I.
Liberty in the words of Justice Stevens
In October 1991, then United States Supreme Court Associate Justice John Paul Stevens delivered his keynote address in the University of Chicago Law School to celebrate the bicentennial of the Bill of Rights and the centennial of the University. Justice Stevens entitled his remarks “The Bill of Rights: A Century of Progress.”
In his remarks, Justice Stevens not only gave us an intellectual discourse on the progressive development of the bill of rights in the United States, more importantly he discussed as well the continuing judicial interpretation of the idea of “liberty” in constitutional law.
The Bill of Rights of the United States has had more than two centuries of development. A feat that would surely surprise the founding fathers of the American constitution, since their original intent was to have no bill of rights at all.
It was not that the delegates to the Constitutional Convention in 1787 were opposed to freedom of press, freedom of religion, and the rest. As George Washington later said in defending their monumental non-action, probably every one of them supported the principles later embodied in the first ten amendments to the Constitution. They did not vote against a bill of rights in order to subvert liberty, but from simpler and less sinister motives: (a.) They thought the bill of rights was unnecessary; (b.) They thought a bill of rights would be more or less useless; (c.) They thought a bill of rights might prove to be dangerous; and (d.) They were tired and ready to go home.
Realizing though the value of incorporating a bill of rights in the constitution, James Madison presented on May 25, 1789 before the United States Congress his proposed amendments on the Bill of Rights. It was subsequently adopted by Congress and ratified by several states.
In its first two centuries of existence, Justice Stevens in his aforementioned remarks described the nature of their development, as follows:
In the first century of existence, the Bill of Rights was, in some respects, comparable to the Magna Carta- a relatively static symbol of the general idea that the federal government has an obligation to obey the law of the land.
In the second century of its life, however the Bill of Rights became a dynamic force in the development of American law. The United States Supreme Court played a major role in that development.
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In this century, most of the significant cases raising Bill of Rights issues have, in the final analysis, actually interpreted the word “liberty” in the Fourteenth amendment. Indeed, the impact of that amendment on the Bill of Rights has also led to an expansion of the meaning of the word “liberty” as it is used in the Fifth amendment……. Thus, through the process of judicial construction, the Bill of Rights has become a shield against invidious discrimination by the Federal Government as well as a shield against the misuse of state power.”
Having remarked on the progress of the judicial interpretation of “liberty” in the bill of rights in the two centuries of its existence, Justice Stevens further pointed how such development has been manifested throughout the years. He made mention of the following:
· The general requirement that there must “due process” which appears in both the fifth and the fourteenth amendments-arguably should not encompass such specific guarantees as the right to speedy trial, the right to counsel, or the right to compulsory process because the Sixth amendment would be redundant if those rights were already protected by the fifth amendment’s general guarantee of due process.
· The Due Process Clause of the fourteenth amendment does require the states not only to comply with specific procedural protections in the Bill of Rights, but also to respect certain substantive guarantees. The Court’s interpretation of that clause makes some state action entirely invalid regardless of the procedures the state may employ in enforcing its command.
· The Due Process Clause of the fourteenth amendment provides substantive as well as procedural protection and also the proposition that the term “liberty” embraces the right of free speech.
· The concept of liberty includes unenumerated rights, e.g. the right to counsel in the fifth amendment includes the right to competent counsel; the individual freedom of conscience protected by the first amendment embraces the right to select ant religious faith or none at all.; right to marry; the right to travel; the right to exercise dominion over one’s body, and the right whether to bear a child.
II.
Liberty: The Philippine perspective
In the case of Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills Co., Inc., the Supreme Court said that, the bill of rights is designed to preserve the ideals of liberty, equality and security against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments and the scorn and derision of those who have no patience with general principles. The purpose of the Bill of Rights is to withdraw subjects from vicissitudes of political controversy, to place them beyond the reach of majorities, and to establish them as legal principles to be applied by the courts.
Chief Justice Enrique Fernando in his 1974 treatise on the Philippine Constitution classified the Bill of Rights into three , to wit:
· Liberty and property as limited by police power, taxation, and eminent domain and as safeguarded by the due process, equal protection, and non-impairment;
· Intellectual Liberty comprising freedom of religion, freedom of speech and press, freedom of assembly and freedom of association; and
· Physical Liberty in which are included the privilege of the writ of habeas corpus, freedom of person, home, and possessions including the right of privacy, and the rights of an accused.
Applying the said classification to the 1987 Constitution’s Bill of Rights:
Liberty and property as limited by police power, taxation, and eminent domain and as safeguarded by the due process and equality clause:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Section 9. Private property shall not be taken for public use without just compensation. Section 10. No law impairing the obligation of contracts shall be passed.
Intellectual Liberty:
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.
Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.
Physical Liberty:
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families. Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.
Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.
Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.
Section 17. No person shall be compelled to be a witness against himself.
Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.
Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.
Section 22. No ex post facto law or bill of attainder shall be enacted.
The juridical concept of liberty, according to Chief Justice Fernando was nothing new, to wit:
“The earliest and most comprehensive formulation under the previous organic acts, is found in Justice Malcolm’s opinion, speaking for the Supreme Court in Rubi vs. Provincial Board (39 Philippine Reports 660): Civil liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. The right to liberty guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal restraint or servitude.”
Unlike the American constitution’s Bill of Rights which has endured more than two centuries of discourse and challenges, the Philippines’ Bill of Rights did not go through the process of transformation from a static symbol to a dynamic force as Justice Stevens described it.
The Philippines’ Bill of Rights, being an adaptation of western influences has never been seen as a symbol, instead, it is viewed as a dynamic assurance that liberty is alive and well and can be exercised by all.
The Supreme Court in the case of Ordonez vs. Director of Prisons said:
Liberty is not derived from the sufferance of the government or its magnanimity or even from the Constitution itself, which merely affirms but does not grant it. Liberty is a right that inheres is every one of us as a member of the human family. When a person is deprived of his right, all of us are diminished and debased for liberty is total and indivisible.
In Republic vs. Sandiganbayan , the High Court further said:
Being substantially a copy of the American Bill of Rights, the history of our Bill of Rights dates back to the roots of the American Bill of Rights. The latter is a charter of the individual's liberties and a limitation upon the power of the state 182 which traces its roots to the English Magna Carta of 1215, a first in English history for a written instrument to be secured from a sovereign ruler by the bulk of the politically articulate community that intended to lay down binding rules of law that the ruler himself may not violate. "In Magna Carta is to be found the germ of the root principle that there are fundamental individual rights that the State — sovereign though it is — may not infringe." 183 (emphasis supplied)
In Sales v. Sandiganbayan, et al., 184 quoting Allado v. Diokno, this Court ruled that the Bill of Rights guarantees the preservation of our natural rights, viz:
"The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities."
III.
Liberty in the age of terror
While the Bill of Rights now stands as a sentinel to ensure the protection of liberties, there is now a growing school of thought that traditional views on liberties is passé in a post 9-11 scenario, where terrorism and extremism are the buzz words. This historical phase is important as it will greatly contribute to the so-called development of liberty in the life of the Philippines’ Bill of Rights.
This debate is well reflected with the passage of the so-called “Human Security Act of 2007.”
Republic Act 9372, otherwise known as the “Human Security Act,” is probably the most dangerous piece of legislation passed by the Philippine Congress. It is replete with provisions that violate the Constitutional guarantees to freedom of speech, freedom of communication and correspondence, right to travel as well as an individual’s right to be secure in their things and in their person. Some of the law’s onerous provisions include the following:
First, the restriction on the person’s right to travel is not reasonable as it may be undertaken even when the evidence of guilt is not strong. The person under house arrest may be prohibited from using the Internet, cell phone, telephone or any other means of communication, thereby effectively rendering him incommunicado. This curtailment of mobility may be stopped only upon acquittal. In the meantime, the person has already been unduly deprived of necessary communication with family or friends.
Second, police, military or any government law officer, without incurring any criminal liability, may engage in wiretapping, to the detriment of the people’s inviolable right to privacy. This may be done through an ex parte written application before the Court of Appeals.
Third, though it is only a precautionary measure, RA 9372 does not preclude the fact of possible infringement into private conversations among citizens who are merely exercising their right to freedom of expression. Though there is a provision of informing the person that he is being placed under surveillance, it is a belated mechanism where the probability of violation of civil rights may have already been committed.
Fourth, even the legitimate exercise of one’s right for redress of grievances may be considered as “terrorism,” by reason solely of one’s membership in an organization, association or group of persons that has been proscribed as “terrorist,” even if the charge may be baseless or manufactured.
Fifth, a person may be arrested and detained without judicial warrant of arrest for a period of three (3) days, where the arresting officer shall not incur any liability. This may be utilized as a means to harass those who are critical of the government, or even those who may be the subject of mere personal enmity by police officers and other law enforcers.
Sixth, though there is a requisite procedure before detention (i.e., presentation before the judge and the written report of such judge), for a person merely exercising freedom of expression, being penalized with three (3) days of imprisonment without sanction on the arresting officer is an insult to the civil liberties we enjoy as a people.
Seventh, bank deposits, accounts and records may be examined through a mere ex parte written application by the police and military officers. The written application and order of the court allowing such examination is considered classified information.
Eighth, this is also applicable in the disposition of the frozen bank deposits, placements, trust accounts, assets and records of a suspect. Should the person be later on adjudged innocent, there is already a deprivation of the enjoyment of one’s assets. No matter how much recompense the person may be given in exchange, this does not erase the stigma and the hardship that his family already went through.
According to the provisions of the law, which I would like to describe as a law on “panic,” there is no clear definition of who a terrorist is. A person may be labeled as a terrorist by reason solely because of his political or religious belief and his defense thereof. The law’s definition of terrorism is too broad and too sweeping, covering many crimes that are already punishable under existing laws. The law also blurs the distinction between real acts of terrorism and ordinary crimes. Worse, it can be interpreted to include all acts in pursuit of legitimate dissent. In a time of intense crisis and undisguised political repression, the law can and will be used to illegalize the legitimate activities of critics and opponents of the current administration.
The vagueness of defining a terrorist is not limited to the Philippines alone. Since 1995, the United Nations has yet to come up with a clear definition of who or what a terrorist is.
IV.
Final Statement
Liberty in its phases has its history and connotation. In ending his treatise on the bill of rights, Justice Stevens cited the words of Justice Cardozo on the progress in the development of the law:
…is neither a straight line nor a curve. It’s a series of dots and dashes. Progress comes per saltum, by successive compromises between extremes, compromises often, if I may borrow Professor Cohen’s phrase, between positivism and idealism. The notion that a jurist can dispense with any consideration as to what the law ought to be arises from the fiction that the law is a complete and closed system, and that judges and jurists are mere automata to record its will or phonographs to announce its provisions. Ideas of justice will no more submit to be banished from the theory of law than from its administration.
In this period of our history where there is a clash of ideas as to the context of liberty in the age of terrorism, there is anticipation on whether the sound judgment of the courts in interpreting the bill of rights will lead to progress or otherwise. We can only hope that such interpretation will be seen as a series of dots and dashes and not as a curve downward.
Thursday, July 12, 2007
Thursday, June 21, 2007
Ifugao Law
This is not a synopsis of what is acknowledged to be a classic piece in Philippine ethnology and the law of primitive people. This is rather an attempt to present the fundamental principles and rules, social norms of conduct and the allocation of authority among the Ifugaos and its relevance to the development of Philippine Modern Law. Although principally based on R.F. Barton’s “Ifugao Law” which was first published in 1919, other materials were also consulted and used as secondary sources.
The contributions of the Ifugaos to the development of law in the Philippines cannot and should not be underestimated. E.A. Hobel, in his “Introduction” to Barton’s study of Kalinga, characterizes the contribution as follows:
“Ifugaos are the star examples of how far a system of private law can go. They demonstrate that anarchy is not necessarily synonymous with disorder. Their system also shows up nicely the limitations in a legal order that depends primarily upon the kinship group of persons.”
For purposes of this report, the following materials were also used as sources:
1. Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” published in the Journal of Libertarian Studies, 1989.
2. Bruce L. Benson, “Customary Law with private means of resolving disputes and dispensing justice: A description of a modern system of law and order without State Coercion,” published in the Journal of Libertarian Studies in 1990.
Sources, Concepts and Principles of Ifugao Law
A. Sources
Bruce Benson citing Lon Fuller maintained the view that customary law is:
A branch of constitutional law, largely and properly developed outside the framework of our written constitutions. It is constitutional law in that it involves the allocation among various institutions . . . of legal power, that is, the authority to enact rules and to reach decisions that will be regarded as properly binding on those affected by them.[1]
This view is apt in describing the sources of Ifugao Law. R. F. Burton wrote that, “the Ifugaos have no form of writing: there is, consequently, no written law. They have no form of political government: there is therefore, no constitutional or statutory law. Inasmuch as they have no courts or judges, there is no law based on judicial decisions.”
There are two sources of origin of Ifugao Law, to wit:
1. Taboo - The Ifugao word for taboo is paniyu. The root which appears in varying forms are : iyu, iho, iyao and ihao. Such terms in general mean “evil” or “bad.” The prefix “pan” denotes instrumentality or manner. The word paniyu means both by derivation and use as “bad way of doing” or “evil way.” The greatest number of paniyu in Ifugao have their origin in magic.
Examples of paniyu are:
a.) Pregnant women may not wear a string of beads since the beads form a closed circle and have a magic tendency to close her body and cause difficult childbirth.
b.) It is taboo for persons of other districts to pass through a rice field when it is being harvested. It is also taboo for foreigners to enter a village when the village is observing its ceremonial idleness, tungul at the close of harvest time. Any one who breaks this taboo are subject to a fine, or if there is reasonable belief that, it could not be collected, he may be subjected to the death penalty.
Burton believes that, a small part of Ifugao taboo are arbitrary and unreasonable. But a large part of it has gone beyond this stage and is on a firm and reasonable basis of justice, e.g. adultery, theft.
2. Customs. – This pertains to property, inheritance, water rights and to a great extent, family law and procedure.
B. Concepts and Principles of Ifugao Law
Benson in his article on Property Rights in Primitive Societies[2], wrote that:
Privately produced law in primitive societies is not unique to the American Indian For example, "the great significance of the Ifugao for the study of the nature and function of primitive legal and political institutions rests in the fact that they reveal how far it is possible to elaborate a system of interfamilial law on the foundation of quite elementary social structure. They reveal how wrong are political theorists who hold that law and government are wholly indivisible.
This view of Benson is an affirmation of the following general principles of the Ifugao Legal system cited by Burton, to wit:
a. It is personal in character. Society does not punish injuries to itself. This proceeds from the fact that, there is no organized society among the Ifugaos.
b. There is a collective responsibility among the Ifugaos. Not only the individual who commits the act is punished, but also that of his kin, depending on their nearness.
c. A collective procedure is adopted. Legal procedure is by and between the families. A member of an Ifugao family assists in the punishment of offenders against any other member of his family, and resists the punishment of members of his family by other families.
Since legal procedure is between families, and never between individuals, nor between a family and an individual, crimes of brother or sister against brother or sister go unpunished. The family of the two individuals is identical. A family cannot proceed against itself.
d. Might is Right in the administration of justice. For a given crime, one family on account of superior war footing or superior diplomacy will be able to exact much more severe penalties than another.
Substantive Law of the Ifugaos
A. The Family Law
I. The Nature of Marriage
Marriage among the Ifugaos is a civil contract of undefined duration. It may last a month, a year, a decade, or until the death of one of the parties to it. It has no essential connection to tribal religion.
No promises are made by the contracting parties to each other or to anybody else. Nor do the contracting parties take any part in any religious ceremonials or in any marriage ceremonials of any kind. Marriage may be terminated at any time by mutual agreement. However, since it is considered as a contract, if either party terminate the marriage against the will of the other, the injured party has the right to assess and collect damages.
II. Eligibility to Marriage
Any person of age may marry. The consent of the parents is not necessary. But it is considered taboo for cousins within the third degree to get married.
III. Two ways how marriage is contracted
a.Contract Marriage
The contract marriage is usually arranged for, and its first ceremonies at least performed while the children are quite small. It is applied to children who will inherit a great amount of property. Its purpose is to prevent the child from committing a so-called mistake of marrying later on another person who will inherit property of lesser extent and value.
As a rule, the couple married by a contract marriage while yet children are elevated by the uyauwe feast to the category of the kadangyang (upper class).
b. Trial Marriage
The trial marriage is merely a primitive sexual mating in the dormitories of the unmarried. Generally, it requires two or more trial marriages to select a person for his more permanent mate.
IV. Marriage Ceremonials
The marriage ceremonies conducted by the Ifugaos are as follows:
a. The Mommon. – The boy’s kin sends a pig to the girl’s kin. The omen of the bile sac is consulted.
b. The Imbango. – Another pig is sent by the boy’s kin to the girl’s kin. Again, the omen of the bile sac is consulted.
c. The Mangdad. – The girl’s kin sends a pig to the boy’s kin. It’s a contingency measure on the part of the girl’s kin to prevent the boy’s kin from demanding a return of the gifts earlier sent should the marriage fail to take any effect for any reason.
d. The Hingot. – The boy’s kin sends another pig. The omen of the bile sac is again consulted.
e. The Bubun. – The kin of both parties meet at the girl’s house and a large pig given by the boy’s kin is sacrificed. The boy’s kin also during the ceremonies gives other gifts as well to the kin of the girl.
If in the course of any of the ceremonies, in case a bad omen is encountered in the bile sac is seen, the marriage does not proceed.
V. Obligations incurred by those who enter into a marriage contract.
1. To abstain from sexual relations with any other person.
2. The boy and his kin are obliged to furnish the immediate family of the girl with firewood from the time at which the first ceremony is performed until the young couple separate to live in a house by themselves.
3. The boy and his kin must keep the granaries of the family of the girl in repair, and to reroof them whenever necessary.
4. Each family must help each other in all that pertains to rice culture throughout the first year following the last marriage ceremony.
5. It is the duty of either spouse to furnish a pig to the other in the event of the sickness of the other or of any his or her lineal ascendants.
6. It is the duty of either spouse to furnish the other in the event of the death of any of the lineal ascendants of the other, a pig and a death blanket.
If the spouses are too young to attend to any of their respective obligations, it shall be the duty of their parents to attend to the discharge of their obligations. The non-fulfillment or the non-discharge of any of the above obligations is a sufficient cause for a demand for divorce on the part of the injured spouse.
The husband and wife are never united into one family. They are merely allies. The ties that bind the spouses to their respective families are much stronger than the ties that bind them together.
VI. Property Rights acquired by marriage.
Neither spouse acquires any interest in the property that the other possess at the time of the marriage. Each however has the right to veto the sale or transfer of family property of the other except where legal and sufficient reasons exist for such transfer.
The spouses have a joint right in all property acquired after marriage as a result of their joint labors.
VII. Remarriage of the widowed.
Even death itself does not terminate the marriage, nor the alliance forged between the two families. This can be terminated by a payment known as the gibu.
A remarriage may not properly be effected by the widowed until he has paid the kin of the dead spouse the gibu. Failure on the part of the widowed to make this payment would lead to a seizure of his property or a lance throwing.
It is considered an insult to the deceased and his kin for a widowed person to remarry within a year from the death of his spouse. In such an event, a larger gibu is demanded by the kin of the dead spouse.
VIII. Divorce
The following are the recognized causes for divorce:
a. ) Divorce because of necessity. - This includes the presence of a bad omen of the bile sac.
b.) Divorce for mutual benefit. – childlessness for a period of two or three years after marriage; death of an offspring
c.) Divorce as demanded by either party. – Cruelty and incompatability of the parties; desertion; adultery; unreasonable or insane jealousy.
It is only when the divorce is by mutual agreement that divorce is attended by ceremonies.
Where there are no children, each spouse takes the property that he brought to the marriage, together with any property received by inheritance or solely by virtue of his relationship to his own family.
Where there are children of the union, the woman has the right to the children. Whoever takes the children take possession of the property that belongs to the spouses. All the property of both the spouses are assigned to the children at the time of the divorce.
IX. Dependents in relation to Ifugao family law
a.) Adopted Children. - Rather rare in Ifugao society. Usually, the child adopted is related to the adopter.
b.) Illegitimate children. – Not a frequent occurrence in Ifugao society. A bastard is one whose father refuses to take the mother as his legal wife for any period of time, however short.
The father of a bastard must give his child a rice field if he has a field unassigned. He must also give the mother an oban or blanket with which to carry the child. An illegitimate child has the same rights as a legitimate child.
B. The Property Law
There are two classes of property in Ifugao society, to wit:
1. Family Property or Ma- Ibuy. – Family property consist of rice lands, forest lands and heirlooms. Their possession is more of the nature of a trust than an absolute ownership- a holding of a trust for future generations. They are often the common property of a group of kinsmen and their families. The sale of such class of property is a matter of practical concern to the entire family. The sale of such property is attended by a ceremony.
There are two kinds of transfer of family property, to wit for “consideration” or balal, and outright sale. In a “balal,” the buyer or creditor of the property holds, plants and harvests the property until the debt is paid. The property is to all purposes, his except that he cannot sell it. He can however transfer it as a “balal” again to another person, for a lesser amount.
2. Personal Property or Adi Ma-Ibuy. – Houses, valuable trees, knives, spears, dishes, camote fields, blankets, animals and articles of minor values are considered as personal property.
Personal property is transferred without formality.
Property is transferred within a family by two methods, namely:
1. Assignment and transfer of property during the lifetime of its owner.
2. Inheritance
In Ifugao Law, the law of primogeniture is applied. Under this law, a greater portion of the property is inherited by the elder child than the younger ones.
In terms of the extent of borrowing and lending practices of the Ifugaos, interest on things borrowed is exceedingly high.
C. Penal Law
The Ifugaos have two punishments for crimes, which are inflicted and executed by the offended person and his kin:
1. The death penalty; and
2. Fine
The following circumstances affect criminal responsibility:
1. Alienship - If the culprit be of a foreign village, the fact that he is a foreigner is an aggravating circumstance. If found in delicto, he shall put to death.
2. Kinship - It is a strong mitigating circumstance that often results in the exemption of a guilty person altogether from any liability.
3. Confession – Confession before steps have been taken to inflict punishment alleviates a person from any liability except in murder and adultery.
4. Relative rank of the offender and the offended – The imposition of the fine is dependent on the rank and standing of the individual in society.
Gulad or Intent is the greatest single factor in determining penal responsibility. A deed committed without intent and without carelessness is excused, e.g. wounding another without intent; accidental killing of animals.
The principal crimes in Ifugao society are either major or minor offenses. The major offenses are:
1. Sorcery
2. Adultery
3. Theft
4. Murder
5. Kidnapping
6. Manslaughter
7. Rape of a married woman
8. Arson
9. Incest
The minor offenses are, punishable by fines are:
1. Insult
2. Slander
3. False accusation
4. Rape of a girl
Notes on Penal Laws:
1. The Ifugao has no tribunals to sentence, and no government to execute.
2. The Ifugaos have one general law. That law is: A life must be paid by a life.
3. Public opinion custom, or both, justify the taking of a life in punishment for the following crimes: sorcery, murder, persistent and wilfull refusal to pay a debt when there is ability to pay, adultery discovered in flagrante, theft by one of a foreign district, refusal to pay a fine assessed or injury suffered.
4. In feuds between families of different districts, heads might or might not be taken. Usually, they are taken, if there are no ties of kinship between the districts.
PROCEDURAL LAWS OF THE IFUGAOS
Family unity and cooperation is the basic rule of procedure in Ifugao law. An Ifugao’s family is his nation. It is the executive and judicial body. The following rules and principles apply to the families and individuals in the matter of procedure:
1. The first step in any legal procedure is to consult with one’s own kin and relatives. In initiating steps to assess a fine or collect an indemnity, the next step is the selection of a monkalun.
2. The office of the monkalun is the most important one to be found in Ifugao society. The monkalun is a whole court. He is the judge, prosecutor and defending counsel at the same time. His duty and interest is for a peaceful settlement. To this end, he must exert all efforts through diplomacy. The monkalun should not be closely related to either party in a controversy. He however has no authority and his only power is to exert a settlement.
3. In proceedings before the monkalun, litigants do not confront each other. There are also no oaths or formalities in the giving of testimony.
4. In criminal cases, where the accused persistently denies his guilt, ordeals or trials are resorted, such as the hot water ordeal; hot bolo ordeal; wrestling; or a duel.
5. A truce is sometimes imposed by the monkalun in cases that peace cannot be peacefully settled. It is a cooling off period that usually lasts for 14 days.
6. Controversies settled peacefully is accompanied by a ceremony called the hidit.
The relevance of Ifugao Law to Modern Philippine Law
In his separate opinion in the case of Isagani Cruz vs. Secretary of Environment and Natural Resources[3], Justice Reynato Puno quoting Judge Richard Posner who exponded on the classic essay written in 1874 by Fredrich Nieztche entitled “On the uses and disadvantages of history, wrote:
Law is the most historically oriented, or if you like the most backward looking, the most past dependent of the professions. It venerates tradition, precedent, pedigree, archaic terminology, maturity, wisdom, seniority, ritual, custom, tradition, ancient practices, gerontocracy, and interpretation conceived of as a method of recovering history…”
This opinion is appropriate in how we view the different stages of legal development. There are said to be four (4) stages of legal development:
First, a simple rule of retaliation – “an eye for an eye, a tooth for a tooth, a life for a life.”
Second, a stage in which vengeance may be brought off “either by the individual who has inflicted the injury or by his tribe.”
Third, a stage in which the tribe or its chiefs or elders intervene to fix penalty payments and to pronounce sentence of outlawry on those who refuse to pay proper fines; and
Fourth, a stage in which offenses come to be clearly recognized as crimes against peace and welfare of the king or the state.
Ifugao Law may be said to be in the latter part of the first stage of legal development in the Philippines. Its contribution to modern Philippine law is best acknowledged by Professor Bruce Benson who wrote:
“ The great significance of the Ifugao for the study of the nature and function of primitive legal and political institutions rests in the fact that they reveal how far it is possible to elaborate a system of interfamilial law on the foundation of quite elementary social structure. They reveal how wrong are political theorists who hold that law and government are wholly indivisible."
Further, while Ifugao law may be said to be the first stage of legal development, many of the customary laws observed before are still being observed until now in modern Philippine Law, such as:
A. Family Law
· Obligation on the part of the parties to abstain from sexual relations with others.
· Obligation for support
· Neither spouse acquires any interest in the property that the other possess at the time of the marriage.
· The spouses have a joint right in all property acquired after marriage as a result of their joint labors.
· Recognition of the rights of illegitimate children
B. Property Law
· The common ownership of property and its trusteeship is an early affirmation of the principle of jura regalia. [4]
C. Penal Law
· Recognition of major and minor offenses;
· Recognition of fine as a form of penalty for an offense
D. Procedural Law
· Recognition of the importance of peaceful settlement of disputes.
Finally, while Ifugao Law may be said to be primitive law and in the first stage of legal development, it should give us a clearer understanding of privately produced law and order. And an understanding of this system will afford us a better opportunity to appreciate our own present complex systems.
[1] Citing Lon L. Fuller, “The Morality of Law,” New Haven, Yale University Press, 1964, page 128-129
[2] Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” published in the Journal of Libertarian Studies, 1989
[3] GR no. 135385, December 6, 2000
[4] All lands and waters of the public domain are owned by the State. The doctrine was adopted and enshrined in the 1935, 1973 and 1987 Constitutions. The State is, by the Constitution, the owner of all lands belonging to the public domain, the waters, minerals, fisheries, forests and all natural resources therein.
The contributions of the Ifugaos to the development of law in the Philippines cannot and should not be underestimated. E.A. Hobel, in his “Introduction” to Barton’s study of Kalinga, characterizes the contribution as follows:
“Ifugaos are the star examples of how far a system of private law can go. They demonstrate that anarchy is not necessarily synonymous with disorder. Their system also shows up nicely the limitations in a legal order that depends primarily upon the kinship group of persons.”
For purposes of this report, the following materials were also used as sources:
1. Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” published in the Journal of Libertarian Studies, 1989.
2. Bruce L. Benson, “Customary Law with private means of resolving disputes and dispensing justice: A description of a modern system of law and order without State Coercion,” published in the Journal of Libertarian Studies in 1990.
Sources, Concepts and Principles of Ifugao Law
A. Sources
Bruce Benson citing Lon Fuller maintained the view that customary law is:
A branch of constitutional law, largely and properly developed outside the framework of our written constitutions. It is constitutional law in that it involves the allocation among various institutions . . . of legal power, that is, the authority to enact rules and to reach decisions that will be regarded as properly binding on those affected by them.[1]
This view is apt in describing the sources of Ifugao Law. R. F. Burton wrote that, “the Ifugaos have no form of writing: there is, consequently, no written law. They have no form of political government: there is therefore, no constitutional or statutory law. Inasmuch as they have no courts or judges, there is no law based on judicial decisions.”
There are two sources of origin of Ifugao Law, to wit:
1. Taboo - The Ifugao word for taboo is paniyu. The root which appears in varying forms are : iyu, iho, iyao and ihao. Such terms in general mean “evil” or “bad.” The prefix “pan” denotes instrumentality or manner. The word paniyu means both by derivation and use as “bad way of doing” or “evil way.” The greatest number of paniyu in Ifugao have their origin in magic.
Examples of paniyu are:
a.) Pregnant women may not wear a string of beads since the beads form a closed circle and have a magic tendency to close her body and cause difficult childbirth.
b.) It is taboo for persons of other districts to pass through a rice field when it is being harvested. It is also taboo for foreigners to enter a village when the village is observing its ceremonial idleness, tungul at the close of harvest time. Any one who breaks this taboo are subject to a fine, or if there is reasonable belief that, it could not be collected, he may be subjected to the death penalty.
Burton believes that, a small part of Ifugao taboo are arbitrary and unreasonable. But a large part of it has gone beyond this stage and is on a firm and reasonable basis of justice, e.g. adultery, theft.
2. Customs. – This pertains to property, inheritance, water rights and to a great extent, family law and procedure.
B. Concepts and Principles of Ifugao Law
Benson in his article on Property Rights in Primitive Societies[2], wrote that:
Privately produced law in primitive societies is not unique to the American Indian For example, "the great significance of the Ifugao for the study of the nature and function of primitive legal and political institutions rests in the fact that they reveal how far it is possible to elaborate a system of interfamilial law on the foundation of quite elementary social structure. They reveal how wrong are political theorists who hold that law and government are wholly indivisible.
This view of Benson is an affirmation of the following general principles of the Ifugao Legal system cited by Burton, to wit:
a. It is personal in character. Society does not punish injuries to itself. This proceeds from the fact that, there is no organized society among the Ifugaos.
b. There is a collective responsibility among the Ifugaos. Not only the individual who commits the act is punished, but also that of his kin, depending on their nearness.
c. A collective procedure is adopted. Legal procedure is by and between the families. A member of an Ifugao family assists in the punishment of offenders against any other member of his family, and resists the punishment of members of his family by other families.
Since legal procedure is between families, and never between individuals, nor between a family and an individual, crimes of brother or sister against brother or sister go unpunished. The family of the two individuals is identical. A family cannot proceed against itself.
d. Might is Right in the administration of justice. For a given crime, one family on account of superior war footing or superior diplomacy will be able to exact much more severe penalties than another.
Substantive Law of the Ifugaos
A. The Family Law
I. The Nature of Marriage
Marriage among the Ifugaos is a civil contract of undefined duration. It may last a month, a year, a decade, or until the death of one of the parties to it. It has no essential connection to tribal religion.
No promises are made by the contracting parties to each other or to anybody else. Nor do the contracting parties take any part in any religious ceremonials or in any marriage ceremonials of any kind. Marriage may be terminated at any time by mutual agreement. However, since it is considered as a contract, if either party terminate the marriage against the will of the other, the injured party has the right to assess and collect damages.
II. Eligibility to Marriage
Any person of age may marry. The consent of the parents is not necessary. But it is considered taboo for cousins within the third degree to get married.
III. Two ways how marriage is contracted
a.Contract Marriage
The contract marriage is usually arranged for, and its first ceremonies at least performed while the children are quite small. It is applied to children who will inherit a great amount of property. Its purpose is to prevent the child from committing a so-called mistake of marrying later on another person who will inherit property of lesser extent and value.
As a rule, the couple married by a contract marriage while yet children are elevated by the uyauwe feast to the category of the kadangyang (upper class).
b. Trial Marriage
The trial marriage is merely a primitive sexual mating in the dormitories of the unmarried. Generally, it requires two or more trial marriages to select a person for his more permanent mate.
IV. Marriage Ceremonials
The marriage ceremonies conducted by the Ifugaos are as follows:
a. The Mommon. – The boy’s kin sends a pig to the girl’s kin. The omen of the bile sac is consulted.
b. The Imbango. – Another pig is sent by the boy’s kin to the girl’s kin. Again, the omen of the bile sac is consulted.
c. The Mangdad. – The girl’s kin sends a pig to the boy’s kin. It’s a contingency measure on the part of the girl’s kin to prevent the boy’s kin from demanding a return of the gifts earlier sent should the marriage fail to take any effect for any reason.
d. The Hingot. – The boy’s kin sends another pig. The omen of the bile sac is again consulted.
e. The Bubun. – The kin of both parties meet at the girl’s house and a large pig given by the boy’s kin is sacrificed. The boy’s kin also during the ceremonies gives other gifts as well to the kin of the girl.
If in the course of any of the ceremonies, in case a bad omen is encountered in the bile sac is seen, the marriage does not proceed.
V. Obligations incurred by those who enter into a marriage contract.
1. To abstain from sexual relations with any other person.
2. The boy and his kin are obliged to furnish the immediate family of the girl with firewood from the time at which the first ceremony is performed until the young couple separate to live in a house by themselves.
3. The boy and his kin must keep the granaries of the family of the girl in repair, and to reroof them whenever necessary.
4. Each family must help each other in all that pertains to rice culture throughout the first year following the last marriage ceremony.
5. It is the duty of either spouse to furnish a pig to the other in the event of the sickness of the other or of any his or her lineal ascendants.
6. It is the duty of either spouse to furnish the other in the event of the death of any of the lineal ascendants of the other, a pig and a death blanket.
If the spouses are too young to attend to any of their respective obligations, it shall be the duty of their parents to attend to the discharge of their obligations. The non-fulfillment or the non-discharge of any of the above obligations is a sufficient cause for a demand for divorce on the part of the injured spouse.
The husband and wife are never united into one family. They are merely allies. The ties that bind the spouses to their respective families are much stronger than the ties that bind them together.
VI. Property Rights acquired by marriage.
Neither spouse acquires any interest in the property that the other possess at the time of the marriage. Each however has the right to veto the sale or transfer of family property of the other except where legal and sufficient reasons exist for such transfer.
The spouses have a joint right in all property acquired after marriage as a result of their joint labors.
VII. Remarriage of the widowed.
Even death itself does not terminate the marriage, nor the alliance forged between the two families. This can be terminated by a payment known as the gibu.
A remarriage may not properly be effected by the widowed until he has paid the kin of the dead spouse the gibu. Failure on the part of the widowed to make this payment would lead to a seizure of his property or a lance throwing.
It is considered an insult to the deceased and his kin for a widowed person to remarry within a year from the death of his spouse. In such an event, a larger gibu is demanded by the kin of the dead spouse.
VIII. Divorce
The following are the recognized causes for divorce:
a. ) Divorce because of necessity. - This includes the presence of a bad omen of the bile sac.
b.) Divorce for mutual benefit. – childlessness for a period of two or three years after marriage; death of an offspring
c.) Divorce as demanded by either party. – Cruelty and incompatability of the parties; desertion; adultery; unreasonable or insane jealousy.
It is only when the divorce is by mutual agreement that divorce is attended by ceremonies.
Where there are no children, each spouse takes the property that he brought to the marriage, together with any property received by inheritance or solely by virtue of his relationship to his own family.
Where there are children of the union, the woman has the right to the children. Whoever takes the children take possession of the property that belongs to the spouses. All the property of both the spouses are assigned to the children at the time of the divorce.
IX. Dependents in relation to Ifugao family law
a.) Adopted Children. - Rather rare in Ifugao society. Usually, the child adopted is related to the adopter.
b.) Illegitimate children. – Not a frequent occurrence in Ifugao society. A bastard is one whose father refuses to take the mother as his legal wife for any period of time, however short.
The father of a bastard must give his child a rice field if he has a field unassigned. He must also give the mother an oban or blanket with which to carry the child. An illegitimate child has the same rights as a legitimate child.
B. The Property Law
There are two classes of property in Ifugao society, to wit:
1. Family Property or Ma- Ibuy. – Family property consist of rice lands, forest lands and heirlooms. Their possession is more of the nature of a trust than an absolute ownership- a holding of a trust for future generations. They are often the common property of a group of kinsmen and their families. The sale of such class of property is a matter of practical concern to the entire family. The sale of such property is attended by a ceremony.
There are two kinds of transfer of family property, to wit for “consideration” or balal, and outright sale. In a “balal,” the buyer or creditor of the property holds, plants and harvests the property until the debt is paid. The property is to all purposes, his except that he cannot sell it. He can however transfer it as a “balal” again to another person, for a lesser amount.
2. Personal Property or Adi Ma-Ibuy. – Houses, valuable trees, knives, spears, dishes, camote fields, blankets, animals and articles of minor values are considered as personal property.
Personal property is transferred without formality.
Property is transferred within a family by two methods, namely:
1. Assignment and transfer of property during the lifetime of its owner.
2. Inheritance
In Ifugao Law, the law of primogeniture is applied. Under this law, a greater portion of the property is inherited by the elder child than the younger ones.
In terms of the extent of borrowing and lending practices of the Ifugaos, interest on things borrowed is exceedingly high.
C. Penal Law
The Ifugaos have two punishments for crimes, which are inflicted and executed by the offended person and his kin:
1. The death penalty; and
2. Fine
The following circumstances affect criminal responsibility:
1. Alienship - If the culprit be of a foreign village, the fact that he is a foreigner is an aggravating circumstance. If found in delicto, he shall put to death.
2. Kinship - It is a strong mitigating circumstance that often results in the exemption of a guilty person altogether from any liability.
3. Confession – Confession before steps have been taken to inflict punishment alleviates a person from any liability except in murder and adultery.
4. Relative rank of the offender and the offended – The imposition of the fine is dependent on the rank and standing of the individual in society.
Gulad or Intent is the greatest single factor in determining penal responsibility. A deed committed without intent and without carelessness is excused, e.g. wounding another without intent; accidental killing of animals.
The principal crimes in Ifugao society are either major or minor offenses. The major offenses are:
1. Sorcery
2. Adultery
3. Theft
4. Murder
5. Kidnapping
6. Manslaughter
7. Rape of a married woman
8. Arson
9. Incest
The minor offenses are, punishable by fines are:
1. Insult
2. Slander
3. False accusation
4. Rape of a girl
Notes on Penal Laws:
1. The Ifugao has no tribunals to sentence, and no government to execute.
2. The Ifugaos have one general law. That law is: A life must be paid by a life.
3. Public opinion custom, or both, justify the taking of a life in punishment for the following crimes: sorcery, murder, persistent and wilfull refusal to pay a debt when there is ability to pay, adultery discovered in flagrante, theft by one of a foreign district, refusal to pay a fine assessed or injury suffered.
4. In feuds between families of different districts, heads might or might not be taken. Usually, they are taken, if there are no ties of kinship between the districts.
PROCEDURAL LAWS OF THE IFUGAOS
Family unity and cooperation is the basic rule of procedure in Ifugao law. An Ifugao’s family is his nation. It is the executive and judicial body. The following rules and principles apply to the families and individuals in the matter of procedure:
1. The first step in any legal procedure is to consult with one’s own kin and relatives. In initiating steps to assess a fine or collect an indemnity, the next step is the selection of a monkalun.
2. The office of the monkalun is the most important one to be found in Ifugao society. The monkalun is a whole court. He is the judge, prosecutor and defending counsel at the same time. His duty and interest is for a peaceful settlement. To this end, he must exert all efforts through diplomacy. The monkalun should not be closely related to either party in a controversy. He however has no authority and his only power is to exert a settlement.
3. In proceedings before the monkalun, litigants do not confront each other. There are also no oaths or formalities in the giving of testimony.
4. In criminal cases, where the accused persistently denies his guilt, ordeals or trials are resorted, such as the hot water ordeal; hot bolo ordeal; wrestling; or a duel.
5. A truce is sometimes imposed by the monkalun in cases that peace cannot be peacefully settled. It is a cooling off period that usually lasts for 14 days.
6. Controversies settled peacefully is accompanied by a ceremony called the hidit.
The relevance of Ifugao Law to Modern Philippine Law
In his separate opinion in the case of Isagani Cruz vs. Secretary of Environment and Natural Resources[3], Justice Reynato Puno quoting Judge Richard Posner who exponded on the classic essay written in 1874 by Fredrich Nieztche entitled “On the uses and disadvantages of history, wrote:
Law is the most historically oriented, or if you like the most backward looking, the most past dependent of the professions. It venerates tradition, precedent, pedigree, archaic terminology, maturity, wisdom, seniority, ritual, custom, tradition, ancient practices, gerontocracy, and interpretation conceived of as a method of recovering history…”
This opinion is appropriate in how we view the different stages of legal development. There are said to be four (4) stages of legal development:
First, a simple rule of retaliation – “an eye for an eye, a tooth for a tooth, a life for a life.”
Second, a stage in which vengeance may be brought off “either by the individual who has inflicted the injury or by his tribe.”
Third, a stage in which the tribe or its chiefs or elders intervene to fix penalty payments and to pronounce sentence of outlawry on those who refuse to pay proper fines; and
Fourth, a stage in which offenses come to be clearly recognized as crimes against peace and welfare of the king or the state.
Ifugao Law may be said to be in the latter part of the first stage of legal development in the Philippines. Its contribution to modern Philippine law is best acknowledged by Professor Bruce Benson who wrote:
“ The great significance of the Ifugao for the study of the nature and function of primitive legal and political institutions rests in the fact that they reveal how far it is possible to elaborate a system of interfamilial law on the foundation of quite elementary social structure. They reveal how wrong are political theorists who hold that law and government are wholly indivisible."
Further, while Ifugao law may be said to be the first stage of legal development, many of the customary laws observed before are still being observed until now in modern Philippine Law, such as:
A. Family Law
· Obligation on the part of the parties to abstain from sexual relations with others.
· Obligation for support
· Neither spouse acquires any interest in the property that the other possess at the time of the marriage.
· The spouses have a joint right in all property acquired after marriage as a result of their joint labors.
· Recognition of the rights of illegitimate children
B. Property Law
· The common ownership of property and its trusteeship is an early affirmation of the principle of jura regalia. [4]
C. Penal Law
· Recognition of major and minor offenses;
· Recognition of fine as a form of penalty for an offense
D. Procedural Law
· Recognition of the importance of peaceful settlement of disputes.
Finally, while Ifugao Law may be said to be primitive law and in the first stage of legal development, it should give us a clearer understanding of privately produced law and order. And an understanding of this system will afford us a better opportunity to appreciate our own present complex systems.
[1] Citing Lon L. Fuller, “The Morality of Law,” New Haven, Yale University Press, 1964, page 128-129
[2] Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” published in the Journal of Libertarian Studies, 1989
[3] GR no. 135385, December 6, 2000
[4] All lands and waters of the public domain are owned by the State. The doctrine was adopted and enshrined in the 1935, 1973 and 1987 Constitutions. The State is, by the Constitution, the owner of all lands belonging to the public domain, the waters, minerals, fisheries, forests and all natural resources therein.
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