Carino v. Insular Government, 41 Phil 935 [ G.R. No.

2869, March 25, 1907 ]

8 Phil. 150

[ G.R. No. 2869, March 25, 1907 ]

MATEO CARIÑO, PETITIONER AND APPELLANT, VS. THE INSULAR GOVERNMENT, RESPONDENT
AND APPELLEE.

DECISION

ARELLANO, C.J.:

Mateo Cariño, the appellant herein, on the 23d of February, 1904, filed his petition in the Court
of Land Registration praying that there be granted to him title to a parcel of land consisting of
40 hectares, 1 are, and 13 centares, and situated in the town of Baguio, Province of Benguet,
together with a house erected thereon and constructed of wood and roofed with rimo, and
bounded as follows: On the north, in lines running 1,048 meters and 20 decimeters with the
lands of Sepa Cariño, H. Phelps Whitmarsh, and Calsi; on the east, in lines running 991 meters
and 50 decimeters with the land of Kuidno, Esteban Gonzales, and of the Civil Government; on
the south, in lines of 115 meters and 60 decimeters, with the lands of Talaca; and on the west,
in lines running 982 meters and 20 decimeters, with the lands of Sisco Cariño and
Mayengmeng.

By order of the court the hearing of this petition, No. 561, and that of Antonio Rebollo and
Vicente Valpiedad filed under No. 834, were heard together for the reason that the latter
petition claimed a small portion of land included in the parcel set out in the former petition.

The Insular Government opposed the granting of these petitions, alleging that the whole
parcel of land is public property of the Government and that the same was never acquired in
any manner or through any title of egresion from the State.

After trial, and the hearing of documentary and oral proof, the court of Land Registration
rendered its judgment in these terms:

"Therefore the court finds that Cariño and his predecessors have not possessed exclusively
and adversely any part of the said property prior to the date on which Cariño constructed the
house now there—that is to say, for the years 1897 and 1898, and Cariño held possession for
some years afterwards of but a part of the property to which he claims title. Both petitions
are dismissed and the property in question is adjudged to be public land." (Bill of exceptions, p.
15.)

The conclusions arrived at and set forth in definite terms in the decision of the court below are
the following:
"From the testimony given by Cariño as well as from that of several of the witnesses for the
Government it is deduced, that in or about the year 1884 Cariño erected and utilized as a
domicile a house on the property situated to the north of that property now in question,
property which, according to the plan attached to expediente No. 561, appears to be property
belonging to Donaldson Sim; that during the year 1893 Cariño sold said house to one Cristobal
Ramos, who in turn sold the same to Donaldson Sim, moving to and living on the adjoining
property, which appears on the plan aforesaid to be the property of H. Phelps Whitmarsh, a
place where the father and the grandfather of his wife, that is to say, Ortega and Minse, had
lived * * *.

"In or about the years 1897 or 1898 Cariño abandoned the property of Whitmarsh and located
on the property described in the plan attached to expediente No. 561, having constructed a
house thereon in which he now lives, and which house is situated in the center of the property,
as is indicated on the plan; and since which time he has undoubtedly occupied some portion of
the property now claimed by him." (Bill of exceptions, pp. 11 and 12.)

1. Therefore it is evident that this court cannot decree the registration of all of the
superficial extension of the land described in the petition and as appears on the plan
filed herein, such extension containing 40 hectares, 1 are, and 13 centares, inasmuch as
the documentary evidence accompanying the petition is conclusive proof against the
petitioner; this documentary proof consists of a possessory information under date of
March 7, 1901, and registered on the 11th day of the same month and year; and,
according to such possessory information, the land therein described contains an
extension of only 28 hectares limited by "the country road to the barrio of Pias," a road
appearing on the plan now presented and cutting the land, as might be said, in half, or
running through its center from north to south, a considerable extension of land
remaining on the other side of the said road, the west side, and which could not have
been included in the possessory information mentioned.
2. As has been shown during the trial of this case, this land, of which mention is made in
said possessory information, and upon which is situated the house now actually
occupied by the petitioner, all of which is set forth as argument as to the possession in
the judgment, is "used for pasture and sowing," and belongs to the class called public
lands.
3. Under the express provisions of law, a parcel of land, being of common origin,
presumptively belonged to the State during its former sovereignty, and, in order to
perfect the legitimate acquisition of such land by private persons, it was necessary that
the possession of the same pass from the State. And there is no evidence or proof of
title of egresion of this land from the domain of the Spanish Government, nor is there
any possessory information equivalent to title by composicion or under agreement.
4. The possessory information filed herein is not the title to property authorized in
substitution for that of adjustment by the royal decree of February 13, 1894, this being
the last law or legal disposition of the former sovereignty applicable to the present
subject-matter of common lands: First, for the reason that the land referred to herein is
not covered nor does it come within any one of the three conditions required by article
19 of the said royal decree, to wit, that the land has been in an uninterrupted state of
cultivation during a period of six years last past; or that the same has been possessed
without interruption during a period of twelve years and has been in a state of
cultivation up to the date of the information and during the three years immediately
preceding such information; or that such land had been possessed openly without
interruption during a period of thirty or more years, notwithstanding the land had not
been cultivated; nor is it necessary to refer to the testimony given by the two witnesses
to the possessory information for the following reason: Second, because the possessory
information authorized by said royal decree or last legal disposition of the Spanish
Government, as title or for the purpose of acquiring actual proprietary right, equivalent
to that of adjustment with the Spanish Government and required and necessary at all
times until the publication of said royal decree, was limited in time to one year, in
accordance with article 21, which is as follows: "A period of one year, not to be
extended, is allowed to verify the possessory informations which are referred to in
articles 19 and 20. After the expiration of this period the right of the cultivators and
persons in possession to obtain gratuitous title thereto lapses and the land together
with full possession reverts to the State, or, as the case may be, to the community, and
the said possessors and cultivators or their assigns would simply have rights under
universal or general title of average in the event that the land is sold within a period of
five years immediately following the cancellation. The possessors not included under
this chapter can only acquire by time the ownership and title to unappropriated or royal
lands in accordance with common law."
5. In accordance with the preceding provisions, the right that remained to Cariño, if it be
certain that he was the true possessor of the land in question, was the right of average
in case the Government or State could have sold the same within the period of five
years immediately following; for example, if the denouncement of purchase had been
carried out by Felipe Zafra or any other person, as appears from the record of the trial of
the case. Aside from this right, in such event, his possession as attested in the
possessory information herein could not, in accordance with common law, go to show
any right of ownership until after the expiration of twenty years from the verification
and registry of the same in conformity with the provisions of article 393 of the Mortgage
Law and other conditions prescribed by this law.
6. The right of possession in accordance with common law—that is to say, civil law—
remains at all times subordinate to the Spanish administrative law, inasmuch as it could
only be of force when pertaining to royal transferable or alienable lands, which
condition and the determination thereof is reserved to the Government, which classified
and designated the royal alienable lands for the purpose of distinguishing them from
those lands strictly public, and from forestry lands which could at no time pass to
private ownership nor be acquired through time even after the said royal decree of
February 13, 1894.
7. The advent of the new sovereignty necessarily brought a new method of dealing with
lands and particularly as to the classification and manner of transfer and acquisition of
royal or common lands then unappropriated, which were thenceforth merely called
public lands, the alienation of which was reserved to the Government, in accordance
with sections 12 and 13 of the act of Congress of July 1, 1902,[1] and in conformity with
other laws enacted under this act of Congress by the Philippine Commission prescribing
rules for the execution thereof, one of which is Act No. 648,[2] herein mentioned by the
petitioner, in connection with Act No. 627,[3] which appears to be the law upon which
the petition herein is founded.
8. Section 6 of Act No. 627 admits prescription, in accordance with the provisions
contained in Act No. 190, as a basis for obtaining the right of ownership. "The petitioner
claims title under the period of prescription of ten years established by that act, as
well as by reason of his occupancy and use thereof from time immemorial." (Allegation
1.) But said act admits such prescription for the purpose of obtaining title and
ownership to lands "not exceeding more that sixteen hectares in extent." (Sec. 6 of
said act.) The land claimed by Cariño is 40 hectares in extent, if we take into
consideration his petition, or an extension of 28 hectares, according to the possessory
information, the only thing that can be considered. Therefore, it follows that the
judgment denying the petition herein and now appealed from was strictly in accordance
with the law invoked herein.
9. And of the 28 hectares of land as set out in the possessory information, one part of
same, according to the testimony of Cariño, belongs to Vicente Balpiedad, the extent of
which is not determined. From all of which it follows that the precise extent has not
been determined in the trial of this case on which judgment might be based in the event
that the adjudication and title be decreed in favor of the petitioner, Mateo Cariño. And
we should not lose sight of the fact that, considering the intention of Congress in
granting ownership and title to 16 hectares, that Mateo Cariño and his children have
already exceeded such amount in various acquirements of lands, all of which is shown in
different cases decided by the said Court of Land Registration, donations or gifts of land
 that could only have been made efficacious as to the conveyance thereof with the
assistance of these new laws.

By reason of the findings set forth it is clearly seen that the court below did not err:

"1. In finding that Mateo Cariño and those from whom he claims his right had not possessed
and claimed as owners the lands in question since time immemorial;

"2. In finding that the land in question did not belong to the petitioner, but that, on the
contrary, it was the property of the Government." (Allegation 21.)

Wherefore, the judgment appealed from is affirmed with the costs of this instance against the
appellant. After the expiration of twenty days from the notification of this decision let judgment
be entered in accordance herewith, and ten days thereafter let the case be remanded to the
court from whence it came for proper action. So ordered.

Gold Creek Mining v. Rodriquez,

66 Phil 259 [ G.R. No. 45859,
September 28, 1938 ]
66 Phil. 259

[ G.R. No. 45859, September 28, 1938 ]

GOLD CREEK MINING CORPORATION, PETITIONER,
VS. EULOGIO RODRIGUEZ, SECRETARY OF
AGRICULTURE AND COMMERCE, AND QUIRICO
ABADILLA, DIRECTOR OF THE BUREAU OF MINES,
RESPONDENTS.

DECISION

ABAD SANTOS, J.:

This petition seeks to compel the respondents, as Secretary of Agriculture and
Commerce and as Director of the Bureau of Mines, respectively, to approve petitioner's
application for patent for a certain mining claim and prepare the necessary papers in
relation thereto, and to forward and submit said papers for the signature of the
President of the Philippines.

The petition alleges that petitioner owns the Nob Fraction mineral claim, situated in
the barrio of Gomok, municipality of Itogon, sub-province of Benguet, Mountain
Province, and located on public lands by C L. O'Dowd in accordance with the provisions
of the Act of Congress of July 1, 1902, as amended by the Act of Congress of February
6, 1905, and of Act No. 624 of the Philippine Commission, relative to the location of
mining claims; that said claim was located on January 1929, and the original declaration
of location registered in the office of the mining recorder of Benguet, Mountain Province,
on January 7, 1929; that from March 16 to 17,1934, an amended location on the
premises was made, for which an amended declaration of location was registered
in the office of the mining recorder on April 3, 1934; that petitioner by itself and its
predecessors in interest, has been in continuous and exclusive possession of
said claim from the date of location thereof; that prior to August 9, 1933, petitioner
filed in the office of the Director of Lands an application for an order of patent survey of
said claim, which survey was duly authorized by the Secretary of Agriculture and
Commerce and performed by a mineral land surveyor in the former division of mines,
Bureau of Science, from August 9, 1933, to April 30, 1934, at the expense of petitioner;
that the return of the surveyor, the plat and field notes of the claim and certificate that
more than P1,600 worth of labor and improvements had been expended on said claim,
were approved by the Director of the Bureau of Science; that prior to November 15,
1935, petitioner filed with the mining recorder an application for patent, together with a
certificate showing that more than P1,600, worth of labor and/or improvements had
been expended by petitioner upon said claim, and with the plat and field notes above
mentioned; having previously posted a copy of such plat, together with notice of said
application for patent in a conspicuous place upon said claim; and filed a copy of such
plat and of such notice in the office of said mining recorder, as well as an affidavit of two
persons that such notice had been duly posted; that prior to November 15, 1935, the
notice of petitioner's application for patent was forwarded by the mining recorder to the
division of mines, so that the latter could order the publication of said notice, as required
by law; that the publication of the said notice was made once a week for a period of
sixty days in the "Philippines Herald," "El Debate," and the Official Gazette,
commencing February 13, 1936; that the sum of P113.59 was tendered to respondents,
as payment for the purchase price of said claim, the area of which is 4.5434 hectares;
and that petitioner has requested the respondents, as Secretary of Agriculture and
Commerce and as Director of the Bureau of Mines, respectively, to approve its
application for patent, and to prepare the necessary papers relative to the issuance
thereof and to submit such papers for the signature of the President of the Philippines,
but the respondents have failed and refused, and still fail and refuse, to do so.

Petitioner claims that it is entitled, as a matter of right, to the patent applied for,
having complied with all the requisites of the law for the issuance of such patent.

Respondents, in their answer, admit some allegations of the petition and deny others,
and, by way of special defense, allege that "petitioner was not and is not entitled as
a matter of right to a patent to the 'Nob Fraction' claim because the Constitution
provides that 'natural resources, with the exception of public agricultural land,
shall not be alienated'; and that the respondents are, not only under no obligation
to approve petitioner's application for a patent to said claim and to prepare the
necessary papers in relation thereto, but, also, in duty bound to prevent the issuance
of said patent and the preparation of the aforesaid papers, because they have
sworn to support and defend the Constitution."

This is one of several cases now pending in this court which call for an interpretation, a
determination of the meaning and scope, of section 1 of Article XII of the Constitution,
with reference to mining claims. The cases have been instituted as test cases, with a
view to determining the status, under the Constitution and the Mining Act (Common
wealthy Act No. 137), of the holders of unpatented mining claims which were located
under the provisions of the Act of Congress of July 1, 1902, as amended.

In view of the importance of the matter, we deem it conducive to the public interest to
meet squarely the fundamental question presented, disregarding for that purpose
certain discrepancies found in the "pleadings filed in this case. This is in accord with the
view expressed by the Solicitor-General in his memorandum where he says that "the
statements of facts in both briefs of the petitioners may be accepted for the purpose of
the legal issues raised. We deny some of the allegations in the petitions and allege new
ones in our answers, but these discrepancies are not of such a nature or importance as
should necessitate introduction of evidence before the cases are submitted for decision.
From our view of the cases, these may be submitted on the facts averred in the
complaints, leaving out the difference between the allegations in the pleadings to be
adjusted or ironed out by the parties later, which, we are confident, can be
accomplished without much difficulty."

Section 1 of Article XII of the Constitution reads as follows:

"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 centumof 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 the limit of the grant."

The fundamental principle of constitutional construction is to give effect to the intent of

the framers of the organic law and of the people adopting it. The intention to which force
is to be given is that which is embodied and expressed in the constitutional provisions
themselves. It is clear that the foregoing constitutional provision prohibits the
alienation of natural resources, with the exception of public agricultural land. It
seems likewise clear that the term "natural resources," as used therein, includes
mineral lands of the public domain, but not mineral lands which at the time the
provision took effect no longer formed part of the public domain. The reason for
this conclusion is found in the terms of the provision itself. It first declares that all
agricultural, timber, and mineral lands of the public domain, etc., and other natural
resources of the Philippines, belong to the State. It then provides that "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." Next comes
the prohibition against the alienation of natural resources. This prohibition is directed
against the alienation of such natural resources as were declared to be the property of
the State. And as only "agricultural, timber, and mineral lands of the public
domain" were declared property of the State, it is fair to conclude that mineral
lands which at the time the constitutional provision took effect no longer formed
part of the public domain, do not come within the prohibition.

This brings us to the inquiry of whether the mining claim involved in the present
proceeding formed part of the public domain on November 15, 1935, when the
provisions of Article XII of the Constitution became effective in accordance with section
6 of Article XV thereof. In deciding this point, it should be borne in mind that a
constitutional provision must be presumed to have been framed and adopted in the light
and understanding of prior and existing laws and with reference to them. " Courts are
bound to presume that the people adopting a constitution are familiar with the
previous and existing laws upon the subjects to which its provisions relate, and
upon which they express their judgment and opinion in its adoption." (Barry vs. Truax,
13 N. D., 181; 99 N. W., 769; 65 L. R. A., 762.)

It is not disputed that the location of the mining claim under consideration was perfected
prior to November 15, 1935, when the Government of the Commonwealth was
inaugurated; and according to the laws existing at that time, as construed and applied
by this court in McDaniel vs.Apacible and Cuisia (42 Phil., 749), a valid location of a
mining claim segregated the area from the public domain. Said the court in that case:
"The moment the locator discovered a valuable mineral deposit on the lands
located, and perfected his location in accordance with law, the power of the
United States Government to deprive him of the exclusive right to the possession
and enjoyment of the located claim was gone, the lands had become mineral
lands and they were exempted from lands that could be granted to any other
person. The reservations of public lands cannot be made so as to include prior mineral
perfected locations; and, of course, if a valid mining location is made upon public
lands afterward included in a reservation, such inclusion or reservation does not
affect the validity of the former location. By such location and perfection, the land
located is segregated from the public domain even as against the Government. (Union
Oil Co. vs. Smith, 249 U. S., 337; Van Ness vs.Rooney, 160 Cal., 131; 27 Cyc., 546.)"

The legal effect of a valid location of a mining claim is not only to segregate the
area from the public domain, but to grant to the locator the beneficial ownership
of the claim and the right to a patent therefor upon compliance with the terms and
conditions prescribed by law. "Where there is a valid location of a mining claim, the
area becomes segregated from the public domain and the property of the
locator." (St. Louis Mining & Milling Co. vs. Montana Mining Co., 171 U. S., 650, 655;
43 Law. ed., 320, 322.) "When a location of a mining claim is perfected it has the effect
of a grant by the United States of the right of present and exclusive possession, with the
right to the exclusive enjoyment of all the surface ground as well as of all the minerals
within the lines of the claim, except as limited by the extralateral rights of adjoining
locators; and this is the locator's right before as well as after the issuance of the patent.
While a lode locator acquires a vested property right by virtue of his location, made in
compliance with the mining laws, the fee remains in the government until patent
issues?' (18 R. C. L., 1152.) In Noyes vs.Mantle (127 U. S., 348, 351; 32 Law. ed., 168,
170), the court said:

"There is no pretense in this case that the original locators did not comply-with all the
requirements of the 1aw in making the location of the Pay Streak Lode Mining claim, or
that the claim was ever abandoned or forfeited. They were the discoverers of the claim.
They marked its boundaries by stakes, so that they could be readily traced. They posted
the required notice, which was duly recorded in compliance with the regulations of the
district. They had thus done all that was necessary under the law for the acquisition of
an exclusive right to the possession and enjoyment of the ground. The claim was
thenceforth their property. They needed only a patent of the United States to render
their title perfect, and that they could obtain at any time upon proof what they had done
in locating the claim, and of subsequent expenditures to a specified amount in
developing it. Until the patent issued the government held the title in trust for the
locators or their vendees. The ground itself was not afterwards open to sale."

In a recent case decided by the Supreme Court of the United States, it was said:

"The rule is established by innumerable decisions of this court, and of state and lower
Federal courts, that when the location of a mining claim is perfected under the law,
it has the effect of a grant by the United States of the right of present and
exclusive possession. The claim is property in the fullest sense of that term; and may
be sold, transferred, mortgaged, and inherited without infringing any right or title of the
United States. The right of the owner is taxable by the state; and is 'real property,'
subject to the lien of a judgment recovered against the owner in a state or territorial
court. (Belk vs. Neagher, 104 U. S., 279, 283; 26 L. ed., 735, 737; 1 Mor. Min. Rep.,
510; Manuel vs. Wulff, 152 U. S., 505, 510, 511; 38 L. ed., 532-534; 14, Sup. Ct. Rep.,
651; 18 Mor. Min. Rep., 85; Elder vs. Wood, 208 U. S., 226, [317] 232; 52 L. ed., 464,
466; 28 Sup. Ct. Rep., 263; Bradford vs. Morrison, 212 U. S., 389; 53 L. ed., 564; 29
Sup. Ct. Rep., 349.) The owner is not required to purchase the claim or secure patent
from the United States; but so long as he complies with the provisions of the mining
laws, his possessory right, for all practical purposes of ownership, is as good as though
secured by patent." (Wilbur vs. United States ex rel. Krushnic, 280 U. S., 306; 74 Law.
ed., 445.)

The Solicitor-General admits in his memorandum that the decision in the McDaniel case
is determinative, of the fundamental question involved in the instant case. But he
maintains "that this decision is based on a misapprehension of the authorities on which
the court relied," and that it "is not well founded and should be abandoned." We do not
deem it necessary to belabor this point Whether well-founded or not, the decision in that
case was the law when section 1 of Article XII of the Constitution became effective; and
even if we were disposed to overrule that decision now, our action could not affect rights
already fixed under it.

Our conclusion is that, as the mining claim under consideration no longed formed
part of the public domain when the provisions of Article XII of the Constitution
became effective, it does not come within the prohibition against the alienation of
natural resources; and the petitioner has the right to a patent therefor upon
compliance with the terms and conditions prescribed by law.

It remains to consider whether mandamus is the proper remedy in this case. In

Wilbur vs. United States ex rel. Krushnic, supra, the Supreme Court of the United States
held that "mandamus will lie to compel the Secretary of the Interior to dispose of an
application for a patent for a mining claim on its merits, where his refusal to do so is
based on his misinterpretation of a statute." In the course of its decision the court said:
"While the decisions of this court exhibit a reluctance to direct a writ of mandamus
against an executive officer, they recognize the duty to do so by settled principles of law
in some cases. (Lane vs. Hoglund, 244 U. S., 174, 181; 61 L. ed., 1066, 1069; 37 Sup.
Ct. Rep., 552; and case cited.) In Roberts vs. United States (176 U. S., 221, 231; 44 L.
ed., 443, 447; 20 Sup. Ct. Rep., 376), referred to and quoted in the Hoglund case, this
court said:

" 'Every statute to some extent requires construction by the public officer whose duties
may be denned therein. Such officer must read the law, and he must therefore, in a
certain sense, construe it, in order to form a judgment from its language what duty he is
directed by the statute to perform. But that does not necessarily and in all cases make
the duty of the officer anything other than a purely ministerial one. If the law direct him
to perform an act in regard to which no discretion is committed to him, and which, upon
the facts existing, he is bound to perform, then that act is ministerial, although
depending upon a statute which requires, in some degree a construction of its language
by the officer. Unless this be so, the value of this writ is very greatly impaired. Every
executive officer whose duty is plainly devolved upon him by a statute might refuse to
perform it, and when his refusal is brought before the court he might successfully plead
that the performance of the duty involved the construction of a statute by him, and
therefore it was not ministerial, and the court would on that account be powerless to
give relief. Such a limitation of the powers of the court, we think, would be most
unfortunate, as it would relieve from judicial supervision all executive officers in the
performance of their duties, whenever they should plead that the duty required of them
arose upon the construction of a statute, no matter how plain its language, nor how
plainly they violated their duty in refusing to perform the act required.' "

In the instant case, we are not justified, upon the state of the pleadings, to grant the
relief sought by the petitioner. Considering, however, that the refusal of the respondents
to act on the application for a patent on its merits was due to their misinterpretation of
certain constitutional and statutory provisions, following the precedent established by
the Supreme Court of the United States in Wilbur vs. United States ex rel.
Krushnic, supra, a writ of mandamus should issue directing the respondents to dispose
of the application for patent on its merits, unaffected by the prohibition against the
alienation of natural resources contained in section 1 of Article XII of the Constitution
and in Commonwealth Act No. 137. So ordered.

Avanceña, C. J., Villa-Real, Imperial, and Diaz, JJ., concur.

 

CONCURRING IN THE RESULT

LAUREL, J.:

This is a case, as I understand it, of a mining claim whose location was duly perfected
under a law of the Congress of the United States prior to the inauguration of our
Commonwealth. This law of the Congress is the Act of July 1, 1902, the first
Congressional legislation that gave us a cherished bill of rights.

I express the opinion that a perfected location of a mining claim is an "existing right"
within the purview of section 1, Article XII, of our Constitution. It is a substantial property
right and permits the locator to take all the necessary steps leading to the issuance of a
patent. It is not contingent or expectant because contingency or expectation is neither
property nor property right. It is a legal right in the sense that it is recognized by law and
acknowledged by the Constitution. And recognition implies protection. I must, therefore,
reject the suggestion that by the interposition of the Constitution such a right had been
wiped out or frittered away notwithstanding the saving clause therein contained and now
to be referred to.

The saving clause in the section involved of the Constitution was originally embodied in
the report submitted by the Committee on Nationalization and Preservation of Lands
and Other Natural Resources to the Constitutional Convention on September 17, 1934.
It was later inserted in the first draft of the Constitution as section 13 of Article XIII
thereof, and finally incorporated as we find it now. Slight have been the changes
undergone by the proviso from the time it came out of committee until it was finally
adopted. When first submitted and as inserted in the first draft of the Constitution it
reads: "subject to any right, grant, lease, or concession existing in respect thereto on
the date of the adoption of the Constitution." As finally adopted, the proviso reads:
"subject to any existing right, grant, lease, or concession at the time of the inauguration
of the Government established under this Constitution." This recognition is not mere
graciousness but springs from the just character of the government established: The
framers of the Constitution were not obscured by the rhetoric of democracy or swayed
to hostility by an intense spirit of nationalism. They well knew that conservation of our
natural resources did not mean destruction or annihilation of acquired property rights.
Withal, they erected a government neither episodic nor stationary but well-nigh
conservative in the protection of property rights. This, notwithstanding nationalistic and
socialist traits discoverable upon even a sudden dip into a variety of the provisions
embodied in the instrument.
But while I regard the recognition and protection of the right here invoked inevitable, I
feel constrained to withhold my assent to the invocation of the case of
McDaniel vs. Apacible and Cuisia ([1922], 42 Phil., 749), insofar as citation thereof may
imply unqualified acceptance of or adherence to the broad rule that where there is a
valid and perfected location of a mining claim, the area covered is not only thereby
segregated from the body of the public domain but becomes the private property of the
locator. My opinion is that while the locator, under the circumstances, secures the
beneficial ownership or the dominium utile, the government retains the bare ownership
or the dominium directum, until the locator's claim ripens tnto full ownership upon full
compliance with all the requirements of the law for the issuance of a patent I, therefore,
concur in the result.

DISSENTING

CONCEPCION, J.:

With regret, I have to dissent from the opinion of my learned colleagues in this very
important case now under advisement We are concerned with the correct construction
of a constitutional prohibition in a matter directly related to the conservation of a great
portion of our national wealth: the mines.

Because of the refusal of the respondents, the Secretary of Agriculture and Commerce
and the Director of the Bureau of Mines, to approve the application of the petitioner,
Gold Creek Mining Company, for the issuance in its favor of the patent for or title to a
mining claim, and to prepare the papers necessary for the issuance of said patent and
submit them for the signature of the President of the Philippines, the petitioner seeks to
obtain from this court a writ of mandamus to compel the respondents to do what they
refused to do. Instead of granting or dismissing the petition, the majority orders the
respondents to act on the application, which,—they rule,—is not affected by the
prohibition against the alienation of natural resources contained in section 1 of Article
XII of the Constitution and in Commonwealth Act No. 137.

This is the first point on which I disagree with the majority, for the reason that, as
alleged in the petition, the respondents refused to approve the petitioner's application
and, on the other hand, that the Solicitor-General pointed out in his memorandum that
the statement of facts contained in the briefs of the petitioner may be accepted for the
purpose of deciding the legal questions raised; and although there are some
discrepancies between the allegations of the parties, they are not of such nature or
moment as would require the introduction of evidence before the case is submitted for
decision. In my opinion, this court should now dispose of the petition for mandamus on
its merits, granting or dismissing the same, instead of ordering the respondents to act
on the petitioner's application, it being a fact that said respondents had already acted by
denying said application.

Now, considering the petition on its merits, should we order the respondents to approve
the petitioner's application for patent, or should we, on the contrary, deny the remedy
prayed for? In other words, should we hold that the petitioner is entitled to the patent
applied for, or on the contrary, that it has not acquired such right?

Section 1 of Article XII of the Constitution provides as follows:

"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 the limit of the grant."

The majority maintains that the foregoing constitutional provision prohibits, the
alienation of natural resources and that the term "natural resources" includes mineral
lands of the public domain, but not the mineral lands which at the time the provision
became effective no longer formed part of the public domain. The majority further states
that the claim in question, having been located prior to the inauguration of the
Commonwealth, has ceased to be land of the public domain and, therefore, does
not fall within the prohibition contained in the foregoing section which expressly
provides, that the natural resources shall not be alienated.

It is true that the mining claim in question was located prior to the inauguration of the
Commonwealth on November 15, 1935. It may be conceded that a location, once
made and perfected, operates to segregate the land from the public domain, but
this in no wise means that the Government parts with the absolute ownership
over the mining claim by the mere fact of its location. Location should only be
understood as segregating the "land located from the public domain in the sense
that it is no longer open to location or susceptible of appropriation by another,
while the locator has not lost his right to or abandoned the mining claim. To give a
broader meaning and a greater effect to the location of a mining claim is to contend—
against the express provisions of sections 36, 37 and 39 of the Act of Congress of July
1, 1902, as amended by section 9 of another Act of Congress of February 6, 1905,—
that location is all that is necessary to acquire absolute ownership over a located mining
claim. This is not the law. From the location of a claim to the issuance of the patent for
or title to the land, is a far cry. Location, without more, confers only the right of
possession. Thus section JJ6 of the Act of Congress of February 6, 1905 refers to the
"manner of recording, and amount of work necessary to hold possession of a mining
claim." Section 39 of the same Act also speaks of the right of possession of the claim,
and the right to the issuance of a patent only arises after the execution of certain works
and acts prescribed by law, such as the labor or improvements made each year (sec.
36); the full description and identification of the land by means of plat and field notes
(sec. 37); the notice and publication of the application for a patent by the locator, etc.,
etc. (sec. 37).

The same majority states: "The legal effect of a valid location of a mining claim is not
only to segregate the area from the public domain, but to grant to the locator the
beneficial ownership of the claim and the right to a patent therefor upon compliance
with the terms and conditions prescribed by the law." (Underscoring mine.)

Well, then: the Act of Congress does not fix any period within which the
conditions prescribed ought to be complied with. It does specify the time for
recording a claim in the registry, but it does not determine the period within which to
make the necessary annual labor or improvements thereon. The law requires universal
publication and notice of the application for a patent for a determinate number of days,
but it fails to fix the date when said notice may be made and published. The law
requires that, if there be any claim adverse to the application for a patent, the
corresponding action should be instituted in the proper court to determine who is
entitled to the patent; but no period is fixed within which the litigation should be decided.
The law finally requires the payment of a certain sum for every hectare of land covered
by the mining claim before the patent is issued; but it does not prescribe the period
within which to pay said sum, which is the price for the alienation of the land by the
Government in favor of the applicant for the title or patent.

I now ask: Within what time must the conditions prescribed by the law be
complied with in order that the locator may become entitled to the patent? I gather
from the majority opinion that, as long as the location of the mining claim was perfected
before the inauguration of the new Government of the Philippines on November 15,
1935, the other conditions may be complied with even after said date in order that the
locator may acquire a fight to the patent. I dissent on this fundamental point from the
majority opinion. I maintain that in prohibiting the alienation of natural resources,
save any existing right, the Constitution does not refer to the eight of location or to the
inherent right of possession, or to any inchoate or contingent right which are only a
means to bring about another right; it refers only to the right to obtain a patent. And
inasmuch as this right cannot be acquired until after compliance with all the conditions
prescribed by law, it is evident that the prescribed conditions should be complied with
before the inauguration, of the Commonwealth.

Was the petitioner entitled to the issuance of the patent for the mining claim in
question before the inauguration of the Commonwealth on November 15, 1935? I
hold that he was not, because on said date, according to the very allegations of
the petition for mandamus, the publication in the newspapers of the application
for a patent for a period of 60 days as prescribed by law had not been made, as
said publication was only commenced on February 13, 1936. Neither was the payment
of P25 per hectare made before the inauguration of the new Government, that is,
the Government had not been paid the price for the alienation of the mineral land
when Article XII of the Constitution went into effect. Petitioner's right, therefore,
to the patent had not matured before November 15, 1935, wherefore, he falls
squarely within the constitutional prohibition .

A similar thing has been provided for by Act No. 926, passed in October, 1903, and Act
No. 2874, passed in November, 1919, in relation to public lands. Section 54, paragraph
6, of the first Act, and section 45, paragraph (b), of the second, provide that those who
have been in possession of agricultural lands of the public domain since July 26, 1894,
may acquire a perfect title of ownership; and it is necessarily inferred that those who
commenced their possession of such lands after July 26, 1894 have no right to obtain
title, notwithstanding the fact that their possession may have been for 10, 20 or 30
years. This is exactly what the Constitution has provided: to fix a time for determining
those who have become entitled to the patent for a mining claim.

Although the provisions of the Act of Congress of 1905 are very clear and there in no
better aid to construction than the law itself, I nevertheless cite the following authorities
which support my points of view in this opinion.

"The locator of a mining claim under the United States laws, prior to the actual
payment of the purchase-money and the issuance to him of the receipt therefor by
the Land Department, possesses a mere privilege to purchase the property, and a
constable's sale of the mine before payment only passes that privilege * • *."
(Hamilton vs. Southern Nev. G. & S. Min. Co., 33 Fed., 562.)

"* * * But he is not the owner of the land until he pays for it, and obtains the United
States patent. It is a part of the public domain. In the meantime the defendant is
occupying it under a mere license from the government, which may be revoked at
any time by the repeal of the act giving it. * * * His license under the statute to
occupy and to work it as mining ground is sufficient for that purpose until withdrawn by
Congress, without purchasing it. * * ?" (U. S. vs. Nelson, Fed. Cas. No. 15,864.)
(Underscoring mine.)

"A prospector on the public mineral domain may protect himself in the possession of
his pedis possessionis while he is searching for mineral. His possession so held is
good as a possessory title against all the world, except the government of the
United States * * *." (Crossman vs. Pendery, 8 Fed., 693.)

"A possessory title, while it may not be divested by anyone except the United States,
may be avoided by the default of its owner, either by abandonment or by forfeiture for
non-compliance with local regulations or with the statutory requirements as to annual
labor * * *." (1 The Law of Mines and Mining in the United States, Barringer & Adams,
318, 319.)

"Prior to the issuance of a patent the locator cannot be said to own the fee simple title.
The fee resides in the general government, whose tribunals, specially charged with the
ultimate conveyance of the title, must pass upon the qualifications of the locator and his
compliance with the law. Yet, as between the locator and everyone else save the
paramount proprietor the estate acquired by a perfected mining location possesses all
the attributes of a title in fee, and so long as the requirements of the law with reference
to continued development are satisfied, the character of the tenure remains that of a
fee. As between the locator and the government, the former is the owner of the
beneficial estate, and the latter holds the fee in trust, to be convened to such beneficial
owner upon his application in that behalf and in compliance with the terms prescribed
by the paramount proprietor." (Lindley on Mines, 3d. ed., sec. 539, p. 1200.)
(Underscoring mine.)

I therefore vote for the denial of the petition.

Atok Big Wedge Mining v. IAC, 261

SCRA 529 [ G.R. No. 63528,
September 09, 1996 ]
330 Phil. 244

FIRST DIVISION
[ G.R. No. 63528, September 09, 1996 ]
ATOK BIG-WEDGE MINING COMPANY, PETITIONER,
VS. HON. INTERMEDIATE APPELLATE COURT AND
TUKTUKAN SAINGAN, RESPONDENTS.

DECISION

HERMOSISIMA, JR., J.:

In the face of two sets of divergent rulings of the Supreme Court on the nature of the
rights of mining claimants over the land where their claim is located, the parties herein
seek a definitive ruling on the issue:  What is actually the right of a locator of a
mining claim located and perfected under the  Philippine Bill of 1902 over the land
where the claim is found?  Does he have an absolute right of ownership thereof or
does he have the mere right to possess and claim the same?  Whose right to the land
should, therefore, prevail:  the mining claimant’s or that of an applicant for land
registration?  Does the mere recording or location of a mining claim ipso facto and
irreversibly convert the land into mineral land, notwithstanding the fact that the mining
claimant failed to comply with the strict work requirement under the Philippine Bill of
1902?

Petitioner Atok Big Wedge Mining Company appeals from the decision [1] of the Court of
Appeals[2] which reversed the  decision[3] of  the then Court of First Instance of  Baguio
City[4] in a land registration case.[5] The court a quo denied and correspondingly
dismissed the application for registration of title filed by private respondent Tuktukan
Saingan, finding no merit in Saingan’s claim of adverse, open and continuous
possession in concept of an owner of the tract of land applied for by him, which
happened to be claimed by petitioner as part of its mining claim duly recorded by the
Mining Recorder of Benguet.  Respondent appellate court found petitioner to have
abandoned its mining claim over the said tract of land and, on the other hand, adjudged
private respondent to be the owner thereof by virtue of his having possessed the same
under a bona fide claim of ownership for at least thirty (30) years prior to the filing of his
land registration application in 1965.

The court a quo made the following findings of fact:

"Applicant [private respondent] seeks the registration of a parcel of land with an
area of 41,296 square meters situated in the barrio of Lucnab, Itogon, Benguet,
which is shown in survey plan Psu-209851 x x x.

The evidence for the applicant [private respondent] who was 70 years old at the
time he testified shows that he acquired the land from his father-in-law, Dongail,
when he married his daughter; that he was then 18 years old; that at the time of
his acquisition, it was planted with camotes, casava [sic], langka, gabi, coffee
and avocados; that he lived on the land since his marriage up to the present; that
he has been paying the taxes during the Japanese occupation and even before it;
that he was never disturbed in his possession.  Supporting his oral testimony,
applicant [private respondent] submitted tax declarations x x x both dated March
20, 1948, the former for a rural land and the latter for urban land and improvement
therein.  The receipt showing payment of the taxes on such tax declarations is
dated Feb. 8, 1949 x x x.  The said tax declarations x x x show that they cancel tax
declaration No. 439 dated Feb. 10, 1947 which was presented by the Oppositor
[petitioner] Atok Big Wedge Mining  Company as its Exhibit 14, and the land tax
under Exh. 14 was paid by applicant [private respondent] in 1947 x x x.  Applicant
[private respondent] has also submitted Exh. `C’, which indicates that all pre-war
records of tax declarations and real property receipts of the municipality of
Itogon where the property is located were burned and destroyed during the last
world war.

The Bureau of Lands and Bureau of Forestry, represented by the Provincial

fiscal, oppose [sic] application.  The Atok Big Wedge Mining Company came in
also as oppositor claiming that the land in question is within its mineral claims -
Sally, Evelyn and Ethel x x x Atok Big Wedge Mining Company submitted Exhibits
6, 7 and 8, all showing that the annual assessment work of these mineral claims
were maintained from 1932 to 1967 for Sally and Evelyn and from 1946 to 1967 for
Ethel.  It was likewise shown that these mineral claims were recorded in the
mining recorder’s office; Sally and Evelyn on Jan. 2, 1931 and Ethel on March 18,
1921 x x x."[6]
The respondent appellate court additionally found that the tract of land in question
"according to the evidence, Exh. 2, covers portion of mineral claims, Sally, Evelyn, and
Ethel, the first two located by one Reynolds in 1931 and the last, also by Reynolds in
1921"[7] but "Atok x x x has not even been shown how connected with locator
Reynolds."[8] Private respondent reiterates this fact in his Comment:
"x x x (T)he mining claims have become vested rights and properties of the
locators, Messrs. H. I. Reynolds and E. J. Harrison.
However, the locators, Reynolds and Harrison, or the PETITIONERS herein,
assuming that there is any relation between Atok Big Wedge Mining Co., and the
locators, Reynolds and Harrison, have never shown that their rights have been
preserved  or remain vested.

x  x  x           

Furthermore, when the land in question was registered in the office of the Mining
Recorder in 1921, and 1931, respectively, the mineral claims covering the land in
question namely:  Sally, Evelyn and Ethel were in the name of the Locators E. J.
Harrison and H. I. Reynolds.   No evidence was ever presented as to how
Petitioner herein obtained ownership over said claims during the hearing of this
case in the Lower Court up to this time.  It was not even shown how Petitioner
herein, Atok Big Wedge Mining Co., is connected or related to locator Reynolds. x
x x"[9]
Significantly, nothing in the subsequent pleadings filed by petitioner rebuts, disputes or
proves otherwise, the aforecited issue raised by private respondent with regard to its
personality, interests and authority to oppose the application for registration filed by
private respondent respecting land to which petitioner claims rights but as to which it is
not the duly recorded mining locator.

The Director of Lands, thru the Office of the Solicitor General, opposed private
respondent’s application on the ground that the applicant did not have title in fee
simple over the questioned land and that he had not exercised continuous,
exclusive and notorious possession and occupation over the said land for at
least thirty (30) years immediately preceding the filing of the application.  However, the
Solicitor General no longer joined petitioner in this ultimate appeal, the Solicitor General
later conceding existence of private respondent’s rights.

Petitioner’s presentation of evidence proving registration of the mining claims of

petitioner in the Mining Recorder of Benguet dating back to 1931, at the latest, 
notably about sixteen (16)  years before private respondent declared the land in
question for taxation purposes and thirty four (34) years before private respondent
filed the land registration proceedings in 1965, apparently impressed the court a
quo.  And so it ruled in favor of  petitioner as oppositor in the land registration
proceedings, the court a quo ratiocinating in this wise:
"x x x   (T)he mining claims were recorded ahead of the time when the applicant
[private respondent] declared the land for taxation purposes based on his
documentary exhibits.  So the evidence of the applicant [private respondent]
cannot prevail over the documentary exhibits of the oppositor Atok Big Wedge
Mining Company.  The government oppositors adopted the evidence of the
mining company.

Moreover, if applicant [private respondent] was already in possession and

occupation of the land in the concept of owner, as claimed, it is strange that he
did not oppose its survey when the mining company surveyed the area
preparatory to its recording in the mining recorder’s office.  The conclusion is
that he was not yet there when the survey by the mining company was conducted
or if he was already there the nature of his occupation was not in the concept of
owner for otherwise he could have asserted it at the time.

The foregoing facts show that the mining company had established its rights
long before applicant [private respondent] asserted ownership over the land. 
The perfection of mining claims over the mineral lands involved segregate [sic]
them from the public domain and the beneficial ownership thereof became vested
in the locator."[10]
The trial court having dismissed private respondent’s application for registration
on the ground that petitioners had already acquired a vested right over the
subject land, private respondent appealed to the respondent court.  The Director of
Lands, thru the Solicitor General, adopted as his own, the appellee’s brief filed by
petitioner.

The respondent appellate court, on its part, correctly considered inadequate,

however, the mere recording of  petitioner’s mining claims in the Mining Recorder
of Benguet and the corresponding, albeit religious, payment of  annual assessment fees
therefor,  to vest in petitioner ownership rights over the land in question.  Truly,
under Executive Order No. 141[11], the payment of annual assessment fees is only proof
of compliance with the charges imposed by law and does not constitute proof of
actual assessment work on the mining land concerned.   Respondent court ruled in
this connection:
"x x x (I)t must be conceded that the same having been located and existing since
1921 and 1931, the rights of locator if correspondingly preserved, remained
vested, - but as this Court also examines the evidence, what has been shown is
that affidavits of assessment work had been filed, yes, from 1932 in connection
with claim Sally and from 1933 as to Evelyn, and from 1936 as to claim Ethel, but
tsn. would not show that in truth and in fact, there had been that assessment
work on the claims, [sic] witness Pelayo of Atok admits that he had not gone over
the area x x x in fact he joined the company in 1962 only, [sic] in other words, all
that Atok has shown as to assessment work is the affidavit thereon, but as Ex.
Order 141 of  1 August, [sic] 1968 has said:
"(W)hat matters is [sic] maintaining and preserving possessory rights to the
claims is the continuous performance of the required assessment work, not the
filing of an affidavit which may be disproved by findings of [sic] the ground,'

and here, the very fact that applicant has possessed continuously apparently
without protest from Atok x x x must disprove the truth that locator or Atok had
indeed done assessment work x x x."[12]
Private respondent, in support of respondent court’s quoted findings, points out in his
pleadings that:
"x x x The APPLICANT [private respondent] constructed various improvements on the
land consisting of his 3 residential houses, fruit trees, ricefields and other permanent
improvements. x x x

x  x  x           

On the other hand, the PETITIONER Mining company has not shown that it has
introduced a single improvement (‘assessment work’) on the property.  It has only paid
the minimum annual assessment required by law of P200.00 a year.  There was no
evidence, whatsoever, of its alleged `factual’ possession of the property.  No
assessment work was shown during the ocular inspection ordered by the Honorable
Trial Court neither during the ocular inspection conducted by the Bureau of Forestry.

THIS ritual of paying the uniform sum of P200.00 a year for alleged assessment work is
not enough evidence that such assessment work was actually made.  It is precisely for
this reason that Executive Order 141 dated August 1, 1968 was issued by the President
of the Philippines.  This order made it mandatory that it is not enough to pay P200.00 a
year but there must be actual continuous assessment work done on the surface of
the mineral claims. x x x" [Underscoring supplied by private respondent.] [13]
Also, private respondent also additionally informs this court that:
"x x x PETITIONER Atok Big Wedge Mining Company has, on October 12, 1978,
converted its application on mineral claims in question (SALLY, EVELYN and ETHEL)
into mining lease only in compliance with Presidential Decree 1214.  PETITIONER
mining company is now a mere lessee of the mining claims.  And as such lessee,
it has no right on the surface rights of such mineral claims.  An official certification
to that effect by the Bureau of Mines & Geo-Sciences, Regional Office No. 1 of the City
of Baguio is hereby attached as Annex `A’ and made integral part hereof. x  x  x."[14]
an allegation which obviously clinches this case in his favor.
Respondent court having reversed the trial court’s decision on the ground that private
respondent had, by sufficient evidence, shown his right to registration over the
contested parcel of land, petitioner elevated its cause to this court.  The Director of
Lands, however, did not join in petitioner’s appeal.  Thus, in a Manifestation and Motion,
dated June 21, 1983,[15] the Director of Lands, thru the Solicitor General, acknowledged
that "the respondent Court’s decision has become final with respect to the Director of
Lands."[16]

Petitioner, left to its own by the Director of Lands, cites the following grounds for the
grant of the instant petition:
"I
THAT THE LAND IN QUESTION HAD LONG BEEN SEGREGATED FROM THE
PUBLIC DOMAIN AND OWNERSHIP THERETO HAD LONG BECOME VESTED IN
HEREIN PETITIONER WHEN ITS MINING CLAIMS IN QUESTION WERE
REGISTERED IN THE OFFICE OF THE MINING RECORDER IN 1921 AND 1931
RESPECTIVELY.

II
THAT THE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION
IN FINDING THAT THE APPLICANT WAS IN CONTINUOUS OPEN AND ADVERSE
POSSESSION OF THE LAND IN QUESTION."[17]

We find these arguments to be devoid of merit.

The records bear out that private

respondent has been in possession of
subject parcel of land in concept of owner
for more than thirty (30) years

----------------------------------------------------

The court a quo made the following factual findings based on the testimony of private
respondent:

"The evidence x x x shows that he [private respondent] acquired the land from his
father-in-law, Dongail, when he married his daughter; that he was then 18 years old;
that at the time of his acquisition, it was planted with camotes, casava [sic], langka,
gabi, coffee and avocados; that he lived on the land since his marriage up to the
present; that he has been paying the taxes during the Japanese occupation and even
before it; that he was never disturbed in his possession.  Supporting his oral testimony,
applicant submitted tax declarations x x x both dated March 20, 1948, the former for a
rural land and the latter for urban land and improvement therein." [18]
Substantiating the aforecited testimonial evidence of private respondent’s actual,
adverse and continuous possession of the subject land for more than thirty (30) years
are the observations of the court commissioner during the ocular inspection of the
subject land on February 1, 1969, pertinent transcribed portions of which read as
follows:
"Upon verification of the extent of the area applied for by the applicant which
tallies with the plan on record, we find the following improvements;

The land applied for is almost 90% improved with numerous irrigated rice
terraces newly planted to palay at the time of the ocular inspection and others
planted to vegetables such as potatoes, banana plants, flowering plants and fruit
trees such as mangoes, jackfruits, coffee plants, avocados and citrus - all fruit
bearing.

Most of the fruit trees such as the mango trees are about one half (1/2) meter in
diameter.

There are four houses owned by the applicant [private respondent]  and his
children.

There is a creek traversing the middle portion of the land which serves as
irrigation for the numerous rice paddies.

Upon verification of the surrounding area which we did by hiking all the way,
there are no assessment tunnels or any sign of mining activities.

xxx

There are earthen dikes and fences surrounding the property applied for.

It also appears that the surrounding area of the land applied for is also fully
cultivated especially on the western portion, southern portion and also on the
northern portion.

On the northwestern ridge are numerous terraces planted to various vegetables

and on the edges of the property is a plantation of tiger grass used for brooms.

On the eastern slope are also numerous terraces planted to flowering plants and
numerous banana plants.

There are only two (2) pine trees growing situated on the eastern slope of the
land in question.

On the northern portion are terraces and ricefields and mango tree as well as
banana plants.

At the northern slope of the land applied for is [sic]  fully cultivated with the
exception of whatever portions are planted to bananas and tiger grass.

The terraces at the time of the ocular inspection is planted to vegetables and
flowering plants such as African dishes [sic].

On the northwestern portion of the land are numerous terraces planted to

seasonal vegetable crops.  The rest are planted to banana except the small steep
portion planted to tiger grass to prevent the land from eroding.

On the western portion is a big irrigation canal with plenty of water which serve
[sic] as a water supply to irrigate the ricefields which are found around the
property.

An estimate of around 90 to 120 big and small trees are scattered all over the
property.  Around the houses are full of fruit trees.

xxx

The mining compound of Itogon is very far from this place and this land is at the
boundary of Baguio City and Itogon.  That is why it is more suitable for
residential and agricultural purposes.  Nowhere do we find any mining work
done, any cable or anything that would show any mining operation in this area.

Around the yard of the houses of the applicant are numerous coffee trees,
jackfruits, pomelos, papaya, pineapples, banana plants, guava trees and carrots.

The orchard is fully planted to coffee trees.  The area is estimated to be more
than one hectare which is planted to coffee trees and other plants." [19]
Private respondent, it must be emphasized, offered in evidence in the land registration
proceedings before the court a quo, tax declarations, dated March 20, 1948, and tax
payment receipts, dated February 8, 1949.
Significantly, petitioner did not present any evidence in rebuttal of private respondent’s
aforestated claims of having acquired the subject land from his wife’s father and having
lived on the land since his marriage at the age of eighteen (18).  Neither has petitioner
taken exception to the aforecited observations of the court commissioner during the
ocular inspection of the subject land.  There is nary a showing in petitioner’s numerous
pleadings filed before us that there exists substantial basis for us not to believe
petitioner’s claims, and this is understandable, for petitioner largely anchored its cause
on its alleged vested rights to its mining claims under the mandate of the Philippine Bill
of 1902 and our rulings in McDaniel vs. Apacible and Cuisia [20] and the catena of cases
subsequent thereto.

Considering the aforestated evidence borne out by the records of the instant case, their
credibleness and the lack of adequate opposition thereto, we agree with respondent
Court of Appeals that "a reading of tsn. would rather persuade that applicant [private
respondent] had shown quite well that subject property had been in (the) continuous
and adverse possession, first, of his predecessor-in-interest, Dongail and, after the
death of the latter, (by respondent) himself, years before, that is, long before the
outbreak of the last war."[21]

Petitioner is deemed to have abandoned

his mining claims under E.O. No. 141 and
P.D. No. 1214

-------------------------------------------

All mineral lands, as part of the country’s natural resources, belong to the Philippine
State.  This concept of jura regalia enshrined in past and present Philippine
constitutions, has not always been the prevailing principle in this jurisdiction, however,
the abundant resources within our coastal frontiers having in the past filled not just one
colonizer’s booty haul.  Indeed, there was a time in our history when the mining laws
prevailing in this jurisdiction were compromising, to say the least, of the Filipino people’s
inherent rights to their natural wealth.

Before the cession of the Philippine Islands to the United States under the Treaty of
Paris, the prevailing mining law in the colony was the Royal Decree of May, 1867,
otherwise known as The Spanish Mining Law.

In the advent of American occupation, the Philippines was governed by means of

organic acts which were in the nature of charters serving as a Constitution of the
occupied territory from 1900 to 1935. [22] Among the principal organic acts of the
Philippines was the Act of Congress of July 1, 1902 through which the United States
Congress assumed the administration of the Philippine Islands.

The Philippine Bill of 1902 contained provisions for, among many other things, the open
and free exploration, occupation and purchase of mineral deposits and the land where
they may be found.  It declared "all valuable mineral deposits in public lands in the
Philippine Islands, both surveyed and unsurveyed x x x 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 x x x." [23]

Any qualified person desiring to locate a mineral claim may enter upon the same and
locate a plot of ground measuring, where possible, but not exceeding, one thousand
feet in length by one thousand feet in breadth, in as nearly as possible a rectangular
form.[24] Under the Philippine Bill of 1902, the holder of the mineral claim so located is
entitled to all the minerals which may lie within his claim, but he may not mine outside
the boundary lines of his claim. [25] The mine claim locator must have his claim recorded
in the mining recorder within thirty (30) days after the location thereof; otherwise, he will
be deemed to have abandoned the same. [26]

One of the continuing requirements for the subsistence of the mining claim is
performance of not less than one hundred dollars’ worth of labor or undertaking of
improvements of the same value every year. [27] This is a strict requisite, the locator’s
failure to comply with which shall operate to open the claim or mine to relocation in the
same manner as if no location of the same had even been made. [28] Unequivocal is the
mandatory nature of the work or labor requirement on the mine that the Philippine Bill
specifically designates the time when the work or labor required to be done annually on
all unpatented mineral claims, shall commence. [29]

Subsequently, among a few laws passed amending the Philippine Bill of 1902 was Act
No. 624 passed by the United States Philippine Commission and approved on February
7, 1903.  Said Act prescribed regulations to govern the location and the manner of
recording mining claims and the amount of work necessary to hold possession thereof. 
Such regulations reinforced the annual work or labor requirement of not less than one
hundred dollars’ worth as provided for in the Philippine Bill of 1902, in accordance with
Section 36 thereof which limits the power of the United States Philippine Commission to
make regulations but "not in conflict with the provision of this Act [i.e., the Philippine Bill
of 1902], governing the location, manner of recording, and amount of work necessary to
hold possession of a mining claim x x x."

On November 15, 1935, the Constitution of the Commonwealth took effect.  The 1935
Constitution declared all natural resources of the Philippines, including mineral lands
and minerals, to be property belonging to the State. [30] However, as it turned out, not
really all of the Philippines’ natural resources were considered part of the public
domain.  Those natural resources, and for that matter, those mineral lands and
minerals with respect to which there already was "any existing right, grant, lease,
or concession at the time of the inauguration of the Government established
under this Constitution," were then considered outside the application of the jura
regalia doctrine or at least not unconditionally or totally within the contemplation of said
doctrine.

On November 7, 1936, the First National Assembly enacted Commonwealth Act No.
137, otherwise known as the Mining Act.  In contradistinction with the Philippine Bill of
1902 which was patterned after the United States Federal Mining Acts which rejected
the regalian doctrine, the Mining Act expressly adopted the regalian doctrine following
the provisions of the 1935 Constitution.  Since said Constitution necessarily
prohibits the alienation of mining lands, the Mining Act granted only lease rights
to mining claimants who are proscribed from purchasing the mining claim itself. 
These provisions of the Mining Act, however, were expressly inapplicable to mining
claimants who had located and recorded their claims under the Philippine Bill of
1902.

The nationalism underlying the adoption of the regalian doctrine in the 1935 Constitution
was further eroded by the amendment thereto which was adopted by the First Congress
on September 18, 1946 and approved by a majority at the elections held on March 11,
1947.  This amendment which came in the form of an "Ordinance Appended to the
Constitution" is what is known as the "Parity Rights" amendment.  It provided that,
notwithstanding the adoption in the Constitution of the regalian doctrine and the
proscription against aliens participating in the natural wealth of the nation, excepted
therefrom were the citizens of the United States and its business enterprises which
would have the equal right in the disposition, exploitation, development and utilization of
our natural resources, among them, our mining lands and minerals for the period from
July 4, 1946 to July 3, 1974.

In the meantime, the provisions of the Philippine Bill of 1902 regarding mining claims,
insofar as the mining lands and mining claims acquired before the  effectivity of the
1935 Constitution are concerned, continued to be in effect.  Annual performance of
labor or undertaking of improvements on the mine remained an annual requirement,
non-compliance with which resulted in the mine becoming again open to relocation but
now subject to the lease provisions of the Mining Act.  The intention for this annual work
requirement to be a strict prerequisite to maintenance of a claimant’s rights under the
Philippine Bill of 1902 apparently not lost on subsequent legislators, they took the same
as an absolute prerequisite with grave consequences and believed it necessary to
expressly enact a law[31] waiving this requirement during the period from January 1, 1952
to January 1, 1954 as the circumstances then necessitated the same.

The Philippine Bill of 1902 clearly required the annual performance of work on the mine
or the undertaking of improvements thereon in order for the mine claim locator to
continue enjoying all the rights accruing to him as such under the said Bill.   This and
nothing short of this was the requirement.  The filing of affidavits of annual assessment
work, which procedure is not even provided for in the Philippine Bill of 1902, is required
only for purposes of proving that there had actually been work or improvements done.  
Such filing could not have been intended to replace the actual work requirement, and
nary is there a basis in law to support any conclusion to the contrary, notwithstanding
what was appearing to be the practice of mine claim locators of annually filing affidavits
of annual assessment but willfully not undertaking actual work or tangible improvement
on the mine site.

On August 1, 1968, then President Marcos issued Executive Order (E.O.) No. 141. 
Whereas mining claim holders under the Philippine Bill of 1902 "x x x are of the
impression that they may hold on to their claims indefinitely by the mere filing of
affidavits of annual assessment work x x x," E.O. No. 141 precisely declared that
"such impression is not correct, for what matters in maintaining and preserving
possessory title to the claim is the continuous performance of the required
assessment work, not the filing of an affidavit which may be disproved by
findings on the ground."  Consequently, E.O. No. 141 established the status of such
unpatented mining claims which have not complied with the annual work requirement,
as having been abandoned and open for relocation, their declarations of location being
accordingly cancelled.

On January 17, 1973, the 1973 Constitution came into force and effect.  Unlike the
former Charter, the 1973 Constitution did not expressly qualify the application of the
regalian doctrine as being subject to any right granted before the effectivity of the 1935
Constitution or the 1973 Constitution for that matter.  It provided:
"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. x x x." [32]
But the conditional application of the regalian doctrine under the 1973 Constitution could
be found in Presidential Decree (P.D.) No. 463, enacted on May 17, 1974, which
revised the Mining Act (C.A. No. 137).  While the said decree declares that "x x x all
mineral deposits in public or private lands x x x belong to the State, inalienably
and imprescriptively x x x," it also recognizes whatever rights or reservations had
already been existing with respect to certain mining lands, [33] apparently alluding
to the rights of mining claim holders under the Philippine Bill of 1902.

Under the Philippine Bill of 1902, the procedure was that a mining claim locator need
not apply for a patent soon after locating the mine.  The patent may come later, and the
said locator, for as long as he complies with the annual actual work requirement,
enjoyed possessory rights with respect to such mining claim with or without a patent
therefor.  It has already been stated that under E.O. No. 141, unpatented mining
claims shall be deemed abandoned upon a finding that the holders thereof had
not been actually performing any work or labor or undertaking any improvement
at the mine site notwithstanding their having religiously filed annual affidavits of
assessment.

Even under P.D. 463 which was enacted in 1974, the possessory rights of mining
claim holders under the Philippine Bill of 1902 remained effective for as long as
said holders complied with the annual actual work requirement.  But on October
14, 1977, P.D. No. 1214 required all the holders of unpatented mining claims to secure
mining lease contracts under P.D. No. 463.  Faced with the grave consequence of
forfeiture of all their rights to their claims, holders of subsisting and valid patentable
mining claims located under the Philippine Bill of 1902 were to file mining lease
applications therefor within one (1) year from the effectivity of the said decree. [34] The
filing of such mining lease applications was considered a waiver of the holders’ rights to
the issuance of mining patents for their claims.[35] Corollarily, non-filing of applications for
mining lease by the holders thereof within the one-year period would cause the
forfeiture of all their rights to their claims.[36]

Against the backdrop of the afore-chronicled evolution of the pertinent mining laws, past
and present, in this jurisdiction, we now proceed to resolve the controlling issue in this
case:  Whether or not the ownership of subject land had long been vested on
petitioner after it had allegedly located and recorded its mining claim in
accordance with the pertinent provisions of the Philippine Bill of 1902.

This issue is certainly not a novel one.  It has been first ruled upon by this court in the
1922 case of McDaniel vs. Apacible and Cuisia.[37] There, applying American
precedents, we stated:
"The moment the locator discovered a valuable mineral deposit on the lands
located, and perfected his location in accordance with law, the power of the
United States Government to deprive him of the exclusive right to the possession
and enjoyment of the located claim was gone, the lands had become mineral
lands and they were exempted from lands that could be granted to any other
person.  The reservations of public lands cannot be made so as to include prior
mineral perfected located locations; and of course, if a valid mining location is
made upon public lands afterward included in a reservation, such inclusion or
reservation does not affect the validity of the former location.  By such location
and perfection, the land located is segregated from the public domain even as
against the Government. x x x."[38]
We reiterated this ruling in the subsequent cases of Gold Creek Mining vs. Rodriguez
(1938),[39] Salacot Mining Company vs. Abadilla (1939), [40] Salacot Mining Company vs.
Rodriguez (1939),[41] Bambao vs. Lednicky (1961),[42] Comilang vs. Buendia (1967),
[43]
 Benguet Consolidated, Inc. vs. Republic (1986), [44] Republic vs. Court of Appeals
(1988)[45] and Atok-Big Wedge Mining Co., Inc. vs. Court of Appeals (1991). [46]

Notwithstanding our ruling in the aforecited cases, however, there came about
thereafter a catena of cases where we declared that the rights of the holder of a
mining claim located under the Philippine Bill of 1902, are not absolute or are not
strictly of ownership.  This declaration was a necessary premise in our affirmation of
the constitutionality of P.D. No. 1214 in the 1987 case of Santa Rosa Mining Co., Inc.
vs. Leido, Jr.[47]where we stated:
"Mere location does not mean absolute ownership over the affected land or
mining claim.  It merely segregates the located land or area from the public
domain by barring other would-be locators from locating the same and
appropriating for themselves the minerals found therein.  To rule otherwise
would imply that location is all that is needed to acquire and maintain rights over
a located mining claim.  This, we cannot approve or sanction because it is
contrary to the intention of the lawmaker that the locator should faithfully and
consistently comply with the requirements for annual work and improvements in
the located mining claim."[48]
And our ruling there was upheld in the tradition of stare decisis in the subsequent cases
of Director of Lands vs. Kalahi Investments, Inc. (1989), [49] Zambales Chromite Mining
Company, Inc. vs. Leido, Jr. (1989),[50] Poe Mining Association vs. Garcia (1991),
[51]
 United Paracale Mining Company, Inc. vs. De la Rosa (1993), [52] and Manuel vs.
Intermediate Appellate Court (1995). [53]

While petitioner adamantly insists that there is only one construction of the provisions of
the Philippine Bill of 1902 as regards his mining claim rights, and this is that the same
are absolute and in the nature of ownership, private respondent posits the ultimate
question of which between the aforecited seemingly inconsistent rulings is the correct
interpretation of the Philippine Bill of 1902 in relation to E.O. No. 141 and P.D. 1214
insofar as the rights of mining claim holders under the said Bill are concerned.

This is not the first time either that we are asked to, in all awareness of the precedents,
resolve these postulations of this court that are perceived to be contradictory.  In the
1994 case of United Paracale Mining Company vs. Court of Appeals, [54] posed before us
by petitioner therein was the same question that herein private respondent asks us to
resolve in the ultimate.  We noted in that case:
"The query of petitioner:  ‘What is actually the right of a locator of mining claim
located and perfected under the Philippine Bill of 1902.  Does he have an
absolute right of ownership, or merely a right to possess and claim?’

Petitioner contends that there are two (2) conflicting rulings made by this Court
on the same issue.  In Director of Lands vs. Kalahi Investments, Inc. (169 SCRA
683), a locator of mining claims perfected under the Philippine Bill of 1902 has
been held not to have an absolute right of ownership over said claims but merely
a possessory right thereto.  In Atok-Big Wedge Mining Company, Inc. vs. Court of
Appeals and Liwan Consi (193 SCRA 71), however, a locator of mining claim
perfected under the Philippine Bill of 1902, the Court has ruled, does have an
absolute right of ownership over his claim being thereby removed from the public
domain."[55]
In that case of United Paracale Mining, it would have been premature for us to rule on
the query, not all indispensable parties therein having been joined.  That is not the
situation in this present controversy, however, and so we shall forthwith resolve the
matter at hand once and for all.

The earlier chronicle of the evolution of the mining laws, past and present, in this
jurisdiction was not without a predetermined purpose.  The detailing of the provisions of
those laws, especially of the Philippine Bill of 1902, was certainly deliberate.  It is
undeniable at this point that the determination of the rights of a mining claim holder
under the said Bill is best undertaken on the basis of the very source of those rights,
that is, the Bill itself.  And any alteration or change in the nature of those rights must be
conceded for as long as such is statutorily and constitutionally sanctioned, for even
vested rights may be taken away by the State in the exercise of its absolute police
power.

Under the Philippine Bill of 1902, the mining claim holder, upon locating and
recording of his claim, has the right to acquire for himself all mineral deposits
found within his claim to the exclusion of everyone, including the Government. 
Such rights are necessarily possessory as they are essentially utilitarian and
exploitative.  Such rights accruing to the mining claim locator are personal to him in the
sense that no conclusion as to the nature of the land may definitively be made based
solely on the fact that a mining claim has been recorded as regards a particular land. 
However, insofar as his rights are exclusive and no other person may undertake
mining activities on a recorded mining claim, unless the same has been
abandoned or the works thereon not done, the mining locator’s rights are also
protected against adverse mining claims of third persons.   He also has the right to
immediately or eventually secure a patent on his mining claim and in the event that he
postpones securing a patent, his rights to exclusive possession and exploitation of his
mining claim subsist for as long as he complies with the continuing requirement of
annually performing work or undertaking improvements at the mine site.  Insofar as the
Philippine Bill of 1902 does not provide a specific time within which the mining claim
holder must secure a patent, his rights to possession and use of the mining land appear
to be unconditional, the option not at all to secure a patent being available to him in the
absence of a deadline or ultimatum therefor.  The Philippine Bill of 1902, however, did
not foreclose a subsequent act on the part of the State to limit the time within which the
said patent must be secured under threat of forfeiture of rights provided for under the
Philippine Bill of 1902.  Thus, in the sense that the rights of a mining claim holder may in
the future be curtailed by failure to obtain a patent, especially if we recall that Section 36
of the said Bill itself foretold the subsequent promulgation of regulations regarding
mining claims, such rights cannot also be said to be truly unconditional or absolute.

We also learn from our reading of our past and present mining laws in their proper
historical perspectives, that the process of recording mining claims could not have been
intended to be the operative act of classifying lands into mineral lands.  The recording of
a mining claim only operates to reserve to the registrant exclusive rights to undertake
mining activities upon the land subject of the claim.  The power to classify lands into
mineral lands could not have been intended under the Philippine Bill of 1902 to be
vested in just anyone who records a mining claim.  In fact, this strengthens
our holding that the rights of a mining claimant are confined to possessing the land
for purposes of extracting therefrom minerals in exclusion of any or all other
persons whose claims are subsequent to the original mining locator.  Thus, if no
minerals are extracted therefrom, notwithstanding the recording of the claim, the
land is not mineral land and registration thereof is not precluded by such
recorded claim.  Thus, in the case at bench, the mining claimant, who had failed to
comply with the annual minimum labor requirement, could not, all the more, be
expected to have extracted minerals from the mining location.  Utter lack of proof of
even its potential deposits on the part of the petitioner, thus, does not surprise us at all.

Thus, it can be said (1) that the rights under the Philippine Bill of 1902 of a mining claim
holder over his claim has been made subject by the said Bill itself to the strict
requirement that he actually performs work or undertakes improvements on the
mine every year and does not merely file his affidavit of annual assessment, which
requirement was correctly identified and declared in E.O. No. 141; and (2) that the same
rights have been terminated by P.D. No. 1214, a police power enactment, under which
non-application for mining lease amounts to waiver of all rights under the
Philippine Bill of 1902 and application for mining lease amounts to waiver of the
right under said Bill to apply for patent.  In the light of these substantial conditions
upon the rights of a mining claim holder under the Philippine Bill of 1902, there should
remain no doubt now that such rights were not, in the first place, absolute or in the
nature of ownership, and neither were they intended to be so.

Applying the aforecited ruling to the facts of this case, we find that, not only has
petitioner failed to sufficiently show compliance with actual annual work requirement on
its mining claims but also that credible are the transcribed observations of the trial
commissioner that nowhere on the subject land could be found tangible works or
improvements of an extent that would have existed had petitioner really complied with
the annual work requirement from 1931 when it allegedly first located said mining
claims.  In fact, no mining infrastructure or equipment of any sort can be found on the
area.  Understandable thus is the action of the Director of Lands not to further appeal
from respondent court’s decision, Director of Lands eventually conceding the subject
land to be registrable, considering petitioner’s non-performance of mining works
thereon, private respondent’s adverse possession of the subject land more than thirty
(30) years and its use thereof for as many years solely for agricultural purposes.

Equally borne out by the records is the fact that petitioner has indeed applied for a
mining lease under P.D. No. 1214.  For that reason, it has, in effect, waived its
right to secure a patent and it shall have been governed, if private respondent’s claim
of adverse and open possession of the subject land for more than 30 years were not
established, by P.D. No. 463 in its activities respecting its mining lease.

WHEREFORE, the petition is HEREBY DISMISSED, with costs against petitioner.

SO ORDERED.

Padilla (Chairman), Bellosillo, Vitug, and Kapunan, JJ., concur.

Cruz v. Sec. of Environment and

Natural Resources [ G.R. No.
135385, December 06, 2000 ]
400 Phil. 904
EN BANC
[ G.R. No. 135385, December 06, 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.

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 Posner[1] 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. [28] There 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 P100,000.00 to P500,000.00 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 169 [41] 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.[62] The 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.
[86]
 Knowledge 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' pre-conquest 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 Government[129]

The concept of native title in the IPRA was taken from the 1909 case of Cariño v.
Insular Government.[130] Cariño firmly 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 reservation [133] 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 Court[135] 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:

"[E]very 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 of Valenton 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.  Cariño was 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 Lands[192] 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 citizens[194] and members of the national cultural
minorities[195] 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 immemorial [197] 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 "[n]o
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:

The State may directly undertake such activities; or

1. The State may enter into co-production, joint venture or production-sharing

agreements with Filipino citizens or qualified corporations;
2. Congress may, by law, allow small-scale utilization of natural resources by
Filipino citizens;

3. 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, [224] joint
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-scale [227] 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, flora and 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 IPRA[230] 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. [232] Nevertheless, 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 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;"

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 Constitution [237] 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. [241] Indigenous
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.

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 case[5] 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. Tuvera[16]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.

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.[4] In 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"[10] and "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 Filipinos[16]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.
  Evidently, the rights asserted by petitioners as citizens and taxpayers are held in
[35]

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 [W]hen 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:

... [T]he 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")," [52] which
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. Cuaresma[58] 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
ownership[60] 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.[65] The 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 
Government[75] the  United States  Supreme  Court, reversing the decision[76]of 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,[79] where 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 Constitution [82] 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 nulliusalthough 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
Constitution[101]to 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. [103]  It 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,[119] and
7[120] 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 8[126] 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. Fianza[129] 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."[131] However, 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 1973 [136] 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 basis[151] 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 concerned[153] 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, [158] the
Environmental Impact System,[159] the Local Government Code[160] and the Philippine
Mining Act of 1995[161]already 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 NCIP[167] 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, [170] including 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-legislative[184] and quasi-judicial powers[185] 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  Constitution[188] 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 NCIP[193] 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 1991[196]and 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.

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. Madison[6] 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
decisions[7] 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.

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 remedies [3] 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."[8] Though 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 57[19]-- 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 Government[20] 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.
[30]
 Thus, 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.

San Lorenzo v. Court of Appeals,

449 SCRA 99-3 [ G.R. NO.
124242, January 21, 2005 ]
490 Phil. 7

SECOND DIVISION
[ G.R. NO. 124242, January 21, 2005 ]
SAN LORENZO DEVELOPMENT CORPORATION,
PETITIONER, VS. COURT OF APPEALS, PABLO S.
BABASANTA, SPS. MIGUEL LU AND PACITA ZAVALLA
LU, RESPONDENTS.

DECISION

TINGA, J.:

From a coaptation of the records of this case, it appears that respondents Miguel Lu
and Pacita Zavalla, (hereinafter, the Spouses Lu) owned two (2) parcels of land situated
in Sta. Rosa, Laguna covered by TCT No. T-39022 and TCT No. T-39023 both
measuring 15,808 square meters or a total of 3.1616 hectares.

On 20 August 1986, the Spouses Lu purportedly sold the two parcels of land to
respondent Pablo Babasanta, (hereinafter, Babasanta) for the price of fifteen pesos
(P15.00) per square meter. Babasanta made a downpayment of fifty thousand pesos
(P50,000.00) as evidenced by a memorandum receipt issued by Pacita Lu of the same
date. Several other payments totaling two hundred thousand pesos (P200,000.00) were
made by Babasanta.

Sometime in May 1989, Babasanta wrote a letter to Pacita Lu to demand the

execution of a final deed of sale in his favor so that he could effect full payment
of the purchase price.  In the same letter, Babasanta notified the spouses about
having received information that the spouses sold the same property to another
without his knowledge and consent.  He demanded that the second sale be
cancelled and that a final deed of sale be issued in his favor.

In response, Pacita Lu wrote a letter to Babasanta wherein she acknowledged having

agreed to sell the property to him at fifteen pesos (P15.00) per square meter. She,
however, reminded Babasanta that when the balance of the purchase price became
due, he requested for a reduction of the price and when she refused, Babasanta
backed out of the sale. Pacita added that she returned the sum of fifty thousand pesos
(P50,000.00) to Babasanta through Eugenio Oya.

On 2 June 1989, respondent Babasanta, as plaintiff, filed before the Regional Trial
Court (RTC), Branch 31, of San Pedro, Laguna, a Complaint for Specific Performance
and Damages[1] against his co-respondents herein, the Spouses Lu.  Babasanta alleged
that the lands covered by TCT No. T- 39022 and T-39023 had been sold to him by the
spouses at fifteen pesos (P15.00) per square meter. Despite his repeated demands for
the execution of a final deed of sale in his favor, respondents allegedly refused.

In their Answer,[2] the Spouses Lu alleged that Pacita Lu obtained loans from Babasanta

and when the total advances of Pacita reached fifty thousand pesos (P50,000.00), the
latter and Babasanta, without the knowledge and consent of Miguel Lu, had verbally
agreed  to transform  the transaction into a contract to sell the two parcels of land to
Babasanta with the fifty thousand pesos (P50,000.00) to be considered as the
downpayment for the property and the balance to be paid on or before 31 December
1987. Respondents Lu added that as of November 1987, total payments made by
Babasanta amounted to only two hundred thousand pesos (P200,000.00) and the latter
allegedly failed to pay the balance of two hundred sixty thousand pesos (P260,000.00)
despite repeated demands. Babasanta had purportedly asked Pacita for a reduction of
the price from fifteen pesos (P15.00) to twelve pesos (P12.00) per square meter and
when the Spouses Lu refused to grant Babasanta’s request, the latter rescinded the
contract to sell and declared that the original loan transaction just be carried out in that
the spouses would be indebted to him in the amount of two hundred thousand pesos
(P200,000.00).  Accordingly, on 6 July 1989, they purchased Interbank Manager’s
Check No. 05020269 in the amount of two hundred thousand pesos (P200,000.00) in
the name of Babasanta to show that she was able and willing to pay the balance of her
loan obligation.

Babasanta later filed an Amended Complaint dated 17 January 1990[3] wherein he

prayed for the issuance of a writ of preliminary injunction with temporary restraining
order and the inclusion of the Register of Deeds of Calamba, Laguna as party
defendant.  He contended that the issuance of a preliminary injunction was necessary to
restrain the transfer or conveyance by the Spouses Lu of the subject property to other
persons.

The Spouses Lu filed their Opposition[4] to the amended complaint contending that it

raised new matters which seriously affect their substantive rights under the original
complaint. However, the trial court in its Order dated 17 January 1990 [5] admitted the
amended complaint.

On 19 January 1990, herein petitioner San Lorenzo Development Corporation (SLDC)

filed a Motion for Intervention[6] before the trial court.  SLDC alleged that it had legal
interest in the subject matter under litigation because on 3 May 1989, the two parcels of
land involved, namely Lot 1764-A and 1764-B, had been sold to it in a Deed of Absolute
Sale with Mortgage.[7] It alleged that it was a buyer in good faith and for value and
therefore it had a better right over the property in litigation.

In his Opposition to SLDC’s motion for intervention, [8] respondent Babasanta demurred

and argued that the latter had no legal interest in the case because the two parcels of
land involved herein had already been conveyed to him by the Spouses Lu and hence,
the vendors were without legal capacity to transfer or dispose of the two parcels of land
to the intervenor.

Meanwhile, the trial court in its Order dated 21 March 1990 allowed SLDC to intervene.
SLDC filed its Complaint-in-Intervention on 19 April 1990.[9] Respondent Babasanta’s
motion for the issuance of a preliminary injunction was likewise granted by the trial court
in its Order dated 11 January 1991[10] conditioned upon his filing of a bond in the amount
of fifty thousand pesos (P50,000.00).

SLDC in its Complaint-in-Intervention alleged that on 11 February 1989, the Spouses Lu

executed in its favor an Option to Buy the lots subject of the complaint.  Accordingly, it
paid an option money in the amount of three hundred sixteen thousand one hundred
sixty pesos (P316,160.00) out of the total consideration for the purchase of the two lots 
of  one million two hundred sixty-four thousand six hundred forty pesos
(P1,264,640.00).  After the Spouses Lu received a total amount of six hundred thirty-two
thousand three hundred twenty pesos (P632,320.00) they executed on 3 May 1989
a Deed of Absolute Sale with Mortgage in its favor.  SLDC added that the certificates of
title over the property were delivered to it by the spouses clean and free from any
adverse claims and/or notice of lis pendens.  SLDC further alleged that it only learned of
the filing of the complaint sometime in the early part of January 1990 which prompted it
to file the motion to intervene without delay.  Claiming that it was a buyer in good faith,
SLDC argued that it had no obligation to look beyond the titles submitted to it by the
Spouses Lu particularly because Babasanta’s claims were not annotated on the
certificates of title at the time the lands were sold to it.

After a protracted trial, the RTC rendered its Decision on 30 July 1993 upholding the
sale of the property to SLDC.  It ordered the Spouses Lu to pay Babasanta the sum of 
two hundred thousand pesos (P200,000.00) with legal interest plus the further sum of
fifty thousand pesos (P50,000.00) as and for attorney’s fees.  On the complaint-in-
intervention, the trial court ordered the Register of Deeds of Laguna, Calamba Branch
to cancel the notice of lis pendens annotated on the original of the TCT No. T-39022 (T-
7218) and No. T-39023 (T-7219).

Applying Article 1544 of the Civil Code, the trial court ruled that since both Babasanta
and SLDC did not register the respective sales in their favor, ownership of the property
should pertain to the buyer who first acquired possession of the property.  The trial
court equated the execution of a public instrument in favor of SLDC as sufficient
delivery of the property to the latter.  It concluded that symbolic possession could be
considered to have been first transferred to SLDC and consequently ownership of the
property pertained to SLDC who purchased the property in good faith.

Respondent Babasanta appealed the trial court’s decision to the Court of Appeals
alleging in the main that the trial court erred in concluding that SLDC is a purchaser in
good faith and in upholding the validity of the sale made by the Spouses Lu in favor of
SLDC.

Respondent spouses likewise filed an appeal to the Court of Appeals.  They contended
that the trial court erred in failing to consider that the contract to sell between them and
Babasanta had been novated when the latter abandoned the verbal contract of sale and
declared that the original loan transaction just be carried out.  The Spouses Lu argued
that since the properties involved were conjugal, the trial court should have declared the
verbal contract to sell between Pacita Lu and Pablo Babasanta null and void ab initio for
lack of knowledge and consent of Miguel Lu.  They further averred that the trial court
erred in not dismissing the complaint filed by Babasanta; in awarding damages in his
favor and in refusing to grant the reliefs prayed for in their answer.

On 4 October 1995, the Court of Appeals rendered its Decision[11] which set aside the
judgment of the trial court.  It declared that the sale between Babasanta and the
Spouses Lu was valid and subsisting and ordered the spouses to execute the
necessary deed of conveyance in favor of Babasanta, and the latter to pay the balance
of the purchase price in the amount of two hundred sixty thousand pesos
(P260,000.00).  The appellate court ruled that the Absolute Deed of Sale with
Mortgage in favor of SLDC was null and void on the ground that SLDC was a purchaser
in bad faith.  The Spouses Lu were further ordered to return all payments made by
SLDC with legal interest and to pay attorney’s fees to Babasanta.

SLDC and the Spouses Lu filed separate motions for reconsideration with the appellate
court.[12] However, in a Manifestation dated 20 December 1995,[13] the Spouses Lu
informed the appellate court that they are no longer contesting the decision dated 4
October 1995.

In its Resolution dated 11 March 1996,[14] the appellate court considered as withdrawn

the motion for reconsideration filed by the Spouses Lu in view of their manifestation of
20 December 1995.  The appellate court denied SLDC’s motion for reconsideration on
the ground that no new or substantial arguments were raised therein which would
warrant modification or reversal of the court’s decision dated 4 October 1995.
Hence, this petition.

SLDC assigns the following errors allegedly committed by the appellate court:
THE COURT OF APPEALS ERRED IN HOLDING THAT SAN LORENZO WAS NOT A
BUYER IN GOOD FAITH BECAUSE WHEN THE SELLER PACITA ZAVALLA LU
OBTAINED FROM IT THE CASH ADVANCE OF P200,000.00, SAN LORENZO WAS
PUT ON INQUIRY OF A PRIOR TRANSACTION ON THE PROPERTY.

THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE THE

ESTABLISHED FACT THAT THE ALLEGED FIRST BUYER, RESPONDENT
BABASANTA, WAS NOT IN POSSESSION OF THE DISPUTED PROPERTY WHEN
SAN LORENZO BOUGHT AND TOOK POSSESSION OF THE PROPERTY AND NO
ADVERSE CLAIM, LIEN, ENCUMBRANCE OR LIS PENDENS WAS ANNOTATED ON
THE TITLES.

THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE THE FACT THAT

RESPONDENT BABASANTA HAS SUBMITTED NO EVIDENCE SHOWING THAT
SAN LORENZO WAS AWARE OF HIS RIGHTS OR INTERESTS IN THE DISPUTED
PROPERTY.

THE COURT OF APPEALS ERRED IN HOLDING THAT NOTWITHSTANDING ITS

FULL CONCURRENCE ON THE FINDINGS OF FACT OF THE TRIAL COURT, IT
REVERSED AND SET ASIDE THE DECISION OF THE TRIAL COURT UPHOLDING
THE TITLE OF SAN LORENZO AS A BUYER AND FIRST POSSESSOR IN GOOD
FAITH. [15]
SLDC contended that the appellate court erred in concluding that it had prior notice of
Babasanta’s claim over the property merely on the basis of its having advanced the
amount of two hundred thousand pesos (P200,000.00) to Pacita Lu upon the latter’s
representation that she needed the money to pay her obligation to Babasanta.  It
argued that it had no reason to suspect that Pacita was not telling the truth that the
money would be used to pay her indebtedness to Babasanta. At any rate,  SLDC
averred that the amount of  two hundred thousand pesos (P200,000.00) which it
advanced to Pacita Lu would be deducted from the balance of the purchase price still
due from it and should not be construed as notice of the prior sale of the land to
Babasanta. It added that at no instance did Pacita Lu inform it that the lands had been
previously sold to Babasanta.

Moreover, SLDC stressed that after the execution of the sale in its favor it immediately
took possession of the property and asserted its rights as new owner as opposed to
Babasanta who has never exercised acts of ownership. Since the titles bore no adverse
claim, encumbrance, or lien at the time it was sold to it, SLDC argued that it had every
reason to rely on the correctness of the certificate of title and it was not obliged to go
beyond the certificate to determine the condition of the property. Invoking the
presumption of good faith, it added that the burden rests on Babasanta to prove that it
was aware of the prior sale to him but the latter failed to do so.  SLDC pointed out that
the notice of lis pendens was annotated only on 2 June 1989 long after the sale of the
property to it was consummated on 3 May 1989.

 Meanwhile, in an Urgent Ex-Parte Manifestation dated 27 August 1999, the Spouses

Lu informed the Court that due to financial constraints they have no more interest to
pursue their rights in the instant case and submit themselves to the decision of the
Court of Appeals.[16]

On the other hand, respondent Babasanta argued that SLDC could not have acquired
ownership of the property because it failed to comply with the requirement of
registration of the sale in good faith.  He emphasized that at the time SLDC registered
the sale in its favor on 30 June 1990, there was already a notice of lis
pendens annotated on the titles of the property made as early as 2 June 1989.  Hence,
petitioner’s registration of the sale did not confer upon it any right. Babasanta further
asserted that petitioner’s bad faith in the acquisition of the property is evident from the
fact that it failed to make necessary inquiry regarding the purpose of the issuance of the
two hundred thousand pesos (P200,000.00) manager’s check in his favor.

The core issue presented for resolution in the instant petition is who between SLDC and
Babasanta has a better right over the two parcels of land subject of the instant case in
view of the successive transactions executed by the Spouses Lu.

To prove the perfection of the contract of sale in his favor, Babasanta presented a
document signed by Pacita Lu acknowledging receipt of the sum of fifty thousand pesos
(P50,000.00) as partial payment for 3.6 hectares of farm lot situated at Barangay
Pulong, Sta. Cruz,  Sta. Rosa, Laguna.[17] While the receipt signed by Pacita did not
mention the price for which the property was being sold, this deficiency was supplied by
Pacita Lu’s letter dated 29 May 1989[18] wherein she admitted that she agreed to sell the
3.6 hectares of land to Babasanta for fifteen pesos (P15.00) per square meter.

An analysis of the facts obtaining in this case, as well as the evidence presented by the
parties, irresistibly leads to the conclusion that the agreement between Babasanta
and the Spouses Lu is a contract to sell and not a contract of sale.

Contracts, in general, are perfected by mere consent, [19] which is manifested by the

meeting of the offer and the acceptance upon the thing which are to constitute the
contract.  The offer must be certain and the acceptance absolute. [20] Moreover, contracts
shall be obligatory in whatever form they may have been entered into, provided all the
essential requisites for their validity are present.[21]

The receipt signed by Pacita Lu merely states that she accepted the sum of fifty
thousand pesos (P50,000.00) from Babasanta as partial payment of 3.6 hectares of
farm lot situated in Sta. Rosa, Laguna. While there is no stipulation that the seller
reserves the ownership of the property until full payment of the price which is a
distinguishing feature of a contract to sell, the subsequent acts of the parties convince
us that the Spouses Lu never intended to transfer ownership to Babasanta except upon
full payment of the purchase price.

Babasanta’s letter dated 22 May 1989 was quite telling. He stated therein that despite
his repeated requests for the execution of the final deed of sale in his favor so that he
could effect full payment of the price, Pacita Lu allegedly refused to do so.  In effect,
Babasanta himself recognized that ownership of the property would not be transferred
to him until such time as he shall have effected full payment of the price. Moreover, had
the sellers intended to transfer title, they could have easily executed the document of
sale in its required form simultaneously with their acceptance of the partial payment, but
they did not.  Doubtlessly, the receipt signed by Pacita Lu should legally be considered
as a perfected contract to sell.

The distinction between a contract to sell and a contract of sale is quite germane. 
In a contract of sale, title passes to the vendee upon the delivery of the thing
sold; whereas in a contract to sell, by agreement the ownership is reserved in the
vendor and is not to pass until the full payment of the price. [22] In a contract of sale,
the vendor has lost and cannot recover ownership until and unless the contract is
resolved or rescinded; whereas in a contract to sell, title is retained by the vendor until
the full payment of the price, such payment being a positive suspensive condition and
failure of which is not a breach but an event that prevents the obligation of the vendor to
convey title from becoming effective.[23]

The perfected contract to sell imposed upon Babasanta the obligation to pay the
balance of the purchase price. There being an obligation to pay the price, Babasanta
should have made the proper tender of payment and consignation of the price in court
as required by law.  Mere sending of a letter by the vendee expressing the intention to
pay without the accompanying payment is not considered a valid tender of payment.
[24]
Consignation of the amounts due in court is essential in order to extinguish
Babasanta’s obligation to pay the balance of the purchase price.  Glaringly absent from
the records is any indication that Babasanta even attempted to make the proper
consignation of the amounts due, thus, the obligation on the part of the sellers to convey
title never acquired obligatory force.

On the assumption that the transaction between the parties is a contract of sale and not
a contract to sell, Babasanta’s claim of ownership should nevertheless fail.

Sale, being a consensual contract, is perfected by mere consent [25] and from that
moment, the parties may reciprocally demand performance. [26]The essential elements of
a contract of sale, to wit: (1) consent or meeting of the minds, that is, to transfer
ownership in exchange for the price; (2) object certain which is the subject matter of the
contract; (3) cause of the obligation which is established. [27]

The perfection of a contract of sale should not, however, be confused with its
consummation. In relation to the acquisition and transfer of ownership, it should
be noted that sale is not a mode, but merely a title.  A mode is the legal means by
which dominion or ownership is created, transferred or destroyed, but title is only the
legal basis by which to affect dominion or ownership. [28] Under Article 712 of the Civil
Code, “ownership and other real rights over property are acquired and
transmitted by law, by donation, by testate and intestate succession, and in
consequence of certain contracts, by tradition.”  Contracts only constitute titles
or rights to the transfer or acquisition of ownership, while delivery or tradition is
the mode of accomplishing the same.[29] Therefore, sale by itself does not transfer
or affect ownership; the most that sale does is to create the obligation to transfer
ownership.  It is tradition or delivery, as a consequence of sale, that actually transfers
ownership.

Explicitly, the law provides that the ownership of the thing sold is acquired by the
vendee from the moment it is delivered to him in any of the ways specified in Article
1497 to 1501.[30] The word “delivered” should not be taken restrictively to mean transfer
of actual physical possession of the property.  The law recognizes two principal modes
of delivery, to wit: (1) actual delivery; and (2) legal or constructive delivery.

Actual delivery consists in placing the thing sold in the control and possession of
the vendee.[31] Legal or constructive delivery, on the other hand, may be had
through any of the following ways: the execution of a public instrument
evidencing  the sale;[32] symbolical tradition such as the delivery of the keys of the place
where the movable sold is being kept;[33]  traditio longa manu or by mere consent or
agreement if the movable sold cannot yet be transferred to the possession of the buyer
at the time of the sale;[34] traditio brevi manu if the buyer already had possession of the
object even before the sale;[35] and traditio constitutum possessorium, where the
seller remains in possession of the property in a different capacity. [36]
Following the above disquisition, respondent Babasanta did not acquire ownership
by the mere execution of the receipt by Pacita Lu acknowledging receipt of partial
payment for the property.  For one, the agreement between Babasanta and the
Spouses Lu, though valid, was not embodied in a public instrument. Hence, no
constructive delivery of the lands could have been effected.  For another, Babasanta
had not taken possession of the property at any time after the perfection of the sale in
his favor or exercised acts of dominion over it despite his assertions that he was the
rightful owner of the lands.  Simply stated, there was no delivery to Babasanta,
whether actual or constructive, which is essential to transfer ownership of the
property.  Thus, even on the assumption that the perfected contract between the
parties was a sale, ownership could not have passed to Babasanta in the absence
of delivery, since in a contract of sale ownership is transferred to the vendee only
upon the delivery of the thing sold.[37]

However, it must be stressed that the juridical relationship between the parties in a
double sale is primarily governed by Article 1544 which lays down the rules of
preference between the two purchasers of the same property. It provides:
Art. 1544. If the same thing should have been sold to different vendees, the ownership
shall be transferred to the person who may have first taken possession thereof in good
faith, if it should be movable property.

Should it be immovable property, the ownership shall belong to the person acquiring it
who in good faith first recorded it in the Registry of Property.

Should there be no inscription, the ownership shall pertain to the person who in good
faith was first in the possession; and, in the absence thereof, to the person who
presents the oldest title, provided there is good faith.
The principle of primus tempore, potior jure (first in time, stronger in right) gains greater
significance in case of double sale of immovable property. When the thing sold twice is
an immovable, the one who acquires it and first records it in the Registry of Property,
both made in good faith, shall be deemed the owner. [38] Verily, the act of registration
must be coupled with good faith— that is, the registrant must have no knowledge of the
defect or lack of title of his vendor or must not have been aware of facts which should
have put him upon such inquiry and investigation as might be necessary to acquaint him
with the defects in the title of his vendor.[39]

Admittedly, SLDC registered the sale with the Registry of Deeds after it had
acquired knowledge of Babasanta’s claim.  Babasanta, however, strongly argues
that the registration of the sale by SLDC was not sufficient to confer upon the latter any
title to the property since the registration was attended by bad faith.  Specifically, he
points out that at the time SLDC registered the sale on 30 June 1990, there was already
a notice of lis pendens on the file with the Register of Deeds, the same having been
filed one year before on 2 June 1989.

Did the registration of the sale after the annotation of the notice of lis
pendens obliterate the effects of delivery and possession in good faith which
admittedly had occurred prior to SLDC’s knowledge of the transaction in favor of
Babasanta?

We do not hold so.

It must be stressed that as early as 11 February 1989, the Spouses Lu executed

the Option to Buy in favor of SLDC upon receiving P316,160.00 as option money from
SLDC. After SLDC had paid more than one half of the agreed purchase price of
P1,264,640.00, the Spouses Lu subsequently executed on 3 May 1989 a Deed of
Absolute Sale in favor or SLDC. At the time both deeds were executed, SLDC had
no knowledge of the prior transaction of the Spouses Lu with Babasanta.  Simply
stated, from the time of execution of the first deed up to the moment of transfer
and delivery of possession of the lands to SLDC, it had acted in good faith and
the subsequent annotation of lis pendens has no effect at all on the
consummated sale between SLDC and the Spouses Lu.

A purchaser in good faith is one who buys property of another without notice that some
other person has a right to, or interest in, such property and pays a full and fair price for
the same at the time of such purchase, or before he has notice of the claim or interest of
some other person in the property.[40] Following the foregoing definition, we rule that
SLDC qualifies as a buyer in good faith since there is no evidence extant in the records
that it had knowledge of the prior transaction in favor of Babasanta.  At the time of the
sale of the property to SLDC, the vendors were still the registered owners of the
property and were in fact in possession of the lands.  Time and again, this Court has
ruled that a person dealing with the owner of registered land is not bound to go beyond
the certificate of title as he is charged with notice of burdens on the property which are
noted on the face of the register or on the certificate of title. [41] In assailing knowledge of
the transaction between him and the Spouses Lu, Babasanta apparently relies on the
principle of constructive notice incorporated in Section 52 of the Property Registration
Decree (P.D. No. 1529) which reads, thus:
Sec. 52. Constructive notice upon registration.  – Every conveyance, mortgage, lease,
lien, attachment, order, judgment, instrument or entry affecting registered land shall, if
registered, filed, or entered in the office of the Register of Deeds for the province or city
where the land to which it relates lies, be constructive notice to all persons from the time
of such registering, filing, or entering.
However, the constructive notice operates as such-by the express wording of Section
52-from the time of the registration of the notice of lis pendens which in this case was
effected only on 2 June 1989, at which time the sale in favor of SLDC had long been
consummated insofar as the obligation of the Spouses Lu to transfer ownership over the
property to SLDC is concerned.

More fundamentally, given the superiority of the right of SLDC to the claim of Babasanta
the annotation of the notice of lis pendens cannot help Babasanta’s position a bit and it
is irrelevant to the good or bad faith characterization of SLDC as a purchaser.  A notice
of lis pendens, as the Court held in Nataño v. Esteban,[42] serves as a warning to a
prospective purchaser or incumbrancer that the particular property is in litigation; and
that he should keep his hands off the same, unless he intends to gamble on the results
of the litigation.” Precisely, in this case SLDC has intervened in the pending litigation to
protect its rights.  Obviously, SLDC’s faith in the merit of its cause has been vindicated
with the Court’s present decision which is the ultimate denouement on the controversy.

The Court of Appeals has made capital[43] of SLDC’s averment in its Complaint-in-

Intervention[44] that at the instance of Pacita Lu it issued a check for P200,000.00
payable to Babasanta and the confirmatory testimony of Pacita Lu herself on cross-
examination.[45] However, there is nothing in the said pleading and the testimony which
explicitly relates the amount to the transaction between the Spouses Lu and Babasanta
for what they attest to is that the amount was supposed to pay off the advances made
by Babasanta to Pacita Lu.  In any event, the incident took place after the Spouses Lu
had already executed the Deed of Absolute Sale with Mortgage in favor of SLDC and
therefore, as previously explained, it has no effect on the legal position of SLDC.

Assuming ex gratia argumenti that SLDC’s registration of the sale had been tainted by
the prior notice of lis pendens and assuming further for the same nonce  that this is a
case of double sale, still Babasanta’s claim could not prevail over that of SLDC’s. 
In Abarquez v. Court of Appeals,[46] this Court had the occasion to rule that if a vendee in
a double sale registers the sale after he has acquired knowledge of a previous sale, the
registration constitutes a registration in bad faith and does not confer upon him any
right.  If the registration is done in bad faith, it is as if there is no registration at all, and
the buyer who has taken possession first of the property in good faith shall be preferred.

In Abarquez, the first sale to the spouses Israel was notarized and registered only after
the second vendee, Abarquez, registered their deed of sale with the Registry of Deeds,
but the Israels were first in possession. This Court awarded the property to the Israels
because registration of the property by Abarquez lacked the element of good faith. 
While the facts in the instant case substantially differ from that in Abarquez, we would
not hesitate to rule in favor of SLDC on the basis of its prior possession of the property
in good faith.  Be it noted that delivery of the property to SLDC was immediately
effected after the execution of the deed in its favor, at which time SLDC had no
knowledge at all of the prior transaction by the Spouses Lu in favor of Babasanta.

The law speaks not only of one criterion. The first criterion is priority of entry in the
registry of property;   there being no priority of such entry, the second is priority of
possession; and, in the absence of the two priorities, the third priority is of the date of
title, with good faith as the common critical element.  Since SLDC acquired possession
of the property in good faith in contrast to Babasanta, who neither registered nor
possessed the property at any time, SLDC’s right is definitely superior to that of
Babasanta’s.

At any rate, the above discussion on the rules on double sale would be purely academic
for as earlier stated in this decision, the contract between Babasanta and the Spouses
Lu is not a contract of sale but merely a contract to sell.  In Dichoso v. Roxas,[47] we had
the occasion to rule that Article 1544 does not apply to a case where there was a sale to
one party of the land itself while the other contract was a mere promise to sell the land
or at most an actual assignment of the right to repurchase the same land.  Accordingly,
there was no double sale of the same land in that case.

WHEREFORE, the instant petition is hereby GRANTED.  The decision of the Court of
Appeals appealed from is REVERSED and SET ASIDE and the decision of the
Regional Trial Court, Branch 31, of San Pedro, Laguna is REINSTATED.  No costs.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

Union Motor v. Court of Appeals,

361 SCRA 506 [ G.R. No. 117187,
July 20, 2001 ]
414 Phil. 33
SECOND DIVISION
[ G.R. No. 117187, July 20, 2001 ]
UNION MOTOR CORPORATION, PETITIONER-APPELLANT, VS. THE
COURT OF APPEALS, JARDINE-MANILA FINANCE, INC., SPOUSES
ALBIATO BERNAL AND MILAGROS BERNAL, RESPONDENTS-
APPELLES.

DECISION

DE LEON, JR., J.:

Before us on appeal, by way of a petition for review on certiorari, is the

Decision[1] dated March 30, 1994 and Resolution[2] dated September 14,
1994 of the Court of Appeals[3] which affirmed the Decision dated March 6,
1989 of the Regional Trial Court of Makati, Metro Manila, Branch 150, in
Civil Case No. 920 as well as its Resolution dated September 14, 1994
which denied the Motion for Reconsideration of the petitioner.

The facts are as follows:

On September 14, 1979, the respondent Bernal spouses purchased

from petitioner Union Motor Corporation one Cimarron Jeepney for
Thirty Seven Thousand Seven Hundred Fifty Eight Pesos and Sixty
Centavos (P37,758.60) to be paid in installments. For this purpose, the
respondent spouses executed a promissory note and a deed of chattel
mortgage in favor of the petitioner. Meanwhile, the petitioner entered into a
contract of assignment of the promissory note and chattel mortgage with
Jardine-Manila Finance, Inc. Through Manuel Sosmeña, an agent of the
petitioner, the parties agreed that the respondent spouses would pay the
amount of the promissory note to Jardine-Manila Finance, Inc., the latter
being the assignee of the petitioner. To effectuate the sale as well as the
assignment of the promissory note and chattel mortgage, the respondent
spouses were required to sign a notice of assignment, a deed of
assignment, a sales invoice, a registration certificate, an affidavit, and a
disclosure statement. The respondent spouses were obliged to sign all
these documents for the reason that, according to Sosmeña, it was a
requirement of petitioner Union Motor Corporation and Jardine-Manila
Finance, Inc. for the respondent spouses to accomplish all the said
documents in order to have their application approved. Upon the
respondent spouses' tender of the downpayment worth Ten Thousand
Thirty-Seven Pesos (P10,037.00), and the petitioner's acceptance of the
same, the latter approved the sale. Although the respondent spouses have
not yet physically possessed the vehicle, Sosmeña required them to sign
the receipt as a condition for the delivery of the vehicle.

The respondent spouses continued paying the agreed installments

even if the subject motor vehicle remained undelivered inasmuch as
Jardine-Manila Finance, Inc. promised to deliver the subject jeepney. The
respondent spouses have paid a total of Seven Thousand Five Hundred
Seven Pesos (P7,507.00) worth of installments before they discontinued
paying on account of non-delivery of the subject motor vehicle. According
to the respondent spouses, the reason why the vehicle was not delivered
was due to the fact that Sosmeña allegedly took the subject motor vehicle
in his personal capacity.

On September 11, 1981, Jardine-Manila Finance, Inc., filed a complaint for

a sum of money, docketed as Civil Case No. 42849, against the
respondent Bernal spouses before the then Court of First Instance of
Manila. This case was later on transferred to the Regional Trial Court of
Makati, Branch 150. On November 10, 1981, the complaint was amended
to include petitioner Union Motor Corporation as alternative defendant, the
reason being that if the respondent spouses' refusal to pay Jardine-Manila
Finance, Inc. was due to petitioner's non-delivery of the unit, the latter
should pay Jardine-Manila Finance, Inc. what has been advanced to the
petitioner. After the petitioner filed its answer, the respondent spouses filed
their amended answer with cross-claim against the former and
counterclaim against Jardine-Manila Finance, Inc. Following the
presentation of evidence of Jardine-Manila Finance, Inc., the respondent
spouses presented as witnesses Albiato Bernal and Pacifico Tacub in
support of their defense and counterclaim against the plaintiff and cross-
claim against the petitioner. The petitioner did not present any evidence
inasmuch as the testimony of the witness it presented was ordered stricken
off the record for his repeated failure to appear for cross-examination on
the scheduled hearings. The trial court deemed the presentation of the said
witness as having been waived by the petitioner.
On March 6, 1989, the trial court rendered a decision, the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered ordering:

1. Plaintiff to pay spouses Bernals the sum of P7,507.15 plus legal

interest until fully paid;

2. Union Motor Corporation to pay defendants spouses Bernals the

downpayment in the amount of P10,037.00, plus legal interest until fully
paid;

3. Union Motor Corporation to pay plaintiff P23,268.29, plus legal

interest until fully paid, and attorney's fees equivalent to 20% of the
amount due to plaintiff.

Union Motor Corporation shall further pay defendants spouses Bernals the
sum of P20,000.00 as moral damages, P10,000.00 as attorney's fees and
costs of suit.[4]
The petitioner interposed an appeal before the Court of Appeals while the
respondent spouses appealed to hold the petitioner solidarily liable with
Jardine-Manila Finance, Inc. The appellate court denied both appeals and
affirmed the trial court's decision by holding that:
Now, as to the appeal of defendant Union Motors, it must be noted that
said defendant had failed to adduce evidence in court to support its claim of
non-liability. We cannot see how the absence of any evidence in favor of
said defendant can result in favorable reliefs to its side on appeal. There is
simply no evidence to speak of in appellant Union Motor's favor to cause a
reversal of the lower court's decision. In the case of Tongson v. C.A. G.R.
No. 77104, Nov. 6, 1992, the Supreme Court reiterated that:
"As mandated by the Rules of Court, each party must prove his own
affirmative allegation, i.e., one who asserts the affirmative of the issue has
the burden of presenting at the trial such amount of evidence required by
law to obtain a favorable judgment: by preponderance of evidence in civil
cases, and by proof beyond reasonable doubt in criminal cases. x x x".
Hence, the instant petition anchored on the following assigned errors:
I

THE HONORABLE COURT OF APPEALS (SECOND DIVISION)

GRAVELY ERRED AND ABUSED ITS DISCRETION IN NOT FINDING
THAT THE LOWER COURT A QUO'S DECISION OF MARCH 6, 1989 IS
CONTRARY TO LAW AND THE EVIDENCE ON RECORD;

II

THE HONORALBLE COURT OF APPEALS (SECOND DIVISION)

GRAVELY ERRED AND ABUSED ITS DISCRETION IN NOT FINDING
THAT THE APPEALED DECISION WAS RENDERED IN DEPRIVATION
AND IN DENIAL OF HEREIN PETITIOENR-APPELLANT'S RIGHT TO
DUE PROCESS.
The first issue to be resolved in the instant case is whether there has been
a delivery, physical or constructive, of the subject motor vehicle.

On this score, petitioner Union Motor Corporation maintains that the

respondent spouses are not entitled to a return of the downpayment
for the reason that there was a delivery of the subject motor vehicle.
According to the petitioner, the appellate court erred in holding that no
delivery was made by relying exclusively on the testimonial evidence of
respondent Albiato Bernal without considering the other evidence on
record, like the sales invoice and delivery receipt which constitute an
admission that there was indeed delivery of the subject motor vehicle. Also,
there was a constructive delivery of the vehicle when respondent
Albiato Bernal signed the registration certificate of the subject
vehicle. Inasmuch as there was already delivery of the subject motor
vehicle, ownership has been transferred to the respondent spouses. The
Chattel Mortgage Contract signed by the respondent Bernal spouses in
favor of the petitioner likewise proves that ownership has already been
transferred to them for the reason that, under Article 2085 of the New Civil
Code, the mortgagor must be the owner of the property. [5] As owners of the
jeepney, the respondent Bernal spouses should bear the loss thereof in
accordance with Article 1504 of the New Civil Code which provides that
when the ownership of goods is transferred to the buyer, the goods are at
the buyer's risk whether actual delivery has been made or not. These, then,
are the contentions of the petitioner.

The main allegation of the respondent Bernal spouses, on the other hand,
is that they never came into possession of the subject motor vehicle. Thus,
it is but appropriate that they be reimbursed by the petitioner of the initial
payment which they made. They also claim that Jardine-Manila Finance,
Inc., and the petitioner conspired to defraud and deprive them of the
subject motor vehicle for which they suffered damages.

We rule in favor of the respondent Bernal spouses.

Undisputed is the fact that the respondent Bernal spouses did not
come into possession of the subject Cimarron jeepney that was
supposed to be delivered to them by the petitioner. The registration
certificate, receipt and sales invoice that the respondent Bernal
spouses signed were explained during the hearing without any
opposition by the petitioner. According to testimonial evidence
adduced by the respondent spouses during the trial of the case, the
said documents were signed as a part of the processing and for the
approval of their application to buy the subject motor vehicle. Without
such signed documents, no sale, much less delivery, of the subject
jeepney could be made. The documents were not therefore an
acknowledgment by respondent spouses of the physical acquisition
of the subject motor vehicle but merely a requirement of petitioner so
that the said subject motor vehicle would be delivered to them.

We have ruled that the issuance of a sales invoice does not prove
transfer of ownership of the thing sold to the buyer; an invoice is
nothing more than a detailed statement of the nature, quantity and
cost of the thing sold and has been considered not a bill of sale. [6]

The registration certificate signed by the respondent spouses does

not conclusively prove that constructive delivery was made nor that
ownership has been transferred to the respondent spouses. Like the
receipt and the invoice, the signing of the said documents was qualified by
the fact that it was a requirement of petitioner for the sale and financing
contract to be approved. In all forms of delivery, it is necessary that the
act of delivery, whether constructive or actual, should be coupled
with the intention of delivering the thing. The act, without the
intention, is insufficient.[7] The critical factor in the different modes of
effecting delivery which gives legal effect to the act, is the actual intention
of the vendor to deliver, and its acceptance by the vendee. Without that
intention, there is no tradition.[8] Enlightening is Addison v. Felix and
Tioco[9]wherein we ruled that:
The Code imposes upon the vendor the obligation to deliver the thing sold.
The thing is considered to be delivered when it is placed "in the hands and
possession of the vendee." (Civil Code, Art. 1462). It is true that the same
article declares that the execution of a public instrument is equivalent to the
delivery of the thing which is the object of the contract, but, in order that
this symbolic delivery may produce the effect of tradition, it is necessary
that the vendor shall have had control over the thing sold that, at the
moment of the sale, its material delivery could have been made. It is not
enough to confer upon the purchaser the ownership and the right of
possession. The thing sold must be placed in his control. When there is no
impediment whatever to prevent the thing sold passing into the tenancy of
the purchaser by the sole will of the vendor, symbolic delivery through the
execution of a public instrument is sufficient. But if, notwithstanding the
execution of the instrument, the purchaser cannot have the enjoyment and
material tenancy of the thing and make use of it himself or through another
in his name, because such tenancy and enjoyment are opposed by the
interposition of another will, then fiction yields to reality-the delivery has not
been effected. (Italics supplied)
The act of signing the registration certificate was not intended to transfer
the ownership of the subject motor vehicle to respondent Bernal spouses
inasmuch as the petitioner still needed the same for the approval of the
financing contract with Jardine-Manila Finance, Inc. The record shows that
the registration certificate was submitted to Jardine-Manila Finance, Inc.,
which took possession thereof until Sosmeña requested the latter to hand
over the said document to him. The fact that the registration certificate was
still kept by Jardine-Manila Finance, Inc. and its unhesitating move to give
the same to Sosmeña just goes to show that the respondent spouses still
had no complete control over the subject motor vehicle as they did not
even possess the said certificate of registration nor was their consent
sought when Jardine-Manila Finance, Inc. handed over the said document
to Sosmeña.

Inasmuch as there was neither physical nor constructive delivery of a

determinate thing, (in this case, the subject motor vehicle) the thing sold
remained at the seller's risk.[10] The petitioner should therefore bear the loss
of the subject motor vehicle after Sosmeña allegedly stole the same.

Petitioner's reliance on the Chattel Mortgage Contract executed by the

respondent spouses does not help its assertion that ownership has been
transferred to the latter since there was neither delivery nor transfer of
possession of the subject motor vehicle to respondent spouses.
Consequently, the said accessory contract of chattel mortgage has no legal
effect whatsoever inasmuch as the respondent spouses are not the
absolute owners thereof, ownership of the mortgagor being an essential
requirement of a valid mortgage contract. The Carlos case[11] cited by the
petitioner is not applicable to the case at bar for the reason that in the said
case, apart from the fact that it has a different issue, the buyer took
possession of the personal property and was able to sell the same to a
third party. In the instant case, however, the respondent spouses never
acquired possession of the subject motor vehicle. The manifestations of
ownership are control and enjoyment over the thing owned. The
respondent spouses never became the actual owners of the subject motor
vehicle inasmuch as they never had dominion over the same.

The petitioner also disputes the finding of the appellate court that there was
no delivery. It did not consider, according to the petitioner, the fact that the
circumstance of non-delivery was not shown and that the respondent
spouses never made any demand for the possession of the vehicle.
Contrary to the petitioner's allegation, the respondent spouses presented
sufficient evidence to prove that Sosmeña took delivery and possession of
that subject motor vehicle in his personal capacity as shown by a
document[12] on which he (Sosmeña) personally acknowledged receipt of
the registration certificate from Jardine-Manila Finance, Inc. Also,
respondent Albiato Bernal testified to the effect that they went several times
to the office of the petitioner to demand the delivery of the subject motor
vehicle. The petitioner failed to refute that testimonial evidence considering
that it waived its right to present evidence.
Anent the second issue, the petitioner claims that the trial court committed
a violation of due process when it ordered the striking off of the testimony
of the petitioner's witness as well as the declaration that petitioner has
abandoned its right to present evidence. According to the petitioner, the
delays in the hearing of the case were neither unjust nor deliberate. It just
so happened that from August 5, 1986 up to June 1987, the designated
counsel for the petitioner was either appointed to the government or was
short of time to go over the records of the case inasmuch as he was a new
substitute counsel. During the last time the petitioner's counsel moved for
the postponement of the case, witness Ambrosio Balones was not available
due to gastro-enteritis as shown by a medical certificate.

Well-settled is the rule that "factual findings of the Court of Appeals are
conclusive on the parties and not reviewable by the Supreme Court - and
they carry even more weight when the Court of Appeals affirms the factual
findings of the trial court."[13] In the present case, the trial court found that
after the direct testimony of petitioner's witness, Ambrosio Balones, the
continuation of the cross-examination was postponed and re-scheduled for
four (4) times from November 21, 1986 up to June 19, 1987, all at the
instance of petitioner Union Motor Corporation. For three (3) times, the
witness did not appear whenever the case was called for hearing. On June
19, 1987, when asked by the trial court why the witness was not present,
the petitioner's counsel could not give any good reason for his absence.
Neither did the petitioner offer to present any other witness to testify on that
day. The appellate court assented to these findings by quoting the decision
of the trial court, to wit:
Defendant Union Motors Corporation has no evidence as the testimony of
its only witness, Ambrosio Balones, was orderd stricken off the record in
the hearing of June 19, 1987, for his continuous failure to appear on
scheduled hearings. The Court further considered said defendant to have
waived further presentation of evidence.[14]
The petitioner attempts to shift the blame on the respondents for the failure
of its witness, Balones, to finish his testimony. It was at the instance of Atty.
Tacub, counsel for the respondents, that the testimony of petitioner's
witness, Balones, was discontinued after Atty. Tacub asked for a recess
and later on for the postponement of the cross-examination of the said
witness. The petitioner had the duty to produce its witness when he was
called to finish his testimony. To place the blame on the respondent
spouses is to put a premium on the negligence of the petitioner to require
its own witness to testify on cross-examination. By presenting witness
Balones on direct-examination, the petitioner had the corresponding duty to
make him available for cross-examination in accordance with fair play and
due process. The respondents should not be prejudiced by the repeated
failure of the petitioner to present its said witness for cross-examination.
Hence, the trial court ordered that the unfinished testimony of said witness
be stricken off the record.

However, we cannot affirm that part of the ruling of the courts a

quo awarding moral damages to the respondents. For moral damages to
be awarded in cases of breach of contract, the plaintiff must prove bad faith
or fraudulent act on the part of the defendant. [15] In the instant case, the
allegations about connivance and fraudulent schemes by the petitioner and
Manuel Sosmeña were merely general allegations and without any specific
evidence to sustain the said claims. In fact, Exhibit "1" which bears the
name and signature of Sosmeña as the person who received the
registration certificate militates against the respondent spouses' claim that
the petitioner connived with its agent to deprive them of the possession of
the subject motor vehicle. The said document shows that Sosmeña acted
only in his personal and private capacity, thereby effectively excluding any
alleged participation of the petitioner in depriving them of the possession of
the subject motor vehicle. The petitioner should not be held liable for the
acts of its agent which were done by the latter in his personal capacity.

However, we affirm the award of attorney's fees. When a party is compelled

to litigate with third persons or to incur expenses to protect his interest,
attorney's fees should be awarded.[16] In the present case, the respondent
spouses were forced to implead the petitioner Union Motor Corporation on
account of the collection suit filed against them by Jardine-Manila Finance,
Inc., a case which was eventually won by the respondent spouses.

WHEREFORE, the appealed Decision dated March 30, 1994 of the Court
of Appeals is hereby AFFIRMED with the MODIFICATION that the award
of moral damages is deleted. With costs against the petitioner.
SO ORDERED.

Bellosillo, (Chairman), Mendoza, and Buena, JJ., concur.

Quisumbing, J., on official business.

Osorio v. Osorio, 41 PhiT 531 [ G.

R. No, 16544, March 30, 1921 ]
41 Phil. 531
[ G. R. No, 16544, March 30, 1921 ]
LEONARDO OSORIO, PLAINTIFF AND APPELLEE, VS.
TOMASA OSORIO, ADMINISTRATRIX OF THE ESTATE
OF PETRONA REYES, AND THE YNCHAUSTI
STEAMSHIP CO., DEFENDANTS AND AP PELLANTS.

DECISION

VILLAMOR, J.:
The plaintiff seeks to recover 610 shares of stock of
"Ynchausti Steamship Co." and the dividends
corresponding to them, which were included in the
inventory of the properties of the deceased Da. Maria
Petrona Reyes, whose estate is administered by the
defendant. The facts of this case are:
D. Antonio Osorio had formed with Ynchausti & Co., a joint
account association for the exploitation of the ship ping
business, he being the owner of one-third of the
company's capital. This capital amounted to P500,000, of
which P166,666.66, that is, one-third belonged to D. Anto
nio Osorio. Upon his death, his heirs agreed to authorize
the defendant Da. Tomasa Osorio, then administratrix of
the estate of the deceased, to present a project of
partition, and said administratrix inserted in the project
with the consent of all the heirs, among the properties
which be longed to the widow Da. Petrona Reyes, the sum
of P94,000 as her part in the "share of the estate in the
shipping business of Ynchausti & Co.," that is, a little over
P166,666.66, which was the share in said business of the
deceased Oso rio during his lifetime. The project of
partition was approved on May 10, 1915, with the consent
of the heirs, by the Court of First Instance of Cavite, which
had cognizance of the testamentary and administration
proceedings of the estate of the deceased Osorio.
On February 28, 1914, the widow of D. Antonio Osorio,
Da. Petrona Reyes, now also deceased, executed before
the notary D. Florencio Gonzales Diez a document of gift
in favor of her son D. Leonardo Osorio, the plaintiff, giving
to him one-half of her share in the one-third part which
belonged to her husband in the shipping business of Yn
chausti & Co., a donation which was duly accepted by
the donee D. Leonardo Osorio, who signed said
document with the plaintiff. On that date, February 28,
1914, the estate of D. Antonio Osorio was not yet
distributed among his heirs, and the donor Da. Petrona
Reyes in order to correct the error in said document,
wherein it was stated that said half was adjudicated to her
as part of her conjugal property, when the partition was yet
being effected, executed another document dated July 3,
1915, maintaining said donation in effect in the sense that
she ceded and donated to her son D. Leonardo Osorio, for
the same reasons stated in the document of February 28,
1914, all interest or participation in said shipping business
of Ynchausti & Co., which was adjudicated to her in the
division of the estate of D. Antonio Osorio, which division
was approved by the Court of First Instance of Cavite on
May 10, 1915.
After the death of D. Antonio Osorio and before the
distribution of the estate, Ynchausti & Co. purchased the
steamer Governor Forbes and recognized the heirs of D.
Antonio Osorio as having an interest to the extent of one
third in the ownership and business of said steamer. It was
agreed upon by all the interested parties that the share of
Da. Petrona Reyes, widow of Osorio, in the
vessel Governor Forbes, at the time of the incorporation of
"The Ynchausti Steamship Co." was P61,000, equivalent
to 610 shares of stock of said corporation. Said sum was
deposited with the Steamship Co. until the final settlement
of the question that had arisen between the heirs of Da.
Petrona Reyes as to the ownership thereof for, while the
plaintiff alleges that, by virtue of the donation made in his
favor by Da. Petrona Reyes, he is the owner of said
shares and of their value which is P61,000; the defendant
on the other hand contends that said shares are not
included in the donation in question and belong to the
heirs of Da. Petrona Reyes. Such are the facts which gave
rise to this litigation.
The trial court rendered judgment in the case,
declaring that the 610 shares of stock in dispute and
their dividends belong to the plaintiff, and ordered the
defendant Da. Tomasa Osorio, administratrix of the estate
of Da. Petrona Reyes, to exclude them from the inventory
and her accounts, and the other defendant "The Ynchausti
Steamship Co." to inscribe them in the name of the plaintiff
D. Leonardo Osorio, delivering to him the dividends
corresponding thereto, and denied the counterclaim for the
sum of P45,000, on the ground that said sum represents
the dividends corresponding to the P94,000 adjudicated to
Da. Petrona Reyes, in the partition of the estate of D.
Antonio Osorio, and donated by her to the defendant in
the counter claim.
The case having been appealed to this court, counsel fo
the defendant and appellant, in summing up their
arguments in support of the errors assigned in their brief,
maintain the two following propositions:
"1. The donation made by Da. Petrona Reyes in favor of
the plaintiff was of no value and,effect; and
"2. That, supposing said donation valid, the 610 shares of
stock, the value of which is P61,000, cannot be
considered as included among them."
The document of donation dated February 28, 1914, at
tacked by the appellant, is as follows:
"Know all men by these presents: That I, Petrona Reyes,
of age, widow of D. Antonio Gsorio and resident of the
Province of Cavite, Philippine Islands, being in possession
of all my senses, freely and voluntarily state:
"1. That my husband, the deceased D. Antonio Osorio,
was a shareholder to the extent of one-third in the joint
account association 'Ynchausti & Co.' of this place, which
is engaged in the business of buying vessels and in the
exploitation of six steam vessels acquired from
the Compania Maritima, the articles of association of said
joint account association having been executed in the city
of Manila on July 3, 1906, before the notary public D.
Florencio Gonzales Diez.
"2. That upon the death of my husband D. Antonio Osorio
and upon the partition of his estate, there was adjudicated
to me as conjugal property, one-half of said one-third part
in the business referred to, the other half thereof going to
our four surviving children, such being the present
condition of our interest in said company.
"3. That in consideration of the continuous services and
attention received by me from my son D. Leonardo Osorio,
of age, married and a resident of Cavite also, and because
of the affection he has always shown and still shows me,
as well as because of the number of children that he has, I
make a free and express donation to my said son D.
Leonardo Osorio of all my interest and participation in
said company 'Ynchausti and Co.' which is neither
transferred nor burdened in any manner whatever.
"4. I also declare that the present donation does not in any
way prejudice the right which may accrue to my other
children with respect to inheriting my property and that
therefore I can effect this donation, with all liberty, as I
reserve for myself what is sufficient for me to live on in the
manner which corresponds to my social position and
needs.
"5. In turn, I, Leonardo Osorio, of age, married and a
resident of the Province of Cavite, state my conformity and
acceptance of said donation which my dear mother makes
to me, for which I am greatly thankful to her.
"In witness whereof we sign the present document in
triplicate at Manila, Philippine Islands, this twenty-eighth
day of February, nineteen hundred and fourteen.
"PETRONA
     (Sgd.)
REYES.
"LEONARDO
     
OSORIO.
"Signed in the
    
presence of:
(Sgd.)     
"EUSEBIO
      
ALBA.
"SALVADO
      
R BARRIOS.
"Acknowledged before the notary public D. Florencio
Gonzales Diez on February 28, 1914."
The document rectifying and ratifying the preceding is
literally as follows:
"Know all men by these presents: That I, Petrona Re yes,
of age, widow of D. Antonio Osorio and resident of the
Province of Cavite, Philippine Islands, being in the full
possession of my senses, freely and voluntarily declare:
"1. That on February 28, 1914, before the notary public of
Manila, D. Florencio Gonzales Diez, I executed a
document of donation in favor of my son D. Leonardo
Osorio, of one-half of the one-third part which my
deceased husband had in certain shipping business of the
association 'Ynchausti & Co.'
"2. That in said document I stated, through error, that said
half of one-third part of the business referred to was
adjudicated to me as my part of the conjugal property in
the partition of the properties left by my deceased
husband, when the truth was that said partition had not
yet been put in proper form or finished.
"3. That in order to correct said error, I so state, declaring
however in any event that I make said donation subsisting
in the sense that I cede and donate to my said son D.
Leonardo Osorio, in consideration of the same causes
mentioned in said document of February 28, 1914, all
interest or share in said shipping business of Ynchausti &
Co. which was adjudicated to me in the partition of the
estate of my deceased husband, and approved by the
Court of First Instance of Cavite, on May 10, 1915.
"In witness whereof I sign the present document in
triplicate at Cavite on July 3, 1915.
(Sgd.
   
by):
"Signed
in the "PETRONA
 
presence REYES.
of:
(Sgd.) "CARLOS
 
LEDESMA.

"ISAURO
 
GABALDON."
   
In support of the first proposition, the appellant invokes as
the legal provision violated, article 635 of the Civil Code,
which says:
"A donation cannot include future property.
"By future property is understood that of which the donor
cannot dispose at the time of making the donation."
Commenting on article 635 of the Civil Code, Manresa
says, among other things:
"To close these fundamental ideas which the spirit of
articles 634 and 635 develops we must fix our attention to
the definition which the Code gives of future properties.
They are those of which the donor cannot dispose at the
time of making the donation. This definition in reality
includes all properties which belong to others at the time
of the donation, although they may or may not later belong
to the donor, thus connecting two ideas which, although
lacking apparently in relation, are merged in reality in the
subject which we examine and which gives assurance to
their application. Article 635 refers to the properties of third
persons but it may be said that it does so in relation to a
time to come; there can be properties which may later
belong to the donor; but these properties cannot be
donated, because they are not at present his properties,
because he cannot dispose of them at the moment of
making the donation. The usufructuary for life or for a
determined number of years of a vineyard may donate
said usufruct to the whole extent that it belongs to him, but
never the property itself. The bare owner of said vineyard
may donate his right of course; but he may also donate
the usufruct which corresponds to the time that it will go
back to him, because the case refers to a vested right of
which he may dispose at the time of the donation."
It is alleged that the donation made by Da. Petrona
Reyes is void because she donated on February 28,
1914, a future property, such as the share in the
business of the deceased Osorio, which was adjudicated
to her on May 10, 1915, and because in 1914 she did not
have the right to all or part of the share which her
deceased husband had in the shipping business of
Ynchausti & Co.
Carefully examining said article 635 of the Civil Code, in
relation to the worthy opinion of the commentator
Manresa, we believe that the future properties, the
donation of which is prohibited by said article, are those
belonging to others, which, as such, cannot be the object
of disposal by the donor; but the properties of an
existing inheritance, as those of the case at bar,
cannot be considered as another's property with
relation to the heirs who through a fiction of law
continue the personality of the owner. Nor do they
have the character of future property because the
predecessor in interest having, according to the
evidence, died before 1912, his heirs acquired a right
to succeed him from the moment of his death, because
of the principle announced in article 657 and applied by
article 661 of the Civil Code, according to which the heirs
succeed the de ceased by the mere fact of his death.
More or less time may elapse before the heirs enter into
the possession of the hereditary property, but this is not an
obstacle, for the acquisition of said property retroacts in
any event to the moment of death, according to article 989
of the Civil Code. The right is acquired although subject to
the adjudication of the corresponding hereditary portion.
Furthermore the Civil Code does not prohibit
absolutely that future inheritance should be the object
of agreement, for there are certain cases (arts. 177, 827,
831, and 1331) in which agreements may be made as to
them, besides that indicated in article 1271, and it may be
deduced that an inheritance already existing, which is
no longer future from the moment of death of the
predecessor, may legally be the object of contract. A
donation being of a contractual nature, inasmuch as for its
efficacy the concurrence of two wills is required, that of the
donor and the donee, we believe that that which may be
the object of contract may also be the object of a
donation. Ubi eadem est ratio, ibi est eadem legis
disposition We conclude that the donor Da. Petrona
Reyes, on February 28, 1914, had a vested right to a
certain part of the inheritance of her husband D. Antonio
Osorio, who died in 1912, and could legally dispose of her
right through an act of liberality, as sjie had done.
With respect to the point that Da. Petrona Reyes did not
have in 1914 any right to all or part of the share of her
deceased husband in the shipping business of Ynchausti
and Co., it must be observed that in the project of partition
of the property of D. Antonio Osorio the following appears:
"The widow of the testator, Maria Petrona Reyes, her
children Feliza, Tomasa, and Leonardo and her grand
daughter Soledad Encarnacion Osorio y San Agustin are
at present all living and are the only heirs of the deceased.
"The testator declares that all property left by him was
acquired during his marriage with Petrona Reyes.
"The testator institutes as his only and universal heirs his
said children and granddaughter, designates the parts
which each of them must receive as legitime, betterment,
and legacy, leaves to the disposition of his widow an
amount equivalent to that set aside by him in payment of
one-half part of the conjugal property and orders that the
remainder should be equally distributed among his heirs."
We do not have before us the will of D. Antonio Osorio but
supposing that he had left no property but the share which
he had in the shipping business of Ynchausti & Co., can it
be denied that the donor by law had the right to half of
said share as her part of the conjugal property? Clearly
not. The defendant in her answer says:
"That Da. Maria Petrona Reyes did not donate to the
plaintiff more than her share in the shipping business of
the firm Ynchausti & Co. which was adjudicated to her in
the partition of the property of D. Antonio Osorio and that
said share amounts to P94,000."
This admission of the defendant is conclusive, and makes
it unnecessary for us to enter into another discussion in
order to deduce that Da. Petrona Reyes had in 1914 a
right to a certain part of the interest of the deceased
Osorio in the shipping business of the firm Ynchausti &
Co., and could donate it, as she did, to her son D.
Leonardo Osorio.
The allegation that the document of July 3, 1915, is void,
because it does not show the acceptance of the donee, is
of no importance, because of the conclusion we have
reached in discussing the document of donation of
February 28, 1914. In the second document, the donor
only tried to correct what she believed to be an error in the
first, wherein it is stated that in the partition of the property
of her husband there was adjudicated to her the part of the
interest in the shipping business of Ynchausti & Co. which
she donated to her son Leonardo, when in fact said
partition was yet pending. After its approval by the Court of
First Instance of Cavite, the donor executed the document
of 1915, ratifying and correcting the document of donation.
She did not make a new donation. She executed a
personal act which did not require the concurrence of the
donee. It is the duty of the donee, in order that the
donation may produce legal effects, to accept the donation
and notify the donor thereof. The acceptance is necessary
because nobody is obliged to receive a benefit against his
will. And all this was complied with in the document of
1914. The wills of the donor and of the donee having
concurred, the donation, as a mode of transferring
ownership, becomes perfect, according to article 623 of
the Civil Code.
We will now pass to the second proposition of the
appellant, that is, that the 610 shares, which are the
subject-matter of the suit, cannot be considered as
included in the donation made by Da. Petrona Reyes in
favor of the plaintiff, supposing that said donation was
valid. The reasons alleged by the appellant are: (1) That
the steam vessel Governor Forbes was purchased after
the death of D. Antonio Osorio, with money borrowed and
furnished by the heirs individually and not by the estate,
and (2) that the plaintiff appellee has recognized that the
capital used in the steamer Forbes is distinct from the
money used in the purchase of other vessels in which the
deceased Osorio had an interest. The question whether
the steamer Governor Forbes was or was not purchased
with money furnished by Ynchausti and the heirs of
Osorio, independently of that former partnership in which
the deceased Osorio had an interest, is one of fact and
must be resolved in view of the evidence adduced at the
trial.
D. Julio Gonzales, secretary and accountant of the firm
Ynchausti, witness for the defendant, states that
the Forbes was purchased with money which the shipping
business of Ynchausti & Co. had. The appellant herself
admits that this vessel took part in the general shipping
business of Ynchausti & Co. for no new partnership was
constituted for the purchase thereof, and, after its
acquisition the Ynchausti firm accounted to the estate of
D. Antonio Osorio for the profits obtained and the
dividends to be distributed and no separate account was
made of the earnings of the vessel, but only a general
account, including the profits obtained in the shipping
business, in which the Governor Forbes was but one of
several vessels. D. Joaquin Elizalde, manager of the firm
Ynchausti & Co., by agreement of the parties and with the
approval of the court, made a deposition before the notary
public D. Florencio Gonzales Diez, stating that when the
steamer Forbes was acquired in 1912, the Ynchausti firm
did not bring in any new capital, but obtained money for its
purchase by mortgaging the vessel itself and other vessels
of the company; and that the heirs of D. Antonio Osorio
did not bring in any new capital for the purchase of the
vessel, but signed jointly with Ynchausti & Co. with the
others, except Da. Soledad Osorio, the guaranty which the
bank required.
In our opinion the evidence shows conclusively that the
vessel Governor Forbes forms part of the shipping
business of Ynchausti & Co. in which D. Antonio Osorio
and his estate had an interest. It is no argument against
this conclusion that the heirs of Osorio signed with
Ynchausti & Co. the guaranty required by the bank where
the money used in the purchase of the Forbes was taken:
(1) Because the guaranty is for the purpose only of
securing the payment of the amount indebted and not for
excluding the estate of Osorio from the result of that
banking operation; (2) because, besides said guaranty,
the other vessels of the joint account association of Osorio
and Ynchausti & Co. were mortgaged; (3) because no new
partnership was formed between Ynchausti & Co. and the
heirs of Osorio for the purchase of the vessel Forbes; and
(4) because, when Ynchausti & Co. agreed with the heirs
of Osorio in that his share in the steamer Forbes was
P108,333.33, this sum was distributed among said heirs,
including Da. Soledad Osorio who did not sign the
guaranty, there accruing to each P11,833.33 and to the
widow Da. Petrona Reyes P61,000, which is the object of
this suit. All of the above shows that the estate of Osorio
had a one-third part of the steamer Forbes represented by
the capital which was distributed among the heirs, there
accruing to the widow, by agreement of the interested
parties, the sum of P61,000. And this sum being part of
the one-half of one-third of the shipping business of
Ynchausti & Co., which one-half part accrued to the widow
in the distribution of the properties of Osorio; and the
widow Da. Petrona Reyes having disposed of this half,
donating it to her son D. Leonardo Osorio, it clearly
results, in our opinion, that the sum of P61,000, or the
corresponding shares of the new corporation "The
Ynchausti Steamship Co." are included in said donation,
and therefore belong to the plaintiff-appellee.
The other reason alleged by the appellant in support of her
contention is that the plaintiff has recognized in his letter
addressed to the defendant corporation, and inserted in
the answer presented by the latter, that the Forbes was
acquired with money different from that of the joint account
association heretofore mentioned. We have carefully read
the letter in question and what appears is that said plaintiff
agreed that the P61,000 should be deposited with
Ynchausti & Co., as trustee, to be distributed with its
accumulated dividends, when the question between the
heirs of Da. Petrona Reyes had already been terminated,
that is to say, according to the result of the present suit.
There is nothing in said letter which indicates how
the Governor Forbes was acquired.
With respect to the counterclaim of P45,609.91, we are of
the opinion that the evidence justifies the conclusion of the
trial court that they are the profits or dividends accruing to
the P94,000, which were adjudicated to the widow Da.
Petrona Reyes in the distribution of the estate of the
deceased Osorio and which were donated by her to the
plaintiff, and as such profits they belong to the latter, upon
the principle of law that ownership of property gives right
by accession to all that it produces, or is united or
incorporated thereto, naturally or artificially. (Art. 353 of
the Civil Code.)
In view of what has been said, the judgment appealed
from should be, as it is hereby, affirmed, with costs against
the appellant. So ordered.
Maya, C. J., Araullo, Street, and Malcolm, JJ., concur.

Vda. de Tupas v. Regional Trial

Court, 744 SCRA 622 [ G.R. No.
65800, October 03, 1986 ]
228 Phil. 594
FIRST DIVISION
[ G.R. No. 65800, October 03, 1986 ]
PARTENZA LUCERNA VDA. DE TUPAS, PETITIONER-APPELLANT, VS.
BRANCH XLIII OF THE HON. REGIONAL TRIAL COURT OF NEGROS
OCCIDENTAL, RESPONDENT, AND TUPAS FOUNDATION, INC.,
PRIVATE RESPONDENT-APPELLEE.

DECISION

NARVASA, J.:

Involved in this appeal is the question of whether or not a donation inter

vivos by a donor now deceased is inofficious and should be reduced
at the instance of the donor's widow.

Epifanio R. Tupas died on August 20, 1978 in Bacolod City, childless,

leaving his widow, Partenza Lucerna, as his only surviving compulsory
heir.  He also left a will dated May 18, 1976, which was admitted to probate
on September 30, 1980 in Special Proceedings No. 13994 of the Court of
First Instance of Negros Occidental.  Among the assets listed in his will
were lots Nos. 837, 838 and 839 of the Sagay Cadastre, admittedly his
private capital.  However, at the time of his death, these lots were no longer
owned by him, he having donated them the year before (on August 2,
1977) to the Tupas Foundation, Inc., which had thereafter obtained title to
said lots.

Claiming that said donation had left her practically destitute of any
inheritance, Tupas' widow brought suit against Tupas Foundation, Inc.
in the same Court of First Instance of Negros Occidental (docketed as Civil
Case No. 16089) to have the donation declared inofficious insofar as it
prejudiced her legitime, therefore reducible "x x x by one-half or such
proportion as x x x (might be deemed) justified x x x" and "x x x the
resulting deduction x x x" restored and conveyed or delivered to her.  The
complaint also prayed for attorney's fees and such other relief as might be
proper.

The Trial Court did not see things her way.  Upon the facts above stated,
on which the parties stipulated[1], said Court dismissed the complaint for
lack of merit, rejecting her claim on several grounds, viz.:
"x x x (1) Article 900 relied upon by plaintiff is not applicable because the
properties which were disposed of by way of donation one year before the
death of Epifanio Tupas were no longer part of his hereditary estate at the
time of his death on August 20, 1978; (2) the donated properties were
Epifanio's capital or separate estate; and (3) Tupas Foundation, Inc. being
a stranger and not a compulsory heir, the donation inter vivos made in its
favor was not subject to collation under Art. 1061, C.C." [2]
The Trial Court is in error on all counts and must be reversed.

A person's prerogative to make donations is subject to certain limitations,

one of which is that he cannot give by donation more than he can give by
will (Art. 752, Civil Code)[3].  If he does, so much of what is donated as
exceeds what he can give by will is deemed inofficious and the
donation is reducible to the extent of such excess, though without
prejudice to its taking effect in the donor's lifetime or the donee's
appropriating the fruits of the thing donated (Art. 771, Civil Code). 
Such a donation is, moreover, collationable, that is, its value is imputable
into the hereditary estate of the donor at the time of his death for the
purpose of determining the legitime of the forced or compulsory heirs and
the freely disposable portion of the estate.  This is true as well of donations
to strangers as of gifts to compulsory heirs, although the language of Article
1061 of the Civil Code would seem to limit collation to the latter class of
donations.  And this has been held to be a long-established rule in Liguez
vs. Honorable Court of Appeals, et al.,[4], where this Court said:
"x x x Hence, the forced heirs are entitled to have the donation set
aside in so far as inofficious:  i.e., in excess of the portion of free
disposal (Civil Code of 1889, Articles 636, 645), computed as provided in
Articles 818 and 819, and bearing in mind that 'collationable gifts' under
Article 818 should include gifts made not only in favor of the forced heirs,
but even those made in favor of strangers, as decided by the Supreme
Court of Spain in its decisions of 4 May 1899 and 16 June 1902.  So that in
computing the legitimes, the value of the property donated to herein
appellant, Conchita Liguez, should be considered part of the donor's
estate.  Once again, only the court of origin has the requisite data to
determine whether the donation is inofficious or not." [5]
The fact, therefore, that the donated property no longer actually
formed part of the estate of the donor at the time of his death cannot
be asserted to prevent its being brought to collation.  Indeed, it is an
obvious proposition that collation contemplates and particularly applies to
gifts inter vivos[6].  The further fact that the lots donated were admittedly
capital separate property of the donor is of no moment, because a claim of
inofficiousness does not assert that the donor gave what was not his,
but that he gave more than what was within his power to give.

Since it is clear that the questioned donation is collationable and that,

having been made to a stranger (to the donor) it is, by law [7] chargeable to
the freely disposable portion of the donor's estate, to be reduced insofar as
inofficious, i.e., it exceeds said portion and thus impairs the legitime of the
compulsory heirs, in order to find out whether it is inofficious or not,
recourse must be had to the rules established by the Civil Code for the
determination of the legitime and, by extension, of the disposable portion. 
These rules are set forth in Articles 908, 909 and 910 of the Code, on the
basis of which the following step-by-step procedure has been correctly
outlined:

(1) determination of the value of the property which remains at the

time of the testator's death;

(2) determination of the obligations, debts, and charges which

have to be paid out or deducted from the value of the property
thus left;

(3) the determination of the difference between the assets and the
liabilities, giving rise to the hereditary estate;

(4) the addition to the net value thus found, of the value, at the
time they were made, of donations subject to collation; and

(5) the determination of the amount of the legitimes by getting

from the total thus found the portion that the law provides as
the legitime of each respective compulsory heir.[8]

Deducting the legitimes from the net value of the hereditary estate leaves
the freely disposable portion by which the donation in question here must
be measured.  If the value of the donation at the time it was made does not
exceed that difference, then it must be allowed to stand.  But if it does, the
donation is inofficious as to the excess and must be reduced by the amount
of said excess.  In this case, if any excess be shown, it shall be returned or
reverted to the petitioner-appellant as the sole compulsory heir of the
deceased Epifanio R. Tupas.

For obvious reasons, this determination cannot now be made, as it requires

appreciation of data not before this Court and may necessitate the
production of evidence in the Court a quo.

WHEREFORE, the appealed decision is reversed and petitioner-appellant

Partenza Lucerna Vda. de Tupas is adjudged entitled to so much of the
donated property in question, as may be found in excess of the freely
disposable portion of the estate of Epifanio B. Tupas, determined in the
manner above-indicated.  Let the case be remanded to the Trial Court for
further appropriate proceedings in accordance with this decision.

SO ORDERED.

De Roma v. Court of Appeals, 152

SCRA 205 G.R. No. L-46903, July
23, 1987
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-46903               July 23, 1987
BUHAY DE ROMA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and FELICIDAD CARINGAL,
as Guardian of Rosalinda de Roma,respondents.
CRUZ, J.:
Candelaria de Roma had two legally adopted daughters, Buhay de Roma
and Rosalinda de Roma. She died intestate on April 30, 1971, and
administration proceedings were instituted in the Court of First Instance of
Laguna by the private respondent as guardian of Rosalinda. Buhay was
appointed administratrix and in due time filed an inventory of the estate.
This was opposed by Rosalinda on the ground that certain properties
earlier donated by Candelaria to Buhay, and the fruits thereof, had not
been included.1  (Links to an external site.)
The properties in question consisted of seven parcels of coconut land worth
P10,297.50.2  (Links to an external site.)There is no dispute regarding their
evaluation; what the parties cannot agree upon is whether these lands are
subject to collation. The private respondent rigorously argues that it is,
conformably to Article 1061 of the Civil Code. Buhay, for her part, citing
Article 1062, claims she has no obligation to collate because the decedent
prohibited such collation and the donation was not officious.
The two articles provide as follows:
Article 1061. Every compulsory heir, who succeeds with other compulsory
heirs, must bring into the mass of the estate any property or right which he
may have received from the decedent during the lifetime of the latter, by
way of donation, or any other gratuitous title, in order that it may be
computed in the determination of the legitime of each heir, and in the
account of the partition.
Article 1062. Collation shall not take place among compulsory heirs if the
donor should have so expressly provided, or if the donor should repudiate
the inheritance, unless the donation should be reduced as inofficious.
The issue was resolved in favor of the petitioner by the trial court, (Links to
an external site.)* which held that the decedent, when she made the
donation in favor of Buhay, expressly prohibited collation. Moreover, the
donation did not impair the legitimes of the two adopted daughters as it
could be accommodated in, and in fact was imputed to, the free portion of
Candelaria's estate.3  (Links to an external site.)
On appeal, the order of the trial court was reversed, the respondent
court (Links to an external site.)** holding that the deed of donation
contained no express prohibition to collate as an exception to Article
1062. Accordingly, it ordered collation and equally divided the net estate of
the decedent, including the fruits of the donated property, between Buhay
and Rosalinda.4  (Links to an external site.)
The pertinent portions of the deed of donation are as follows:
IKALAWA. Na alang-alang sa aking pagmamahal, pagtingin at pagsisilbi sa
akin ng aking anak na si BUHAY DE ROMA, kasal kay Arabella
Castaneda, may karampatang gulang, mamamayang Pilipino at
naninirahan at may pahatirang-sulat din dito sa Lunsod ng San Pablo sa
pamamagitan ng kasulatang ito ay kusang-loob kong ibinibigay,
ipinagkakaloob at inililipat sa nabanggit na BUHAY DE ROMA, sa kanyang
mga kahalili at tagapagmana, sa pamamagitan ng pagbibigay na di na
mababawing muli, ang lahat ng mga lagay ng lupa na sinasabi sa itaas, sa
ilalim ng kasunduan na ngayon pa ay siya na ang nagmamay-aring tunay
ng mga lupang ito at kanya nang maaring ipalipat ang mga hoja
declaratoria ng mga lupang ito sa kanyang pangalan, datapwa't
samantalang ako ay nabubuhay, ay ako rin ang makikinabang sa mga
mapuputi at mamomosesion sa mga nasabing lupa;
IKATLO. Na pinagtibay ko na ako ay marami pang ibang mga pag-aari sa
sapat pang aking ikabuhay at sa pagbibigay kong ito ay hindi masisira ang
legitimate ng mga tao na dapat magmana sa akin, sapagkat ang mga
lupang sinasabi sa itaas ay bahagui ng aking kabuhayan na ako ay may
layang ipamigay kahit na kaninong tao na kung tawagin ay Libre
Disposicion. 5  (Links to an external site.)

We agree with the respondent court that there is nothing in the above
provisions expressly prohibiting the collation of the donated
properties. As the said court correctly observed, the phrase "sa
pamamagitan ng pagbibigay na di na mababawing muli" merely described
the donation as "irrevocable" and should not be construed as an express
prohibition against collation.6  (Links to an external site.)The fact that a
donation is irrevocable does not necessarily exempt the subject
thereof from the collation required under Article 1061.
We surmise from the use of such terms as "legitime" and "free portion" in
the deed of donation that it was prepared by a lawyer, and we may also
presume he understood the legal consequences of the donation being
made. It is reasonable to suppose, given the precise language of the
document, that he would have included therein an express prohibition to
collate if that had been the donor's intention.
Anything less than such express prohibition will not suffice under the
clear language of Article 1062.1awphil The suggestion that there was
an implied prohibition because the properties donated were imputable to
the free portion of the decedent's estate merits little consideration.
Imputation is not the question here, nor is it claimed that the disputed
donation is officious The sole issue is whether or not there was an express
prohibition to collate, and we see none.
The intention to exempt from collation should be expressed plainly
and unequivocally as an exception to the general rule announced in
Article 1062. Absent such a clear indication of that intention, we apply
not the exception but the rule, which is categorical enough.
There is no need to dwell long on the other error assigned by the petitioner
regarding the decision of the appealed case by the respondent court
beyond the 12-month period prescribed by Article X, Section 11 (1) of the
1973 Constitution. As we held in Marcelino v. Cruz,7  (Links to an external
site.)the said provision was merely directory and failure to decide on time
would not deprive the corresponding courts of jurisdiction or render their
decisions invalid.
It is worth stressing that the aforementioned provision has now been
reworded in Article VIII, Section 15, of the 1987 Constitution, which also
impresses upon the courts of justice, indeed with greater urgency, the need
for the speedy disposition of the cases that have been clogging their
dockets these many years. Serious studies and efforts are now being taken
by the Court to meet that need.
WHEREFORE, the appealed decision is AFFIRMED in toto, with costs
against the petitioner. It is so ordered.
Teehankee, C.J., Narvasa, Paras and Gancayco, JJ., concur.

NPC v. Ibrahim, 526 SCRA 149

[ G.R. NO. 168732, June 29,
2007 ]
553 Phil. 136

FIRST DIVISION
[ G.R. NO. 168732, June 29, 2007 ]
NATIONAL POWER CORPORATION, PETITIONER, VS.
LUCMAN G. IBRAHIM, OMAR G. MARUHOM, ELIAS G.
MARUHOM, BUCAY G. MARUHOM, FAROUK G.
MARUHOM, HIDJARA G. MARUHOM, ROCANIA G.
MARUHOM, POTRISAM G. MARUHOM, LUMBA G.
MARUHOM, SINAB G. MARUHOM, ACMAD G.
MARUHOM, SOLAYMAN G. MARUHOM, MOHAMAD M.
IBRAHIM, AND CAIRONESA M. IBRAHIM,
RESPONDENTS.

DECISION

AZCUNA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to annul
the Decision[1] dated June 8, 2005 rendered by the Court of Appeals (CA) in C.A.-G.R. CV No.
57792.

The facts are as follows:

On November 23, 1994, respondent Lucman G. Ibrahim, in his personal capacity and in behalf
of his co-heirs Omar G. Maruhom, Elias G. Maruhom, Bucay G. Maruhom, Mamod G.
Maruhom, Farouk G. Maruhom, Hidjara G. Maruhom, Rocania G. Maruhom, Potrisam G.
Maruhom, Lumba G. Maruhom, Sinab G. Maruhom, Acmad G. Maruhom, Solayman G.
Maruhom, Mohamad M. Ibrahim and Caironesa M. Ibrahim, instituted an action against
petitioner National Power Corporation (NAPOCOR) for recovery of possession of land and
damages before the Regional Trial Court (RTC) of Lanao del Sur.

In their complaint, Ibrahim and his co-heirs claimed that they were owners of several parcels of
land described in Survey Plan FP (VII-5) 2278 consisting of 70,000 square meters, divided into
three (3) lots, i.e. Lots 1, 2, and 3 consisting of 31,894, 14,915, and 23,191 square meters each
respectively. Sometime in 1978, NAPOCOR, through alleged stealth and without respondents'
knowledge and prior consent, took possession of the sub-terrain area of their lands and
constructed therein underground tunnels. The existence of the tunnels was only discovered
sometime in July 1992 by respondents and then later confirmed on November 13, 1992 by
NAPOCOR itself through a memorandum issued by the latter's Acting Assistant Project
Manager. The tunnels were apparently being used by NAPOCOR in siphoning the water of Lake
Lanao and in the operation of NAPOCOR's Agus II, III, IV, V, VI, VII projects located in
Saguiran, Lanao del Sur; Nangca and Balo-i in Lanao del Norte; and Ditucalan and Fuentes in
Iligan City.

On September 19, 1992, respondent Omar G. Maruhom requested the Marawi City Water
District for a permit to construct and/or install a motorized deep well in Lot 3 located in Saduc,
Marawi City but his request was turned down because the construction of the deep well would
cause danger to lives and property. On October 7, 1992, respondents demanded that
NAPOCOR pay damages and vacate the sub-terrain portion of their lands but the latter refused
to vacate much less pay damages. Respondents further averred that the construction of the
underground tunnels has endangered their lives and properties as Marawi City lies in an area of
local volcanic and tectonic activity. Further, these illegally constructed tunnels caused them
sleepless nights, serious anxiety and shock thereby entitling them to recover moral damages
and that by way of example for the public good, NAPOCOR must be held liable for exemplary
damages.

Disputing respondents' claim, NAPOCOR filed an answer with counterclaim denying the
material allegations of the complaint and interposing affirmative and special defenses, namely
that (1) there is a failure to state a cause of action since respondents seek possession of the
sub-terrain portion when they were never in possession of the same, (2) respondents have no
cause of action because they failed to show proof that they were the owners of the property,
and (3) the tunnels are a government project for the benefit of all and all private lands are
subject to such easement as may be necessary for the same.[2]

On August 7, 1996, the RTC rendered a Decision, the decretal portion of which reads as
follows:
WHEREFORE, judgment is hereby rendered:

1. Denying plaintiffs' [private respondents'] prayer for defendant [petitioner] National Power
Corporation to dismantle the underground tunnels constructed between the lands of
plaintiffs in Lots 1, 2, and 3 of Survey Plan FP (VII-5) 2278;

2. Ordering defendant to pay to plaintiffs the fair market value of said 70,000 square meters
of land covering Lots 1, 2, and 3 as described in Survey Plan FP (VII-5) 2278 less the area
of 21,995 square meters at P1,000.00 per square meter or a total of P48,005,000.00 for the
remaining unpaid portion of 48,005 square meters; with 6% interest per annum from the
filing of this case until paid;

3. Ordering defendant to pay plaintiffs a reasonable monthly rental of P0.68 per square
meter of the total area of 48,005 square meters effective from its occupancy of the foregoing
area in 1978 or a total of P7,050,974.40.

4. Ordering defendant to pay plaintiffs the sum of P200,000.00 as moral damages; and

5. Ordering defendant to pay the further sum of P200,000.00 as attorney's fees and the
costs.

SO ORDERED.[3]
On August 15, 1996, Ibrahim, joined by his co-heirs, filed an Urgent Motion for Execution of
Judgment Pending Appeal. On the other hand, NAPOCOR filed a Notice of Appeal by
registered mail on August 19, 1996. Thereafter, NAPOCOR filed a vigorous opposition to the
motion for execution of judgment pending appeal with a motion for reconsideration of the
Decision which it had received on August 9, 1996.

On August 26, 1996, NAPOCOR filed a Manifestation and Motion withdrawing its Notice of
Appeal purposely to give way to the hearing of its motion for reconsideration.
On August 28, 1996, the RTC issued an Order granting execution pending appeal and denying
NAPOCOR's motion for reconsideration, which Order was received by NAPOCOR on
September 6, 1996.

On September 9, 1996, NAPOCOR filed its Notice of Appeal by registered mail which was
denied by the RTC on the ground of having been filed out of time. Meanwhile, the Decision of
the RTC was executed pending appeal and funds of NAPOCOR were garnished by
respondents Ibrahim and his co-heirs.

On October 4, 1996, a Petition for Relief from Judgment was filed by respondents Omar G.
Maruhom, Elias G. Maruhom, Bucay G. Maruhom, Mamod G. Maruhom, Farouk G. Maruhom,
Hidjara G. Maruhom, Potrisam G. Maruhom and Lumba G. Maruhom asserting as follows:
1) they did not file a motion to reconsider or appeal the decision within the reglementary period
of fifteen (15) days from receipt of judgment because they believed in good faith that the
decision was for damages and rentals and attorney's fees only as prayed for in the complaint:

2) it was only on August 26, 1996 that they learned that the amounts awarded to the plaintiffs
represented not only rentals, damages and attorney's fees but the greatest portion of which was
payment of just compensation which in effect would make the defendant NPC the owner of the
parcels of land involved in the case;

3) when they learned of the nature of the judgment, the period of appeal has already expired;

4) they were prevented by fraud, mistake, accident, or excusable negligence from taking legal
steps to protect and preserve their rights over their parcels of land in so far as the part of the
decision decreeing just compensation for petitioners' properties;

5) they would never have agreed to the alienation of their property in favor of anybody,
considering the fact that the parcels of land involved in this case were among the valuable
properties they inherited from their dear father and they would rather see their land crumble to
dust than sell it to anybody.[4]
The RTC granted the petition and rendered a modified judgment dated September 8, 1997,
thus:
WHEREFORE, a modified judgment is hereby rendered:

1) Reducing the judgment award of plaintiffs for the fair market value of P48,005,000.00 by
9,526,000.00 or for a difference by P38,479,000.00 and by the further sum of P33,603,500.00
subject of the execution pending appeal leaving a difference of 4,878,500.00 which may be the
subject of execution upon the finality of this modified judgment with 6% interest per annum from
the filing of the case until paid.

2) Awarding the sum of P1,476,911.00 to herein petitioners Omar G. Maruhom, Elias G.

Maruhom, Bucay G. Maruhom, Mahmod G. Maruhom, Farouk G. Maruhom, Hidjara G.
Maruhom, Portrisam G. Maruhom and Lumba G. Maruhom as reasonable rental deductible from
the awarded sum of P7,050,974.40 pertaining to plaintiffs.

3) Ordering defendant embodied in the August 7, 1996 decision to pay plaintiffs the sum of
P200,000.00 as moral damages; and further sum of P200,000.00 as attorney's fees and costs.

SO ORDERED.[5]
Subsequently, both respondent Ibrahim and NAPOCOR appealed to the CA.

In the Decision dated June 8, 2005, the CA set aside the modified judgment and reinstated the
original Decision dated August 7, 1996, amending it further by deleting the award of moral
damages and reducing the amount of rentals and attorney's fees, thus:
WHEREFORE, premises considered, herein Appeals are hereby partially GRANTED, the
Modified Judgment is ordered SET ASIDE and rendered of no force and effect and the original
Decision of the court a quo dated 7 August 1996 is hereby RESTOREDwith
the MODIFICATION that the award of moral damages is DELETED and the amounts of rentals
and attorney's fees are REDUCED to P6,888,757.40 and P50,000.00, respectively.

In this connection, the Clerk of Court of RTC Lanao del Sur is hereby directed to reassess and
determine the additional filing fee that should be paid by Plaintiff-Appellant IBRAHIM taking into
consideration the total amount of damages sought in the complaint vis-á-vis the actual amount
of damages awarded by this Court. Such additional filing fee shall constitute a lien on the
judgment.

SO ORDERED.[6]
Hence, this petition ascribing the following errors to the CA:
(a) RESPONDENTS WERE NOT DENIED THE BENEFICIAL USE OF THEIR SUBJECT
PROPERTIES TO ENTITLE THEM TO JUST COMPENSATION BY WAY OF DAMAGES;

(b) ASSUMING THAT RESPONDENTS ARE ENTITLED TO JUST COMPENSATION BY WAY

OF DAMAGES, NO EVIDENCE WAS PRESENTED ANENT THE VALUATION OF
RESPONDENTS' PROPERTY AT THE TIME OF ITS TAKING IN THE YEAR 1978 TO
JUSTIFY THE AWARD OF ONE THOUSAND SQUARE METERS (P1000.00/SQ. M.) EVEN AS
PAYMENT OF BACK RENTALS IS ITSELF IMPROPER.
This case revolves around the propriety of paying just compensation to respondents, and, by
extension, the basis for computing the same. The threshold issue of whether respondents are
entitled to just compensation hinges upon who owns the sub-terrain area occupied by petitioner.

Petitioner maintains that the sub-terrain portion where the underground tunnels were
constructed does not belong to respondents because, even conceding the fact that
respondents owned the property, their right to the subsoil of the same does not extend
beyond what is necessary to enable them to obtain all the utility and convenience that
such property can normally give. In any case, petitioner asserts that respondents were still
able to use the subject property even with the existence of the tunnels, citing as an example the
fact that one of the respondents, Omar G. Maruhom, had established his residence on a part of
the property. Petitioner concludes that the underground tunnels 115 meters below respondents'
property could not have caused damage or prejudice to respondents and their claim to this
effect was, therefore, purely conjectural and speculative.[7]

The contention lacks merit.

Generally, in an appeal by certiorari under Rule 45 of the Rules of Court, the Court does not
pass upon questions of fact. Absent any showing that the trial and appellate courts gravely
abused their discretion, the Court will not examine the evidence introduced by the parties below
to determine if they correctly assessed and evaluated the evidence on record.[8] The jurisdiction
of the Court in cases brought to it from the CA is limited to reviewing and revising the errors of
law imputed to it, its findings of fact being as a rule conclusive and binding on the Court.

In the present case, petitioner failed to point to any evidence demonstrating grave abuse of
discretion on the part of the CA or to any other circumstances which would call for the
application of the exceptions to the above rule. Consequently, the CA's findings which upheld
those of the trial court that respondents owned and possessed the property and that its
substrata was possessed by petitioner since 1978 for the underground tunnels, cannot be
disturbed. Moreover, the Court sustains the finding of the lower courts that the sub-terrain
portion of the property similarly belongs to respondents. This conclusion is drawn from Article
437 of the Civil Code which provides:
ART. 437. The owner of a parcel of land is the owner of its surface and of everything
under it, and he can construct thereon any works or make any plantations and
excavations which he may deem proper, without detriment to servitudes and subject to
special laws and ordinances. He cannot complain of the reasonable requirements of
aerial navigation.
Thus, the ownership of land extends to the surface as well as to the subsoil under it.
In Republic of the Philippines v. Court of Appeals,[9] this principle was applied to show that rights
over lands are indivisible and, consequently, require a definitive and categorical classification,
thus:
The Court of Appeals justified this by saying there is "no conflict of interest" between the owners
of the surface rights and the owners of the sub-surface rights. This is rather strange doctrine, for
it is a well-known principle that the owner of a piece of land has rights not only to its surface but
also to everything underneath and the airspace above it up to a reasonable height. Under the
aforesaid ruling, the land is classified as mineral underneath and agricultural on the surface,
subject to separate claims of title. This is also difficult to understand, especially in its practical
application.

Under the theory of the respondent court, the surface owner will be planting on the land while
the mining locator will be boring tunnels underneath. The farmer cannot dig a well because he
may interfere with the mining operations below and the miner cannot blast a tunnel lest he
destroy the crops above. How deep can the farmer, and how high can the miner go without
encroaching on each others rights? Where is the dividing line between the surface and the sub-
surface rights?
The Court feels that the rights over the land are indivisible and that the land itself cannot
be half agricultural and half mineral. The classification must be categorical; the land
must be either completely mineral or completely agricultural.
Registered landowners may even be ousted of ownership and possession of their properties in
the event the latter are reclassified as mineral lands because real properties are
characteristically indivisible. For the loss sustained by such owners, they are entitled to just
compensation under the Mining Laws or in appropriate expropriation proceedings.[10]

Moreover, petitioner's argument that the landowners' right extends to the sub-soil insofar as
necessary for their practical interests serves only to further weaken its case. The theory would
limit the right to the sub-soil upon the economic utility which such area offers to the surface
owners. Presumably, the landowners' right extends to such height or depth where it is
possible for them to obtain some benefit or enjoyment, and it is extinguished beyond
such limit as there would be no more interest protected by law.[11]

In this regard, the trial court found that respondents could have dug upon their property
motorized deep wells but were prevented from doing so by the authorities precisely because of
the construction and existence of the tunnels underneath the surface of their property.
Respondents, therefore, still had a legal interest in the sub-terrain portion insofar as they could
have excavated the same for the construction of the deep well. The fact that they could not was
appreciated by the RTC as proof that the tunnels interfered with respondents' enjoyment of their
property and deprived them of its full use and enjoyment, thus:
Has it deprived the plaintiffs of the use of their lands when from the evidence they have already
existing residential houses over said tunnels and it was not shown that the tunnels either
destroyed said houses or disturb[ed] the possession thereof by plaintiffs? From the evidence, an
affirmative answer seems to be in order. The plaintiffs and [their] co-heirs discovered [these] big
underground tunnels in 1992. This was confirmed by the defendant on November 13, 1992 by
the Acting Assistant Project Manager, Agus 1 Hydro Electric Project (Exh. K). On September
16, 1992, Atty. Omar Maruhom (co-heir) requested the Marawi City Water District for permit to
construct a motorized deep well over Lot 3 for his residential house (Exh. Q). He was refused
the permit "because the construction of the deep well as (sic) the parcels of land will cause
danger to lives and property." He was informed that "beneath your lands are constructed the
Napocor underground tunnel in connection with Agua Hydroelectric plant" (Exh. Q-2). There in
fact exists ample evidence that this construction of the tunnel without the prior consent of
plaintiffs beneath the latter's property endangered the lives and properties of said plaintiffs. It
has been proved indubitably that Marawi City lies in an area of local volcanic and tectonic
activity. Lake Lanao has been formed by extensive earth movements and is considered to be a
drowned basin of volcano/tectonic origin. In Marawi City, there are a number of former
volcanoes and an extensive amount of faulting. Some of these faults are still moving. (Feasibility
Report on Marawi City Water District by Kampsa-Kruger, Consulting Engineers, Architects and
Economists, Exh. R). Moreover, it has been shown that the underground tunnels [have]
deprived the plaintiffs of the lawful use of the land and considerably reduced its value. On March
6, 1995, plaintiffs applied for a two-million peso loan with the Amanah Islamic Bank for the
expansion of the operation of the Ameer Construction and Integrated Services to be secured by
said land (Exh. N), but the application was disapproved by the bank in its letter of April 25, 1995
(Exh. O) stating that:
"Apropos to this, we regret to inform you that we cannot consider your loan application due to
the following reasons, to wit:

That per my actual ocular inspection and verification, subject property offered as collateral has
an existing underground tunnel by the NPC for the Agus I Project, which tunnel is traversing
underneath your property, hence, an encumbrance. As a matter of bank policy, property with an
existing encumbrance cannot be considered neither accepted as collateral for a loan."
All the foregoing evidence and findings convince this Court that preponderantly plaintiffs have
established the condemnation of their land covering an area of 48,005 sq. meters located at
Saduc, Marawi City by the defendant National Power Corporation without even the benefit of
expropriation proceedings or the payment of any just compensation and/or reasonable monthly
rental since 1978.[12]
In the past, the Court has held that if the government takes property without expropriation and
devotes the property to public use, after many years, the property owner may demand payment
of just compensation in the event restoration of possession is neither convenient nor feasible.
[13]
This is in accordance with the principle that persons shall not be deprived of their property
except by competent authority and for public use and always upon payment of just
compensation.[14]

Petitioner contends that the underground tunnels in this case constitute an easement upon the
property of respondents which does not involve any loss of title or possession. The manner in
which the easement was created by petitioner, however, violates the due process rights of
respondents as it was without notice and indemnity to them and did not go through proper
expropriation proceedings. Petitioner could have, at any time, validly exercised the power of
eminent domain to acquire the easement over respondents' property as this power
encompasses not only the taking or appropriation of title to and possession of the expropriated
property but likewise covers even the imposition of a mere burden upon the owner of the
condemned property.[15] Significantly, though, landowners cannot be deprived of their right over
their land until expropriation proceedings are instituted in court. The court must then see to it
that the taking is for public use, that there is payment of just compensation and that there is due
process of law.[16]

In disregarding this procedure and failing to recognize respondents' ownership of the sub-terrain
portion, petitioner took a risk and exposed itself to greater liability with the passage of time. It
must be emphasized that the acquisition of the easement is not without expense. The
underground tunnels impose limitations on respondents' use of the property for an indefinite
period and deprive them of its ordinary use. Based upon the foregoing, respondents are clearly
entitled to the payment of just compensation.[17] Notwithstanding the fact that petitioner only
occupies the sub-terrain portion, it is liable to pay not merely an easement fee but rather the full
compensation for land. This is so because in this case, the nature of the easement practically
deprives the owners of its normal beneficial use. Respondents, as the owners of the property
thus expropriated, are entitled to a just compensation which should be neither more nor less,
whenever it is possible to make the assessment, than the money equivalent of said property.[18]

The entitlement of respondents to just compensation having been settled, the issue now is on
the manner of computing the same. In this regard, petitioner claims that the basis for the
computation of the just compensation should be the value of the property at the time it was
taken in 1978. Petitioner also impugns the reliance made by the CA upon National Power
Corporation v. Court of Appeals and Macapanton Mangondato[19] as the basis for computing the
amount of just compensation in this action. The CA found that "the award of damages is not
excessive because the P1000 per square meter as the fair market value was sustained in a
case involving a lot adjoining the property in question which case involved an expropriation by
[petitioner] of portion of Lot 1 of the subdivision plan (LRC) PSD 116159 which is adjacent to
Lots 2 and 3 of the same subdivision plan which is the subject of the instant controversy."[20]

Just compensation has been understood to be the just and complete equivalent of the
loss[21] and is ordinarily determined by referring to the value of the land and its character at the
time it was taken by the expropriating authority.[22] There is a "taking" in this sense when the
owners are actually deprived or dispossessed of their property, where there is a practical
destruction or a material impairment of the value of their property, or when they are deprived of
the ordinary use thereof. There is a "taking" in this context when the expropriator enters private
property not only for a momentary period but for more permanent duration, for the purpose of
devoting the property to a public use in such a manner as to oust the owner and deprive him of
all beneficial enjoyment thereof.[23] Moreover, "taking" of the property for purposes of eminent
domain entails that the entry into the property must be under warrant or color of legal authority.
[24]

Under the factual backdrop of this case, the last element of taking mentioned, i.e., that the entry
into the property is under warrant or color of legal authority, is patently lacking. Petitioner
justified its nonpayment of the indemnity due respondents upon its mistaken belief that the
property formed part of the public dominion.

This situation is on all fours with that in the Mangondato case. NAPOCOR in that case took the
property of therein respondents in 1979, using it to build its Aqua I Hydroelectric Plant Project,
without paying any compensation, allegedly under the mistaken belief that it was public land. It
was only in 1990, after more than a decade of beneficial use, that NAPOCOR recognized
therein respondents' ownership and negotiated for the voluntary purchase of the property.

In Mangondato, this Court held:

The First Issue: Date of Taking or Date of Suit?

The general rule in determining "just compensation" in eminent domain is the value of
the property as of the date of the filing of the complaint, as follows:

"Sec. 4. Order of Condemnation. When such a motion is overruled or when any party fails to
defend as required by this rule, the court may enter an order of condemnation declaring that the
plaintiff has a lawful right to take the property sought to be condemned, for the public use or
purpose described in the complaint, upon the payment of just compensation to be determined
as of the date of the filing of the complaint. x x x" (Italics supplied).

Normally, the time of the taking coincides with the filing of the complaint for expropriation.
Hence, many ruling of this Court have equated just compensation with the value of the property
as of the time of filing of the complaint consistent with the above provision of the Rules. So too,
where the institution of the action precedes entry to the property, the just compensation is to be
ascertained as of the time of filing of the complaint.

The general rule, however, admits of an exception: where this Court fixed the value of the
property as of the date it was taken and not the date of the commencement of the
expropriation proceedings.

In the old case of Provincial Government of Rizal vs. Caro de Araullo, the Court ruled that "x x x
the owners of the land have no right to recover damages for this unearned increment resulting
from the construction of the public improvement (lengthening of Taft Avenue from Manila to
Pasay) from which the land was taken. To permit them to do so would be to allow them to
recover more than the value of the land at the time it was taken, which is the true measure of
the damages, or just compensation, and would discourage the construction of important public
improvements."

In subsequent cases, the Court, following the above doctrine, invariably held that the
time of taking is the critical date in determining lawful or just compensation. Justifying this
stance, Mr. Justice (later Chief Justice) Enrique Fernando, speaking for the Court
in Municipality of La Carlota vs. The Spouses Felicidad Baltazar and Vicente Gan, said, "x x x
the owner as is the constitutional intent, is paid what he is entitled to according to the value of
the property so devoted to public use as of the date of taking. From that time, he had been
deprived thereof. He had no choice but to submit. He is not, however, to be despoiled of such a
right. No less than the fundamental law guarantees just compensation. It would be injustice to
him certainly if from such a period, he could not recover the value of what was lost. There could
be on the other hand, injustice to the expropriator if by a delay in the collection, the
increment in price would accrue to the owner. The doctrine to which this Court has been
committed is intended precisely to avoid either contingency fraught with unfairness."

Simply stated, the exception finds the application where the owner would be given undue
incremental advantages arising from the use to which the government devotes the
property expropriated -- as for instance, the extension of a main thoroughfare as was in the
case in Caro de Araullo. In the instant case, however, it is difficult to conceive of how there
could have been an extra-ordinary increase in the value of the owner's land arising from
the expropriation, as indeed the records do not show any evidence that the valuation of
P1,000.00 reached in 1992 was due to increments directly caused by petitioner's use of
the land.Since the petitioner is claiming an exception to Rule 67, Section 4, it has the burden in
proving its claim that its occupancy and use -- not ordinary inflation and increase in land values
-- was the direct cause of the increase in valuation from 1978 to 1992.

Side Issue: When is there "Taking" of Property?

But there is yet another cogent reason why this petition should be denied and why the
respondent Court should be sustained. An examination of the undisputed factual environment
would show that the "taking" was not really made in 1978.

This Court has defined the elements of "taking" as the main ingredient in the exercise of power
of eminent domain, in the following words:
"A number of circumstances must be present in "taking" of property for purposes of eminent
domain: (1) the expropriator must enter a private property; (2) the entrance into private property
must be for more than a momentary period; (3) the entry into the property should be under
warrant or color of legal authority; (4) the property must be devoted to a public use or otherwise
informally appropriated or injuriously affected; and (5) the utilization of the property for public
use must be in such a way to oust the owner and deprive him of all beneficial enjoyment of the
property."(Italics supplied)

In this case, the petitioner's entrance in 1978 was without intent to expropriate or was not made
under warrant or color of legal authority, for it believed the property was public land covered by
Proclamation No. 1354. When the private respondent raised his claim of ownership sometime in
1979, the petitioner flatly refused the claim for compensation, nakedly insisted that the property
was public land and wrongly justified its possession by alleging it had already paid "financial
assistance" to Marawi City in exchange for the rights over the property. Only in 1990, after more
than a decade of beneficial use, did the petitioner recognize private respondent's ownership and
negotiate for the voluntary purchase of the property. A Deed of Sale with provisional payment
and subject to negotiations for the correct price was then executed. Clearly, this is not the intent
nor the expropriation contemplated by law. This is a simple attempt at a voluntary purchase and
sale. Obviously, the petitioner neglected and/or refused to exercise the power of eminent
domain.

Only in 1992, after the private respondent sued to recover possession and petitioner filed its
Complaint to expropriate, did petitioner manifest its intention to exercise the power of eminent
domain. Thus the respondent Court correctly held:

"If We decree that the fair market value of the land be determined as of 1978, then We
would be sanctioning a deceptive scheme whereby NAPOCOR, for any reason other than
for eminent domain would occupy another's property and when later pressed for
payment, first negotiate for a low price and then conveniently expropriate the property
when the land owner refuses to accept its offer claiming that the taking of the property
for the purpose of the eminent domain should be reckoned as of the date when it started
to occupy the property and that the value of the property should be computed as of the
date of the taking despite the increase in the meantime in the value of the property."

In Noble vs. City of Manila, the City entered into a lease-purchase agreement of a building
constructed by the petitioner's predecessor-in-interest in accordance with the specifications of
the former. The Court held that being bound by the said contract, the City could not expropriate
the building. Expropriation could be resorted to "only when it is made necessary by the
opposition of the owner to the sale or by the lack of any agreement as to the price." Said the
Court:

"The contract, therefore, in so far as it refers to the purchase of the building, as we have
interpreted it, is in force, not having been revoked by the parties or by judicial decision. This
being the case, the city being bound to buy the building at an agreed price, under a valid and
subsisting contract, and the plaintiff being agreeable to its sale, the expropriation thereof, as
sought by the defendant, is baseless. Expropriation lies only when it is made necessary by the
opposition of the owner to the sale or by the lack of any agreement as to the price. There being
in the present case a valid and subsisting contract, between the owner of the building and the
city, for the purchase thereof at an agreed price, there is no reason for the expropriation."
(Italics supplied)

In the instant case, petitioner effectively repudiated the deed of sale it entered into with the
private respondent when it passed Resolution No. 92-121 on May 25, 1992 authorizing its
president to negotiate, inter alia, that payment "shall be effective only after Agus I HE project
has been placed in operation." It was only then that petitioner's intent to expropriate became
manifest as private respondent disagreed and, barely a month, filed suit.[25]
In the present case, to allow petitioner to use the date it constructed the tunnels as the date of
valuation would be grossly unfair. First, it did not enter the land under warrant or color of legal
authority or with intent to expropriate the same. In fact, it did not bother to notify the owners and
wrongly assumed it had the right to dig those tunnels under their property. Secondly, the
"improvements" introduced by petitioner, namely, the tunnels, in no way contributed to an
increase in the value of the land. The trial court, therefore, as affirmed by the CA, rightly
computed the valuation of the property as of 1992, when respondents discovered the
construction of the huge underground tunnels beneath their lands and petitioner confirmed the
same and started negotiations for their purchase but no agreement could be reached.[26]

As to the amount of the valuation, the RTC and the CA both used as basis the value of the
adjacent property, Lot 1 (the property involved herein being Lots 2 and 3 of the same
subdivision plan), which was valued at P1,000 per sq. meter as of 1990, as sustained by this
Court in Mangondato, thus:
The Second Issue: Valuation

We now come to the issue of valuation.

The fair market value as held by the respondent Court, is the amount of P1,000.00 per square
meter. In an expropriation case where the principal issue is the determination of just
compensation, as is the case here, a trial before Commissioners is indispensable to allow the
parties to present evidence on the issue of just compensation. Inasmuch as the determination of
just compensation in eminent domain cases is a judicial function and factual findings of the
Court of Appeals are conclusive on the parties and reviewable only when the case falls within
the recognized exceptions, which is not the situation obtaining in this petition, we see no reason
to disturb the factual findings as to valuation of the subject property. As can be gleaned from the
records, the court-and-the-parties-appointed commissioners did not abuse their authority in
evaluating the evidence submitted to them nor misappreciate the clear preponderance of
evidence. The amount fixed and agreed to by the respondent appellate Court is not grossly
exorbitant. To quote:

"Commissioner Ali comes from the Office of the Register of Deeds who may well be considered
an expert, with a general knowledge of the appraisal of real estate and the prevailing prices of
land in the vicinity of the land in question so that his opinion on the valuation of the property
cannot be lightly brushed aside.
"The prevailing market value of the land is only one of the determinants used by the
commissioners' report the other being as herein shown:

xxx

xxx

"Commissioner Doromal's report, recommending P300.00 per square meter, differs from the 2
commissioners only because his report was based on the valuation as of 1978 by the City
Appraisal Committee as clarified by the latter's chairman in response to NAPOCOR's general
counsel's query."

In sum, we agree with the Court of Appeals that petitioner has failed to show why it should be
granted an exemption from the general rule in determining just compensation provided under
Section 4 of Rule 67. On the contrary, private respondent has convinced us that, indeed, such
general rule should in fact be observed in this case.[27]
Petitioner has not shown any error on the part of the CA in reaching such a valuation.
Furthermore, these are factual matters that are not within the ambit of the present review.

WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals in C.A.-G.R.
CV No. 57792 dated June 8, 2005 is AFFIRMED.

No costs.

SO ORDERED.

Central Philippine University v.

Court of Appeals, 246 SCRA 511
[ G.R. No. 112127, July 17, 1995 ]
316 Phil. 616
FIRST DIVISION
[ G.R. No. 112127, July 17, 1995 ]
CENTRAL PHILIPPINE UNIVERSITY, PETITIONER, VS.
COURT OF APPEALS, REMEDIOS FRANCO,
FRANCISCO N. LOPEZ, CECILIA P. VDA. DE LOPEZ,
REDAN LOPEZ AND REMARENE LOPEZ,
RESPONDENTS.

DECISION

BELLOSILLO, J.:
CENTRAL PHILIPPINE UNIVERSITY filed this petition for
review on certiorari of the decision of the Court of Appeals
which reversed that of the Regional Trial Court of Iloilo
City directing petitioner to reconvey to private respondents
the property donated to it by their predecessor-in-interest.
Sometime in 1939, the late Don Ramon Lopez, Sr., who
was then a member of the Board of Trustees of the
Central Philippine College (now Central Philippine
University [CPU]), executed a deed of donation in favor
of the latter of a parcel of land identified as Lot No.
3174-B-1 of the subdivision plan Psd-1144, then a portion
of Lot No. 3174-B, for which Transfer Certificate of Title
No. T-3910-A was issued in the name of the donee CPU
with the following annotations copied from the deed of
donation -
1.   The land described shall be utilized by the CPU
exclusively for the establishment and use of a medical
college with all its buildings as part of the curriculum;
2.   The said college shall not sell, transfer or convey to
any third party nor in any way encumber said land;
3.   The said land shall be called "RAMON LOPEZ
CAMPUS", and the said college shall be under obligation
to erect a cornerstone bearing that name.  Any net income
from the land or any of its parks shall be put in a fund to
be known as the "RAMON LOPEZ CAMPUS FUND" to be
used for improvements of said campus and erection of a
building thereon."[1]

On 31 May 1989, private respondents, who are the

heirs of Don Ramon Lopez, Sr., filed an action for
annulment of donation, reconveyance and damages
against CPU alleging that since 1939 up to the time the
action was filed the latter had not complied with the
conditions of the donation.  Private respondents also
argued that petitioner had in fact negotiated with the
National Housing Authority (NHA) to exchange the
donated property with another land owned by the latter.
In its answer petitioner alleged that the right of private
respondents to file the action had prescribed; that it did not
violate any of the conditions in the deed of donation
because it never used the donated property for any other
purpose than that for which it was intended; and, that it did
not sell, transfer or convey it to any third party.
On 31 May 1991, the trial court held that petitioner
failed to comply with the conditions of the donation
and declared it null and void.  The court a quo further
directed petitioner to execute a deed of reconveyance of
the property in favor of the heirs of the donor, namely,
private respondents herein.
Petitioner appealed to the Court of Appeals which on 18
June 1993 ruled that the annotations at the back of
petitioner's certificate of title were resolutory
conditions breach of which should terminate the
rights of the donee thus making the donation
revocable.
The appellate court also found that while the first condition
mandated petitioner to utilize the donated property for the
establishment of a medical school, the donor did not fix a
period within which the condition must be fulfilled, hence,
until a period was fixed for the fulfillment of the condition,
petitioner could not be considered as having failed to
comply with its part of the bargain.  Thus, the appellate
court rendered its decision reversing the appealed
decision and remanding the case to the court of origin for
the determination of the time within which petitioner should
comply with the first condition annotated in the certificate
of title.
Petitioner now alleges that the Court of Appeals erred:  (a)
in holding that the quoted annotations in the certificate of
title of petitioner are onerous obligations and resolutory
conditions of the donation which must be fulfilled non-
compliance of which would render the donation revocable;
(b) in holding that the issue of prescription does not
deserve "disquisition;" and, (c) in remanding the case to
the trial court for the fixing of the period within which
petitioner would establish a medical college.[2]
We find it difficult to sustain the petition.  A clear
perusal of the conditions set forth in the deed of donation
executed by Don Ramon Lopez, Sr., gives us no
alternative but to conclude that his donation was onerous,
one executed for a valuable consideration which is
considered the equivalent of the donation itself, e.g., when
a donation imposes a burden equivalent to the value of
the donation.  A gift of land to the City of Manila
requiring the latter to erect schools, construct a
children's playground and open streets on the land
was considered an onerous donation.[3]Similarly, where
Don Ramon Lopez donated the subject parcel of land
to petitioner but imposed an obligation upon the latter
to establish a medical college thereon, the donation
must be for an onerous consideration.
Under Art. 1181 of the Civil Code, on conditional
obligations, the acquisition of rights, as well as the
extinguishment or loss of those already acquired, shall
depend upon the happening of the event which constitutes
the condition.  Thus, when a person donates land to
another on the condition that the latter would build
upon the land a school, the condition imposed was
not a condition precedent or a suspensive condition
but a resolutory one.[4] It is not correct to say that the
schoolhouse had to be constructed before the donation
became effective, that is, before the donee could become
the owner of the land, otherwise, it would be invading the
property rights of the donor.  The donation had to be
valid before the fulfillment of the condition.[5] If there
was no fulfillment or compliance with the condition, such
as what obtains in the instant case, the donation may now
be revoked and all rights which the donee may have
acquired under it shall be deemed lost and extinguished.
The claim of petitioner that prescription bars the instant
action of private respondents is unavailing. The condition
imposed by the donor, i.e., the building of a medical
school upon the land donated, depended upon the
exclusive will of the donee as to when this condition shall
be fulfilled. When petitioner accepted the donation, it
bound itself to comply with the condition thereof.  Since
the time within which the condition should be fulfilled
depended upon the exclusive will of the petitioner, it has
been held that its absolute acceptance and the
acknowledgment of its obligation provided in the deed of
donation were sufficient to prevent the statute of
limitations from barring the action of private respondents
upon the original contract which was the deed of donation.
[6]

Moreover, the time from which the cause of action accrued

for the revocation of the donation and recovery of the
property donated cannot be specifically determined in the
instant case. A cause of action arises when that which
should have been done is not done, or that which should
not have been done is done.[7] In cases where there is no
special provision for such computation, recourse must be
had to the rule that the period must be counted from the
day on which the corresponding action could have been
instituted.  It is the legal possibility of bringing the action
which determines the starting point for the computation of
the period.  In this case, the starting point begins with the
expiration of a reasonable period and opportunity for
petitioner to fulfill what has been charged upon it by the
donor.
The period of time for the establishment of a medical
college and the necessary buildings and improvements on
the property cannot be quantified in a specific number of
years because of the presence of several factors and
circumstances involved in the erection of an educational
institution, such as government laws and regulations
pertaining to education, building requirements and
property restrictions which are beyond the control of the
donee.
Thus, when the obligation does not fix a period but from its
nature and circumstances it can be inferred that a period
was intended, the general rule provided in Art. 1197 of the
Civil Code applies, which provides that the courts may fix
the duration thereof because the fulfillment of the
obligation itself cannot be demanded until after the court
has fixed the period for compliance therewith and such
period has arrived.[8]
This general rule however cannot be applied considering
the different set of circumstances existing in the instant
case.  More than a reasonable period of fifty (50) years
has already been allowed petitioner to avail of the
opportunity to comply with the condition even if it be
burdensome, to make the donation in its favor forever
valid.  But, unfortunately, it failed to do so.  Hence,
there is no more need to fix the duration of a term of
the obligation when such procedure would be a mere
technicality and formality and would serve no purpose
than to delay or lead to an unnecessary and expensive
multiplication of suits.[9] Moreover, under Art. 1191 of the
Civil Code, when one of the obligors cannot comply with
what is incumbent upon him, the obligee may seek
rescission and the court shall decree the same unless
there is just cause authorizing the fixing of a period.  In the
absence of any just cause for the court to determine the
period of the compliance, there is no more obstacle for the
court to decree the rescission claimed.
Finally, since the questioned deed of donation herein is
basically a gratuitous one, doubts referring to incidental
circumstances of a gratuitous contract should be resolved
in favor of the least transmission of rights and interests.
[10]
 Records are clear and facts are undisputed that since
the execution of the deed of donation up to the time of
filing of the instant action, petitioner has failed to comply
with its obligation as donee.  Petitioner has slept on its
obligation for an unreasonable length of time. Hence, it is
only just and equitable now to declare the subject donation
already ineffective and, for all purposes, revoked so that
petitioner as donee should now return the donated
property to the heirs of the donor, private respondents
herein, by means of reconveyance.
WHEREFORE, the decision of the Regional Trial Court of
Iloilo, Br. 34, of 31 May 1991 is REINSTATED and
AFFIRMED, and the decision of the Court of Appeals of 18
June 1993 is accordingly MODIFIED. Consequently,
petitioner is directed to reconvey to private respondents
Lot No. 3174-B-1 of the subdivision plan Psd-1144
covered by Transfer Certificate of Title No. T-3910-A
within thirty (30) days from the finality of this judgment.
Costs against petitioner.
SO ORDERED.
Quiason and Kapunan, JJ., concur.