Cruz vs. RA 8371, and the Cariño doctrine

In Cruz v. Secretary of Environment and Natural Resources, Justice Puno, in his separate opinion, gave the following 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. 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. 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, 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.

Petitioners in the Cruz case challenged the constitutionality of RA No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), on the ground that it amounts to an unlawful deprivation of the State’s ownership over lands of the public domain and all other natural resources therein, by recognizing the right of ownership of Indigenous Cultural Communities or Indigenous Peoples (ICCs/IPs) to their ancestral domains and ancestral lands on the basis of native title.

Specifically, the following provisions of the IPRA and its Implementing Rules and Regulations (IRRs) were contended to be unconstitutional 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.

After due deliberation on the petition, the Supreme Court voted as follows: seven (7) Justices voted to dismiss the petition while seven (7) others voted to grant the petition. 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. Pursuant to Section 7, Rule 56 of the Rules of Court, the petition was dismissed, and the validity of the law, deemed upheld.

Justice Kapunan, voting to dismiss the petition, stated that the Regalian theory does not negate native title to lands held in private ownership since time immemorial, adverting to the landmark case of Cariño v. Insular Government, 7 where the United States Supreme Court, through Justice Holmes, declared: “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.”

According to Agcaoili (2006), this ruling (which cannot be called a "decision" because it was a mere dismissal leading to a procedural necessity to uphold constitutionality) 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.
THE PHOTO ABOVE is hot-linked from Mark Jochim (2017). Insular Government of The Philippine Islands #396 (1935). JUSTICE PUNO. Describing the IPRA as a novel piece of legislation, Justice Puno stated that Cariño firmly established a concept of private land title that existed irrespective of any royal grant from the State and 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 IPRA recognizes the existence of 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.

Justice Puno's discussion regarding Cariño is worth reading. He wrote: "In the Philippines, the concept of native title first upheld in Cariño and enshrined in the IPRA grants ownership, albeit in limited form, of the land to the ICCs/IPs. Native title presumes that the land is private and was never public. Cariño is the only case that specifically and categorically recognizes native title. The long line of cases citing Cariño did not touch on native title and the private character of ancestral domains and lands. Cariñowas cited by the succeeding cases to support the concept of acquisitive prescription under the Public Land Act which is a different matter altogether. Under the Public Land Act, land sought to be registered must be public agricultural land. When the conditions specified in Section 48 [b] of the Public Land Act are complied with, the possessor of the land is deemed to have acquired, by operation of law, a right to a grant of the land. The land ceases to be part of the public domain, ipso jure, 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 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. 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 and members of the national cultural minorities that converts the land from public into private and entitles the registrant to a torrens certificate of title."
JUSTICE VITUG. On the other hand, Justice Vitug would grant the petition, saying that Cariño 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. 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.

Putting more emphasis on the importance of the collective will of the people over the Cariño doctrine, Justice Vitug continued: "The decision of the United States Supreme Court in Cariño vs. Insular Government, 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. 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. xxx

"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 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."

JUSTICE PANGANIBAN. Justice Panganiban was more forthright when he stated that all Filipinos, whether indigenous or not, are subject to the Constitution, and that no one is exempt from its all-encompassing provisions.

Justice Panganiban anchored his vote to declare certain parts of the assailed law on the following premise. "My basic premise is that the Constitution is the fundamental law of the land, to which all other laws must conform. It is the people's quintessential act of sovereignty, embodying the principles upon which the State and the government are founded. 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. 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."

The discussion above is based on a book on property registration by Agcaoili (2006). His books are available in fine book stores nationwide. SOURCE: Agcaoili (2006). Property Registration Decree and Related Laws (Land Titles and Deeds) By Oswaldo D. Agcaoili Formerly Associate Justice, Court of Appeals. ISBN 10: 971-23-4501-7. ISBN 13: 978-971-23-4501-2. Rex Book Store.