A SEARCH BOOK: INTERSECTING JURISDICTIONS
Reframing Questions and In Search for Answers
on the Interface of State and Indigenous Justice Systems
A SEARCH BOOK: INTERSECTING JURISDICTIONS 2
A SEARCH BOOK: INTERSECTING JURISDICTIONS
Reframing Questions and In Search for Answers
on the Interface of State and Indigenous Justice Systems
A SEARCH BOOK: INTERSECTING JURISDICTIONS 3
FOREWORD
RENATO CORONA
Chief Justice
A SEARCH BOOK: INTERSECTING JURISDICTIONS 4 MESSAGE
HON. GERALDINE FAITH A. ECONG
Chief, Project Management Office
HON. GERALDINE FAITH A. ECONG Judicial Reform ProgramAdministrator
Program Management OfficeSupreme Court of the Philippines
A SEARCH BOOK: INTERSECTING JURISDICTIONS 5
MESSAGE
RENAUD MEYER Country Director
United Nations Development Programme (UNDP)
A SEARCH BOOK: INTERSECTING JURISDICTIONS 6
A SEARCH BOOK: INTERSECTING JURISDICTIONS
Reframing Questions and In Search for Answers on the
Interface of State and Indigenous Justice Systems
A SEARCH BOOK: INTERSECTING JURISDICTIONS 7
LIST OF ACRONYMS & GLOSSARY ADR Alternative DisputeResolution ALG Alternative Law Groups, Inc. APJR Action Program forJudicial Reform BALAOD Balay Alternative Legal Advocates forDevelopment in Mindanaw CADC Certificate of Ancestral Domain TitleELAC Environmental Legal Assistance Center ICCs/IP IndigenousCultural Communities/Indigenous Peoples (ICCs/IPs) - refer to agroup of people or hom*ogenous societies identified byself-ascription and ascription by others, who have continuouslylived as organized community on communally bounded and definedterritory, and who have, under claims of ownership since timeimmemorial, occupied, possessed and utilized such territories,sharing common bonds of language, customs, traditions and otherdistinctive cultural traits, or who have, through resistance topolitical, social and cultural inroads of colonization,non-indigenous religions and cultures, became historicallydifferentiated from the majority of Filipinos. ICCs/IPs shalllikewise include peoples who are regarded as indigenous on accountof their descent from the populations which inhabited the country,at the time of conquest or colonization, or at the time of inroadsof non-indigenous religions and cultures, or the establishment ofpresent state boundaries, who retain some or all of their ownsocial, economic, cultural and political institutions, but who mayhave been displaced from their traditional domains or who may haveresettled outside their ancestral domains; ICCs/IP IndigenousCultural Communities/Indigenous Peoples IDRM Indigenous DisputeResolution Mechanisms IJS Indigenous Justice Systems - refer todifferent customary/indigenous law based forums that not onlymediate ICC/IPs access to state or public justice institutions butalso settle the issues, administer justice from mediated judgementto communityassisted execution in their venue; norms orinstitutions, often viewed as having the force of law by thosesubject to them, that claim to draw their moral authority fromtraditional culture or customs; IKSP Indigenous knowledge systemsand practices ICC/IPs Indigenous Cultural Communities/IndigenousPeoples INTERFACE - a point at which independent systems or diversegroups interact. A boundary across which two independent systemsmeet and act on or communicate with each other; IPRA IndigenousPeoples Rights Act JURIS Justice Reform Initiatives SupportProject
A SEARCH BOOK: INTERSECTING JURISDICTIONS 8 LEGAL PLURALISM -seeks to understand the complex ways in which local practices andthe formal law compete, co-exist and incorporate each other incontemporary societies (Benda-Beckmann 2002; Chiba 1993; Santos2006). LJR Legal and Judicial Reform NCIP National Commission onIndigenous Peoples NGO NonGovernment Organization PANLIPITanggapang Panligal ng Katutubong Pilipino PBPF Paglilingkod BatasFoundation PLRC Pilipinas Legal Resource Center PMO ProjectManagement Office SALIGAN Sentro ng Alternatibong Lingap PanligalSC Supreme Court STATE JUSTICE SYSTEM refers to state-fundedinterlocking formal institutions that are involved in one way oranother in the administration of justice and delivery of justiceservices. TJG Traditional Justice Governance
A SEARCH BOOK: INTERSECTING JURISDICTIONS 9
List of Acronyms andGlossary.........................................................................4 Background: On the Search book................................................................ 7Introduction.........................................................................................................ICC/IPs Where areThey...................................................................................JusticeNeeds.......................................................................................................Unpacking a PolicyDilemma............................................................................
8 9
14 18
Part 1 How Did we GetHere......................................................................Colonization of the Indigenous Lifeworld 80s Call forRecognition...........................................................................................................International Human Rights Standards Recognizing CustomaryLaw........................................................................................................................National Laws Incorporating Customary Law..............................................
22
23
26
31
Part 2 -Walking Through IJSProcesses.......................................................Nature and Venue.............................................................................................Nature of Crimes and PenaltySystem...........................................................
36
39 41
Part 3 Of State and Indigenous Justice Dynamic and NegotiatingJurisdictions........................................................................................................Meeting Point: When and World Legal Worlds Meet, Match andClash......................................................................................................................Incongruent JusticeSystems...............................................................................
46
47 53
Part 4 Who do they say I am? ICC/IPs in Jurisprudence................ Palidat, Rubi et al inRetrospect......................................................................
57 61
Part 5 Towards a Roadmap or In lieu of it? For Justice Reformersfrom ICC/IPs and Support Groups.......................... The HRvis a vis Multiculturalism Issue............................................................ SomeGuiding Principles for Human RightsAdvocates............................... Strengthening ofIJS...........................................................................................
64 65 66 68
69
Case Studies Arakan,Valley....................................................................................................Bakun,Benguet....................................................................................................Buldon & BariraMaguindanao........................................................................Claveria Misamis,Oriental...............................................................................Coron,Palawan..................................................................................................LakeSebu............................................................................................................Maragusan Valley, CompostelaValley........................................................Kabankalan, Negros Occidental (ResettledCommunity)............................ OccidentalMindoro...........................................................................................Upi,Maguindanao..............................................................................................
75 75 81 89
102 113 120 126 143 152 160
Annex A United Nations Declaration on the Rights of IndigenousPeoples.................................................................................................................Annex B Indigenous Peoples RightsAct......................................................
169
177
A SEARCH BOOK: INTERSECTING JURISDICTIONS 10
BACKGROUND: ON THE SEARCH BOOK
he meaning of Weltanschauung seems unknown. Worldview, a calqueor loan verbum for verbum translation of the German word, should bemore familiar. The worldviews wherein the state justice system andthe indigenous justice systems
operate appear to be fundamentally different. Thequoteattributed to Macli-ing Dulag, famed Kalinga elder whileexplaining his communitys refusal to accept the offer of Sen. JoseW. Diokno to file a case against a hydroelectric dam project beforePhilippine courtsillustrates it well: Outsiders law is not able tounderstand us, our customs and our ways, he said. He could not havesaid it any better. He may or may not have been referring toclogged court dockets, the protracted litigation process, and otherformal processes of the public justice system. This search bookexplores two different legal systems in many instances when andwhere they meet, match and clash. Then it attempts to make sense ofit all, finding ways to understand and explain why a draftProcedural Rule on the Interface of the State Justice System andIndigenous Justice Systems is not the answer to the challenge ofstrengthening IJS. A unique knowledge product reflective of theissues it seeks to unpack, it is unlike sourcebooks that functionas a supplement or replacement for a textbook. Or bench books thatprovide an overview of legal procedure for a judge. The latter areused by judges while hearing cases as guides to assist in thedisposition of a case. A bench book is not is not a source ofsubstantive law but rather a guide to procedure. This is neither asourcebook nor a bench book. As a knowledge product, it has someaspects of both a sourcebook and a bench book. The search bookhowever is the first of its kind in this jurisdiction. In searchfor answers the book seeks to: [1] Better understand amongststakeholders on the various interface, dynamic and accommodationsof State Justice System and Indigenous Justice System; and [2]Generate policy reform strategies and practical approaches thatwill help strengthen traditional justice systems while interfacingin various modes and levels with the formal/national justicesystem.
T
[IF WE ACCEPT, IT WILL BE AS IF WE EVER DOUBTED
THAT WE BELONG TO THE LAND; OR THAT WE
QUESTION OUR ANCIENT LAW IF WE ACCEPT, IT
WILL BE RECOGNIZING WHAT WE HAVE ALWAYS
MISTRUSTED AND RESISTED. IF WE ACCEPT,
WE WILL THEN BE HONOR BOUND TO ABIDE BY THE
DECISION OF THAT TRIBUNAL. LONG
EXPERIENCE HAS SHOWN US THAT THE OUTSIDERS
LAW IN NOT ABLE TO UNDERSTAND US, OUR
CUSTOMS AND OUR WAYS. ALWAYS, IT MAKES
JUST WHAT IS UNJUST, RIGHT WHAT IS NOT
RIGHT.]
CITED IN LEONEN, AT 42 CITING PARAGUSA, AT 92. ALSO IN M.
LEONEN, HARNESSING CREATIVITY: TENTATIVE NOTES
TOWARDS PROGRESSIVE LAWYERING, ISSUE PAPER, LRC
KSK, 6 (1991).
A SEARCH BOOK: INTERSECTING JURISDICTIONS 11
Different, culturally distinct but still indigenous peoples areequal to all other peoples. ICC/IPs are as Filipino as Pedro
and Maria, the man from Manila and Gabriela Silang.
INTRODUCTION
A SEARCH BOOK: INTERSECTING JURISDICTIONS 12
he Philippines is a country of diverse cultures with itsmulti-linguistic, multiethnic, mutli-faith and geographicallydispersed population estimated at 89 million as of 2007.1 Toillustrate diversity and multi-ethnicity, the oft cited
statistics approximates a nation-state with peoples scattered in116 ethno-linguistic groups. In terms of numbers it is estimatedthat there are over 15,000,0002 or 17% of the Philippine populationare estimated to be indigenous peoples. A 2011 Fact book onindigenous peoples worldwide provides for a more conservativeestimate: For non-indigenous Filipinos who are not very familiarwith indigenous peoples issues and struggles katutubo, lumad,tribo, natives and cultural minorities should ring a bell. Thesenouns however are often very erroneously associated with damagingstereotypes. Be it the Igorot that local tourist take photos withat the botanical garden in Baguio City or the images of Badjaomother and her baby or Aetas that go begging in the streets ofurban centers during the holidays.
1 The first sentence was purposely lifted from the PhilippineReport to the Committee on Elimination on Racial Discrimination.This document contains the fifteenth, sixteenth, seventeenth,eighteenth, nineteenth and twentieth periodic reports of thePhilippines, due on 4 January 1998 to 2008, submitted in onedocument. For the eleventh to fourteenth periodic reports and thesummary records of the meetings at which the Committee consideredthe report, see documents CERD/C/299/Add.12, CERD/C/SR.1218,1219and 1231. 2 15,000,000 is a conservative estimate. ADB by comparingNCIP and NSO sources suggests that the indigenous population mighteven exceed 20% of the national total. Caution should be taken: theGovernment may have excluded groups or individuals as indigenousbecause they did not qualify in the technical definition of theterm. It is possible that the actual indigenous population is muchbigger.
T
OF THE COUNTRYS CURRENT PROJECTED
POPULATION OF 94,01 MILLION, INDIGENOUS PEOPLES ARE ESTIMATED TOCOMPRISE SOME 10%,
OR AROUND 9,4 MILLION. THERE HAS BEEN NO ACCURATE COMPREHENSIVECOUNT OF PHILIPPINE INDIGENOUS PEOPLES SINCE 1916, ALTHOUGH
THE NATIONAL CENSUS IN 2010 INCLUDED AN ETHNICITY VARIABLE.
-THE INDIGENOUS WORLD 2011
A SEARCH BOOK: INTERSECTING JURISDICTIONS 13
ICC/IPs: WHERE ARE THEY? Republic Act 8371 more popularly knownas Indigenous Peoples Rights Act (IPRA) defines indigenous culturalcommunities/indigenous peoples (hereinafter ICC/IPs) as:
a group of people or hom*ogenous societies identified byself-ascription and ascription by others, who have continuouslylived as organized community on communally bounded and definedterritory, and who have, under claims of ownership since timeimmemorial, occupied, possessed and utilized such territories,sharing common bonds of language, customs, traditions and otherdistinctive cultural traits, or who have, through resistance topolitical, social and cultural inroads of colonization,non-indigenous religions and cultures, became historicallydifferentiated from the majority of Filipinos.
Following the quoted partial definition above, state law throughthe IPRA clearly recognizes peoples identified by self-ascriptionand ascription by others, who have continuously lived as organizedcommunity on communally bounded and defined territory, and whohave, under claims of ownership since time immemorial, occupied,possessed and utilized such territories, sharing common bonds oflanguage, customs, traditions and other distinctive culturaltraits, or who have, through resistance to political, social andcultural inroads of colonization, non-indigenous religions andcultures, became historically differentiated from the majority ofFilipinos. The elements of what defines ICC/IPs are what set themapart from the Tagalogs, Ilocanos, Cebuanos3 and other regionalgroups that are generally bounded by a regions lengua franca.Crucial too for non-IPs to understand Indigenous Filipinos is thelast half of the definition as provided by law such that:
ICCs/IPs shall likewise include peoples who are regarded asindigenous on account of their descent from the populations whichinhabited the country, at the time of conquest or colonization, orat the time of inroads of non-indigenous religions and cultures, ort he establishment of present state boundaries, who retain some orall of their own social, economic, cultural and politicalinstitutions, but who may have been displaced from theirtraditional domains or who may have resettled outside theirancestral domains;
There is no question that distinctiveness of ICC/IPs contributesto the diversity and richness of civilizations and cultures, whichconstitute the common heritage of humankind. They have after allmanaged to retain some or all of their own social, economic,cultural and political institutions. Different, culturally distinctbut still indigenous peoples are equal to all other peoples.ICC/IPs are as Filipino as Pedro and Maria, the man from Manila andGabriela Silang.
3 Note further and it bear emphasizing that tagalog, Ilocano,Cebuano, Bisaya, Hiligayno and the likes are not included norcounted in the 116 etho-linguistic groups.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 14
A SEARCH BOOK: INTERSECTING JURISDICTIONS 15
REGION POPULATION CAR
1,470,977
Region 1 1,206,798
Region II 1,030,179
Region III 236,487
Region IV 936,745
Region V 213,311
Region VI 168,145
Region VII 35,767
Region IX 1,203,598
Region X 1,802,266
Region XI 2,289,268
Region XII 1,856,300
Region XIII 1,004,750
ARMM 730,054
TOTAL 14,184,645
Table 1: Regional Distribution of ICC/IPs Population Source:NCIP Master Plan NCIP 2010 Budget Folio Briefing
A SEARCH BOOK: INTERSECTING JURISDICTIONS 16
Estimated IP Population
LUZON VISAYAS MINDANAO 4,822,779 425,540 8,936,326
Table 2: Estimated IP Population per Island Group
ICC/IPS JUSTICE NEEDS The issues that ICC/IPs confront andgrapple with are also borne out of the need to further realize whatit is to be truly equal to all other peoples. As the preamble ofthe United Nations Declaration on the Rights of Indigenous Peoplesstates:
Affirming that indigenous peoples are equal to all otherpeoples, while recognizing the right of all peoples to bedifferent, to consider themselves different, and to be respected assuch,
Simply put, the essence of the ICC/IPs right to equality beginsby asserting their right to be different, to consider themselvesdifferent, and to be respected as such. For as much as ICC/IPsrecognize the Philippine Constitution, the three branches ofgovernment. There too is the challenge to this multi-ethnic andmulti-linguistic nation state to accommodate diversity in theinterest of peace, justice and development.
Luzon
Visayas
Mindanao
A SEARCH BOOK: INTERSECTING JURISDICTIONS 17 The judicial branchof the unitary form of government is often represented by thepresence of courts and judges all over the country. The statejustice system (hereinafter, SJS) that these courts observe anduphold co-exists with effective, diverse and struggling to surviveindigenous justice systems (hereinafter IJS). On the ground,plurality exists, whereby disputes and conflict can be governed byvarious norms, rules and courts/councils. Tongtong among theKakanaey and Bago peoples of Bakun; Tigian among the Alangans andHirayas of Mindoro Occidental; Mameepet among the Tagbanuas ofCoron in Palawan; Husay among the Higaonons and Talaandigs ofMisamis Oriental and Bukidnon; Kukuman among the Tinananon Manoboof Arakan Valley; Iskukom among the Tbolis of Lake Sebu; Tiwayanamong the Tedurays of Maguindanao; and Gukom among the Subanons ofZamboanga. There are also many existing IJS that have no formal orcommon names but are still very much in place and in use. In linewith justice reform and access to justice discourse it gets evenmore complicated. The right to be heard is suddenly not just aquestion of ensuring a fair trial and a suspects day in court. ForICC/IPs it also becomes a matter of a fair trial or its equivalentin their preferred tribunal. For indeed, how can state institutionsand policy makers be it in judicial or political reform unpack andtranslate ICC/IPs demand for recognition of customary law. How wellare ICC/IP rights advocates doing in terms claim making andregistering their protests and demands? How did we even get here?This is what drives the development of this search book, this iswhat it seeks to understand.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 18
A SEARCH BOOK: INTERSECTING JURISDICTIONS 19
SEARCH BOOK Search bookthere really is no such a thing. This isthe first of its kind in the tradition of the Supreme Court PMO,United Nations Development Program and even the Alternative LawGroups. This search book seeks to contribute to the knowledge gapin literature and to deepen the understanding amongst stakeholderson the various interface, dynamic and accommodations of SJS andIJS. In search for answers the search book also touched on:
[1] Generate policy reform strategies and practical approachesthat will help strengthen traditional justice systems whileinterfacing in various modes and levels with the formal/nationaljustice system.
[2] Consider and review the consolidated insights andrecommendations generated from the regional policy and practicesworkshop and the national policy and practice discussionsession.
[3] Review and validate initially identified strategies towardsthe sketches of a roadmap that will help strengthen traditionaljustice systems while interfacing in various modes and levels withthe national justice system.
It is a search book and not a sourcebook that list prescriptivelaws rules and ready answer in dealing with the conflicts ofinterlegality. It is a search book that unpacks a policy dilemmathat was prior to this research freely and generally referred to asrecognition of customary.
WHAT EXACTLY IS BEING RECOGNISED OR INCORPORATED?
IS IT A THING, A CLAIM, A PROCESS, AN INSTITUTION, OR ACOMBINATION OF THESE?
IF CULTURE IS UNDERSTOOD TO BE A DYNAMIC HUMAN ENDEAVOUR, ITBECOMES CLEAR THAT
RECOGNITION IS NOT JUST A TECHNICAL MATTER BUT DEEPLY POLITICALIN CHARACTER.
- WHEN LEGAL WORLDS OVERLAP: HUMAN RIGHTS, STATE AND NON-STATELAW
A SEARCH BOOK: INTERSECTING JURISDICTIONS 20
Unpacking a policy dilemma?
The call for recognition was at a stage where it was yet to befully unpacked and defined when the Judiciary led justice reformefforts gained momentum. Amongst the mix of access to justiceprograms, IP mobilizations and justice reform initiatives anopportunity came along.6 In 2003, ALG conducted six (6) regionalconsultation conferences throughout the country. The overallobjective of the regional consultations is to popularize justicereform, by:
(1) bringing down information on justice reform efforts to thegrassroots, and (2) raising up the perspectives and involvement ofthe poor and marginalized
groups on justice reform into the policy arena.
Through these regional workshop, an interesting moment in thehistory of clashing legal systems an opportunity for dialogemerged. IP elders and leaders automatically articulated the callfor judicial recognition of indigenous justice systems in theinterest of promoting respect for indigenous customary law in theNorthern Luzon regional consultation.7 This is how the call forrecognition made it to the long list of justice reform agenda. InSearch for Answers True to the process of searching for answers,the development of this search book dared to confront dilemmas thatplay out when weaving worldviews in the midst of colliding legalworlds. What with the dynamics, interplay and nature of thesubject. The demand seems to be no different from other policyissues. However, it is so much more complex when scrutinized. 6 In2001, the Philippine Supreme Court embarked on an ambitious sixyearjudicial reform program known as the Action Program for JudicialReform (APJR). Franco notes that APJRs strengths attracted bothforeign funders and domestic advocates of justice sector reform(Franco:2008:1861). Accordingly: First, the initiative focused muchneeded attention on flaws in the judicial system at a time when lawreform was rising on the international agendas. Second, the planitself was relatively comprehensive in scope, showing anunprecedented degree of seriousness. Third, the projectsconsensusbuilding approach generated new state and societal supportbehind judicial reform, through a strategy, however inchoate, ofproreform statesociety alliance building. Franco further relatesthat the judicial initiative succeeded in recruiting the NGO ALG.ALG tangentially got on board APJR through the Justice ReformInitiatives Support Project (JURIS). ALG saw JURIS as anopportunity for complementation of efforts towards law reform andempowerment of the poor for greater access to justice.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 21 The search bookdraws from two tiered policy and practices sessions through (1)three regional discussion sessions and (2) one national conferencethat were conducted in 2010. It capitalized on the need to createvenues for constructive dialogue to address the call to talk acrossthe systems. It was a venue to rethink and reframe the conflicts ofinterlegality that were encountered; clarify meanings; and withworkshop participants from the IPs, elders, advocates and nonIPsattempted unpack the conflict altogether Internal DiscussionOctober 7 8, 2010 ISO Complex, Ateneo de
Manila University Regional Policy and Practice DiscussionSession Island Group
October 26 28, 2010
ISO Complex, Ateneo de Manila University
Regional Policy and Practice Discussion Session Mindanao
November 8 -10, 2010
Songco, Lantapan, Bukidon
Regional Policy and Practice Discussion Session Luzon
November 11, 2010 Mictotel Inn and Suites, Baguio City
Regional Policy and Practice Discussion Session Selectparticipants form regional workshops, Metro based support groups,NCIP officials
November 16, 2010 Astoria Plaza, Mandaluyong, Metro Manila
Internal Discussion November 17 18, 2010
Astoria Plaza, Mandaluyong, Metro Manila
Validation Workshop 1 February 2011 ISO Complex, Ateneo deManila University
The search book is divided into five parts.
Justice Reform and Access to Justice Project: An arena forunpacking a policy dilemma? It considers and reviews theconsolidated insights and recommendations generated from theregional policy and practices workshop and the national policy andpractice discussion session. This section likewise asks the meaningbehind the call for recognition of IJS and customary law. Realizingfurther too that justice reform in relation to NJS and IJS iscaught between - Rubi, Cayat, La Bugal pronouncements; and the fullmeaning of the call for recognition. Contextual landscape: How didwe get here? The chapter looks back, way back. It begins with abrief history of the Philippine Legal System and the parallelstruggle of the pre-conquest justice systems to survive. It recallshow IJS in diverse forms adapted and endured in varying degrees,through time. This discussion traces the
A SEARCH BOOK: INTERSECTING JURISDICTIONS 22 way that thehighly-centralized Philippine SJS continues to utilize andreinforce legal structures and concepts first imposed duringcolonial regimes. The chapter ends with a review of existingnormative rules from international human rights standards todomestic laws. The discussion brings up the seemingly contradictoryprovisions and domestic normative rules.
Of Harmonization, Interface and Negotiating JurisdictionAffirming that NJS and IJS co-exists with friction and even inconflict, this chapter looks into negotiated practice of varyingdegrees. This portion also explores the various aspects ofaccommodations made in resolving conflict alongside NJS and IJS.Further, this chapter highlights several cases illustrating varyingdegrees of overlap, harmonization and interface (read as where theymeet, match or clash). ICC/IPs in Jurisprudence: Who do they say Iam? Rubi vs Provincial Board, People vs. Cayat, every law studentmust have read the digest of the former and must have heard of thelatter. This part revisits the cases of Rubi, Cayat and Cario andmoves to check on all other cases of significance to ICCs/IPs injurisprudence a century hence.
Quo Vadis? The final part of the paper ends by saying that thereis no one size fits all judicial policy reform or national levelrule that can harmonize NJS and IJS. It ends on a positive note bylisting ways of moving forward towards a culturally-sensitivejudicial response to the quest for the recognition of plural legalorders and indigenous justice systems. Further, it likewise poses achallenge to IP rights activists and advocates in their messagingand the process articulating the call for recognition of indigenousjustice systems. Methodology This research project picked up fromwhere the previous unpublished Alternative Law Groups studytemporarily and analytically ended.8
8 With the main objective of promoting respect and recognitionfor traditional indigenous practices for settling disputes, theIndigenous Peoples (IP) Cluster of the Alternative Law Groups (ALG)conducted a study on IDRM. The primary goal of the project was togenerate policy proposals or recommendations mainly for thejudiciary to analyze the possibility of interfacing it with thecurrent judicial system. The proposal likewise provided that if theresearch process arrives at a conclusion that a policy proposal forpurposes of interfacing is not feasible, recommendations wouldstill be generated to find other more workable and acceptableoptions. The specific goals of the project were to: (1) Undertakereview and legal research of relevant legal instruments and relatedliterature on existing indigenous and Moro dispute resolutionmechanisms; (2) Provide substantive and qualitative documentationthrough one-shot case studies, at the community level, of existingIDRM; and (3) Undertake analysis of gathered data, focusing onareas of conflicts on IDRM, as practiced, vis--vis the wider divideof indigenous justice, versus the formal justice system.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 23 A review ofexisting literature on the subject of indigenous customary law,plural legal orders, and legal pluralism was also conducted. Thereview also included a survey to find out if there are any SupremeCourt decided cases and other materials on the topic of indigenouscustomary law and/or traditional justice systems. The researchproject conducted two tiered policy and practices sessions throughthe following: [1] three regional discussion sessions and [2] onenational conference. It capitalized on the need to create venuesfor constructive dialogue to address the urgent call to talk acrossthe systems. The development of this sourcebook as a researchprocess became the most opportune time for research team to stepback. The process inspired and even to demanded to rethink andreframe the conflicts of interlegality that were encountered;clarify meanings; and with workshop participants from the IPs,elders, advocates and nonIPs attempted to unpack the conflictaltogether. Limitations of the Study The search book is NOT adocumentation of customary law. Documentation of customary law wasnever a part or an intention at any point of the research. Casesstudies and focus areas are looked upon not on the merit of thecase not to focus on the laws that govern them but on the processby which the NJS and IJS interact, overlap or clash.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 24
PART ONE
THE CONCEPTUAL LANDSCAPEHOW DID WE GET HERE?
A SEARCH BOOK: INTERSECTING JURISDICTIONS 25 The currentPhilippine legal order evolved with the process of nation buildingand the struggles that continue to come along with it. This legalphenomenon was shaped by interrelated and overlapping factors.Among which are colonialism; the states need for legitimacy; thequality, reach and relevance of official legal systems; respect fordiversity, multiculturalism and identity politics (ICHRP:2010:15).If the worldviews where the SJS and the IJS operate arefundamentally different it is in part due to the circ*mstances bywhich both developed were very dynamic and complicated. Both havehad parallel legal histories that developed within the samegeopolitical space. Although the more popular story also the moredominant one is the development SJS. The short version of the storythat goes around from law schools to travel book and Wikipedia itis a confluence of the Roman Civil Law which was inherited fromSpain; the Anglo-American Common Law courtesy of the United States;and Islamic Law. The little known side of the story is the factthat the system was designed for colonial administration. The coresystems of policing and judicial process were established duringthe colonial era. It was primarily built to serve the colonialadministration and their interests and beneficiaries. Toaccommodate the natives, [c]olonial rulers adopted variousstrategies to ensure state control, many of which contributed, withdifferent effects, to the strengthening of plural legal orders(ICHRP:2010:7). Colonization of the Indigenous Lifeworld11 Afterdiscovering the group of islands which would later be called thePhilippines, Spain imposed the Law of Indies. The law did not onlyintroduce the legal fiction and western concept of jura regalia ,it also reduced existing justice and legal systems of thenon-hispanized indios and moros to mere customs and traditions. Bydoing so, customs and traditions, by law, automatically became asecondary source of law operating in their laws absence andtechnically, never in contradiction to it (contra legem). (Fajardo,2002:35)
11 The concept of lifeworld - in a Habermasian sense -represents the discursive means for the symbolic and culturalperpetuation and evolution of society en large. On the one hand itrepresents the socio-cultural plane on which everyday speech actsand pursuant discourses are carried out and, on the other, ensuresa more or less stable - as discursive - transmission of traditions,symbols and knowledge in which speech acts are embedded and madeavailable for communicative participants. The lifeworld is, inshort, the communicative locale for affirming individual agency andforming cultural identity(Luedert::2010:3).
A SEARCH BOOK: INTERSECTING JURISDICTIONS 26 Thus began thesystematized imposition of hundreds of years of legal structuresand concepts of the colonial regimes. Spanish colonists saw littlevalue in the centuries old social systems which have been evolvingwithin the Philippine archipelago. The Spaniards also saw little,if any reason to recognize the natives living law. Insteadindigenous customs and traditions were suppressed if theyinterfered with the aspirations of soldiers, priests, entrepreneursand government officials.(Lynch, 1983:459) It was further observedthat the colonial legal systems failed to acknowledge, appreciateand/or reinforce indigenous norms, laws and processes. The legalimportation did not stop there. Neither was its implementationlimited to those who were baptized or Christianized. In time, andin the process of nation-building, even those groups of peoples whowere largely unconquered12 and had their own pre-conquest legalnorms, leadership structures and dispute settlement processes, bylegal fiction, were affected by the impositions made under thebell. Over a span of three and a half centuries, Lynch noted thatsubjugated Filipinos learned to disdain their cultural heritage andto imitate their colonial masters. The best and most willingimitators were rewarded with power and privilege. Meanwhile, nativetraditions and legal systems slowly withered. Lynch further pointedout that unlike their Western counterparts, Muslim missionarieswere much more accommodating13 to indigenous legal systems(Lynch:459). At this point, the colonial legal institutions wereestablished in just the civilized parts of the archipelago, wherethe Christianized Indios are located. Meanwhile, those who werebranded as infiels, paganos and moros14 managed to regulate theirsocial interactions such as marriage, inheritance and landcontracts, as well as resolve their conflicts according to theirculture, customs and traditions.
The Legal Bases of Philippine Colonial Sovereignty:
An Inquiry
Owen J. Lynch Jr.
12 The Bangsa Moro struggle for self-determination is an ongoingstruggle for survival, cultural identity and the right toself-determination. Spanish aggression did not subjugate the Moropeople who remained determined to resist any colonial rule in theirhomeland. 13 An observation affirmed by this study. The fullresearch covers two case studies of indigenous justice systemswithin the Autonomous Region in Muslim Mindanao. See also, casestudies of Teduray and Lambangian in Upi, Shariff Kabunsuan, aswell as Barira and Buldon of the same province. 14 The terms usedby the Spanish conquistadores
A SEARCH BOOK: INTERSECTING JURISDICTIONS 27 The PhilippineRepublic born in 1946 inherited the hybrid Spanish-North Americansystem. Fernandez posits that the highly-centralized form ofgovernment that was imposed by the colonial powers is still verymuch in place. After independence however, this type of governmenthas persisted partly out of institutional inertia, partly becauseof the successful political conditioning of the ruling elite, andpartly because a centralized government is appropriate, if notindispensable, to the requirements of post-colonial development.(Fernandez, 1980:385) Meanwhile, the colonial and neo-colonialexperiences heavily impinged upon the growth and development ofIJS, indigenous justice systems and other indigenous institutions.Resilient as the peoples who are the bearers of these systems andprocesses; IJS - that was reduced into norms and custom andpractically considered in contra legem evolved and endured. 80sCall for Recognition Even prior to the legislative and policyparadigm shifts occurring after the enactment of IPRA, a felt needto reorient the SJS and make it more reflective of local culturalrealities started emanating. In 1980, it was suggested that: [w]emust incorporate in our national policy, specific strategies forthe recognition of indigenous or ethnic law, within the Philippinelegal order (Fernandez:1980:383). The policy proposal did not takeroot at the time (see also Discarding Dichotomies, foregoing).Outside the legal discourse however, bigger upheavals were takingplace. That same year, Macli-ing Dulag, whose quote is prominently,featured this Search book, was killed by Philippine Army Troops. Heheld the ire of the state forces in his principle attempt to fightfor their homeland. There were others women and men, like him. Thestruggles of ICC/IP then collectively referred to by state law astribal minorities began to gain support for non-indigenousFilipinos. It is believed that the rise of the Social Movement inMindanao for example naturally included the rise and growth ofcivil society's support for the IP's struggle forself-determination.
As more and more IPs became empowered to speak, the Marcosdictatorship grew even more repressive, leading to the furtherdisenfranchisem*nt of the IPs [D]espite the harassment, manyIndigenous Peoples Organizations (IPOs) persisted in theirstruggles and the number of support groups increased In the finalyears of the Marcos dictatorship, a considerable segment of thisbroad social movement was supportive of the IPs shift to radicalpolitics. The cause of the IPs became known abroad and receivedsupport from international groups and networks. The internationalmovement in turn entered the public
A SEARCH BOOK: INTERSECTING JURISDICTIONS 28
sphere through the United Nations and the International LaborOrganization (ILO). The former set up a Working Group on IndigenousPopulations (WGIP) in 1982, which dealt with land rights, IPscontrol of their homelands, the need for autonomy, and right toself-determination (Gaspar:2011:115-117)
The downfall of Marcos regime changed the course, shape andturns of the IP struggle. The developments that followed likewiseaffected the separate and parallel developments of SJS and IJSinterlegality. A major segment of the movement participated in theprocesses leading to a new constitution (Gaspar:2011:117). LegalPathways and/or Roadblocks to Justice? The constitutionalrecognition of customary law should be construed as one of the moresymbolic responses in correcting a grave historical injustice. TheConstitution currently provides that (t)he State recognizes andpromotes the rights of indigenous cultural communities within theframework of national unity and development.18 This provision isfurther affirmed where the state guarantees to protect the rightsof indigenous cultural communities to their ancestral lands toensure their economic, social, and cultural well-being.19 Providingfurther that (t)he State shall recognize, respect and protect therights of indigenous cultural communities to preserve and developtheir cultures, traditions and institutions. It shall considerthese rights in the formulation of national plans andpolicies.20
These affirmations were followed by making room for IDRM at theBarangay Level through the BJS21 where the law mandates thatcustoms and traditions of indigenous cultural communities shall beapplied in settling disputes between members of the culturalcommunities.22
18 See Art.I, Sec. 22 of the 1987 Philippine Constitution. 19See Art.XII, Sec.5 of the 1987 Philippine Constitution. 20 SeeArt.XIV, Sec.17 of the 1987 Philippine Constitution. 21 See Sec399, 408 of RA 7160. 22 See Sec 412 (c) of RA 7160.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 29
A. International Human Rights Standards
1. Universal Declaration of Human Rights
Article 2. Everyone is entitled to all the rights and freedomsset forth in this Declaration, without distinction of any kind,such as race, colour, sex, language, religion, political or otheropinion, national or social origin, property, birth or otherstatus. Furthermore, no distinction shall be made on the basis ofthe political, jurisdictional or international status of thecountry or territory to which a person belongs, whether it beindependent, trust, non-self-governing or under any otherlimitation of sovereignty.
Article 8. Everyone has the right to an effective remedy by thecompetent national tribunals for acts violating the fundamentalrights granted him by the constitution or by law.
Article 10. Everyone is entitled in full equality to a fair andpublic hearing by an independent and impartial tribunal, in thedetermination of his rights and obligations and of any Article29.
(1) Everyone has duties to the community in which alone the freeand full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shallbe subject only to such limitations as are determined by law solelyfor the purpose of securing due recognition and respect for therights and freedoms of others and of meeting the just requirementsof morality, public order and the general welfare in a democraticsociety.
(3) These rights and freedoms may in no case be exercisedcontrary to the purposes and principles of the United Nations.
ICCPR
Article 14. All persons shall be equal before the courts andtribunals. In the determination of any criminal charge against him,or of his rights and obligations in a suit at law, everyone shallbe entitled to a fair and public hearing by a competent,independent and impartial tribunal established by law. The pressand the public may be excluded from all or part of a trial forreasons of morals, public order (ordre public) or national securityin a democratic society, or when the interest of the private livesof the parties so requires, or to the extent strictly necessary inthe opinion of the court in special circ*mstances where publicitywould prejudice the interests of justice; but any judgementrendered in a criminal case or in a suit at law shall be madepublic except where the interest of juvenile persons otherwiserequires or the proceedings concern matrimonial disputes or theguardianship of children.
Article 27. In those States in which ethnic, religious orlinguistic minorities exist, persons belonging to such minoritiesshall not be denied the right, in community with the other membersof their group, to enjoy their own culture, to profess and practisetheir own religion, or to use their own language.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 30
UNDRIP
Article 4. Indigenous peoples, in exercising their right toself-determination, have the right to autonomy or self-governmentin matters relating to their internal and local affairs, as well asways and means for financing their autonomous functions.
Article 5. Indigenous peoples have the right to maintain andstrengthen their distinct political, legal, economic, social andcultural institutions, while retaining their right to participatefully, if they so choose, in the political, economic, social andcultural life of the State.
Article 34. Indigenous peoples have the right to promote,develop and maintain their institutional structures and theirdistinctive customs, spirituality, traditions, procedures,practices and, in the cases where they exist, juridical systems orcustoms, in accordance with international human rightsstandards.
UN Declaration on Minorities
Article 1
(1) States shall protect the existence and the national orethnic, cultural, religious and linguistic identity of minoritieswithin their respective territories and shall encourage conditionsfor the promotion of that identity.
(2) States shall adopt appropriate legislative and othermeasures to achieve those ends.
Article 3
(1) Persons belonging to minorities may exercise their rights,including those set forth in the present Declaration, individuallyas well as in community with other members of their group, withoutany discrimination.
(2) No disadvantage shall result for any person belonging to aminority as the consequence of the exercise or non-exercise of therights set forth in the present Declaration.
Article 4
(1) States shall take measures where required to ensure thatpersons belonging to minorities may exercise fully and effectivelyall their human rights and fundamental freedoms without anydiscrimination and in full equality before the law.
(2) States shall take measures to create favourable conditionsto enable persons belonging to minorities to express theircharacteristics and to develop their culture, language, religion,traditions and customs, except where specific practices are inviolation of national law and contrary to internationalstandards.
(3) States should take appropriate measures so that, whereverpossible, persons belonging to minorities may have adequateopportunities to learn their mother tongue or to have instructionin their mother tongue.
(4) States should, where appropriate, take measures in the fieldof education, in order to encourage knowledge of the history,traditions, language and culture of the minorities existing withintheir territory. Persons belonging to minorities should haveadequate opportunities to gain knowledge of the society as awhole.
(5) States should consider appropriate measures so that personsbelonging to minorities may participate fully in the economicprogress and development in their country.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 31
CERD
Article 2
(1) States Parties condemn racial discrimination and undertaketo pursue by all appropriate means and without delay a policy ofeliminating racial discrimination in all its forms and promotingunderstanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practiceof racial discrimination against persons, groups of persons orinstitutions and to en sure that all public authorities and publicinstitutions, national and local, shall act in conformity with thisobligation;
(b) Each State Party undertakes not to sponsor, defend orsupport racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to reviewgovernmental, national and local policies, and to amend, rescind ornullify any laws and regulations which have the effect of creatingor perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by allappropriate means, including legislation as required bycirc*mstances, racial discrimination by any persons, group ororganization;
(e) Each State Party undertakes to encourage, where appropriate,integrationist multiracial organizations and movements and othermeans of eliminating barriers between races, and to discourageanything which tends to strengthen racial division.
(f) States Parties shall, when the circ*mstances so warrant,take, in the social, economic, cultural and other fields, specialand concrete measures to ensure the adequate development andprotection of certain racial groups or individuals belonging tothem, for the purpose of guaranteeing them the full and equalenjoyment of human rights and fundamental freedoms. These measuresshall in no case en tail as a con sequence the maintenance ofunequal or separate rights for different racial groups after theobjectives for which they were taken have been achieved.
Article 5
In compliance with the fundamental obligations laid down inarticle 2 of this Convention, States Parties undertake to prohibitand to eliminate racial discrimination in all its forms and toguarantee the right of everyone, without distinction as to race,colour, or national or ethnic origin, to equality before the law,notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and allother organs administering justice;
Article 6
States Parties shall assure to everyone within theirjurisdiction effective protection and remedies, through thecompetent national tribunals and other State institutions, againstany acts of racial discrimination which violate his human rightsand fundamental freedoms contrary to this Convention, as well asthe right to seek from such tribunals just and adequate reparationor satisfaction for any damage suffered as a result of suchdiscrimination.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 32
ILOC 169 Article 8
1. In applying national laws and regulations to the peoplesconcerned, due regard shall be had to their customs or customarylaws.
2. These peoples shall have the right to retain their owncustoms and institutions, where these are not incompatible withfundamental rights defined by the national legal system and withinternationally recognised human rights. Procedures shall beestablished, whenever necessary, to resolve conflicts which mayarise in the application of this principle.
3. The application of paragraphs 1 and 2 of this Article shallnot prevent members of these peoples from exercising the rightsgranted to all citizens and from assuming the correspondingduties.
Article 9
1. To the extent compatible with the national legal system andinternationally recognised human rights, the methods customarilypractised by the peoples concerned for dealing with offencescommitted by their members shall be respected.
2. The customs of these peoples in regard to penal matters shallbe taken into consideration by the authorities and courts dealingwith such cases.
IPRA is usually regarded as the law recognizing IPs rights toancestral lands and domains. IPRA is more than just an AncestralDomains Law. IPRA as spelled out it is the Indigenous PeoplesRights Act, with tad more comprehensive scope. The bundle of rightsis as follows:
RIGHTS
SECTION
Rights to Ancestral Domain Sec. 4 - Sec. 12 Rights to SelfGovernance Sec. 13 - Sec. 20 Social Justice and Human Rights Sec.21 - Sec. 28
Cultural Integrity Sec. 29 - Sec. 37
It provides for the primacy of customary law, as it mandatesthat disputes involving indigenous peoples are to be settled usingcustomary law and practices. Further, ICC/IPs shall have the rightto use their own commonly accepted justice systems, conflictresolution institutions, peace building processes or mechanisms andother customary laws and practices. The form of recognitionprovided however comes with seemingly harmless yet restrictivequalifiers. It drawback provisions limits the
A SEARCH BOOK: INTERSECTING JURISDICTIONS 33 practices withintheir respective communities and as may be compatible with thenational legal system and with international recognized humanrights. The promise and generosity are all there. That a state lawthat is IPRA dares to uphold the primacy indigenous justice system,traditional conflict resolution institutions and peace buildingprocesses are indicators of spaces created if not accommodated. Tobe appreciated a bit more IPRA could also be read against theprovision provided by the United Nations Declaration on the Rightsof Indigenous Peoples (UN DRIP). Token recognition, one might daresay particularly when read against the land rights provision of thelaw. But that is another story. The articulations are not absoluteforms of recognition. It pales in comparison to the most dramaticand unexpected achievements in the constitutional recognition ofcultural differences that have occurred in Latin America.(VanCott:2000) Where through canny mobilizations customary law themostly unwritten forms of dispute resolution and social controlpracticed by ethnic communities or language groups among theirmembers are constitutionally incorporated (2000:208). Theseaffirmations were followed by making room for indigenous disputeresolution mechanisms and processes at the Barangay Level throughthe Barangay Justice System (BJS). Customs and traditions ofindigenous cultural communities shall be applied in settlingdisputes between members of the cultural communities. Another formof institutionalized recognition is provided for in the Organic Actfor the Autonomous Region in Muslim Mindanao (ARMM). The OrganicAct provides for a system of tribal courts for the indigenouspeoples in the ARMM. The Said system may include a tribal appellatecourt, as determined by the Regional Legislative Assembly (RLA),which is also mandated to define the composition and jurisdictionof the said tribal courts. The law recognizes the power of thesetribal courts to determine, settle, and decide controversies andenforce decisions involving personal and family and property rightsof members of the indigenous cultural community concerned inaccordance with their own tribal codes.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 34
B. National Laws
Philippine Constitution
Article 2, Section 22. The State recognizes and promotes therights of indigenous cultural communities within the framework ofnational unity and development.
ARTICLE XII NATIONAL ECONOMY AND PATRIMONY
Section 5. The State, subject to the provisions of thisConstitution and national development policies and programs, shallprotect the rights of indigenous cultural communities to theirancestral lands to ensure their economic, social, and culturalwell-being.
The Congress may provide for the applicability of customary lawsgoverning property rights or relations in determining the ownershipand extent of ancestral domain.
Organic Act for the Autonomous Region in Muslim Mindanao RA6734
Tribal Courts Section 14. There is hereby created a system oftribal courts, which may include a Tribal Appellate Court, for theindigenous cultural communities in the Autonomous Region. Thesecourts shall determine, settle and decide controversies and enforcedecisions involving personal, family and property rights inaccordance with the tribal codes of these communities. The RegionalAssembly shall define their composition and jurisdiction inaccordance with this Act.
Customary Law Section 16. The Regional Assembly shall providefor the codification of indigenous laws and compilation ofcustomary laws in the Autonomous Region.
National Integrated Protected Areas System (NIPAS) RA 7586
ARTICLE IV Ancestral Lands And Domains And Tenured Migrants
1. Sec. 16. Ancestral Lands and Domains. The rights of ICCs/IPsin the NSMNP to their lands and domains shall be fully recognized.Traditional property regimes exercised by ICCs/IPs in accordancewith their customary laws shall govern the relationship of allindividuals within their communities with respect to all land andother resources found within the ancestral lands and domainstraditionally used by them.
Local Government Code RA 7160
CHAPTER VII
Katarungang Pambarangay
Section 399. Lupong Tagapamayapa. - (f) In barangays wheremajority of the inhabitants are members of indigenous culturalcommunities, local systems of settling disputes through theircouncils of datus or elders shall be recognized without prejudiceto the applicable provisions of this Code.
Section 412. Conciliation. - (c) Conciliation among members ofindigenous cultural communities. - The customs and traditions ofindigenous cultural communities shall be applied in settlingdisputes between members of the cultural communities.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 35
Section 408. Subject Matter for Amicable Settlement; ExceptionThereto. - The lupon of each barangay shall have authority to bringtogether the parties actually residing in the same city ormunicipality for amicable settlement of all disputes except:
(a) Where one party is the government, or any subdivision orinstrumentality thereof;
(b) Where one party is a public officer or employee, and thedispute relates to the performance of his official functions;
(c) Offenses punishable by imprisonment exceeding one (1) yearor a fine exceeding Five thousand pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located indifferent cities or municipalities unless the parties thereto agreeto submit their differences to amicable settlement by anappropriate lupon;
(f) Disputes involving parties who actually reside in barangaysof different cities or municipalities, except where such barangayunits adjoin each other and the parties thereto agree to submittheir differences to amicable settlement by an appropriatelupon;
(g) Such other classes of disputes which the President maydetermine in the interest of Justice or upon the recommendation ofthe Secretary of Justice. The court in which non-criminal cases notfalling within the authority of the lupon under this Code are filedmay, at any time before trial motu propio refer the case to thelupon concerned for amicable settlement.
Indigenous Peoples Rights Act (IPRA) RA 8371
CULTURAL INTEGRITY
Section 29. Protection of Indigenous Culture, traditions andinstitutions. - The state shall respect, recognize and protect theright of the ICCs/IPs to preserve and protect their culture,traditions and institutions. It shall consider these rights in theformulation of national plans and policies.
Section 63. Applicable Laws. - Customary laws, traditions andpractices of the ICCs/IPs of the land where the conflict arisesshall be applied first with respect to property rights, claims andownerships, hereditary succession and settlement of land disputes.Any doubt or ambiguity in the application of laws shall be resolvedin favor of the ICCs/IPs.
Section 66. Jurisdiction of the NCIP. - The NCIP, through itsregional offices, shall have jurisdiction over all claims anddisputes involving rights of ICCs/IPs; Provided, however, That nosuch dispute shall be brought to the NCIP unless the parties haveexhausted all remedies provided under their customary laws. Forthis purpose, a certification shall be issued by the Council ofElders/Leaders who participated in the attempt to settle thedispute that the same has not been resolved, which certificationshall be a condition precedent to the filing of a petition with theNCIP.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 36
CHAPTER XI PENALTIES
Section 72. Punishable Acts and Applicable Penalties. - Anyperson who commits violation of any of the provisions of this Act,such as, but not limited to, authorized and/or unlawful intrusionupon any ancestral lands or domains as stated in Sec. 10, ChapterIII, or shall commit any of the prohibited acts mentioned inSections 21 and 24, Chapter V, Section 33, Chapter VI hereof, shallbe punished in accordance with the customary laws of the ICCs/IPsconcerned: Provided, That no such penalty shall be cruel, degradingor inhuman punishment: Provided, further, That neither shall thedeath penalty or excessive fines be imposed. This provision shallbe without prejudice to the right of any ICCs/IPs to avail of theprotection of existing laws. In which case, any person who violatesany provision of this Act shall, upon conviction, be punished byimprisonment of not less than nine (9) months but not more thantwelve (12) years or a fine not less than One hundred thousandpesos (P100,000) nor more than Five hundred thousand pesos(P500,000) or both such fine and imprisonment upon the discretionof the court. In addition, he shall be obliged to pay to theICCs/IPs concerned whatever damage may have been suffered by thelatter as a consequence of the unlawful act.
Mining Act RA 9742
Section 4
Ownership of Mineral Resources Mineral resources are owned bythe State and the exploration, development, utilization, andprocessing thereof shall be under its full control and supervision.The State may directly undertake such activities or it may enterinto mineral agreements with contractors.
The State shall recognize and protect the rights of theindigenous cultural communities to their ancestral lands asprovided for by the Constitution.
Section 16
Opening of Ancestral Lands for Mining Operations No ancestralland shall be opened for mining-operations without prior consent ofthe indigenous cultural community concerned.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 37
PART TWO
WALKING THROUGH THE
INDIGENOUS JUSTICE PROCESSES
Nota Bene: This chapter walks through a typical indigenousjustice system process for purposes of illustrating the nature andprocess.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 38
O heavenly spirits, may you guide the conscience and hearts ofboth contending parties so they will stick to the truth. And,
O unseen spirits, may you disturb the conscience of those whoattempt to lie, so they will not veer away from the truth.
- -Opening Petik
THE INDIGENOUS DISPUTE RESOLUTION PROCESS
he local name speaks for itself. Kalamian Tagbanuas call itpagkeresen which roughly translates toconversation/discussion/talk. The Kankanaey and Bago peoples ofBakun call it Tongtong which when translated refers to a dialogue.The Teduray Lambangian refers to the process as setiyawan
meaning to adjudicate together.28 For the IJS, the process, byany other name, remains to be generally non-adversarial,non-confrontational and participatory. The process is generallyinitiated by a complainant or an offended party approaching anelder to report a conflict and seek resolution. The elder conferswith members of the council of elders and calls for a dialogue. Adate or a given time is set for the actual dialogue, and theinvolved parties are notified. It commonly begins with an openingceremony, ritual or prayer. The mediating Talaandig datus29 forinstance, pray to Magbabaya to ask for guidance and invite thespirits of the laas or ancestors to provide wisdom in resolving theconflict. A gukom leads the pangimunag or opening ritual forcases.30
28 There are also many existing indigenous justice systems thathave no formal or common names but are still very much in
place and in use. Pagkeresen among the Tagbanuas of Coron inPalawan, Husay among the Higaonons and Talaandigs of MisamisOriental and Bukidnon, Kukuman among the Manobos of Arakan Valley,Iskukom among the Tbolis of Lake Sebu, Tiwayan among the Teduraysof Maguindanoa and Gukom among the Subanons of Zamboanga.
29 Claveria, Misamis Oriental 30 A Timuay may endorse a case tothe Gukom. A Gulang Gukom (chief justice) then convenes the Timuaysof the seven rivers.
The pangimuan is conducted by a Gukom before the processstarts.
T
AREA ETHNO-LINGUISTIC GROUP ALG - IP CLUSTER
Ayungon, Negros Occidental & Inablang, Kabangkalan City
Karul-anon Legal Assistance Center for Indigenous Filipinos(PANLIPI)
Arakan Valley, Cotobato Tinananon-Manobo PANLIPI Baguio CityMixed PANLIPI
A SEARCH BOOK: INTERSECTING JURISDICTIONS 39
Up north, tongtong31 is opened through a prayer or petik led byan elder or one of the Papangoan. Offering a drop of tapuey, ortraditional rice wine, the elder chants the petik that asks theheavenly spirits to guide the conscience and the hearts of thecontending parties so the truth may come out. Over the years,particularly after the introduction of Christianity in thecommunities, opening rituals have gone through changes. If thepast, the prayer was led by a senior member of the council ofelders, who can either be a male or a female. Now, it is jointlyled by a senior member of the council of elders and representativesof the various religious groups attending the tongtong.32 The petikis now carried out with an invocation of the traditional prayer bya senior elder, and a Christian prayer led by a religious leader.Meanwhile,
31 Bakun, Benguet 32 True for both Bakun, Benguet and thetongtongs mediated by the Metro Baguio Tribal Elders and LeadersAssembly.
Bakun, Benguet Kankanaey-Bago PANLIPI Barira, Shariff KabunsuanBuldon, Shariff Kabunsuan
Iranun Sentro ng Alternatibong Lingap Panligal (SALIGAN)Mindanao
Calintaan, Occidental Mindoro
Tao-buhid PANLIPI
Caragan Va. Maragusan, Compostela Valley
Mansaka Paglilingkod Batas Pangkapatiran Foundation (PBPF)
Claveria, Misamis Oriental Higaonon Balay Alternative LegalAdvocates for Development in Mindanaw (Balaod-Mindanaw), Inc.
Coron, Palawan Kalamian-Tagbanua Environmental Legal AssistanceCenter Kabankalan City (Brgy. Kamang-Kamang)
Ati (resettled community) PANLIPI
Kabankalan City (Brgy. Kamingawan)
Bukidnon PANLIPI
Maragusan Va, Maragusan, Compostela Valley
Mansaka PBPF
Lake Sebu, South Cotabato
Tboli PANLIPI
Lake Sebu, South Cotabato
Ubo PANLIPI
Magsaysay, Occidental Mindoro
Ragatnon PANLIPI
Miarayon, Bukidnon Talaandig Balaod-Mindanaw Sablayan,Occidental Mindoro
Alangan Mangyan PANLIPI
Siocon, Zamboanga Subanon Legal Rights and Natural Resources,Inc. Kasama sa Kalikasan or Friends of the Earth Philippines[LRC-KsK/FOEI-Phils] Cagayan de Oro Regional Office
Upi, Shariff Kabunsuan Teduray-Lambangian SALIGAN Mindanao
A SEARCH BOOK: INTERSECTING JURISDICTIONS 40 somewhere inBukidnon, Magbabaya although not entirely replaced in terms ofspiritually shares top billing with Lord God. The opening ritual orits equivalent is common to all IJS documented. The closing ritualhowever, does not necessarily apply, for some processes. In thecase of the Tiwayan System of Conflict Resolution,33 the ritualcalled Inm Knugw is performed only when there is a perceived needto finally settle any ill feelings remaining between the parties.After the ritual, the relationship between the two is consideredrestored. The same is true for the Higaonon tribe of MisamisOriental. A singampo pasalamat ritual is performed to thank thespirits for their guidance and presence during the process ofconflict resolution. The ritual is also performed to seal theagreement and bind the parties to the agreement. The closing petikis also considered a cleansing ritual; an elder chants a closingprayer that asks the spirits to restore harmonious communityrelations, which can only be done if contending parties remove allhard feelings in their hearts so that stability and prosperityreigns, as they resume normal lives (Arquiza ed., 2005: 45). Forthe Mangyans34 of Occidental Mindoro, on the other hand, theclosing prayer is not only for the purpose stated above, but also aprayer of thanksgiving; praising the heavenly spirits for theirguidance which ultimately helped achieve a peaceful resolution.There are also processes where settlement agreements are not onlysealed by prayers but with ceremonials gatherings. For the Iranun35of Barira and Buldon, Shariff Kabunsuan, when parties to theconflict are able to reach an agreement or amicable settlement,there are prayers and ceremonial gatherings to seal the agreementand celebrate the reconciliation. The different gatherings commonamong the Iranun include: kapangangawid, kapapamanikan, andkandori. Kapangangawid involves the payment of moral, physical andmaterial damages to the offended party while kapapamanikan requiresfamily members and close relatives of the offending party to go tothe house of the offended party as a manifestation of acceptance ofguilt or submission to appease the offended party and his/herrelatives. In both gatherings, kandori, which is a thanksgivingritual involving the serving of food and drinks, may be performed;it may also be held separately from the kapangangawid andkapapamanikan.
33 Upi, Shariff Kabunsuan 34 The study documented the IndigenousDispute Resolution Mechanisms and Indigenous Justice System ofthree ethno-
linguistic groups namely, Tagabuhid, Alangan and Ragatnon. 35Although largely based on Iranun customary laws and traditions, thelocal government unit and its system of governance is
also a factor in the administration of justice by the JUMPOC.This is evident in the many similarities between the KatarungangPambarangay system and the conflict resolution process of theJUMPOC, as mentioned above. This may be explained by the fact thatthe JUMPOC was created through the initiative of the localgovernment unit. Another undeniable source of influence is theMuslim faith which is central in the Iranun culture.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 41 The tongtong inBakun and the tongtong facilitated by MBETELA also observe closingceremonies for high impact cases. There are cases (not all) andnegotiations where the parties and participants are not allowed toeat until a settlement is had. The concluding ritual usuallyrequires the slaughtering and cooking of a pig or cow, and theparties and witnesses partake of a meal together, signifying theend of the dispute or hostilities. Nature and Venue of the IDRM/IJSAs a general rule, the dispute resolution process, beingparticipatory and communal in nature, is open to all. Theaggrieved, the offender, their families, women, children and allother concerned members of the community may participate in thesettlement process. For the Marikudo of Negros however, thesessions are limited to contending individuals and members of thetribal council. In Mindoro Occidental, the Alangan preferclosed-door sessions. The Tiwayan System of Conflict Resolution isgenerally open to all except when the case calls for a Skmn whichis a swift and confidential settlement of sensitive or delicatecases [i.e. most, if not all, involve offenses that are sexual innature]. Only the assigned Kefedewan36 and the parties directlyinvolved (i.e. the alleged perpetrator and the complainant/victim)are present.37 In Siocon, despite the fact that women and childrenare welcome to attend, the participation is usually limited totheir men. There are no designated mediation centers or courts ofjustice for purposes of the customary and/or traditional processes.The Subanon calls their tribal house Baloy Nog Gukom.38 Most of thefocus areas of the study however, do not have fixed venues. Usuallythe venue for the conflict resolution process is the house of theDatu, Tribal Chieftain or any member of the Council of Elders. Inthe past, the venue for tongtong is an open space where the hearingand resolution process is in full view of the main participants andthe general public. However, with the advent of barangay halls39 orgovernment structures, the tongtong is now held in theseplaces.
36 The Kefedewans are the administrators of the Tiwayan or theconflict settlement process or tribal judicial procedure. 37 It isforbidden for any of the parties to reveal the details of thesettlement. There will be a fine of P1,500.00 imposed on those
who will violate the confidential nature of said proceedings. 38Of the 18 IDR/IJS case studies, three focus areas mentioned theexclusive use of the tribal house. These are Gubatnon,
Manobo and Subanon. 39 The barangay hall is also becoming thepreferred venue for the Talaandig and Higaonon.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 42
Peace of mind is the absence of conflict in the community,whether physical or emotional. This is the basis for justice
and development for all and not the satisfaction of one personor a few people in the community.
-Article 1, Section 7, Ukit Notion of Justice
The adherence, albeit to varying degrees, to the IDRM/IJSdespitethe existence of BJS, the courts of justice and the influx ofinfluences from other culturesis generally attributed to the factthat these systems manage to serve and meet the justice of theparties and the community. Justice, once served, ultimatelyrestores peace and harmony in the community. This study is veryconscious and careful of falling into the trap of overlygeneralizing observations and findings from the gathered data. Butfor purposes of emphasizing a trend worth noting, 14 of 18 IDRM/IJSdocumented case studies heavily anchors the notion and concept ofjustice to the restoration of peace and harmony within and amongstcommunities. Justice is equated to concepts like peace, harmony,contentment, order and common good.
The study also notes that there are IDRM/IJS that anchors theirsense of justice on the protection of ones dignity and alleviationof the injury caused to the victims and their families.40 TheKarulanons of Negros on the other hand, value the sense ofsatisfaction and contentment of both parties, while the KalamianTagbanwas of Coron tend to link their sense of justice toretribution, punishment and reward.
Despite these notions, the prevailing element and institutionalfoundation of these IDRM/IJS are still driven by the need tostrengthen community relationships and instill good values andnorms. Kefiyo fedew41 or peace of mind is defined as a state ofmind and physical being of an individual who is free of any problembe it emotional or physical.42 Thus, conflicts are always resolvedthrough win-win solutions, where both parties are satisfied andhave no ill feelings. Most of the IDRM documented have no appealsprocess. In fact, only the Tiwayan System of Conflict Resolutionspecifically provides for a baruwat. Here a previously-settled casemay be reopened before another kefedewan.43 While there is strictlyno appeal
40 Mandaya and Mansaka of Compostela Valley 41 Good state ofmind 42 See Section 1, Article I, Chapter I, Ukit. 43 Baruwat =Form of appeal
A SEARCH BOOK: INTERSECTING JURISDICTIONS 43 in the SubanonJustice System, they have the Gukom of Seven Rivers44, the highesttribunal of the Subanon that convenes only when the matters to besettled involve disputes which are of general interest to theSubanons. A concept that is akin to issues of transcendentalimportance in state law legalese.
Then and now, the main purpose of IJS has been the maintenanceof stability, peace and harmony in the community. To this datedespite the challenges, the various IDRM/IJS covered still servetheir purposejustice is still servedfor the peoples with theirfamily and even community who seek redress. Nature of Crimes andthe Penalty System The IDMR/IJS takes cognizance of all types ofcases. And by all it could really mean all. By and large, there isno distinction between civil and criminal cases. Thus, offenses areappreciated not solely in the context of the offender and offended,but also within the community and, if inter-tribal, betweencommunities. Thus, disputes are generally always seen in a personalcontext (offender-offended) and in the context of the community. Asa consequence, when an offense or crime is committed against amember of a community, it is usually treated as if it was committedagainst the whole community, not only against a particularindividual. In the case of the Teduray-Lambangian, this isreflected in their penalty system where the amount imposed aspenalty is given (in most cases) not only to the offended party butthe Fnuwo (village) as well. The amount given to the Fnuwo isfurther divided between the Kfduan (tribal justices) and the Ingd(whole tribe or ancestral domain).
For the Manobos of Arakan Valley, any offense committed againstan individual is an offense committed solely against the offendedparty. Oson, committing acts of discrimination against any tribemember is the only crime they consider as having been committedagainst the whole tribe.45
44 The Highest Tribunal of the Subanon in Siocon, Zamboanga.This Gukom convenes only when the matters to be settled
involve disputes which are of general interest to the Subanons.Also, when the Timuay of a pigbogolalan endorses a case to theGukom of Seven Rivers because he knows that he cannot settle thecontroversy/conflict
within his jurisdiction. Further, the Gukom will lead thesettlement when it involves conflict between Timuays of differentpigbogolalan.
45 Refers to remarks or actions made either by a Manobo toanother Manobo member or a non-IP to a Manobo that caused
embarrassment to the offended. Based on customary law, theoffended party, if not appeased, can kill the offender. Theresolution process, therefore, concentrates on discussing theappropriate penalty to avoid any killing. An example of this caseinvolves a former City Councilor of Kidapawan who was quoted inwriting by a columnist of a local paper uttering discriminatoryremarks against the tribe during the last elections. The tribefiled a case with the NCIP against the City Councilor and the localjournalist, and moved for the application of customary law in theresolution of the case. The NCIP upheld the motion in itsentirety.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 44 Conflicts are notstrictly defined. There are no definitive lists that provide forspecific offenses with corresponding penalties. Rather, theoffenses are evaluated based on threats to or infringements on thelife, property and dignity of the offended party or community.46There are emerging forms of documentation47, and semi-assimilatedand highly assimilated focus areas loosely refer to the offensesusing crimes enumerated in the Revised Penal Code. When partiesrefer to murder or adultery for instance the terms are usedloosely, unmindful of RPC distinctions and elements. The KitabKeadatan or body of customary laws of the Teduray and Lambangianpeoples is an exception to the general observation. It is composedof three major works: 1) the Ukit or Constitution; 2) the Tegudonor Creed, and 3) the Dowoy or penal laws.48 The Kayang Bala coversthe range of penalties set by the Tegudon. Although this serves asthe primary reference regarding penalties, there are other basesthat may be considered in setting the exact amount of penalty to beimposed by a Kefedewan. The sanction and/or penalty imposed are setin the Tiwayan or settlement of conflict. After which, it is theresponsibility of the entire community to enforce the penalty(Arquiza, ed:2007). Similar to the indigenous notion of crimes andoffenses, there are also, generally, no fixed sanctions.49Penalties are still mostly determined based on the weight orseverity of the offense as perceived by the offended party and thecommunity. Precedents and penalties, as listed, are generally onlyof persuasive value.
46 As narrated to PBPF in the FGD conducted for Mandaya andMansaka. This observation is also true for almost all otherfocus
areas except as listed and discussed above. 47 AnhtropologistAntoon Postma who is known to have extensively studied the cultureof the Hanunuo tribe in Oriental Mindoro
came up with a four-volume publication entitled KulturangMangyan in 2005. In the fourth volume, he wrote about the Hanunuosjustice system and listed 164 offenses or crimes punishable underthe tribes customary law. Such offenses cover all sorts of behaviorthat pertain to conduct of relationship with family members,relatives, neighbors and tribal leaders. They range from petty toserious offenses like rape and murder.
All three tribes confirmed Postmas listing. One of the FGDparticipants even said that he did not realize that they had such along list.
48 Dowoy: Teduray and Lambangian penal laws. Over time, therehave been certain adjustments made in the Dowoy, especially
in the area of penalties imposed. These penalties traditionallytook the form of the giving of goods (e.g. gong, sundang) to theaggrieved party. However, since most of these goods are now ratherhard to find, the penalties were converted to cash equivalents. Forexample, the equivalent of Mrmoto Tamuk ranges from P3,000.00 andabove; while for Skt, it is set below P3,000.00.
49 In the case of the Teduray Lambangian the offenses, penaltyand sanctions where documented over time in their
efforts to strengthen Timuay Justice and Governance. Inpartnership with support groups and non-government organizations, aproject dubbed as Community Access to Justice through Recognitionof Indigenous Justice System was launched. This initiative resultedin the documentation of the Timuay Justice and Governance, with aKefedewan Training Module and Handbook.
A SEARCH BOOK: INTERSECTING JURISDICTIONS 45 The processdescribed below is basically the same process observed in the focusareas covered:
At all times, the penalties imposed are defined based on acase-
specific situation. The Limpong ng Mangkatadongs (Council ofElders) who administers the settlement and judgment processes areonly mediators or arbitrators of justice. The extent of sanctionsto be imposed is articulated first by the victims and theirfamilies. The Limpong then communicates the demands of the victimto the family of the offender through a designated negotiatorcalled pilipiti. In cases where the family of the offending partycannot afford to comply with all the demands made, the Limpong ngMangkatadong actually contributes to fully pay off the demand. Thisassumption of responsibility by the Limpong ng Mangkatadong affirmsthe communitys view of collective responsibility. The practice hasbeen carried out since time immemorial to strengthen kinship andensure cohesion among members of the tribe.
The Subanons notion of retribution and penalty best describesthe general notion observed and affirmed in this study. The casestudy in Siocon affirmed that Subanons prefer reconciliation toretribution. Harmony within the community comes first. For them,the concept of social cohesion and restorative justice are at par.As one Timuay said, for the Subanons, the principle is Palita angKalinaw (buy peace).
Most of IJS documented do not impose capital punishment. Six ofthe focus areas even revealed that they have long abolished thesaid form of penalty. These communities arrived at the decision toabolish the penalty on various grounds but the two main reasonsare: (1) religious teachings and influences; and (2) communityrecognition of State prohibition on the matter. The study gatheredtwo focus areas that have not abolished the penalty in the sensethat it is still there, but it has not been imposed for a very longtime.50 There were also areas that are careful not discuss it, inview of the sanctity of the process. Suffice it to say that the fewfocus areas concerned observe several internal processes beforeimposing the penalty.51
50 Bubuwan for the Subanon means a cage. This is similar to afish cage put in the sea used to trap fish. The culprits, as in thecase of incest, will both be placed in the bubuwan and beforesunrise they will be brought to the sea and submerged to death.This death execution happened once in the history of the Subanonsin the person of Tumonglon and Putian. This was an incest case.Both of them were found guilty and they were subjected to death bydrowning through bubuwan. As narrated by Timuay Nanding for thecase study.
51 The execution of an offender who has committed a crimeconsidered heinous by the Mandaya/Mansaka communities is consideredthe highest form of restitution for crimes committed against lifeand dignity. The execution of an offender and all other sanctionsare not viewed as a punishment for an offense/crime committed. Fromtheir perspective, it is a matter of giving back what is wrongfullytaken. Under this principle, the family of the offender/s has togive its consent to give as restitution for a wrongfully takenlife, the life of a member of the family who seriously committed anoffense. However, the family of the offender has recourse in theadministration of Mandaya/Mnsaka traditional justice through anappeal mechanism
A SEARCH BOOK: INTERSECTING JURISDICTIONS 46 In case, forinstance, of Timuay Justice and Governance:
Fetindegon Turos Literally translated as death penalty, this isthe highest form of penalty that may be imposed on a person. Thisis imposed when the offender may no longer be corrected through thepayment of property or cash. Thus,
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