Republic of the Philippines

OFFICE OF THE PRESIDENT

NATIONAL COMMISSION ON INDIGENOUS PEOPLES
Zamboanga City Office
2ndFlr. Radja Bldg. Gov. Camins Ave., Zamboanga City
Tel. Fax.No. (062) 955-05-77
Email add: ncip_zco@yahoo.c

NCIP ZCO Legal Opinion No. 2017-001

September 6, 2017

PROF. ALI T. YACUB, AL-HJ

City IPMR Adviser on Education and Cultural Affairs
Concurrently, President and Founder
Golden Crescent Consortium of Peace Builders and Affiliates
Macrohon Compound, Suterville
San Jose Gusu, Zamboanga City

Dear Prof. Yacub,

Greetings of peace!

This pertains to your letter, with attached pertinent documents, received by the
undersigned on August 10, 2017, requesting for his legal opinion on the following issues,
to wit:

1. Whether the ICCs/IPs in this city can lawfully be admitted to become a member
of the Board of Regents (WMSU) and the member of the Board of Trustees
(ZSCMST) and (ZCPSC) respectively, despite contrary provision of RA 8292;
2. In the event the Chair of CHED and the presidents of the mentioned State
Institutions of Higher Learning resist on the idea of having IP Mandatory
Representatives (IPMR) in their Governing Boards, what legal recourse may be
available to our IPMR in the City Council and the IP Council of Leaders in
Zamboanga City; and
3. Can Sec. 83, Repealing Clause of RA 8371, be invoked that RA 8292 is included
in this provision as far as the IPs are concerned, and therefore, deemed repealed
since RA 8292 was approved in June 1997 and RA 8371 was approved in October
1997?

Before going into the substance of the issue - Indigenous Cultural

Communities/Indigenous Peoples (ICC/IP) Representation in Governing Boards of State
Universities and Colleges (SUC), it is relevant to address first the issue on statutory
construction, particularly on repeal of laws, enunciated under your third query.

There are two (2) provisions of law cited in your letters which, to your view, appear
to be conflicting. First, we have Section 16 of RA 8371, otherwise known as the
Indigenous Peoples Rights Act of 1997, which mandates ICC/IP representation in policy
making bodies and other local legislative councils. Second, we have Section 3(a) of RA
8292 or the Higher Modernization Act of 1997, which provides uniform composition of
the governing bodies among SUC. None in the latter provision of the law provides for an
ICC/IP representation as member thereof. True indeed, RA 8371 was enacted on October
1997, while RA 8292 was enacted on June 1997.

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 RA 8371 provides under its Section 83 (Repealing Clause) that laws, decrees, orders,
rules and regulations or parts thereof inconsistent with it are thereby repealed or modified
accordingly. However, it is of the opinion of the undersigned that RA 8292 is not among
those deemed repealed by RA 8371.

By legal definition, repeal of law means the abrogation or destruction of a law by a

legislative act. It may either be express or implied. It is an express repeal when an earlier
law specifically indicates that the former law shall be revoked and abrogated. It is an
implied repeal when the earlier law contains provisions that are so contrary or
irreconcilable with those of the former law that only one can remain in force.

Either of the two (2) ways of repeal of law is not present in the present situation.

1. This is not a case of express repeal. RA 8292, or any parts thereof, is not one of
those specifically mentioned to have been repealed by Section 83 of RA 8371. It
mentions Presidential Decree (PD) No. 410 and Executive Order (EO) Nos. 122-
B and 122-C, but not RA 8292. If it would have been the intention of the framers
of RA 8371 to include RA 8292 as one of those laws to be repealed therein, it
would have expressly provided so, as in the case of PD 410 and EO 122-B and
122-C. More so, that both RA 8371 and RA 8292 are both enacted in the same
Congress in 1997, such that the framers of both laws are presumed to have been
aware of their respective provisions, and must have rectified the inconsistencies,
if there were any, based on their intention, or in legal parlance, the spirit of the
law.
2. This is also not a case of implied repeal. Section 16 of RA 8371 is not “so
contrary or irreconcilable” with Section 3(a) of RA 8292 for the latter to be
unenforced just for the former to be fully enforced. As in the present, both
provisions actually remain in force. Be it noted that the effect when a law is
repealed, the same is completely abrogated. That is not the case pertaining to
Section 3(a) of RA 8292, which presently sets the uniform composition of the
governing boards among SUC.

Well-noting is a rule on legal hermeneutics consistently cited by our Courts when

faced with issues pertaining to conflicting laws. It is said that in the case of conflict
between an earlier and a former statute, a repeal by implication is never to be favored and
is only effected where the provisions of the former enactment are so inconsistent with, or
repugnant to, those of the earlier that the two cannot stand together.

That being the case, ICC/IP representation in governing boards of SUC cannot be
enforced on the ground that RA 8371 repealed RA 8292. However, the undersigned
believes that there can be steps to be taken or remedies to be availed of for ICC/IP
representation in policy making bodies, in general, to be realized.

A National Guideline, through an Administrative Order from the NCIP and/or other
concerned agencies, has yet to be formulated to fully implement ICC/IP representation in
policy making bodies, similar to that of ICC/IP representation in local legislative
councils, which has been in full implementation through NCIP Administrative Order No.
001 Series of 2009 (National Guidelines for the Mandatory Representation of Indigenous
Peoples in Local Legislative Councils) and related issuances from the DILG. Absence of
the said government issuance/s, it leaves vague on what indeed constitute “policy making
bodies”, since RA 8371 or even its implementing rules and regulations does not define
what “policy making bodies” are. Considering peculiarities of governing boards of SUC,
they being governed by their respective charters which are separate and independent of
any other laws, as compared to special bodies with the local government units, it is
unclear if the same must be understood to be included in the term “policy making bodies”
for purposes of mandating ICC/IP representation. Assuming arguendo that governing
bodies of SUC are indeed “policy making bodies”, as contemplated under Section 16 of

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RA 8371, we expect that there will be legal questions pertaining to its legality, since as
said, none in the composition of governing boards thereof belong to ICC/IP
representation as per Section 3(a) of RA 8292. On that aspect, therefore, the only remedy
is to amend Section 3(a) of RA 8292 through a legislative act to provide ICC/IP
representation in SUC with sufficient population belonging to ICC/IP. Said power is
lodged only with the Congress.

In sum, below are the points addressing your concerns:

1. ICC/IP cannot lawfully be admitted to become a member of the governing boards

of SUC, as of the moment, in view of the present contrary provision of RA 8292,
which could be amended by a legislative action, upon favorable sponsorship of
duly recognized member/s of Congress;
2. In view of the absence of a clear guideline from the NCIP and/or concerned
agencies to materialize ICC/IP representation in “policy making bodies”, the
ICC/IP is left without legal recourse, as of the moment, except to clearly manifest
to the national offices of the concerned agencies their intention of choosing to be
duly represented in governing boards of SUC with sufficient population belonging
to ICC/IP, so that appropriate actions could be taken to address the matter; and
3. RA 8292, or any parts thereof, is not repealed, expressly or impliedly, by RA 8371
as both remain in force.

On a final note, the foregoing opinion does not preclude you or other concerned
party/ies from seeking a more authoritative opinion from the Legal Affairs Office, NCIP
Central Office and/or Regional Legal Office, NCIP Regional Office IX, or from the
Commission on Higher Education (CHED), the agency tasked to interpret RA 8292. The
foregoing initial opinion was rendered since your letter-request is directly addressed to
the undersigned, who, being an NCIP lawyer, is duty bound to interpret RA 8371 - the
primary subject of your letter-request.

I hope to have addressed your concerns accordingly.

Thank you and more power.

Very truly yours,

ATTY. GIBRAN B. ABUBAKAR

Attorney IV

Copy furnished:
a. Atty. Jeanette A. Florita - Director, Legal Affairs Office, NCIP, Quezon City
b. Atty. Maribel I. Tamayo - Regional Legal Officer, NCIP Regional Office IX, Pagadian City
c. Hon. Cesar S. Iturralde - Presiding Officer, City Legislative Council, Zamboanga City
d. Hon. Tungkuh B. Hanapi - IP Representative, City Legislative Council, Zamboanga City
e. Hji. Amilpasa T. Bandaying - Chairman, ZCIPCL, Zamboanga City
f. Dr. Juanito R. Demetrio - Regional Director, CHED IX, Zamboanga City
g. Records/File