate of title to Lacamen just after the sale symbolizes nothing
more than a bared recognition and acceptance on his part that Lacamen is the new owner of the
property. Thus, not any antagonistic show of ownership was ever exhibited by Laruan after that sale
and until his death in May 1938.

From the transfer of the land on January 28, 1928, Lacamen possessed and occupied the ceded
land in concepto de dueño until his death in April 1942. Thereafter his heirs, petitioners-appellants
herein, took over and exercised dominion over the property, likewise unmolested for nearly 30 years
(1928-1957) until the heirs of Laruan, respondents-appellants, claimed ownership over the property
and secured registration of the same in their names. At the trial, petitioners-appellants have been
found to have introduced improvements on the land consisting of houses, barns, greenhouses,
walls, roads, etc., and trees valued at P38,920.00. 24
At this state, therefore, respondents-appellants' Claim of absolute ownership over the land cannot be
countenanced. It has been held that while a person may not acquire title to the registered property
through continuous adverse possession, in derogation of the title of the original registered owner, the
heir of the latter, however, may lose his right to recover back the possession of such property and
the title thereto, by reason of laches. 25 Much more should it be in the instant case where the
possession of nearly 30 years or almost half a century now is in pursuance of sale which regrettably
did not bear the approval of the executive authority but which the vendor never questioned during his
life time. Laruan's laches extends to his heirs, the respondents-appellants herein, since they stand in
privity with him. 26

Indeed, in a like case, 27 it was ruled that —

Courts can not look with favor at parties who, by their silence, delay and inaction,
knowingly induce another to spend time, effort and expense in cultivating the land,
paying taxes and making improvements thereon for 30 long years, only to spring
from ambush and claim title when the possessor's efforts and the rise of land values
offer an opportunity to make easy profit at his expense.

For notwithstanding the invalidity of the sale, the vendor Laruan suffered the vendee Lacamen to
enter, possess and occupy the property in concepto de dueño without demurrer and molestation,
from 1928, until the former's death in 1938; and when respondents-appellants succeeded to the
estate of their father, they too kept silent, never claiming that the lot is their own until in 1957 or after
almost 30 years they took "advantage of the [non-approval of the sale] as their lever to deprive
[petitioners-appellants] of this land" with a motive that was "out and out greed." Even granting,
therefore, that no prescription lies against their father's recorded title, their quiescence and inaction
for almost 30 years now commands the imposition of laches against their adverse claim. (Miguel,
footnote 27)

It results that as against Laruan and his heirs, respondents-appellants herein, the late Batiog
Lacamen and his heirs, petitioners-appellants herein, have superior right and, hence, have validly
acquired ownership of the litigated land. Vigilantibus non dormientibos sequitas subvenit.

IN VIEW OF THE FOREGOING, the judgment of the Court of Appeals affirming that of the trial court
is hereby reversed and set aside.

The petitioners-appellants are hereby declared the lawful owners of the land in question.
Accordingly, Transfer Certificate of Title No. T-775 in the name of respondents-appellants is hereby
cancelled and in lieu thereof the Register of Deeds of Benguet is ordered to issue a new transfer
certificate of title in the name of petitioners-appellants.

Without pronouncement as to costs.

SO ORDERED.

Makasiar, Esguerra and Muñoz Palma, JJ., concur.

Castro, J., concurs in the result.

Footnotes
1 Record on Appeal at pp. 2-3.

2 Annex A, Petitioners Complaint below Record of Appeal, at p. 7.

3 Equivalent to 8,616 square meters.

4 Annex A, Petitioners' Complaint below, Record on Appeal, at p. 10.

5 Record on Appeal, at p. 4.

6 Idem, at p. 5.

7 Idem, at pp. 1-6.

8 Idem, at pp. 11-17.

9 See Sale de Porkan v. Yatco, 70 Phil. 163-165.

10 Idem.

11 See Sec. 1, Act 2798. This Act was amended on March 23, 1920 by Act No.
2913, but Sec. 1, Act 2798 was retained.

12 Brief, Petitioners-appellants, at pp. 5-6.

13 Record on Appeal, at p. 20.

14 See Palad v. Saito, 55 Phil. 836, 837.

15 Mangayao v. Lasud, L-19252, May 29, 1964, 11 SCRA 158, cited in Mangayao v.
De Guzman,
L-24787, February 22, 1974, per Fernando, Second Division, 55 SCRA 545, 546.

16 27 Am Jur 2d 687, citing Re O' Donnell's Estate, 8 Ill App. 2d 348, 132 NE 2d 74;
See also 2 Pomeroy's Equity Jurisprudence, 5th Ed., 171, 172.

17 Hall v. Mortgage Secur. Corp. 119 W. Va. 140, 192 S.E. 145, 393, 11 A.L.R. 118

18 2 Pomeroy's Equity Jurisprudence, 5th Ed., 177.

19 Tijam v. Sibonghanoy. L-21450, April 15, 1968, 23 SCRA 29.

20 Vda de Lima v. Tio, L-27181, April 30, l970, 32 SCRA 518.

21 Nielson & Company, Inc. v. Lepanto Consolidated Mining Co., L-21601,

December 17, 1966, 18 SCRA 1040.

22 Ramirez v. Her, Adm. Case No. 500, September 27, 1967. 21 SCRA 207.

23 Record on Appeal, 20, 21.

24 Record on Appeal, at p. 22.

25 De Lucas v. Gamponia, 100 Phil. 277; Wright Jr. v. Lepanto Consolidated Mining
Co., L-18904, July 11, 1964, 11 SCRA 508.

26 30A C.J.S. 33, citing Chesapeake & Delaware Canal Co. v. US, Del., 39 S. Ct
407.

27 Miguel v. Catalino, L-23072, November 29, 1968, 26 SCRA 234.