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Sounding Board
Ancestral domain vs regalian doctrine (2)

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 20:46:00 09/29/2008

Filed Under: Constitution, indigenous people, Construction & Property


Last week I concluded with the question whether ancestral domain and regalian doctrine can stand together. I believe they can.

The 1935 Constitution said: ?All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution...?

This was the regalian doctrine translated into republican terms. It meant that anyone claiming ownership of any portion of the natural resources must be able to produce title granted by the Republic or the prior sovereign.

Although this provision had the effect of perpetuating the doctrine of the Novisima Recopilacion, its main thrust was the nationalist objective of keeping natural resources in the hands of Filipinos. Thus the provision was no obstacle to the wave of lowland Filipinos of Luzon and the Visayas from seeking green pastures in the wide spaces of Mindanao. Through the instrumentality of the Public Land Act and the Torrens system large tracts of Mindanao lands passed to the hands of lowland Filipinos who in turn transformed them into rich productive enterprises. Meantime, too, the national government ate up some of the land for national development projects. Inevitably these movements displaced several indigenous peoples from their lands.

The 1973 Constitution adopted the same regalian doctrine. But among its General Provisions was one which said: ?The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in the formulation and implementation of State policies.? It marked the entry of ?cultural minorities? into constitutional discourse. It was a recognition of the constitutional right of tribal Filipinos to preserve their way of life.

The provision gave birth to some government devices, among them the much criticized Panamin, designed to protect the welfare of indigenous communities. Significantly, President Marcos promulgated PD No. 410, the Ancestral Lands Decree, which provided a mechanism for members of cultural communities to obtain land occupancy certificates. The mechanism was meant to provide a way of resolving land problems involving tribal Filipinos.

These measures, however, were not enough to protect natives from the incursions not only by government but also by large corporations. The scholarly literature on this subject is rich with details not only about eviction of indigenous peoples from their land but also about the reduction and destruction of their natural environment.

The 1987 Constitution has also retained the regalian doctrine. ?All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State....?

Scattered among various articles of the Constitution, however, are provisions assuring the protection of the rights of indigenous cultural communities. They range from a general statement about recognizing and promoting the rights of cultural communities, to assuring them a place in the party-list system, to applying the principles of agrarian reform when dealing with the rights of indigenous communities to their ancestral lands. But the most important of these is Article XII, Section 5 which says: ?The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.? This is a constitutional recognition of the rights of tribal Filipinos to their ancestral domains and ancestral lands.

This guarantee eventually led to the passage of the Indigenous Peoples Rights Act whose constitutionality was upheld in a divided decision of the Court eight years ago. It is in this Act that ancestral domain and ancestral lands are defined.

Senator Flavier was the principal author of this Act. The thrust of the law was well expressed in his sponsorship speech:

?The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the dominance and neglect of government controlled by the majority. Massive migration of their Christian brothers to their homeland shrunk their territory and many of the tribal Filipinos were pushed to the hinterlands. Resisting the intrusion, dispossessed of their ancestral land and with the massive exploitation of their natural resources by the elite among the migrant population, they became marginalized. And the government has been an indispensable party to this insidious conspiracy against the Indigenous Cultural Communities (ICCs). It organized and supported the resettlement of people to their ancestral land, which was massive during the Commonwealth and early years of the Philippine Republic. Pursuant to the Regalian Doctrine first introduced to our system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of lands to migrant homesteaders within the traditional areas of the ICCs.?

(To be continued)

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