SOMEONE ELSE'S WINDOWS: Subverting self-determination: A post-mortem on Ipra (2) By H. Marcos C. Mordeno

MALAYBALAY CITY (MindaNews/10 October) — Shortly after the passage of the Indigenous Peoples Rights Act (Republic Act 8371), and likely upon the instigation of mining companies, retired Supreme Court Justice Isagani Cruz and Davao City-based lawyer Cesar Europa filed a petition for prohibition and mandamus before the SC questioning the constitutionality of 12 sections of the Act. These are Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66. Note that these are the provisions that define ancestral domains, property rights and the rights of indigenous peoples to govern their territories, in other words, the essence of the law itself.

In their petition, Cruz and Europa asked the Court for: |

“(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related provisions of R.A. 8371 are unconstitutional and invalid;

“(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the NCIP to cease and desist from implementing the assailed provisions of R.A. 8371 and its Implementing Rules;

“(3) The issuance of a writ of prohibition directing the Secretary of the Department of Environment and Natural Resources to cease and desist from implementing Department of Environment and Natural Resources Circular No. 2, series of 1998;

“(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to cease and desist from disbursing public funds for the implementation of the assailed provisions of R.A. 8371; and

“(5) The issuance of a writ of mandamus commanding the Secretary of Environment and Natural Resources to comply with his duty of carrying out the State’s constitutional mandate to control and supervise the exploration, development, utilization and conservation of Philippine natural resources.”

Cruz and Europa argued that the contested provisions amount to an “unlawful deprivation of the State’s ownership over lands of the public domain as well as minerals and other natural resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the Constitution”.

The petitioners further argued that Ipra’s definition of ancestral domains and ancestral lands might even violate the rights of private landowners. They conveniently forgot Section 56, which exempts “existing property rights” from the coverage of ancestral domains and ancestral lands, a provision that the National Commission on Indigenous Peoples liberally interpreted as one that includes leases, contracts and similar arrangements.

It’s likewise preposterous for the petitioners to question Section 58 which gives the indigenous peoples the responsibility to “maintain, develop, protect and conserve the ancestral domains and portions thereof which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or reforestation”. Note that this provision is actually an obligation on the part of the IPs since it makes them accountable for the conservation of resources within their territories. In fact, this provision may result in the IPs being prohibited from doing traditional resource extraction activities such as hunting and utilizing timber for domestic use.

Taken in its entirety, the petition, by concentrating its attack on the most significant provisions of Ipra, was an attempt to render the law practically useless.

In an en banc resolution dated 6 December 2000, the Court arrived at a tie vote – seven voted to dismiss the petition and seven voted to grant it. Then Chief Justice Hilario G. Davide Jr. voted against the petition. The SC has 15 Justices, including the Chief Justice but there was a vacancy at the time the petition was being deliberated. Since the petition failed to obtain the required majority vote, it was dismissed.

Five Justices filed different opinions on why the petition should be dismissed or granted. But no jurisprudence came out of the petition. It was dismissed on the mere technicality of failing to get a majority vote, which means that in the future another petition can be filed questioning the constitutionality of Ipra in whole or in part. [To be continued]