UNITED NATIONS INTERNATIONAL SPECIAL COURT OF ARBITRATION and HUMAN RIGHTS

INTERNATIONAL TRIBAL COURT

(UNISCAHR-ITC)
Municipality of Socorro, Surigao del Norte, Philippines

HA DATU TAWAHIG
(Roderick D. Sumatra)
Petitioner- Appellant,
Case No. ITC –00119

RTC Case No.

-versus- R-CEB-19-03345-SP
For: Writ of Habeas Corpus

J/SUPT. RENANTE B. RUBIO and

HON. JAMES STEWART RAMON E. HIMALALOAN
Appellees
x--------------------------------------------------------/

DECISION
This resolves an appeal to the Decision dated 28 May 2019 of the Regional Trial
Court Branch 7 of Cebu City for the Petition for Writ of Habeas Corpus filed by
the Appellant on April 11, 2019 in a Special Proceeding No. R-CEB-19-03345-SP
praying that a writ of Habeas Corpus be issued and that he be restored of his
liberty and forthwith discharged from confinement.

The Petitioner-Appellant Ha Datu Tawahig (Roderick D. Sumatra), a Tribal

Chieftain of Higa-onon Tribe was charged by one count for rape by Alimaong
Solad Sal-ing (Lorriane Fe Igot) also a member of Higa-onon Tribe as manifested
in the complaint1dated September 5, 2006.

The Dadantulan (Tribal Court) composed of Tribal Leaders of different tribes of

Visayas and Mindanao took cognizance of the complaint.

On November 14, 2006, the complainant filed five counts of rape2 to the City
Prosecutor of Cebu City. The Honorable Cebu City Prosecutor I Lineth Lapinid
was informed that the case had already been filed in the Dadantulan (Tribal
Court).

On January 3, 2007 a Resolution3 was issued by the Dadantulan (Tribal Court)

DISMISSING the case and the fiscal was given the copy of the Resolution,
dispositive portion reads,

_______________________
1 Hand written complaint dated 5 September 2006 filed by Alimaong-Solad Sal-ing (Lorriane Fe Igot) for one count of rape.
2 Computerized complaint dated 14 November 2006 filed by Alimaong-Solad Sal-ing (Lorriane Fe Igot) for five counts of
rape
3 Resolution signed by different Tribal Leaders of Visayas and Mindanao acquitting the accused

1
 ―In light of all the forgoing, premises considered, that the Dadantulan Tribunal
concludes the innocence of respondent Supremo Ha Datu Tawahig (Engr.
Roderick Dyguaso Sumatra) that he is NOT GUILTY of the charge. He should [be]
spare[d] from criminal, civil and administrative liability.

Wherefore, the Dadantulan Tribunal RESOLVED for the dismissal of the case for
devoid of merit and bereft of probable cause‖

On April 4, 2007 Prosecutor Lineth S. Lapinid issued a Resolution4 that instead

of five (5) counts, it was reduced to only one (1) count of rape, stating that
“since the other four counts would reflect that the complainant’s behavior therefore,
is too unnatural for anyone who had suffered, through multiple rape incident within
short span of time for her allegations to be credible ‖ ; elevating the case to the
Regional Trial Court (RTC) Cebu City which was raffled to the Branch 12 RTC-
Cebu City. Presiding Judge Estela Alma Singco of RTC-12 Cebu City issued an
order for warrant of arrest for the accused in a case known as CBU-81130.

On July 2, 2013 Ha Datu Tawahig (Roderick D. Sumatra) on his way to Valencia

Bukidnon to officiate Tribal Wedding being the Grand National Baylan (Priest)
was arrested in Malaybalay City.

On August 29, 2013 Judge Estela Alma A. Singco denied the Motion to Quash
and issued an Order5 that R.A 8371 is for settlement of dispute that involves
ancestral domain only.

A Petition for Mandamus dated 19 October 2015 was filed by the Petitioner-
Appellant in the Honorable Supreme Court of the Philippines questioning the
jurisdiction of the RTC-12, and no final resolution was received by the Petitioner
after more than three years. In an Order dated November 22, 2018 the RTC-12
Presiding Judge Estela Alma Singco voluntarily inhibited from further hearing the
case CBU 81130 which caused the accused-appellant to file a Petition for writ of
Habeas Corpus on April 11, 2019.

The Petition for Writ of Habeas Corpus and the Motion for Reconsideration were
denied by the RTC-7 Cebu City Presiding Judge James Stewart Ramon E.
Himalaloan in a Court Order dated 23 April 2019 and 28 May 2019 respectively,

―xxx until to date the Honorable Supreme Court has not yet resolved the
issue on whether Branch 12 has no jurisdiction over the rape case; thus, it
is but proper for this Branch, on the precept of judicial courtesy, to dismiss the
instant petition in order not to render moot and moribound whatever be the
ruling of the Supreme Court. This inferior court must bow down to the majesty
of whatever ruling of the High Court. Anyway, if the Supreme Court will rule in
favor of the petitioner/accused, it will order the release of the accused from
custody of law since there is no more legal basis for his detention.

WHEREFORE, in view of the foregoing, the court DENIES the Motion for
Reconsideration for want of cogent reason to overturn the dismissal of the herein
petition. ‖

The above Decision was received by the Petitioner-Appellant on May 31,

2019 and a Notice of Appeal was then filed to RTC-7 Cebu City on June 4,
2019 copy furnished this court.
______________________
4 Resolution of Prosecutor Prosecutor Lineth S. Lapinid, elevating the case to the Regional Trial Court of Cebu City
5 Court Order dated August 29, 2013 denying the Motion to Quash filed by the accused-appellant

2
The Court Order dated June 6, 2019 of RTC-Branch 7 Cebu City denied the
Notice of Appeal of the Petitioner-Appellant for being unprocedural.

This Court was furnished with the denial Order June 6, 2019 of Branch 7 Cebu
City. This Court released an Order dated June 14, 2019 giving consideration of
the Petitioner-Appellant‘s Notice of Appeal as this Court follows the Tribal Court
Rules in harmony with the application of the NCIP promulgated Administrative
Circular No. 1-03, entitled ―Rules and Pleadings and Procedure before the
National Commission on Indigenous Peoples‖ and is not compelled to follow the
Civil Rules of Court.

The Petitioner-Appellant cited Justice Malcolm statement,

―a disregard of the constitutional right to speedy trial ousts the

court of jurisdiction and entitles the accused if “restrained of his
liberty, by habeas corpus to obtain his freedom‖ 6

The Decision of Supreme Court Third Division becomes moot and academic when
it‘s time to resolve this case had already lapsed, as the constitutional right of a
detainee to a speedy disposition of his case had been deprived.

This court took cognizance of the appeal because the Supreme Court being
mandated to resolve cases within twenty-four months from date of submission
per Article VIII Section 15(1) 1987 Constitution has been ousted of jurisdiction in
effect of failure to comply the mandate of the constitution,

―All cases or matters filed after the effectivity of this Constitution must
be decided or resolved within twenty-four months from date of submission
for the Supreme Court, and, unless reduced by the Supreme Court, twelve
months for all lower collegiate courts, and three months for all other lower
courts.‖
[Emphasis supplied]

The whole purpose of the writ of habeas corpus is to determine if the

petitioner is legally held.

Under the Article 2 of the Revised Penal Code

―Application of its provisions. — Except as provided in the treaties and

laws of preferential application, the provisions of this Code shall be
enforced not only within the Philippine Archipelago, including its
atmosphere, its interior waters and maritime zone, but also outside of its
jurisdiction, against those who:

1. Should commit an offense while on a Philippine ship or airship

2. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the
Philippine Islands;

_______________________

6 Duarte v. Dade, 32 Phil. 36; Quintos v. Director of Prison, 55 Phil. 304; Cruz v. Martin, 75 Phil. 11,
cited by Moran

3
 3. Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the presiding
number;
4. While being public officers or employees, should commit an offense in
the exercise of their functions; or
5. Should commit any of the crimes against national security and the law
of nations, defined in Title One of Book Two of this Code. ‖

The Republic Act No. 8371 ―The Indigenous Peoples Rights Act (IPRA)7 of 1997‖
is a special law and a law of preferential application as manifested in section 65
in relation to section 13 and section 15.

Consequently, the Revised Penal Code cannot be applied to the members of the
Indigenous Cultural Communities/ Indigenous Peoples (ICCs/IPs).

In other words, the International Covenant on Economic Social and Cultural

Rights (ICESCR), UN Convention ILO 169, and RA 8371 (IPRA) are exception to
the general rule. All criminal and civil cases of the ICCs/IPs cannot be applied
with the revised penal code because of these treaties.

International Laws and Treaties (ICESCR, ICCPR, UN-ILO Convention 169,

UNDRIP) are laws of coordination while national laws are laws of subordination.
So in dealing with the INDIGENOUS PEOPLES8, the civil government especially
the judiciary should be careful that they are dealing with Indigenous Peoples
who are persons under international laws.

The logical implication is that the detention is illegal.

Another thing that makes the detention illegal is the principle of

Non bis in idem (double jeopardy) that has been violated.

Under International Covenant on Civil and Political Rights (ICCPR), Article 14,
para 7,
―No one shall be liable to be tried or punished again for an offence for which
he has already been finally convicted or acquitted in accordance with the law
xxx.‖

The Petitioner-Appellant who is also the accused of the case CBU 81130 had
already been acquitted of the same case by the Dadantulan (Tribal Court) in a
Resolution dated January 3, 2007.

_______________________

7 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 13 Self-Governance-―The State recognizes the inherent right of ICCs/IPs to self-governance and

guarantee the right of ICCs/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.‖

8 Indigenous peoples are inheritors and practitioners of unique cultures and ways of relating to people and the
environment. They have retained social, cultural, economic and political characteristics that are distinct from those of
the dominant societies in which they live. <https://www.un.org/development/desa/indigenouspeoples/about-us.html>

4
 The United Nations empowers the Indigenous Cultural
Communities/Indigenous Peoples through the United Nations Declaration on the
Rights of Indigenous Peoples (UNDRIP) of 2007. The legality of the Tribal Court
is as follows:

Article 5, UNDRIP

Indigenous peoples have the right to maintain and strengthen their distinct political,
legal, economic, social and cultural institutions, while retaining their right to
participate fully, if they so choose, in the political, economic, social and cultural life of the
State.(Emphasis supplied)

Article 34, UNDRIP

Indigenous peoples have the right to promote, develop and maintain their
institutional structures and their distinctive customs, spirituality, traditions,
procedures, practices and, in the cases where they exist, juridical systems or
customs, in accordance with international human rights standards. (Emphasis
supplied)

Article 37, UNDRIP

1. Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors and to have States honour and respect
such treaties, agreements and other constructive arrangements.(Emphasis supplied)

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the

rights of indigenous peoples contained in treaties, agreements and other constructive
arrangements.

UN General Assembly of the Heads of States, paragraph 16, dated September

22, 2014 Resolution provides,

…”We acknowledge the Indigenous Peoples Justice Institutions played an

important role in the resolution of disputes…”

R.A. 8371, Section 13 “Self-Governance”

―The State recognizes theinherent right of ICCs/IPs to self-governance and

self- determinationand respects the integrity of their values, practices
andinstitutions. Consequently, the State shall guarantee the right of ICCs/IPs to
freely pursue their economic, social andcultural development.‖ (Emphasis supplied)

R.A. 8371, 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 andas may be compatible with the national legal system and with
internationally recognized human rights.‖ (Emphasis supplied)

5
 R.A. 8371, Section 65. “Primacy of Customary Laws and
Practices.

―When disputes involve ICCs/IPs, customary laws and practices shall be used
to resolve the dispute.‖ (Emphasis supplied)

Rule IV Part 1, sec 1 para b) of Rules and Regulations

Implementing Republic Act No. 8371, provides,
b) The indigenous structures, systems, and institutions are not supplanted
by other forms of non-indigenous governance; and/ or. (Emphasis supplied)

Rule IX, Section 2 , of Rules and Regulations Implementing

Republic Act No. 8371, provides,

Section 2. Rules of Interpretation. In the interpretation of the provisions of the Act

and these rules, the following shall apply:

g) All doubts in the interpretation of the provisions of the Act, including

its these rules, or any ambiguity in their application shall be resolved in
favor of the ICCs/IPs. (Emphasis supplied)

b) In applying the provisions of the Act in relation to other national laws, the
integrity of the ancestral domains, culture, values, practices, institutions,
customary laws and traditions of the ICCs/IPs shall be considered and given due
regard. (Emphasis supplied)

c) The primacy of customary laws shall be upheld in resolving disputes

involving ICCs/IPs. (Emphasis supplied)

xxx

f) In the resolution of controversies arising under the Act, where no legal

provisions or jurisprudence apply, the customs and traditions of the
concerned ICCs/IPs shall be resorted to; and

g) The interpretation and construction of any of the provisions of the Act

shall not in any manner adversely affect the rights and benefits of the
ICCs/IPs under other conventions, international treaties and instruments,
national laws, awards, customary laws and agreements.

That under Section 1, Rule IV, 2014 Revised Rules of Procedure before
the NCIP, provides,

RULE IV – PRECONDITION FOR ADJUDICATION

―Section 1. Exhaustion of Remedies Provided under Customary Laws.

– It is the responsibility of the complainant/ petitioner to set the case
for mediation and/or settlement. No case shall be brought before
the Regional Hearing Office or the Commission unless the parties
have exhausted all remedies provided for under customary
laws. The exhaustion of customary laws shall strictly adhere to the
processes and modes prescribed by customs and traditions duly
validated and/or documented.‖

and

6
 Part II, section 27, Rule X, 2014 Revised Rules of Procedure before
the NCIP, provides,

“Section 27. Appeal to the Court of Appeals. – Resolutions or decision of the

Commission en banc may be appealed to the Court of Appeals only by way of a
petition for review on certiorari.‖

Meaning, the Decision from NCIP Commission en banc may be appealed to the
Court of Appeals which excludes the Regional Trial Court from hearing cases
involving indigenous people due to lack of jurisdiction.

Criminal Cases that were remanded by Civil Courts to the Tribal

Court/Tribal Justice Institution:

In Criminal case No. 1527 for Direct Assault9 the Honorable Judge Vicente C.
Mondragon of Magpet Cotabato resolves,

―PRESENTED to the Court is the record of the present case for Direct Assault where both
the complainant and the accused belong to the same cultural tribe community no less
than the Manobo.

Section 15 of Republic Act no. 8371, otherwise known as THE INDIGENOUS PEOPLES
RIGHTS ACT OF 1997 provides:

―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.‖

Premised on the foregoing, the Court hereby forwards the records of the present case to
the Office of the Indigenous Peoples/Cultural Communities at Magpet Cotabato, for
appropriate proceedings.

SO ORDERED.

Magpet, Cotabato, April 6, 2001.‖

An aggravated theft case10 in Guatemala involving three members of

Indigenous Community, the UN –ILO convention 169 article 2, 8, 9, & 10
were implemented.

Relevant consideration of the Court:

“As such, the Judge presiding over the court proceedings, upon analyzing articles 46, 58
and 66 of the Constitution of the Republic of Guatemala as a legal basis for the
applicability of indigenous law, concluded that these guarantee the free exercise of the

_______________________
9 Criminal Case No. 1527 for Direct Assault
10 Guatemala Criminal Case: Summary of the Facts of the case, Application of ILO Convention No. 169 By Domestic

7
and International Courts in Latin America
rights enshrined in these articles and imply the right of every citizen to be tried according
to their own legal system within the framework of their cultural identity, distinct from
that which the State has defined as official. This implies respect for the legitimate
application of indigenous law within the constitutional framework of Guatemalan State.
In analyzing these articles, it is clear that the State has the obligation to recognize the
rights and existence of the “peoples” or indigenous communities in its legal structure.

xxx as set forth in the Advisory Opinion of the Constitutionality Court, which states: “This
court is of the opinion that having analysed Convention 169 it does not contradict what
is set forth in the Constitution and it is a complementary international legal instrument
that develops the provisions upheld in articles 66, 67, 68, 69 of the aforementioned,
which does not preclude but rather, to the contrary, serves to strengthen the system of
values proclaimed in the text of the Constitution”

“An analysis of the minutes dated 25 June 2003, signed by the authorities of the Chiyax
Community department of this municipality, reaches the same conclusion in the
punishment set forth therein, which does not contravene the provisions of International
Law on Human Rights nor the Constitution of the Republic of Guatemala, thereby
making its approval and legal recognition relevant. Based on those points and the
considerations of fact and law set forth above, which when considered together with the
Criminal Law principles of non-intervention or minimal intervention that basically state it
may be applied as a last resort only when all other legal proceedings have failed (which
is not the case because here there was a legal and effective application of Indigenous
Law in the resolution of the conflict) and when taken together with theprinciple of non
bis in idem, providing that a person cannot be tried twice for the same crime, it must
be considered that if one were to apply here an additional formal punishment or one
pursuant to the Criminal Code provisions, it would be contrary to the aforementioned
guiding principle. Since it is impossible to issue a final judgment, be it a conviction or
an acquittal in the case, the conclusion, given this impossibility to bring the matter to
trial, which is in itself objective grounds for a stay of proceedings of the criminal
action, is to declare in the present case that the prosecuting body has a lack of
capacity to bring the criminal and public action due to lack of exclusive jurisdiction in
the action, since it was entirely managed by the authorities of the Chiyax community
and in application of their indigenous law(…)” [emphasis supplied]

The International Labour Organization (ILO) Convention 169, the

Indigenous and Tribal Peoples Convention, 1989, concerning Indigenous
and Tribal Peoples in Independent countries, Article 9 and Article 10
provide,

Article 9,

―To the extent compatible with the national legal system and
internationally practiced human rights, the methods customarily practiced
by the peoples concerned for dealing with offences committed by their
members shall be respected. xxx ‖

Article 10,

―Preference shall be given to methods of punishment other

than confinement in prison.‖ [Emphasis supplied]

8
 In 1996, two parties belonging to the Tinggulan Tribe and who were also
close relatives had a disagreement while drinking. The argument resulted in
one party being stabbed to death by the other.

The case was filed in Court by the police, but because of the desire of the
Elders by reason of kinship, the Court brought back the case to the elders for
settlement.

―The main purpose of settling all kinds of criminal cases like

murder or rape is to reintegrate the accused into the community
and not to 11
be traumatized by the crime committed‖ .

This Court Affirms the Appeal.

Republic Act No. 8371 also known as Indigenous Peoples Rights Act of 1997
(IPRA) was adopted from the United Nations to give life the rights and the
institutions of the Indigenous Peoples that had long been dead and buried
through colonization.

Tribal Justice Institution or the Tribal Court is not a new institution per se
because it has been in existence since time immemorial long before the
colonization of Spain to Maisia (now Philippines).

In Isagani Cruz et al vs. Secretary of DENR et al, Vol. 347 SCRA (Supreme
Court Reports Annotated) page 180, states,

―The unit of government was the ―barangay‖ a term that derived its
meaning from the Malay word ―balangay‖ meaning, a boat, which
transported them to The barangay was basically a family-
based community and consisted of thirty to one hundred families. Each
barangay was different and ruled by chieftain called a ―dato‖. ―It was the
chieftain‘s duty to rule and govern his subjects and promote their welfare and
interests.A chieftain had wide powers for he exercised all the
functions of the government. He was the executive, legislator and
judge and was the supreme commander in

Laws were either customary or written. Customary laws were handed down
orally from generation to generation and constituted the bulk of laws of the
barangay. They were preserved in songs and chants and in the memory of the
chieftain the that those were laws written The
and his elders promulgated from time to time as the necessity arose.

_______________________

11 Atty. Roque Agton, Jr, NCIP-sDispute Settlement through Philippine Customary Law: A compilation
12 Teodoro A. Agoncillo, History of the Filipino People, 40
13 Id. at 40-41
14 Rafael Iriarte, History of the Judicial System, the Philippines Indigenous Era Prior to 1565, unpublished work
submitted as entry to the Centennial Essay-Writing Contest sponsored by the National Centennial Commission and
the Supreme Court in 1997, p. 103 citing Perfecto V. Fernandez, Custom Laws in Pre-Conquest Philippines, UP Law
Center p. 10 [1976]
15 Agoncillo, supra, at 41

9
 The oldest known written body of laws was the Maragtas Code by Datu
Sumakwel at about 1250 A.D. Other old codes are the Muslim Code of Luwaran
and the Principal Code of Sulu.
with various subjects, such as inheritance, divorce, usury, loans, partnership,
crime and punishment, property rights, family relations and adoption.‖ When
ever disputes arose, these were decided peacefully through a court ccomposed
by the Chieftain as ―judge‖ and the barangay elders as ―Jury‖. Conflicts
arising between subjects of different barangays were resolved by arbitration in
which a
(Emphasis supplied)

Invoking the rights of Indigenous Peoples to use their justice institution

Dadantulan (Tribal Court) pursuant to section 13, 15, 65, and 66 of RA 8371 and
other international treaties is not a way of avoiding prosecution from the regular
court, because it is undeniable that the customary law is very clear; it deals with
various subjects including crime and punishment.

Supreme Court Circular No. 14-93 dated July 15, 1993 which states,

―xxx where the dispute involves members of the same indigenous cultural
community, which shall be settled in accordance with the customs and traditions
of that particular cultural community xxx

In the same Supreme Court Circular No. 14-93, the term ―dispute”
includes criminal cases, to quote,

―Part I,

8. Disputes where urgent legal action is necessary to prevent injustice from

being committed or further continued, specifically the following:

a. Criminal cases where accused is under police custody or detention (see

Sec. 412 (b) (1), Revised Katarungang Pambarangay Law);‖

Xxx

The term ―dispute” as defined in the Supreme Court

Circular No. 14-93 which involves criminal cases is the same ―dispute”
also defined in RA 8371 which likewise includes criminal cases and in
which the Dadantulan Tribal Court deals with various subjects including
crime and punishment as discussed in the Supreme Court Report
Annotated vol 347, page 180 for G.R. No. 135385, Isagani Cruz et al vs.
Secretary of DENR et al. Therefore the statement that RA 8371 is for
settlement of disputes involving ancestral domains only is void. The law
gives respect the integrity of the values, practices and institutions of
Indigenous Peoples since time immemorial. To imagine that since time
immemorial, there were no criminal cases that Indigenous Peoples
encounter is very illogical and inconsistent of the reason why tribal law
codes and customary laws have existed.

_______________________

16 Amelia Alonzo, The History of the Judicial System in the Philippines Indigenous Era Prior to 1565,
unpublished work submitted as entry to the Centennial Essay-Writing Contest sponsored by the National
Centennial Commission and the Supreme Court in 1997.
17 Agoncillo, supra, at 42

10
 II

Customary Laws are God-given laws. They are written and unwritten laws of the
Indigenous Peoples. The written customary laws are mainly based on the Five
Books (Pentateuch) of Moses: Genesis, Exodus, Leviticus, Numbers,
Deuteronomy and the Code of Hammurabi, Code of Calanciao, Code of Maragtas,

Muslim Code of Luwaran and the Principal Code of Sulu. The unwritten
customary laws are kept by the Elders and passed from generations to
generations.

The bible decrees that ―if a man happens to meet a virgin girl who is
not engaged/betrothed and he seizes her and lies down with her and they
are discovered, the man who lay down with her must give the girl‘s father 50
silver shekels (50 silver shekels is equivalent to one (1) mina or about 100 days wage-
currency in Hebrew scriptures. For present generation the Bride Price in Philippine
Currency (Php) will be based on the status of the woman/girl whether a commoner
(Magdul); worker (Sabandal). For Royal families, severe penalty is imposed aside
from the Bride Price of not lower than millions of pesos) and she will become his
wife, because he humiliated her, he will not be allowed to divorce her as long as
he lives.18

Except for promiscuous women, adulterous wife, and non virgins other decisions
of the Dadantulan Tribunal will be based on the Luwaran, The Maguindanao
Code of Laws- Adultery and Seduction Article 40-45, Code of Sulu, Code of
Calanciao.

Tribal Laws also protected women, children, and families, providing for them. It
commanded parents to give their children constant attention and instruction in
spiritual things.19 It forbade all forms of incest, under penalty of death.20It
likewise forbade adultery, which so often breaks up families and destroys their
security and dignity. Tribal law provided for widows and orphans and in the
strongest possible terms forbade the mistreatment of them. 21

III

United Nations through its annual general assembly calls for every country to the
establishment of Laws for the Indigenous Peoples. Until today, this is a
continuing effort of the United Nations which involves reporting and monitoring
on issues regarding indigenous peoples.

In year 1997, the Philippines responded this call through signing into law the
Republic Act No. 8371 ―The Indigenous Peoples Rights Act of 1997‖(IPRA).

This was further strengthened by the United Nations Declaration on the Rights of
Indigenous Peoples of 2007 (UNDRIP).
_______________________
18 Deuteronomy 22:28-29
19 Deuteronomy 6:6,7
20 Hammurabi‘s Law Code #157
21 Exodus 20:14; 22:22-24 / <Code of Luwaran of Maguindanao & Code of Sulu>

11
In the United States of America, the Tribal Law and Order Act of 2010 is a law,
signed into effect by President Obama, that expands the punitive abilities of
tribal courts across the nation.22The law allows tribal courts operating in Indian
country to increase jail sentences handed down in criminal cases. This was after
adopting the strong call of the United Nations Declarations on the Rights of
Indigenous Peoples (UNDRIP) of 2007 Article 5, Article 34, and Article 37.

In Philippines R.A. 8371 has been in existence for 22 years and in spite of the
United Nations Declaration on the Rights of Indigenous Peoples(UNDRIP),
International Covenant on Economic Social and Cultural Rights (ICESCR) of 1966,
International Covenant on Civil and Political Rights (ICCPR) 1966, International
Labour Organization (ILO) Convention No. 169 of 1989 the true intent of these
laws and treaties are not given to life.

ICESCR General Comment23 No. 9 ―The Domestic Application of the Covenant:

03/12/98‖

―14. Within the limits of the appropriate exercise of their functions of judicial review,
courts should take account of Covenant rights where this is necessary to ensure that the
State‘s conduct is consistent with its obligations under the covenant. Neglect by the
courts of this responsibility is incompatible with the principle of the rule of law, which
must always be taken to include respect for international human rights obligations.‖

―15. It is generally accepted that domestic law should be interpreted as far as possible in
a way which conforms to a State‘s international legal obligations.Thus, when a domestic
decision maker is faced with a choice between an interpretation of domestic law that
would place the State in breach of the Covenant, and one that would enable the State to
comply with the Convenant, international law requires the choice of the latter.

Guarantees of equality and non-discrimination should be interpreted, to the greatest

extent possible, in ways which facilitate the full protection of economic, social and
cultural rights.‖

One of the recommendations of the United Nations‘ Special Rapporteur,

Mr. Rodolfo Stavenhagen,

―that the Philippine judiciary fully respects the legislative intent and spirit of IPRA
and ensure that maximum favour be accorded to indigenous peoples in resolving the
issue of

Special Rapporteur on the Rights of Indigenous Peoples, Ms. Victoria Tauli-

Corpuz, Geneva, 18 July 2019, statement,

―In my intervention today I would like to briefly refer to three issues reflected in UNDRIP
which have been the object of the work of EMRIP (Expert Mechanism on the Rights of
Indigenous Peoples) and myself during this past year: the questions of recognition,
remedy and reconciliation; indigenous justice systems; and the right of
indigenous peoples to self-determination. As all human rights, these issues are

_______________________
22 Peters, Gerhard; Woolley, John T.

American Presidency Project. University of California - Santa Barbara.

23 Prof Ibarra M. Gutierrez III, Manual on International Human Rights Treaties and Mechanism page 504
24 UN Commission on Human Rights, Human Rights And Indigenous Issues : Report Of The Special Rapporteur On The
Situation Of Human Rights And Fundamental Freedoms Of Indigenous People, Rodolfo Stavenhagen, p 3

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intimately connected. Thus, access to justice is a key element for reparation,
while the realization of indigenous peoples’ right to self-determination
depends on adequate recognition of indigenous peoples as subject of collective
and individual rights, which in turn is the only way to achieve redress and full
reconciliation.

Indigenous peoples around the world have suffered in the past gross and
systematic violations of their human rights, and those violations have ongoing
consequences in the present day that continue to affect their survival and well-being.
Throughout the Declaration there are calls for “effective mechanisms” for redress in
connection with a range of rights. Indeed, the Declaration in its entirety can be
understood as fundamentally a “remedial” instrument that aims at repairing the
effects of the historical denial of the right to self-determination and other
basic human rights affirmed in international instruments of general
applicability.

… To end these violations, it is essential to address their underlying causes, which are
very often connected to the historic dispossession and discrimination suffered by
indigenous peoples.

… Indigenous peoples’ interpretation should be the starting point for the

development and adoption of the legal, policy and administrative measures
required for their implementation. It is important to consider that remedy and redress
are not only legal concepts for indigenous peoples, but issues linked to the main aspects
of their history and their existence as differentiated societies.

Justice is an essential component of truth, reparation and reconciliation processes. I will

devote my thematic report to the Human Rights Council this year to the issue of
indigenous peoples and justice, considering the two main aspects of this topic:
recognition of indigenous justice systems and access to justice for indigenous
peoples, including in the context of post-conflict and transitional justice.

The Declaration contains clear and relevant provisions on those two aspects. Thus,
Articles 5 and 34 assert the right of indigenous peoples to maintain and
strengthen their political, legal, economic, social and cultural institutions and
to promote, develop and maintain their institutional structures, including their
juridical systems or customs in accordance with international human rights
standards. The Declaration furthermore affirms the right of indigenous peoples to
‗access to and prompt decision through just and fair procedures for the resolution of
conflicts and disputes with States or other parties, as well as to effective remedies for all
infringements of their individual and collective rights‘, which should give due
consideration ‗to the customs, traditions, rules and legal systems of the indigenous
peoples concerned and international human rights. My report contains recommendations
on how legal pluralism can strengthen the coordination and harmonisation between
indigenous justice mechanisms and the ordinary justice system.

EMRIP (Expert Mechanism on the Rights of Indigenous Peoples) studies on access to

justice have underlined the importance of recognition of indigenous justice systems, the
role of restorative justice, and the link between access to justice and truth and
reconciliation.

…I would like to take this opportunity to encourage the Human Rights Committee to give
renewed attention to indigenous justice system and consider, in consultation with
indigenous peoples, reviewing the references in its General Comment 32 (2007) to
“courts based on customary law”, in light of the United Nations Declaration on
the Rights of Indigenous Peoples.

I would like to conclude by stressing that the full implementation of the right of
indigenous peoples to self-determination is at the core of redress and the
foundation for reconciliation. In this sense, my report to the General Assembly
this year comments on some steps ahepad and challenges in the recognition

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 and exercise of indigenous self-determination through autonomy or self-
government arrangements. In my view, the recognition of the right of
indigenous peoples to self-determination has a transformative potential when
implemented at the national level. It implies changes in the general governance of
the States which will have a constructive impact in terms of human rights compliance;
remedy of discrimination, inequality and past and ongoing human rights violations; more
democratic and inclusive societies; and enhanced legitimacy of the State itself. I hope the
recommendations contained in the report can be useful for both indigenous peoples and
Member States to advance the implementation of the Declaration.‖

The Dadantulan (Tribal Tribunal) is one of the institutions that these laws and
treaties always emphasized in the recognition, respect and protection of Self-
government arrangements.

UN General Assembly of the Heads of States, paragraph 16, dated

September 22, 2014 Resolution provides,

…”We acknowledge the Indigenous Peoples Justice Institutions played an

important role in the resolution of disputes…”

To decide that R.A. 8371 is for the settling of Ancestral Domains only without
considering the international laws and treaties for the Indigenous Cultural
Communities and presented jurisprudence as previously mentioned is a gross
ignorance of the law.

To decide again the case CBU-1130 that had already been decided by a
competent, independent and impartial tribunal established by law-Dadantulan
(Tribal Court) which Decision is final and executory per customary law would
violate the principle of Non bis in idem (double jeopardy) and the Tribal
Customary Law. A violation of Customary law is a violation of a special law25

This is to remind that there has been a DILG (Department of Interior and Local
Government ) Memorandum Circular 2002-89 dated June 06, 2002 entitled

“Strict Implementation of Republic Act No. 8371 or the

Indigenous Peoples Right Act of 1997 (IPRA).‖

Under International Covenant on Civil and Political Rights (ICCPR)

Article 9, para 5,

―Anyone who has been the victim of unlawful arrest or

detention shall have an enforceable right to compensation.‖

_______________________

25 Administrative Circular No. 1 Series of 2003-Rule XVI Section 90. Nature of Offenses. Offenses or crimes in violation of customary
laws and offenses provided for and defined under R. A. No. 8371 shall be treated as violations of Special Laws.

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 Petitioner-Appellant through the tribal justice institution Dadantulan (Tribal
Court) has all the rights as provided by the Constitution, RA 8371, International
Covenant on Economic Social and Cultural Rights (ICESCR) of 1966, International
Covenant on Civil and Political Rights (ICCPR) of 1966, International Labour
Organization (ILO) Convention No. 169 of 1989 to be released from jail through
a writ of habeas corpus as his detention which starts with a void judgment is
illegal.

Supreme Court Decision for GR 221139 is settled considering the Article 2 of the
Revised Penal Code that exempts Indigenous Peoples in the application of
criminal law of regular court for it was considered in the Tribal Court of proper
jurisdiction.

WHEREFORE, the Appeal to overturn the Decision of the RTC-Branch 7 of Cebu

City is AFFIRMED. Respondents are directed to proceed in the RELEASE
FROM CEBU CITY JAIL IMMEDIATELY WITHOUT DELAY UPON RECEIPT
OF THIS ORDER the herein appellant HA DATU TAWAHIG (Roderick D.
Sumatra).

SO ORDERED.

Given in chambers, this 19thof September 2019, Sitio Atoyay, N. Sering, Socorro,
Surigao del Norte, Philippines.

Datu Dangilan (Rev. Dr. Alfredo E. Edillor, PhD., D.Hum, JD, CPE)
ICDRHRP Intergovernmental Organization Consul General for ICCs/ IPs, ASEAN
Co-Chair, Philippines, Indigenous and Tribal Relations
Judge Arbitrator and Executive Director, ISCAHR IGC*
* ISCAHR IGC-International Special Court of Arbitration and Human Rights Inter-Governmental Court**

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