Professional Documents
Culture Documents
C13.6 Unduran vs. Aberasturi, 773 SCRA 114, October 20, 2015
C13.6 Unduran vs. Aberasturi, 773 SCRA 114, October 20, 2015
C13.6 Unduran vs. Aberasturi, 773 SCRA 114, October 20, 2015
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* EN BANC.
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Tribe, it is not the NCIP but the RTC which shall have the power
to hear, try and decide this case. There are, however, exceptional
cases where the NCIP shall still have jurisdiction over
119
Remedial Law; Civil Procedure; Courts; Jurisdiction; View
that as correctly pointed out by the ponencia, “jurisdiction over the
subject matter of a case is conferred by law and determined by the
allegations in the complaint which comprise a concise statement of
the ultimate facts constituting the plaintiff’s cause of action.”—I
concur with the
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121
122
ment. Any rule that is not consistent with the statute itself is
null and void.—As earlier discussed, Section 66 of R.A. No. 8371
is explicit that the NCIP’s jurisdiction is confined only to claims
and disputes where the parties are both ICCs/IPs. Such being the
case, the second paragraph of Rule IX, Section 1 of the IRR of R.A.
No. 8371 should be declared null and void because it is contrary to
the provision of Section 66 of the IPRA. It is well-settled that an
administrative rule or regulation must conform, not contradict,
the provisions of the enabling law. A rule or regulation cannot
modify, expand, or subtract from the law it is intended to
implement. Any rule that is not consistent with the statute itself
is null and void. Since the rule in question is at war with Section
66 of R.A. No. 8371, then it must be excised.
BRION, J., Separate Opinion:
Pleadings and Practice; Amendment of Pleadings; View that
the rule on amendments as a matter of right applies to a
codefendant who has yet to file his responsive pleading, even if his
codefendants have already done so.—At the time the respondents
amended the complaint, the petitioners had yet to file their
answers to the original complaint, hence, the amendment was
still a matter of right. The rule on amendments as a matter of
right applies to a codefendant who has yet to file his responsive
pleading, even if his codefendants have already done so. Thus,
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123
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Indigenous Cultural Communities; Indigenous Peoples’ Rights
Act; National Commission on Indigenous Peoples; View that the
National Commission on Indigenous Peoples (NCIP) shall have
jurisdiction over claims and disputes involving rights of
Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs)
only when they arise between or among parties belonging to the
same ICC/IP.—I concur with the ponencia on the basis of the
principle that “jurisdiction over the subject matter of a case is
conferred by law and determined by the allegations in the
complaint, and that the averments in the complaint and the
character of the relief sought are the ones to be consulted.” As
clearly delineated in the ponencia, upon a careful review of
Section 66 and based on the qualifying proviso, the NCIP shall
have jurisdiction over claims and disputes involving rights of
ICCs/IPs only when they arise between or among parties
belonging to the same ICC/IP. And, as clearly alleged by the
petitioners in their complaint, the defendants they impleaded are
not indigenous people.
Remedial Law; Civil Procedure; Jurisdiction; Doctrine of
Primary Jurisdiction; View that primary jurisdiction, also known
as the doctrine of Prior Resort, is the power and authority vested
by the Constitution or by statute upon an administrative body to
act upon a matter by virtue of its specific competence.—Primary
jurisdiction, also known as the doctrine of Prior Resort, is the
power and authority vested by the Constitution or by statute upon
an administrative body to act upon a matter by virtue of its
specific competence. The doctrine of primary jurisdiction prevents
the court from arrogating unto itself the authority to resolve a
controversy which falls under the jurisdiction of a tribunal
possessed with special competence. In
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131
PERALTA, J.:
This is a petition for review on certiorari1 assailing the
Decision2 dated August 17, 2006 of the Court of Appeals
(CA) in C.A.-G.R. S.P. No. 00204-MIN, and the Resolution3
dated July 4, 2007, which denied petitioners’ motion for
reconsideration.
Petitioners, except for Mark Brazil and Nestor
Macapayag, are members of the Miarayon, Lapok,
Lirongan, Talaandig Tribal Association (MILALITTRA), or
Talaandig tribe, who claimed to have been living since
birth on the land located at Barangay Miarayon, Talakag,
Bukidnon, Mindanao, which they inherited from their
forefathers.
On the other hand, respondents, represented by
attorney-in-fact Ramon Aberasturi, claimed to be the
lawful owners and possessor of an unregistered parcel of
agricultural land (Lot No. 7367 Cad 630-D), with an area of
105.7361 hectares, which appears to be located within the
ancestral domain of the Talaandig tribe.
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at pp. 56-68.
3 Id., at pp. 11-13.
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134
On April 12, 2005, petitioners filed before the Court of
Appeals a Petition for Certiorari and Prohibition with
Prayer for Preliminary Injunction and Issuance of a
Temporary Restraining Order.
On August 17, 2006, the CA rendered a Decision
affirming the RTC’s February 14, 2005 Order, which in
turn denied the referral of the case to the NCIP, the
dispositive portion of which states:
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7 Id., at p. 28.
135
The CA ruled that the RTC correctly granted the
amendment of the complaint and properly refused to refer
the case to the RHO-NCIP. Based on the allegations of both
original complaint [accion reivindicatoria] and amended
complaint [injunction], the CA found that the subject
matter of both complaints is well within the jurisdiction of
the RTC. The CA noted that the only substantial
amendment made was with regard to the nature of the
action which originally was one of accion reivindicatoria
and then changed to one for damages. And except for some
amendments as to petitioners’ alleged violent acts and the
prayer for declaration of their title to the subject property,
the rest of the amended complaint was basically the same
as the original one, including the reliefs prayed for by
respondents. Anent the writ of preliminary injunction, the
CA held that the RTC’s assailed February 14, 2005 Order
is self-explanatory as to why the issuance of the same was
proper considering the circumstances of the case.
On July 4, 2007, the CA denied petitioners’ motion for
reconsideration of its August 17, 2006 Decision.
Hence, this appeal on certiorari raising the following
issues:
I. THE COURT OF APPEALS ERRED IN
AFFIRMING THE JURISDICTION OF THE COURT A
QUO OVER A COMPLAINT FOR INJUNCTION
INVOLVING AN ANCESTRAL DOMAIN OF THE
TALAANDIGS.
II. THE COURT OF APPEALS ERRED IN
AFFIRMING THE RESOLUTION OF THE COURT A
QUO ALLOWING THE AMENDMENT OF THE
COMPLAINT,
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8 Id., at p. 348.
136
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9 Id., at p. 433.
137
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15 Padlan v. Dinglasan, G.R. No. 180321, March 20, 2013, 694 SCRA
91, 98.
16 Emphasis added.
141
In line with Section 69 of the IPRA on the NCIP’s quasi-
judicial power to promulgate rules and regulations
governing the hearing and disposition of cases filed before
it, the NCIP issued Administrative Circular No. 1-03 dated
April 9, 2003, known as the Rules on Pleadings, Practice
and Procedure (NCIP Rules), which reiterates its
jurisdiction over claims and disputes involving rights of
ICCs/IPs and enumerates the actions that may be brought
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before it. Section 5, Rule III, of the NCIP Rules provides for
the jurisdiction of the NCIP-RHO:
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17 Id.
142
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18 Id.
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A careful review of Section 66 shows that the NCIP shall
have jurisdiction over claims and disputes involving rights
of ICCs/IPs only when they arise between or among parties
belonging to the same ICC/IP. This can be gathered from
the qualifying provision that “no such dispute shall be
brought to the NCIP unless the parties have exhausted all
remedies provided under their customary laws. For this
purpose, a certification shall be issued by the Council of
Elders/Leaders who participated in the attempt to settle
the dispute that the same has not been resolved, which
certification shall be a condition precedent to the filing of a
petition with the NCIP.”
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20 Emphasis added.
21 Id.
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CONCURRING OPINION
VELASCO, JR., J.:
I concur with the ponencia that the Regional Trial Court
(RTC) has jurisdiction over the case. Both original and
amended complaints, accion reivindicatoria and injunction,
respectively, are incapable of pecuniary estimation; thus
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1 Ponencia, p. 140.
2 Gomez-Castillo v. COMELEC, G.R. No. 187231, 22 June 2010, 621
SCRA 499, 507.
3 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
(1997).
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A careful scrutiny of Section 66 of the IPRA would
reveal that it is composed of three parts: (1) the NCIP has
jurisdiction over all claims and disputes involving rights of
ICCs/IPs; (2) the requirement of exhaustion of all remedies
provided under the customary laws of the ICCs/IPs; and (3)
a certification from the Council of Elders/Leaders as a
condition precedent to the filing of a petition with NCIP.
The first part lays down the basis of jurisdiction of the
NCIP. It can be gleaned from this part that the law is
silent if the parties should belong to the same IP/IC
Community. What the law only provides is that the NCIP
has jurisdiction over all claims and disputes involving
rights of ICCs/IPs.
The second part contains the proviso that should be
followed before the NCIP acquires jurisdiction over the
case. Said proviso states: “Provided, however, That no such
dispute shall be brought to the NCIP unless the parties
have exhausted all remedies provided under their
customary laws.”
The third part, on the other hand, refers to the
certification from the Council of Elders/Leaders as a
condition precedent to the filing of a petition with NCIP.
This is in relation to the second part requiring the
exhaustion of all remedies.
The second and third parts of the provision should not
be interpreted as limiting the jurisdiction of the NCIP to
claims
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157
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.
x x x x
All decisions of the NCIP may be brought on Appeal
by Petition for Review to the Court of Appeals within
fifteen (15) days from receipt of the Order or Decision.
ii. Rule III, Section 5 of the NCIP Rules which
provides:
Section 5. Jurisdiction of the NCIP.—The NCIP
through its Regional Hearing Offices shall exercise
jurisdiction over all claims and disputes involving
rights of ICCs/IPs and all cases pertaining to the
implementation, enforcement, and interpretation of
R.A. 8371, including but not limited to the following:
(1) Original and Exclusive Jurisdiction of the
Regional Hearing Office (RHO):
a. Cases involving disputes and controversies over
ancestral lands/domains of ICCs/IPs;
158
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8 Supra note 4.
159
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9 Id.
10 Id.
160
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11 Heirs of Fernando Vinzons v. Court of Appeals, 315 SCRA 541, 549
(1999).
12 Fort Bonifacio Development Corporation v. Commissioner of
Internal Revenue, G.R. No. 175707, November 19, 2014, 740 SCRA 640.
13 Id.
14 Id.
161
complaint;
(3) The National Council for Indigenous Peoples’
(NCIP) jurisdiction over disputes is limited to cases
where both parties are members of the same ICC/IP.
I also concur with the ponencia that the NCIP has
jurisdiction over adverse claims, boundary disputes, and
cancellation of fraudulently issued Certificate of Ancestral
Domain Titles (CADTs), regardless of the parties involved.
But I clarify and emphasize my view that while the NCIP
possesses quasi-judicial powers, its jurisdiction is only
primary, and not exclusive.
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163
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3 See Siasoco v. Court of Appeals, G.R. No. 132753, February 15, 1999,
103 Phil. 430; 303 SCRA 186.
4 See Delbros v. IAC, No. L-72566, April 12, 1988, 159 SCRA 533.
5 Mendoza v. Germino, 650 Phil. 81; 635 SCRA 537 (2010), citing
Morta, Sr. v. Occidental, G.R. No. 123417, June 10, 1999, 308 SCRA 167.
164
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6 Ponencia, p. 146.
7 Section 19(1), Batas Pambansa Blg. 129.
8 Nuñez v. SLTEAS Phoenix Solutions, Inc., G.R. No. 180542, April 12,
2010, 618 SCRA 142.
165
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166
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Pac., 1083, Ann. Cas. [1916 E], p. 282, where these principles concerning
provisos are applied.
10 Section 15 of the IPRA.
11 Supra note 9.
167
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12 Chapter III grants the ICCs/IPs the right to own and possess their
ancestral domains/lands including the right to: claim ownership; develop;
not to be relocated; be resettled, and to return in case of displacement;
regulate the entry of migrants; access integrated systems for the
management of inland waters and air space; claim parts of reservations;
resolve land conflicts in accord with customary laws of the area; transfer
lands to/among the members of the same ICCs/IPs; redeem property sold
to a nonmember of an ICC/IP, whenever necessary.
13 Chapter IV grants ICCs/IPs the right to: use their own justice
system, conflict resolution institutions and peace building processes;
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169
“Existing laws” refer to national laws as opposed to
customary laws; while “the court” refers to the regular
courts as opposed to administrative bodies like the NCIP.
Under Section 72, ICCs/IPs can avail of the protection
under national laws and file an action before the regular
courts, in which case, the penalty shall be imprisonment
and/or fine, and damages. From this perspective, Section
72 is a special penal law that applies to ALL persons,
including non-ICCs/IPs.
The phrase “without prejudice,” however, means without
limiting the course of action that one can take.23 Thus, a
recourse under customary laws does not take away the
right of ICCs/IPs to secure punishment under existing
national laws. An express caveat under the customary law
option is that the penalty must not be cruel, degrading, or
inhuman, nor shall it consist of the death penalty or
excessive fines.24
Since the regular courts, not the NCIP, have jurisdiction
over national laws, then the NCIP’s jurisdiction is limited
to punishment under customary laws.25
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or both such fine and imprisonment upon the discretion of the court. In
addition, he shall be obliged to pay to the ICCs/IPs concerned whatever
damage may have been suffered by the latter as a consequence of the
unlawful act.
23 http://www.merriam-webster.com/dictionary/without prejudice.
24 Section 72 of the IPRA.
25 Under Section 46(g), the NCIP-Legal Affairs Office (NCIP-LAO)
shall conduct preliminary investigations on violations of ICC/IP rights and
on the basis of its findings, initiate the filing of appropriate legal or
administrative action to the NCIP. The Legal or Administrative Action
that Section 46(g) refers to is the action to enforce punishment under
customary laws.
170
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26 See Tañada v. Tuvera, No. L-63915, April 24, 1985, 146 SCRA 446.
27 Section 46(g) of the IPRA.
171
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28 The IPRA is the product of Senate Bill 1728 and House Bill 9125.
The bill originated from the Senate, and was the consolidation of four
separate bills: S.B. Nos. 343, 618, 1476, and 1486. Then as senator, former
President Gloria Macapagal-Arroyo authored Senate Bill No. 618, which
proposed the creation of the NCIP.
29 July 30, 1996 Committee on Cultural Communities; Senate
Technical Working Group.
172
Mr. Mercado:
With the non-IPs possibly which would happen. It would be easy if the
conflict could be between IPs of the same group. So it would be easier
to resolve. But paano po ‘yung if there would be a conflict between an
IP and non-IP.
Mr. Raiz:
Non-IP.
Mr. Mercado:
Because the assumption nga — oo, ‘yong sa civil law relations, may mga
conflicts po na possible na mangyayari. So, actually, sabi ko nga,
maybe we can do away with it. That’s one issue. x x x
Mr. Austria:
‘Yong point ni Mike is very meritorious, ‘yon dapat, Dahil unang una, the
IPs should themselves show to the other sectors kung ano ba ‘yon rule
nila sa society. x x x
Ms. Damaso:
Let’s go back to that discussion on the creation of a separate office on
planning and policy, and research.
I think it’s more germane to mention those points that Mike has
enunciated earlier — that this be a primary function of that office x x x
continuing documentation of customary laws and other usage
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173
sabihin natin na yung customary law nga yung mag-go-govern, pero paano
natin i-po-prove —although kailangan natin i-recognize na mayroon
ganuong problem. Sabihin natin it’s an oral practice, it’s an oral
customary law pero mas maganda siguro kung iyon nga kung i-
compile mo tapos eto ganito yon. So mayroon tayong pang...
Mr. Mercado:
For example po on practical ground, I think ang power is lodged with the
Commission which is collective in nature iyong mga adjudicatory
power. Assuming not all of them would belong to one tribe, they would
belong to a different sector or group. I know that it is being practiced
and it’s not written down, so I have to make decision also as a part of
that Commission — as a commissioner based on something, so I have
to also acquaint myself on the practices of other groups because that is
part of the power of the commission to adjudicate. For practical
purposes only, how would I know the practices of the particular
groupings, which I am supposed to adjudicate, assuming that we only
have 113 tribes or groupings and we have five commissioners. Those
other five or those other commissioners who are not aware of that
particular practice, to that they will depend their judgment on. So,
there is also a need for this five commissioners to be familiar with the
practice of other groups because they will make decisions also.
Ms. Damaso:
Yeah, Mike, I think your point is to compile, meaning document.
Mr. Mercado:
Document only, hindi ho isabatas.
Ms. Damaso:
But not to codify. It’s a different ball game to codify.
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Mr. Mercado:
Actually ginamit ko yung term, nag-usap kami ni Didith, sabi ko, “it’s
compile only.” Because, it’s beyond the power of this commission
to make codifications. But ‘yung point kanina ni Datu Sulang is
actually going a step further. Kunwari like Muslims, bakit nare-
recognize na ‘yong three marriages. Because there is four marriages
and they have specific law for that. If we will not compile it,
mahihirapan tayong ma-attain ‘yong level na ‘yon na sana mas
maganda kung ‘yong all practices, for example on marriage sa
iba’t ibang tribes ma-recognize rin ng law. Pero if we will not
document the practices, hindi natin maa-attain ‘yong level na ‘yon.
Kaya mas maganda kung mayroon tayong documentation that when
legislators if and when they decide to make it a law, mayroon silang
existing na gagamitin. x x x
........
Ms. Chavez:
Couldn’t NCIP hire or form a consultative body from which each
tribe will be represented by a co-tribal consultant aside from
the documentation of customary laws? Pwede ba ‘yon ganoon?
Kasi kahit may documentation... (emphasis supplied)
The presiding officer:
Baka pwede isama sa IRR, implementing rules and regulations ‘yong mga
tribal tribal consultancy.
Ms. Chavez:
Sa IRR.
The Presiding officer:
Pwede naman siguro ‘yon gawin. Anyway, specifics na ‘yon. General lang
‘yong functions na ilagay natin.
x x x x
175
While the IPRA did create the OPPR, and directed the
NCIP to form a consultative body, their functions had
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41 The Commission, through its Regional Offices, shall have exclusive
original jurisdiction over all claims and disputes involving rights of
indigenous people: Provided, however, that no such dispute shall be
brought to the NCIP unless the parties have exhausted all remedies under
their customary laws. For this purpose a Certification shall be issued by
the Council who participated in the attempt to settle the dispute that the
same has not been resolved, which certification shall be a condition
precedent to the filing of a petition with the Commission. (underscoring
ours)
42 October 9, 1997; Bicameral Conference Meeting on the Disagreeing
Provisions of SBN 1728 and HBN 9125.
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Rep. Zapata:
This was considered. The original, we were willing in the
house. But the “exclusive,” we objected to the word
“exclusive” because it would only be the commission that
would exclude the court and the Commission may not be
able to undertake all the review nationwide. And so we
remove the word “exclusive” so that they will have
original jurisdiction but with the removal of the
word “exclusive” that would mean that they may
bring the case to the ordinary courts of justice.
Sen. Flavier:
Without passing through the commission?
Rep. Zapata:
Yes. Anyway, if they go to the regular courts, they will
have to litigate in court, because if its (sic) exclusive, that
would be good.
Sen. Flavier:
But what he is saying is that…
Rep. Zapata:
But they may not have the facility.
Rep._______:
Senado na lang.
Rep. Zapata:
Oo, iyong original na lang.
Sen. Flavier:
In other words, it’s not only the Commission that
can originate it, pwedeng mag-originate sa courts.
Rep. Zapata:
Or else, we just remove “exclusive original” so that they
will say, the National will have jurisdiction over claims. So
we remove both “exclusive and original.”
Sen. Flavier:
So what version are you batting for, Mr. Chairman?
181
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Rep. Zapata:
Just to remove the word “exclusive original.” The
Commission will still have jurisdiction only that, if
the parties will opt to go to courts of justice, then this
have (sic) the proper jurisdiction, then they may do so
because we have courts nationwide. Here there may be
not enough courts of the commission.
Sen. Flavier:
So we are going to adopt the senate version minus the
words “exclusive original”?
Rep. Zapata:
Yes, Mr. Chairman, that’s my proposal.
Sen. Flavier:
No, problem. Okay Approved.
x x x x
The Bicameral Committee’s removal of the words
“exclusive and original” meant that the NCIP shares
concurrent jurisdiction with the regular courts. Thus, I
agree with the revised ponencia that it would be ultra vires
for NCIP to promulgate rules and regulations stating that
it has exclusive jurisdiction.
The NCIP’s jurisdiction, however, while not
exclusive,
is primary.
Under the doctrine of primary jurisdiction, courts must
refrain from determining a controversy involving a
question which is within the jurisdiction of an
administrative tribunal, where the question demands the
exercise of sound administrative discretion requiring the
special knowledge, experience and services of the
administrative tribunal to determine technical and
intricate matters of fact.43
_______________
43 Phil. Pharmawealth, Inc. v. Pfizer, Inc., G.R. No. 167715, November
17, 2010, 635 SCRA 140, 153.
182
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44 Pua v. Citibank, G.R. No. 180064, September 16, 2013, 705 SCRA
684.
45 RULE III. The NCIP shall exercise jurisdiction over all claims
and disputes involving rights of the ICCs/IPs and all cases pertaining to
the implementation, enforcement, and interpretation of R.A. 8371,
including but not limited to the following:
A. Original and Exclusive Jurisdiction of the Regional Hearing
Office (emphasis supplied)
1. Cases involving disputes and controversies over ancestral
lands/domains of ICCs/IPs, except those which involve oppositions to
pending applications for CALT and CADT;
2. Enforcement of compromise agreements or decisions rendered by
ICCs/IPs;
3. Actions for redemption/reconveyance under Section 8(b) of R.A. 8371;
4. Interpretation, implementation, or enforcement of Memorandum of
Agreements (MOA) entered into by parties as a result of the Free Prior
and Informed Consent (FPIC) process;
5. Cases involving Projects, Programs, Activities within ancestral
lands/domains being implemented without the required FPIC of the
affected/host IPs/ICCs;
183
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Conclusion
In sum, the law’s intent is neither to grant the NCIP
sole jurisdiction over disputes involving ICCs/IPs, nor to
disregard the rights of non-ICCs/IPs under national laws.
However, the NCIP maintains primary jurisdiction over: (i)
adverse claims and border disputes arising from
delineation of ancestral domains/lands; (ii) cancellation of
fraudulently issued CADTs; and (iii) disputes and
violations of ICCs/IPs rights between members of the same
ICC/IP.
For these reasons, I vote to grant the petition. The RTC
should forthwith continue with the injunction case.
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184
CONCURRING OPINION
PEREZ, J.:
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While I agree with the holding in this case that
jurisdiction over the original and amended complaint,
accion reivindicatoria and injunction, before the court a
quo, correctly lies with the Regional Trial Courts (RTCs):
(1) an accion reivindicatoria, a civil action involving
interest in real property with an assessed value of
P683,760.00; and (2) an injunction, a civil action incapable
of pecuniary estimation, I offer my view on the complex
nature of the jurisdiction of the National Commission of
Indigenous Peoples (NCIP) conferred in the Indigenous
People’s Rights Act (IPRA), Republic Act No. 8371.
Even if in this case the complaint was amended from an
accion reivindicatoria to one for injunction, both containing
allegations clearly falling within the RTCs jurisdiction,
petitioners insist and maintain that as indigenous persons,
except for two (2) petitioners, with the subject property
claimed as their ancestral land, the NCIP has exclusive
and original jurisdiction over the case. For the petitioners,
with a submission that the ponencia already dismissed, the
mere fact that this case involves members of Indigenous
Cultural Communities/Indigenous Persons (ICCs/IPs) and
their ancestral land, automatically endows the NCIP,
under Section 66 of the IPRA, with jurisdiction over
petitioners’ complaint. Even the NCIP is of the view of its
original and exclusive jurisdiction over both the original
and amended complaints. Hence, the two (2) Motions to
Refer the Case to the Regional Hearing Office-National
Commission on Indigenous Peoples (RHO-NCIP) filed by
the NCIP Hearing Officer before the court a quo.
I concur with the ponencia on the basis of the principle
that “jurisdiction over the subject matter of a case is
conferred by law and determined by the allegations in the
complaint, and that the averments in the complaint and
the character of the
185
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186
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4 Section 39 IPRA.
5 Section 38 IPRA.
187
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6 Cristobal v. Court of Appeals, G.R. No. 125339, June 22, 1998, 291
SCRA 122, 132.
7 See Crusaders Broadcasting System, Inc. v. NTC, 388 Phil. 624, 636;
332 SCRA 819, 829 (2000).
8 Abejo v. De la Cruz, 233 Phil. 668, 684-685; 149 SCRA 654, 669
(1987).
188
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9 Fabia v. Court of Appeals, 437 Phil. 389, 403; 388 SCRA 574, 585
(2002).
10 Honasan II v. The Panel of Investigating Prosecutors of the
Department of Justice, G.R. No. 159747, April 13, 2004, 427 SCRA 46, 67.
11 Fabia v. Court of Appeals, supra.
12 Honasan II v. The Panel of Investigating Prosecutors of the
Department of Justice, supra.
13 Republic Act No. 6770, known as “The Ombudsman Act of 1989”
and the “1987 Administrative Code.”
189
stage, from any investigating agency of the
government, the investigation of such cases.
That the power of the Ombudsman to
investigate offenses involving public officers or
employees is not exclusive but is concurrent
with other similarly authorized agencies of the
government such as the provincial, city and
state prosecutors has long been settled in
several decisions of the Court. (Emphasis
supplied)
In Cojuangco, Jr. v. Presidential Commission on
Good Government, decided in 1990, the Court
expressly declared:
A reading of the foregoing provision of the
Constitution does not show that the power of
investigation including preliminary investigation
vested on the Ombudsman is exclusive.
Interpreting the primary jurisdiction of the
Ombudsman under Section 15(1) of the Ombudsman
Act, the Court held in said case:
Under Section 15(1) of Republic Act No. 6770
aforecited, the Ombudsman has primary jurisdiction
over cases cognizable by the Sandiganbayan so that it
may take over at any stage from any investigatory
agency of the government, the investigation of such
cases. The authority of the Ombudsman to investigate
offenses involving public officers or employees is not
exclusive but is concurrent with other similarly
authorized agencies of the government. Such
investigatory agencies referred to include the PCGG
and the provincial and city prosecutors and their
assistants, the state prosecutors and the judges of the
municipal trial courts and municipal circuit trial
court.
In other words the provision of the law has opened
up the authority to conduct preliminary investigation
of offenses cognizable by the Sandiganbayan to all
investigatory agencies of the government duly
authorized to conduct a preliminary investigation
under Section 2, Rule 112 of the 1985 Rules of
Criminal Procedure with the only
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22 G.R. No. 80774, 244 Phil. 741, 747; 161 SCRA 719, 725 (1988).
202
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CONCURRING OPINION
LEONEN, J.:
I concur with the ponencia in holding that respondents’
action, alleged to be involving a claim over the ancestral
domain of an indigenous cultural community/indigenous
people (ICC/IP), does not fall within the exclusive original
jurisdiction of the National Commission on Indigenous
Peoples (NCIP).
A careful reading of Section 661 of Republic Act No.
8371, otherwise known as the Indigenous Peoples’ Rights
Act of 1997, with particular emphasis on its proviso will
reveal that the jurisdiction of the NCIP is limited to
disputes where both parties are members of ICC/IPs and
come from the same ethnolinguistic group.
Thus, the assailed Decision dated August 17, 2006 and
Resolution dated July 4, 2007 of the Court of Appeals in
C.A.-G.R. S.P. No. 00204-MIN must be affirmed.
The present Petition for Review on Certiorari2 is an
offshoot of a Petition for Accion Reivindicatoria with prayer
for issuance of a temporary restraining order or
preliminary prohibitory injunction with damages3 (Original
Complaint) filed by respondents against petitioners before
the Regional Trial Court of Manolo Fortich, Bukidnon on
March 3, 2004,
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4 Id.
5 Id.
6 Id., at p. 79, Original Certificate of Title.
7 Id., at pp. 30-32, Petition for Review on Certiorari.
8 Id., at p. 60, Court of Appeals’ Decision dated August 17, 2006.
206
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9 Id.
10 Id., at p. 61.
11 Id.
12 Id.
13 Id.
14 Id., at pp. 61-62.
15 Id., at pp. 57-68.
207
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“Jurisdiction is the power and authority of [a] tribunal
to hear, try and decide a case.”17 Moreover, “[j]urisdiction
over a subject matter is conferred by law.”18 It could not be
conferred by any other source, such as the parties’ action or
conduct and “any judgment, order or resolution issued
without it is void.”19
I
The NCIP does not have jurisdiction over cases where
one of the parties does not belong to an indigenous cultural
community.
Section 38 of the Act created the NCIP to carry out the
policies set forth in the Indigenous Peoples’ Rights Act. Per
Section 38, the NCIP “shall be 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 ICCs/IPs and the recognition of
their ancestral domains as well as their rights thereto.”
Section 39 provides for the NCIP’s mandate to “protect and
promote the interest and well-being of the ICCs/IPs with
due regard to their beliefs, customs, traditions and
institutions.”
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211
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....
f) Customary Laws — refer to a body of written
and/or unwritten rules, usages, customs and practices
traditionally and continually recognized, accepted and
observed by respective ICCs/IPs[.] (Emphasis supplied)
It is evident that only those belonging to ICCs/IPs have
or adhere to customary laws. Since Section 66 refers to
parties having customary laws, it follows that the NCIP’s
jurisdiction, as defined in Section 66 of the Indigenous
Peoples’ Rights Act, is limited to parties who belong to
ICCs/IPs. It excludes those who do not.
To hold otherwise is to summarily compel those who do
not belong to ICCs/IPs to adhere and subject themselves to
customary laws despite their not having “traditionally and
continually recognized, accepted[,] and observed”25 these
laws. This runs afoul of fair play and violates their right to
due process.
Thus, Section 66’s qualifiers — as specifically worded —
indicate that cases that fall under the jurisdiction of the
NCIP must be limited to those where both parties belong to
ICCs/IPs.
IV
The requirement that both parties must exhaust all
remedies provided under their customary laws necessarily
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214
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27 Dole Philippines Inc. v. Esteva, 538 Phil. 817, 860-861; 509 SCRA
332, 369-370 (2006) [Per J. Chico-Nazario, First Division],
216
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33 Section 39. Mandate.—The NCIP shall protect and promote the
interest and well-being of the ICCs/IPs with due regard to their beliefs,
customs, traditions and institutions.
34 Section 44. Powers and Functions.—To accomplish its mandate,
the NCIP shall have the following powers, jurisdiction and function:
a) To serve as the primary government agency through which
ICCs/IPs can seek government assistance and as the medium, through
which such assistance may be extended;
b) To review and assess the conditions of ICCs/IPs including existing
laws and policies pertinent thereto and to propose relevant laws and
policies to address their role in national development;
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35 Dole Philippines Inc. v. Esteva, supra note 27 at pp. 860-861; p. 370,
citing Commissioner of Internal Revenue v. Court of Appeals, supra note
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222
223
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37 617 Phil. 358; 602 SCRA 159 (2009) [Per J. Leonardo-De Castro, En
Banc].
38 Article 7. Laws are repealed only by subsequent ones, and their
violation or nonobservance shall not be excused by disuse, or custom or
practice to the contrary.
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Realty Corporation v. Sycip, 506 Phil. 407; 469 SCRA 424 (2005) [Per
Acting CJ. Panganiban, Third Division] and Sunga v. Commission on
Elections, 351 Phil. 310; 288 SCRA 78, 87 (1998) [Per J. Bellosillo, En
Banc].
40 Machado v. Gatdula, supra note 18, citing Vargas v. Caminas,
supra note 18; Metromedia Times Corporation v. Pastorin, supra note 18;
and Dy v. National Labor Relations Commission, supra note 18.
226
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227
VIII
Customary norms are as varied as there are tribes
within ethnolinguistic groups. If we are to animate the
spirit of both the Constitution and the Indigenous Peoples’
Rights Act, we should not stereotype all cultures as
homogenous or incapable of dynamic interfaces with each
other. Customary law is a descriptive label which should
acknowledge that each tribe lived through its own history
and endogenously emerged their own set of norms
reflecting their values and lifeways. To say that the
customary norms of the Kalinga are the same as those of
the Subanen betrays the same colonial mindset that
marginalized what our colonizers called as “Non-Christian
Tribes” in the distant past.
Neither should we straightjacket any culture as
incapable of dynamic interfaces or accommodation with
other cultures. Various groups of indigenous communities
are able to work with the entirety of our legal system in
appropriate cases. This case, which involves a party not of
their tribe, is certainly one such case.
ACCORDINGLY, I vote to DENY the Petition for
Review on Certiorari. The assailed Decision dated August
17, 2006 and Resolution dated July 4, 2007 of the Court of
Appeals in C.A.-G.R. S.P. No. 00204-MIN must be
AFFIRMED.
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