CONCURRING OPINION
CAGUIOA, J.:
The dispute for the Court's resolution in the case involves the question of the applicability of customary laws and the consequent jurisdiction of tribal courts in cases involving property disputes between and among members of indigenous Cultural Communities or Indigenous Peoples (ICCs/IPs) vis-à-vis those disputes where not all parties in the case are members thereof.
While the surface issue may be a matter of jurisdiction and the applicable property law, the underlying question necessarily delves into a finding that balances the agency of the ICCs/IPs, on the one hand, and the right of non-members of the ICCs/IPs to resort to the remedies entitled to them before the regular courts.
To recall, the instant controversy began when respondent Kristopper Rahda Co Uy (Co Uy) filed a complaint for unlawful detainer with a prayer for damages against herein petitioners Spouses Elvin Sending (Datu Gibo) and Jocelyn Sending (Bae Orange) (petitioners), chieftains of the KKK-Alimaong Sugbo-anon Tribe in Cebu, before the 7th Municipal Circuit Trial Court of Liloan-Compostela, Metro Cebu (MCTC).1 Co Uy mainly averred that he is the absolute owner of a parcel of land in Liloan and Consolacion, Cebu, after such parcel was donated to him by a certain Sandy C. Ngoboc. He added that petitioners' entry into said land was by his mere tolerance, after petitioners had sought permission from his mother, and after promising that they would vacate the same once his need for it arose.2 Co Uy further alleged that in September 2013, he asked petitioners to vacate the land so he could construct a building thereon, but petitioners refused to leave despite oral and written demands.3
In their defense, petitioners countered that the property Co Uy was claiming was different from the one they were possessing, which they were already occupying for over 14 years in the concept of owners.
The MCTC, as later affirmed by the Regional Trial Court4 and the Court of Appeals,5 favored Co Uy and found him as the lawful owner of the subject land based on an undisputed survey report, which showed that petitioners' house was located within the portion of the subject land he so claimed.6
Upon affirmation on appeal, the MCTC issued a writ of execution to implement its decision. At this point, petitioners challenged the same on the ground of MCTC's lack of jurisdiction over the case.7 They submitted that since the parties were members of the ICCs/IPs, the Indigenous Peoples' Rights Act8 (IPRA) provides that the instant case should have been resolved before a tribal court after the application of customary laws and practices.9 The MCTC denied this belated challenge and issued a writ of demolition, which was once more challenged by petitioners on the same ground, and with the same challenge remaining pending before the MCTC.
Petitioners now come before the Court through a petition for mandamus, seeking to enjoin the MCTC from going forward with the execution proceedings for its alleged lack of jurisdiction. They submit anew that in accordance with Sections 13, 15, 63, and 65 of the IPRA, the property dispute should have been resolved through the application of customary laws before a tribal court, instead of before a regular court.10
The Court now dismisses the petition for mandamus for lack of merit.11
On a matter of procedure, it finds that petitioners' direct recourse from the MCTC to this Court disregarded the doctrine of hierarchy of courts.12 It also rules that mandamus cannot issue as prayed for since it only lies to compel an officer to perform a ministerial duty, which is not obtained in this case.13
Most importantly, on the applicability of customary laws in disputes involving parties who are members of ICCs/IPs, the Court rules that the National Commission on Indigenous Peoples (NCIP) does not have jurisdiction over disputes arising between or among parties belonging to different ICCs/IPs, or disputes where at least one of the parties is a non-member of the relevant ICC/IP. The Court recalls that jurisprudentially, it has clarified that in such instances, jurisdiction lies with the regular courts.14 It rules that since in the case at bar; only petitioners are members of the KKK-Alimaong Sugbo-anon Tribe, and that Co Uy is a non-member, the property dispute was correctly lodged before and ruled upon by the MCTC.15
I fully concur with the Court's principal findings on the delineation of jurisdictions between regular courts and Civil Code provisions vis-à-vis tribal courts and customary laws, even as I submit further discussions explicating the same.
Specifically, it bears recalling here the relevant provisions that the ponencia balances with the available remedies relative to a property dispute. As cited by petitioners, the IPRA provides:
CHAPTER IV
RIGHT TO SELF-GOVERNANCE AND EMPOWERMENT
Section 13. Self-Governance. — The State recognizes the inherent right of ICCs/IPs to self-governance and self-determination and respects the integrity of their values, practices and institutions. Consequently, the State shall guarantee the right of lCCs/IPs to freely pursue their economic, social and cultural development.
Section 15. Justice System, Conflict Resolution Institutions, and Peace Building Processes. — The ICCs/IPs shall have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as may be compatible with the national legal system and with internationally recognized human rights.
Demonstrably, the legislative desire to ensure that the ICCs/IPs are respected in their autonomy relative to their dispute resolutions is articulated in the foregoing provisions. This is further bolstered by the textual affirmation in the same law of the applicability of customary laws and traditions in settling disputes between and among members, thus:
CHAPTER VIII
DELINEATION AND RECOGNITION OF ANCESTRAL DOMAINS
Section 63. Applicable Laws. — Customary laws, traditions and practices of the ICCs/IPs of the land where the conflict arises shall be applied first with respect to property rights, claims and ownerships, hereditary succession and settlement of land disputes. Any doubt or ambiguity in the application and interpretation of laws shall be resolved in favor of the ICCs/IPs.
However, as the ponencia qualifies, the foregoing provisions must be jointly read and understood with Sections 65 and 66 of IPRA, which more particularly nuance and delineate the jurisdiction of the NCIP with respect to the enforcement of rights of indigenous peoples, i.e., disputes (as opposed to claims on ancestral domains), viz.:
CHAPTER IX
JURISDICTION AND PROCEDURES FOR ENFORCEMENT OF RIGHTS
Section 65. Primacy of Customary Laws and Practices. — When disputes involve ICCs/IPs, customary laws and practices shall be used to resolve the dispute.
Section 66. Jurisdiction of the NCIP. — The NCIP, through its regional offices, shall have jurisdiction over all claims and disputes involving rights of ICCs/IPs: Provided, however, That no such dispute shall be brought to the NCIP unless the parties have exhausted all remedies provided under their customary laws. For this purpose, a certification shall be issued by the Council of Elders/Leaders who participated in the attempt to settle the dispute that the same has not been resolved, which certification shall be a condition precedent to the filing of a petition with the NCIP.
In Unduran v. Aberasturi,16 then Associate Justice Arturo D. Brion's Separate Opinion thereto examined Section 66 of the IPRA more closely and arrived at the conclusion that the NCIP enjoys jurisdiction only with respect to property disputes involving parties who are members of ICCs/IPs, and excludes a scenario which involves a party who is a non-member thereof:
The NCIP's jurisdiction over disputes is limited where both parties are members of the same ICC/IP.
I join the ponencia in ruling that the NCIP does not have jurisdiction over disputes where one of the parties is a non-ICC/IP, or where the opposing parties are members of different ICC/IP.
My concurrence is based on the following: (i) Section 66 contains a proviso that limits the NCIP's jurisdiction; (ii) the RTC, not the NCIP, has jurisdiction to adjudicate violations of ICC/IP rights; (iii) Congress had no intention to apply customary laws to non-ICCs/IPs.
....
Section 66 is composed of three parts: the first states the NCIP's jurisdiction; the second requires the prior exhaustion of remedies under customary law; and the third states that a certification from the council of elders/leaders is a condition precedent to the filing of a petition with the NCIP.
The first part lays down the NCIP's jurisdiction, i.e., over all claims and disputes involving the rights of ICCs/IPs. The NCIP's jurisdiction is not dependent on who the parties are, but on whether the dispute involves the rights of ICCs/IPs.
However, the second part contains the proviso "Provided, However, That no such dispute shall be brought to the NCIP unless the parties have exhausted all remedies provided under their customary laws." The third part begins with the phrase "for this purpose"; the "purpose" referred to being the exhaustion of remedies under their customary laws.(awÞhi(
Jurisprudence tells us that the office of a proviso is to limit the application of the law.
Taking these considerations into account, while the NCIP's jurisdiction is initially couched in general terms to include any and all disputes involving the rights of ICCs/IPs, the second and third parts limit the NCIP's jurisdiction to disputes where both parties have remedies to exhaust under customary laws.
Consequently, the NCIP does not have jurisdiction over disputes involving non-ICCs/IPs because non-ICCs/IPs have no customary laws to exhaust.
The limitation likewise applies to disputes where the opposing parties are members of different ICCs/IPs.
Each ICC/IP has its own set of customary laws and council of elders/leaders. To require members of a particular ICC/IP to appear before the council of elders/leaders of another ICC/IP would be to require the former to observe the customary laws of the latter. This is repugnant to the right of each ICC/IP to use its own commonly accepted justice systems, conflict resolution institutions, and peace building processes or mechanisms.17 (Emphasis supplied; citations omitted)
Importantly, a close perusal of this limitation on the NCIP's jurisdiction in accordance with Section 66 of the IPRA is also contrasted with Sections 52(h) and 53, in relation to Section 62 of the IPRA, as well as Section 54 thereof, which collectively provide that the NCIP enjoys primary jurisdiction over adverse claims and border disputes relating to delineation of ancestral domains/lands, and cancellation of fraudulently-issued Certificate of Ancestral Domain Titles, regardless of whether the parties are non-members of ICCs/IPs, or are otherwise members of different ICCs/IPs groups.18
In this concurrence, I finally wish to add that the Court treads the careful delineation between the jurisdictions of tribal courts and regular courts because it must, as laws endeavor to, walk the tightrope between indigenous agency, autonomy and respect for customary laws, on the one hand, and the equally important due process requisites for non-indigenous members before regular courts, on the other. While not always easy, the interweaving of relevant laws provide guideposts to ensure that the balancing act never tilts too heavily on one side as to distort or undermine the right of the other.
ACCORDINGLY, I vote to DISMISS the petition.
Footnotes
1 Ponencia, p. 2.
2 Id.
3 Id.
4 Id. at 4.
5 Id.
6 Id. at 3.
7 Id. at 5.
8 Republic Act No. 8371 (1997).
9 Ponencia, p. 6.
10 Id. at 7-8.
11 Id. at 17.
12 Id. at 9.
13 Id. at 11.
14 Id. at 12.
15 Id. at 13.
16 771 Phil. 536 (2015) [Per J. Peralta, En Banc].
17 See J. Brion, Separate Opinion in Unduran v. Aberasturi, id. at 623-625.
18 Id. at 641.
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