The Influence of Philippine Indigenous Law on the Development of New Concepts of Social Justice

Chapter 11
The Influence of Philippine Indigenous Law on the Development of New Concepts of Social Justice

Pacifico Agabin

When the Philippines became a colony of Spain in 1571, the laws of the colonizer were imposed on the colonized. At that time, there were already 130 ethnolinguistic groups in the Philippines.

The earliest inhabitants of the country, according to anthropologist Robert Fox (1959: 29), were the Tabon cave dwellers who must have inhabited the caves in Palawan as early as 50,000 years ago. Under wave migration theory, they would have reached the Philippines when it was still connected by land bridges to Borneo. Other scientists, however, think that the migration of the first wave of settlers came much later. Some scientists theorize that the Aetas or Negritos came during the Stone Age, about 8,000 B.C. (Peterson 1950: 232–33). The Malays came from Malaysia between 1000 B.C. and 500 A.D., during which period the Srivijaya, the great Malay empire based in Sumatra, colonized the Philippines as they founded their capital in Cambodia. The Malays came in boats called balangay and settled at river mouths, thus founding a river-based society (Peterson 1950: 233). This settlement pattern, at least, is the wave migration theory held by a number of Western scholars. However, F. Landa Jocano (1975: 30), a Filipino anthropologist, does not agree. He traces the Philippines’ earliest ancestors to the Java man, who is thought to have existed on the island of Java two million years ago. Later prehistorians postulate only two movements of people into Southeast Asia: the first movement was that of the Australoid people, exemplified by the Negritos. The second movement was thought to have been made by Southern Mongoloid people some 6,000 years ago (Scott 1994: 11).

The concept of indigenous people has been clarified in highly academic jargon by a recent law passed by the Philippine legislature. According to the law, the term indigenous people

refers to a group of people or homogenous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claim of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religion and cultures, become historically differentiated from the majority of the Filipinos.1

The term also includes

peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country at the time of conquest or colonization, at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains.”2

The American colonizers were more frank and direct. Calling the nation’s ancestor indigenes “non-Christian,” they defined this term as “natives of the Philippine Islands of a low grade of civilization living in tribal relationship apart from settled communities.”3

In short, the indigenous people of the Philippines share distinctive traits that set them apart from the lowland Filipinos: they are non-Christians; they live in less accessible, marginal, and mostly upland areas; they retain a system of self-government that is not dependent on the laws of the central administration; and they follow ways of life and customs that are perceived as different from those of the rest of the population (MacDonald 1995: 345). One scholar properly observes that indigenous peoples of the Philippines do not really fit into a single anthropological category. Some groups have centralized government; some do not. Some are wet-rice agriculturists; some are shifting cultivators. Some have a productive hunting-and-gathering spectrum of activities; some rely on marine products. Some are nearly completely acculturated; some are more resistant to change. However, MacDonald (1995: 347–48) argues that a very clear-cut gap sets them apart from the major social and historical trends in the Philippines and that they are in a very real sense ostracized by the larger society.

When the Spaniards colonized the Philippines, they recognized, in a way, the indigenous tribes. The indigenes were called indios by the Spanish conquistadores, who, like Christopher Columbus, thought that they were in India. The Spanish used this term, even though by 1521—the year Ferdinand Magellan stumbled on an island in the Philippine archipelago—people in the West knew that Columbus had not really reached India. Later, when the Spanish succeeded in converting most of the native lowland population to Christianity, they called the rest of the indigenous people infieles or feroces (pagans). The Spanish colonizers were convinced that the pre-Hispanic indigenous cultures were a “manifestation of the devil” (Schumacher 1979: 265). The Spaniards considered it their sacred duty to convert the natives living “in the obscurity of ignorance” to Christianity and to accord them the moral advantages of community life. Of course, the Spaniards’ concept of community was the reducciones, the mission towns occupied by forced relocation of indigenous populations.

When the United States took over the Philippines in 1898 as a result of the Treaty of Paris, they called the indigenous people “non-Christian tribes,” as opposed to the converted Christians in the lowlands. Explaining the use of the term, the American-dominated Philippine Supreme Court said in 1919 in Rubi v. Provincial Board of Mindoro that “the term ‘non-Christian tribes’ refers not to religious belief, but, in a way, to the geographical area, and, more directly, to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart from settled communities.”4 This leading case in Philippine jurisprudence shows how the colonizers imposed cultural imperialism on an indigenous tribe called Mangyans. The US colonial administrators compelled the members of the tribe to be resettled in a small area of their ancestral domain, thus treating them in much the same way that the US government treated the Native Americans in the United States. In the Supreme Court case, the members of the Mangyan tribe resisted, not by force of arms, but by using a concept borrowed from the US Bill of Rights, the concept of equal protection, coupled with the tool of the writ of habeas corpus. Denying the petition for habeas corpus, the Philippine Supreme Court held the following:

Segregation really constitutes protection for the [M]anguianes.

Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are free, and they are not the equals of their more fortunate brothers. True, indeed, they are citizens, with many but not all the rights which citizenship implies. But just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the progress of the State.5

This ruling illustrates the culture gap between the colonizer and the colonized, and it holds that law is an important aspect of culture.

With respect to the development of the Philippine legal system, Spain, as the colonizer, imposed the civil law system, represented by the Code Napoleon, on the Philippines. When the United States took over from Spain, the Americans superimposed the common law system on public law. Consequently, colonial Philippines bred a hybrid legal system—the civilian and the common law—that is alien to the native Filipinos. This hybrid system is the dominant law at present.

Differences in the Philosophical Foundations of Western Law and Indigenous Law

Both the civil law and the common law systems were founded on the philosophy of individualism. The civil law dates to a classical Roman law that puts a premium on the rights of the individual Roman citizen. Likewise, the common law, which reflects the individualist culture of the Teutonic races, became even more individualistic when it was reshaped in the United States in the mold of Puritanism.

In brief, both the civil law and the common law systems were planted on alien soil in the Philippines. The native Filipinos, who earlier fell under the influence of Hindu, Buddhist, and Confucian thought before they were colonized, were steeped in collectivist or communitarian philosophy. They placed social harmony above individual rights, welfare of the community over individual satisfaction, compassion above apathy, sacrifice over self-fulfillment, and spirituality above materialism. They taught that the social life of a person must always be in harmony with the universe. Thus, under such ideology, the indigenes’ customary law developed such notions as communal ownership of land, the right to ancestral domain, acquisition of virgin land through family cultivation, concepts of ecological (as distinguished from environmental) justice, and development of methods of resolving disputes by using a go-between or by the use of metaphors instead of logical reasoning.

How does custom become law in a given society? Hoebel (1954) lays down four basic elements of a legal system: (a) norms, (b) regularity of enforcement, (c) judgment mechanisms, and (d) enforcement. P.V. Fernandez (1976: 2) of the University of the Philippines College of Law, Quezon City, suggests two criteria proposed by legal anthropologists: first, there must be a rule of general character prescribing a specific norm of conduct, and second, there must be some form of sanction imposed by the community in case the norm is not observed. People can only speculate now on the basis of what they know from hindsight about which customs became law and which were discarded through the years. Some of the customs that replaced old ones may still exist—such as the custom of offering food to the gods or flowers to dead ancestors—but they have not qualified as law. For the second requirement—regularity of enforcement—consider that primitive society did not codify its laws. Therefore, the test for this requirement was met where a right or privilege was recognized, a duty or liability imposed, or a particular proceeding or other exercise of public authority was authorized (Fernandez 1976: 3). In some instances, the sanctions may have been acknowledged by the ancients to be imposed only by gods or spirits whom they worshipped or feared. For example, Fernandez (1989: 1–2) shows that the religious beliefs of the people of Bontoc, a province in the northern Philippines, are tied up with their justice system, as follows:

(a) It is the main force behind the system of taboo, consisting of prohibitions protective of community values.

(b) It is the sanctioning influence behind the sacred oath or pledge exacted of those adjudged guilty of a serious offense, to avoid repetition of the same offense.

(c) It is associated with power for the protection and vindication of the innocent, and for retribution upon the guilty and the unjust. It is the common consciousness of such power, which gives efficacy to the traditional remedies, especially the trial by ordeal as practiced by the Bontocs.

(d) It is the source of the cleansing rituals, by which offenders whose acts have placed them beyond the pale, are reconciled to their brethren, and are restored to the community.

(e) Its belief system invests with the balm of atonement, the harsh or even cruel penalties imposed on violators of Bontoc law, such as the penalty of mando.

As Hoebel (1954: 15) observes, sanctions for violation of norms may either be positive or negative. The positive sanctions may range from a pat on the back to posthumous enshrinement; the negative sanctions may range from the raised eyebrow through social ostracism up to execution. However, for such norms to qualify as law, the fundamental requisite is the legitimate use of physical coercion by a socially authorized agent (Hoebel 1954: 26). The word of law must have the sword of force, even if the sword remains in its scabbard.

As customs change and new ones take their place, the replacements may acquire general characteristics if they become acceptable to the populace. The process is both conscious and subconscious—hardly perceptible in one generation yet accepted in the next. Cultures are never static and, in the course of time, may produce results that, if compressed into a short time span, would be unacceptable to the members of a given society, explains Hoebel (1954: 13–14). However, the measure of consistency between basic postulates and between the postulates and the specific behavior patterns will be the measure of integration of the culture. William Henry Scott (1992: 10) cites as an example the custom of headhunting. Scott points out that an Austrian anthropologist, Ferdinand Blumentritt, thought the first wave of Malays that came to the Philippines were headhunters but that the second wave were not. Scott rejects the textbook theory that pre-Hispanic Filipino culture was a kind of formless clay ready to be stamped with patterns introduced from abroad. Rather, he continues, “it suggests a vigorous and mobile population adjusting to every environment in the archipelago, creatively producing local variations in response to resources, opportunities and culture contacts, able to trade and raid, feed and defend themselves” (Scott 1992: 12).

New Concepts of Social Justice Developed through Custom Law

Notwithstanding the fact that indigenous law has had no place at the table in the Philippine legal system and that indigenous people had been ostracized by Christian Filipinos, indigenous law has recently led Filipinos to develop new concepts of justice in four areas of the legal system: (a) social justice in ownership of land by adopting the concept of stewardship,6 (b) recognition of ancestral domain, (c) development of ecological justice, and (d) the use of alternative modes of dispute resolution that are conciliatory rather than adversarial.

Communal Ownership of Land as Stewardship

The concept of property ownership that the Philippines borrowed from the Code Napoleon is stated in article 428 of the Civil Code, which defines ownership as “the independent and general power of a person over a thing for purposes recognized by law and within the limits established thereby,” or “a relation in private law by virtue of which a thing pertaining to one person is completely subjected to his will in everything not prohibited by law or the concurrence with the rights of another” (Tolentino 1983: 45). Ownership of a thing gives the owner jus utendi (right of receiving from the thing what it produces), jus fruendi (right of enjoying), jus abutendi (right of consuming by its use), jus disponendi (right of disposing), and jus vindicandi (right to exclude third persons from possession).

In contrast to the individual notion of private property that the Spanish colonizers imposed on the Philippines, Philippine indigenous law of property ownership is communal in character. Indigenous law makes a distinction between possession and ownership. Possession is based on usufructuary (use or enjoyment) rights, whereas ownership is common, not individual. This distinction holds true especially for land rights, which evolved out of the culture and environment of the indigenes, who claim identity with their ancestral domains and the bodies of water that sustained their crops.

Before colonization in the Philippines, property was already seen as a bundle of rights. Property rights, such as usufruct, tenancy, and lease, as well as assignment of rights, were widely used before colonization, as the Spanish conquistadores found when they first arrived there. In other words, the Filipinos’ primitive ancestors developed what modern jurists call “legal postulates”—that is, generalized statements of the tendencies actually operating and of the presuppositions on which a particular civilization is based (Stone 1946: 337). A chief function of law, says Hoebel (1954: 16), is seen to be one of selecting norms for legal support that accord with the basic postulates of the culture in which the law system is set.

A good example of this selection of norms would be found in the northern Philippines’ Ifugao culture, which is based on irrigation of rice terraces carved out of the mountainsides. The Ifugao people evolved a system of water rights, which are perpetual but transferable. Thus, a transfer of rice lands includes rights to water that serves the field. Moreover, sources of water are both common and private property, and water flowing from springs is available to all takers on a priority basis. When ditches are constructed, interest in a ditch may be sold to others. However, the duty of maintaining a ditch belongs to all members. No new construction may impair the previously laid waterworks of others (Hoebel 1954: 108).

Henry Maine (1870: 269–70) believed that private property was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of the community. For example, the seventeenth-century Spanish chronicler Francisco Ignacio Alcina noted that among the Visayans, a large tribe in central Philippines, when arable land was still readily available, farmers simply drove a stake in the ground or cut some branches off a tree to establish their claim on the crops grown within the boundaries (Scott 1994: 37).

The notion of legal possession, usufruct, or tenancy, became a common practice under a Visayan datu (chief) who would assign rights to a member of his clan. And as the population increased, the indigenes began to discover new areas for farming, for setting fish traps, and for breeding animals. If they discovered a new spot for growing crops or for catching fish with the use of nets, they claimed preemptive rights of ownership. The concept of private ownership began to replace communal rights. But the Visayans had a different concept of land ownership. Ownership of land means the right to use the land. Among the indigenes, ownership was tantamount to work; if a person ceased to work, he or she would lose claim to ownership. This concept arose because the indigenous people considered themselves only as “secondary owners,” or stewards of the land, which was primarily owned by the spirits guarding the land (Leonen 2009: 200).

This understanding of land ownership probably explains why the early Filipinos worshipped a variety of spirits, deities, and anitos (ancestral spirits) called diwatas. Of course, this idea is not peculiar to Filipinos. The first Greek speculator in ancient Miletus, Anaximander, noted how “all things are full of gods,” meaning that nature is animated by principle. At this stage in the Philippines, all social and cultural activities were religious activities as well, and agriculture certainly had a religious aspect (Toynbee 1972: 48). Worship of spirits is one custom that the indigenes probably borrowed from the Hindu religion because a portion of the country, specifically the Visayan and Sulu islands, was part of the Majapahit empire from 1100 to 1300 (Wigmore 1936: 228). According to Wigmore, in the Philippines at that time, the more advanced tribe used Hindu syllabaries for writing, and the tribe’s mythology, folklore, politics, customs, law, and general literature had a distinct Indian cast. The spirits and gods were thought to be generally benevolent beings who could be entreated ritually for good harvest, health, and even fortune, but they also caused calamities and misfortune if not given proper respect.

An English philosopher (Grayling 2009: 444) views this animism as

the rudimentary and anthropomorphic forms of science and technology, in the sense that they were attempted explanations of natural phenomena such as thunder and wind—this is the science aspect—and attempts to influence the behavior of these natural forces, by petition, sacrifice, and taboo—this is the technology aspect.

This worshipful attitude toward anitos hovering over all of the environment provided the necessary sanction to customary law. The other members of the tribe eventually came to recognize claims of ownership for fear of displeasing the gods. A good example would be the Banaue rice terraces. Scott notes that among the Ifugaos, the irrigated fields in the rice terraces on the mountainsides came to be accepted as private property par excellence, like houses, textile, baskets, or pottery (Scott 1994: 261). However, such property and other valuables belonged to the family as a unit and not to any individual, and hence they could not be sold except under dire necessity and only with full approval of the owner’s kin (Hoebel 1954: 105). According to Barton (1919: 39), an American anthropologist who studied the Ifugaos, lands and other articles of value that have been handed down from generation to generation cannot be the property of any person: