| Preface to “A Divided Court: Case Materials from the Constitutional Challenge to the Indigenous Peoples’ Rights Act of 1997 [2001]) |
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| Tuesday, 20 October 2009 05:56 |
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“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…” Section 2, Article XII, 1987 Constitution “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 or relations in determining the ownership and extent of ancestral domain.” Section 5, Article XII, 1987 Constitution “No person shall be deprived of life, liberty, or property without due process of law, nor shall anyone be denied he equal protection of the laws.” Section 1, Article III, 1987 Constitution “The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.” Section 22, Article II, 1987 Constitution At first blush, the case entitled Cruz v. NCIP, G.R. No. 135385 (December 6, 2000) seems to be about finding the correct interpretation of the apparently conflicting provisions of sections 2 and 5 of article XII of the Constitution. Section 2 implies that ecologies could be divided into various component “resources”: land, timber, minerals, water, flora, fauna and sources of energy. More importantly, that it is owned by the State and should be primarily managed by its government. Rights vest for commercial entities or communities depending on the discretions of the State, principally, the Department of Environment and Natural Resources. The provisions imply that community rights do not exist simply on the basis of how long it had possessed these resources nor how it has made it productive. The provision does not make legally relevant, lifeways weaved into cultures that have evolved as communities interacting with their ecosystems. Section 5 on the other hand views ecology as mediated by culture. It understands that resources could only be made useful for communities if they are taken in relation to each other, i.e. trees are useless unless nurtured on the soil; flora and fauna have complex relationships with each other and with the waters and the terrain that make them grow. That is why there is a label to describe these “resources” in relation to the culture that has evolved with it – ancestral domains. But, in reality, the conflict had everything to do with the willingness of the Court to go beyond colonially inherited legal fictions and accept indigenous legal categories. The Court was being asked to determine whether “ancestral domains” and all its practical consequences on how government decides in relation to commercial extractive activities, was as relavant – and valid – a legal category as the old antiquarian legal fiction of “regalian doctrine”. Seven of the justices1 accepted and reiterated the primacy of the regalian doctrine in its full glory. Some even articulated the belief that this concept, contrary perhaps to the experience of the indigenous leaders that intervened in the case, ensures the state’s ability to intervene on behalf of communities. Six of the justices2 were willing to give the concept a fighting chance in the forum of experience. However, all of them hesitated to grant full “ownership” rights over all resources. They were content to say that the law implied “priority rights.” What that means, of course, will have to be more clearly defined by the National Commission on Indigenous Peoples (NCIP). One justice3 disagreed with his colleague in so far as the opinions proceeded to resolve the apparent conflict in constitutional interpretation. To him, the parties that brought the suit were not the “proper” parties, i.e. they did not stand to be benefited or injured by the law. Considering the policy of judicial restraint, he declined to give an opinion and voted to dismiss the petition. Since the petition could not gain a majority4 , the challenge to the constitutionality of the statute was dismissed. The result is, of course, that the law is valid until the next challenge. The filing of the Motion for Reconsideration does not affect the validity of the provisions. The content of the opinions rendered in this case is a far cry from the prejudice that infected earlier decisions. Thus, in Rubi v. Provincial Board of Mindoro5 the Court distinguished “non Christian tribes” from other ethnolinguistic groups in the Philippines as “uncivilized, “backward people,” with “barbarous practices” and “a low order of intelligence”. The opinions now acknowledge the need to correct this historical injustice. Thus: “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. 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 in the evolution of Philippine culture and are vital to the understanding of contemporary problems. 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 experience in the course of history.” 6 These opinions expressed in this most recent challenge to the indigenous Peoples Rights Act however should not be divorced from the struggles of indigenous communities. None of these opinions reflect how a politically astute and conscious indigenous elder would have decided. S/he would have had read the Constitution unabashedly in the context of a different worldview. S/he would not have cared for precedents. S/he would scarcely depend on written provisions whose interpretations were shaped by lawyers and judges. But these decisions do reflect the understanding of our Court of indigenous peoples’ issues today. It is the result of their individual predilections as well as the necessities mandated by the current historical, political and social conjuncture. LRCKSK was privileged to represent around a hundred indigenous leaders, non-governmental organizations, a senator and a former constitutional commissioner in this case. It was fortunate enough to have drawn on the many years of their engagements with indigenous communities. Traveling to areas not easily reached by public transportation, understanding different cultures, sharing and learning were the prime ingredients for the lawyer’s choice of standpoint and perspective. Being their lawyers, we were also privy to the understanding of indigenous peoples’ issues by the justices and the other opposing counsels. In order to allow the public to draw their own judgments, we have taken the liberty of reproducing the entire set of opinions as well as the main pleadings and memoranda of the parties. While all of these are freely available from the Supreme Court dockets, we hope that through this compilation, it could reach a broader audience. For a hierarchy of law created by people who may not authentically represent indigenous peoples, or for a system of law where more powerful political and commercial interests may dictate its content, there can be no truly complete victory. For lawyers and advocates of communities at the law’s margins, all we could hope for would be to win interstitially. We struggle to broaden exceptions, nuance doctrinal interpretations or emerge new approaches to legal interpretation. Our gauge is the pragmatic effect of a decision to the community that brings the suit and, in the process, perhaps the ability of a decision to lay down a springboard for another historical conjuncture where enough public interests or community standpoints become politically significant to be able to midwife a more fundamentally restructuring doctrine. In the meantime, the constant dialogue that struggles between law and experience continues. Marvic M.V.F. Leonen (Preface to “A Divided Court: Case Materials from the Constitutional Challenge to the Indigenous Peoples’ Rights Act of 1997 [2001]) 1Justices Jose C. Vitug, Artemio V. Panganiban, Jose A. R. Melo, Bernardo P. PArdo, Arturo B. Buena, Minerva P. Gonzaga- Reyes, and Sabino R. De Leon, Jr. 2Chief Justice Hilario G. Davide, Jr., Justices Josue N. Bellosillo, Reynato S. Puno, Santiago M. Kapunan, Leonardo A. Quisumbing, and Consuelo Ynares-Santiago 3Justice Vicente V. Mendoza 4Const., article VIII, sec. 4. 5 39 Phil 660 (1919). 6Separate opinion, Puno, J. at 89 to 90. 
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