04/02/2020
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1987 Constitution[101]to protect the rights of indigenous peoples to their ancestral
lands and ancestral domains. Nonetheless, they contend that the recognition and
protection under IPRA of the right of ownership of indigenous peoples over ancestral
lands and ancestral domains are far in excess of the legislative power and
constitutional mandate of the Congress,[102] since such recognition and protection
amount to the alienation of lands of the public domain, which is proscribed under
Section 2, Article XII of the Constitution.
Section 5, Article XII of the Constitution expresses the sovereign intent to "protect
the rights of indigenous peoples to their ancestral lands." In its general and
ordinary sense, the term "right" refers to any legally enforceable claim.[103] It is a
power, privilege, faculty or demand inherent in one person and incident upon
another.[104] When used in relation to property, "right" includes any interest in or
title to an object, or any just and legal claim to hold, use and enjoy it.[105] Said
provision in the Constitution cannot, by any reasonable construction, be interpreted
to exclude the protection of the right of ownership over such ancestral lands. For
this reason, Congress cannot be said to have exceeded its constitutional mandate
and power in enacting the provisions of IPRA, specifically Sections 7(a) and 8, which
recognize the right of ownership of the indigenous peoples over ancestral lands.
The second paragraph of Section 5, Article XII also grants Congress the power to
"provide for the applicability of customary laws governing property rights or relations
in determining the ownership and extent of ancestral domains." In light of this
provision, does Congress have the power to decide whether ancestral domains shall
be private property or part of the public domain? Also, does Congress have the
power to determine whether the "extent" of ancestral domains shall include the
natural resources found therein?
It is readily apparent from the constitutional records that the framers of the
Constitution did not intend Congress to decide whether ancestral domains shall be
public or private property. Rather, they acknowledged that ancestral domains shall
be treated as private property, and that customary laws shall merely determine
whether such private ownership is by the entire indigenous cultural community, or
by individuals, families, or clans within the community. The discussion below
between Messrs. Regalado and Bennagen and Mr. Chief Justice Davide, then
members of the 1986 Constitutional Commission, is instructive:
MR. REGALADO. Thank you, Madame President. May I seek some
clarifications from either Commissioner Bennagen or Commissioner
Davide regarding this phrase "CONGRESS SHALL PROVIDE FOR THE
APPLICABILITY OF CUSTOMARY LAWS GOVERNING PROPERTY RIGHTS
OR RELATIONS in determining the ownership and extent of the ancestral
domain," because ordinarily it is the law on ownership and the extent
thereof which determine the property rights or relations arising
therefrom.
On the other hand, in this proposed amendment the
phraseology is that it is the property rights or relations which shall be
used as the basis in determining the ownership and extent of the
ancestral domain. I assume there must be a certain difference in the
customary laws and our regular civil laws on property.
elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/36882
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