OPINION NO. .... 3Lassirstair Republika ng Pilipinas

KAGAWARAN NG KATARUNGAN Department 4 Justice

Manila

SEP 0 5 2018 •

Vice Governor ANTONIO T. ALBANO National President League of Vice Governors of the Philippines Unit 511, Future Point Plaza 1, 112 Panay Avenue South Triangle, Quezon City

Dear Vice Governor ALBANO:

This has reference to your request for legal guidance relating to the interpretation of pertinent provisions of Republic Act (R.A.) No. 8371 or the Indigenous Peoples Rights Act (IPRA) and the administrative issuances implementing it. Attached to your letter is the Position Paper of the League of Vice Governors of the Philippines (LVGP) and the letter of Vice Governor Jose Mad G. Pelaez which laid out the Sangguniang Panlalawigan of the Province of Misamis Oriental's position on the same subject matter.

You state that the positions presented in the LVGP Position Paper are contrary to, and question, the existing rules, regulations and guidelines promulgated by the National Commission on Indigenous Peoples (NCIP) and the Department of Interior and Local Government (DILG) implementing Section 16 of the IPRA.

Specifically, the issues raised are:

Whether the guidelines prescribed under the pertinent Implementing Rules and Regulations and DILG-NICP JC No. 001, s. 2011 in the determination of Indigenous Cultural Communities (ICC)/ Indigenous Peoples (IP) representation in the sanggunian effectively implement Section 16 of the IPRA; and

Whether a sanggunian is required to recognize an IP mandatory representative, to whom a Certificate of Affirmation (COA) has been issued by the NCIP, when the laws, rules, regulations, requirements and processes pertinent thereto have not been complied with or despite the presence of disqualifications.

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OPIN!ONI NO 3G V201

Section 16 of the IPRA provides:

Right to Participate in Decision-Making — ICCs/IPs have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through procedures determined by them as well as to maintain and develop their own indigenous political structures. Consequently, the State shall ensure that the ICCs/IPs shall be given mandatory representation in policy-making bodies and other local legislative councils.

The issuances in question include the following:

Section 6, Part I, Rule IV of NCIP Administrative Order No. 1, series of 1998 or Rules and Regulations Implementing the IPRA;

NCIP Administrative Order No. 001, Series of 2009 or the National Guidelines for the Mandatory Representation of Indigenous Peoples in Local Legislative Councils;

DILG Memorandum Circular (MC) No. 2010-119 or the Mandatory Representation of Indigenous Cultural Communities or Indigenous Peoples in Policy-Making Bodies and other Local Legislative Councils; and

DILG-NCIP Joint Circular (JC) No. 001, Series of 2011 or the Guidelines for the Determination of the Minimum Threshold of IP/ICC Population in a Local Government Unit to Allow Mandatory Representation in the Local Sanggunians

Much to our regret, the opinion requested by the LVGP cannot be rendered by the Department.

The Secretary of Justice, as a matter of policy and established precedents, renders opinion or gives advice only for and upon request of national government functionaries, such as heads of departments and chiefs of bureaus and offices of equivalent rank, and only on specific legal questions and/or issues arising in the performance of their respective functions and duties. Accordingly, the Secretary has, in practice, consistently declined to render opinion or give legal advice upon request of other public officials, including local government officials, and private individuals or entities (Sec. of Justice Op. Nos. 4 & 28, s. 2012).

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OPINION NO 3C-S. 20Z.

Likewise, pursuant to R.A. No. 7160, otherwise known as the Local Government Code of 1991 (LGC), the Provincial Legal Officer is mandated to render legal services to the provincial government. It is the Provincial Legal Officer that renders opinion in writing on any question of law when requested to do so by the governor, mayor, or sanggunian (Sec. 481[b][3][iii] of R.A. No. 7160).

Moreover, the orders and issuances in question were issued by the NCIP and the DILG pursuant to their mandates. The NCIP is an independent agency under the Office of the President (Sec. 40, IPRA) while the DILG is a co-equal department. As such, the Secretary of Justice has no revisory authority over the NCIP and the DILG. By established policy and precedents, the Department has desisted from passing upon the official actuations of any government official over whom this Department has neither supervisory nor revisory authority (Sec. of Justice Opinion No. 86, s. 2013). This Department has adopted such policy not only for practical considerations but also out of respect and deference for the competence and expertise of the office or agency having primary jurisdiction to resolve the matter and for its familiarity with the policy repercussions of the issue, as well as the logical ricognition of the lawful exercise of an authority conferred by law (Id., Op. No. 35, s. 2012).

Further, issues involving questions of fact — such as whether the issuances in question effectively implement Sec. 16 of the IPRA or whether the requirements and processes pertinent to said issuances have not been complied with — fall outside the mandate of the Department to determine. In consonance with settled policy and precedents, the Secretary of Justice does not rule on issues involving questions of facts or mixed questions of fact and law (Id., Nos. 49, 39, and 30, s. 2012). This Office has consistently refrained from passing upon factual issues or legal questions mixed with factual matters, since by law, this Office is mandated to resolve purely legal issues (Id., Nos. 52 and 54, s. 1994, No. 75, s. 1988).

Nonetheless, for guidance and information only, we would like to invite your attention to provisions and jurisprudence relative to the legal issues involved.

Valid issuance of the regulations in question

In Republic v. Drugmakers Laboratories, Inc. (G.R. No. 190837, March 5,2014), it was enunciated that administrative agencies may exercise quasi-legislative powers only if there exists a law which delegates these powers to them. In Section 44(o) of the IPRA or R.A. 8371, the NCIP is granted the power to promulgate the necessary rules and regulations for the implementation of the Act. As in the case of Holy Spirit Homeowners Association v. Defensor (G.R. No. 163980), implicit in this broad power and the objective of the law to recognize, protect and promote the rights of ICCs/IPs is the power of the NCIP to formulate the guidelines to implement the mandatory representation provision under Section 16. These details are purposely omitted from

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OPINION NO. _3(' 5:20.16

the statute and their determination is left to the discretion of the Commission because the latter possesses special knowledge and expertise over these matters.

The JC of the NCIP and DILG provides for the Guidelines for the Determination of the Minimum Threshold of IP/ICC Population in a Local Government Unit (LGU) to Allow Mandatory Representation in the Local Sanggunians. It provides for thresholds in population and land area to determine the number of IP/ICC representative/s in the local Sanggunians. Such factors are not provided for under the IPRA but jurisprudence provides that where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute (Holy Spirit Homeowners Association v. Sec. Defensor, 529 Phil. 573, 585 [2006]). A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof (Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary, 238 SCRA 63). All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to but in conformity with the standards prescribed by the law (5igre v. Court of Appeals, 435 Phil, 711, 719 [2002]).

The power of the NCIP to promulgate guidelines in the implementation of Section 16 of the IPRA may not be considered unlimited as there is a sufficient standard guiding the delegate in the exerdse of said authority. That standard is discoverable in the IPRA itself which, in creating the NCIP, mandated it under Section 39 to protect and promote the interest and well-being of the ICCs/IPs with due regard to their beliefs, customs, traditions, and institutions (Eastern Sh:pping Lines v. POEA, G.R. No. 76633, October 18, 1988). In a number of cases, the Supreme Court has accepted as sufficient standards "public interest" in People v. Rosenthal(68 Phil. 328), "justice and equity" in Antamok Gold Fields v. CIR (70 Phil. 340), "public convenience and welfare" in Calalang v. Williams (70 Phil. 726) and "simplicity, economy and efficiency" in Cervantes v. Auditor General 91 Phil. 359).

Use of thresholds in determining IP representation

As with other statutes providing representation, indicators are utilized in order to determine the number of representatives or whether a given number of people is entitled to a representative. Under the Constitution, Article VI provides for indicators such as population and territory in determining representation for legislative districts (Section 5, paragraph 3). Further, R.A. 7160 also utilizes indicators in the creation or conversion of local government units which are also entitled to representatives (Section 7, Chapter II). The utilization of said indicators in the allocation of power is in accordance with the democratic principle enunciated in the Constitution (Article II, Section 1). In addition, Section 2 of the IPRA declares that the State shall recognize and promote all the rights of ICCs/IPs within the framework of the Constitution.

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OPINION NO,

As to the alleged conflict between the provision on mandatory representation of the IPRA and the LGC provision on sectoral representation, both provisions may be construed in such a way as to give effect to both legislative enactments. Section 467(c), Article III of the LGC provides that the regular members of the sangguniang panlalawigan and the sectoral representatives shall be elected in the manner as may be provided for by law. On the other hand, Section 16 of the IPRA provides that the ICCs/IPs shall be given mandatory representation in policy-making bodies and other local legislative councils. Pursuant to its mandate under the IPRA, the NCIP issued IRRs and other administrative issuances to implement Section 16 and these issuances have the force and effect of law as these were issued by the said administrative agency pursuant to the authority conferred upon it by law (Victor/as Milling Ca, Inc. v. Social Security Commission, 114 Phil. 555, 558 [1962]). The IPRA and the administrative issuances for its implementation may be considered as the specific law providing for ICC/IP representation. Although the IPRA and its implementing rules do not provide that said representative shall be "elected" as mandated by the LGC provision, the IRR does provide that the ICC/IP representatives shall be qualified and chosen by their own communities in accordance with a process to be determined by them (Rule IV, Section 6, paragraph 2, NCIP A.O. No. 1, Series of 1998). This is consistent with the policy of the State to take into consideration the customs, traditions, values, beliefs, interests and institutions of the ICCs/IPs in guaranteeing the realization of their rights (Chapter I, Section 2, last par., R.A. 8371).

Please be guided accordingly.

Very truly yours,

MENARDO EV RRA Secretary

D pa V. C C,' I IN IN

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