RAMIREZ, Jess Christian D.

2010-04316

Legal Method

The line those who have less in life should have more in law finds its roots from the
concept of social justice which is embedded in our Constitution. The application of this concept
found its mark when RA 8371 or the Indigenous Peoples Rights Act of 1997 was enacted by
Congress. Despite the laws intention to correct the historical injustices to the indigenous people,
the said Republic Act faced attacks when its constitutionality was assailed in the case of Cruz vs.
Secretary of Natural Resources [1]. With a 7-7 split decision amongst the magistrates of the
Highest Court of the land, the petition was dismissed and the law stood against the tide striking it
as unconstitutional.
Among the dissents was the opinion penned Justice Vitug and he decided in favor of the
petitioners in this case. Justice Vitugs opinion began by discussing the locus standi or the right
of the petitioners to seek remedies from the High Court and ruled that such right exists. Unlike
the other justice whose separate opinion revolved around the absence of this right, Justice Vitug
stated that this case, which involves a matter of transcendental importance and paramount
interest of the nation, citing the case of Oposa vs. Factoran [2], the Court must take the liberal
approach that recognizes the legal standing of non traditional plaintiffs. This view, aside from
adhering to a precedent, is similar to the common law judges power to adjust the box in the
dispute-box analogy by Merryman [3].
The justice then proceeded to discuss the assailed provisions in the IPRA such as Section
3(a) and elaborated by Section 7. Section 3 (a) of IPRA 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/IPPs) could exercise virtual ownership and
control. The honourable justice claims that this provision of the said law effectively withdraws
ancestral domains, which covers millions of hectares from public domain.
He furthers his claim by stating that the notion of community property, aside from being a
matter of proprietary interest, also forms self-governance over the curved-out territory. He
mentioned that this is elaborated in Section 7 which lays down the different rights of ICCs/IPs
which are recognized and protected in the said law. Such rights include right of ownership under
paragraph a; right to develop, control and use lands and natural resources, including the right to
11. Cruz vs. Secretary of Natural Resources, G.R. No. 135385 (2000).2. Oposa vs. Factoran, 224 SCRA 792 (1993).
3. Merryman, J. (1985). Chapter VIII. Certainty and Equity. In The Civil Law Tradition.

negotiate terms and condition for the exploration of natural resources in paragraph b; the right to
stay in territories under paragraph c; right to return to their abandoned lands in case of
displacement in paragraph d; right to regulate entry of migrants in paragraph e; the right to claim
parts of ancestral domains previously reserved in paragraph g; and the right to resolve land
conflicts in accordance primarily with customary law under paragraph h.
The magistrate ruled that these provisions under the IPRA, despite Section 57 of the said
law which gives the ICCs/IPs the priority rights in harvesting, extraction, development,
exploration of any natural resources within the ancestral domain, amounts to undue delegation, if
not an unacceptable abdication of the States authority over a significant area of the country and
its patrimony.
As Cardozo puts it, the method of history is predominantly an investigation of origins [4],
and Justice Vitug employed the said method in tracing the roots of the prevailing doctrines, the
regalian doctrine and the domainial doctrine in the precursor of our existing Constitution, namely
the 1935 and 1973 Constitutions. These Constitutions and as well as the existing 1987
Constitution provide 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 coproduction, joint venture or production-sharing agreements, or into agreements with foreignowned corporations involving technical or financial assistance for large-scale exploration,
development and utilization [5].
And like most of the judges who gave their separate opinions, in his opinion Justice Vitug
also revisited the case of Cario vs. Insular Government [6] which held that a parcel of land
claimed by individuals since time immemorial is presumed never to have been public land.
However, Justice Vitug opined that a singular ruling cannot override the collective will of the
people, that sovereignty resides in the people and from them all government authority emanates.
And thus the ruling should conform to the fundamental law.
In the final words of his opinion, Justice Vitug employed strict interpretation of Sec. 5 of
Article XII of the Constitution. The second paragraph of the said provision allows the Congress
to provide for the applicability of customary laws governing property rights or relations in
determining the ownership and extent of ancestral domains. The honourable magistrate contends
that this does not mean that the Congress is therefore directed to create or enact a law to simply
express that customary laws shall govern and end it there.

He elaborated that had it been the case, the 1986 Constitutional Commission should have
placed an exact provision stating the same. Again, by investigating the Constitutions origin,
Justice Vitug cited Mr. Chief Justice Davides explanation of the said authority of Congress, and
to quote:
Mr. Davide. xxx 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 [7].
Ultimately, Justice Vitug along with his vote of granting the petition urged the Congress
to re-examine the law. This can be viewed as an act which respects the separation of powers
between the judiciary and legislative which is entrenched in the legal method of civil law.
Furthermore, this ruling manifests as to how justices in our jurisdiction with expanded
jurisdiction as to their power of judicial review strike a balance between their duties of rendering
decisions while maintaining their respect for the concept of separation of powers.

24. Cardozo, B. (1960). Chapter 3. Lecture II: The Methods of History, Tradition and Sociology. The Nature of the
Judicial Process.5. CONST., Art. XII, Sec. 2
6. Cario vs. Insular Government. 41 Phil 935 (1909).
7. 4 Record of the Constitutional Commission 32.