INDIGENOUS MODES OF DISPUTE RESOLUTION AND INDIGENOUS JUSTICE SYSTEMS

Indigenous dispute resolution in many varied forms remains to be the most appropriate and effective
mechanism for settling disputes and peace-keeping (IDRM). This is, in part, attributed to the continuing
institutionalization of various Alternative Dispute Resolution (ADR) mechanisms in the administration of
justice in the Philippines.

Dispute resolution mechanisms have been in existence since time immemorial. From another perspective,
one can even argue that IDRM is the mother of all dispute resolution processes in the country.
Unfortunately, IDRM are, in most cases, not properly recognized, barely understood and hardly respected.
Codification and formalization usually become the primary recommendations.

Goals and Objectives

The main objective: promoting respect and recognition for traditional indigenous practices for settling
disputes.

Specific goals: (1) Undertake review and legal research of relevant legal instruments and related literature
on existing indigenous and Moro dispute resolution mechanisms; (2) Provide substantive and qualitative
documentation through one-shot case studies, at the community level, of existing IDRM; and (3)
Undertake analysis of gathered data, focusing on areas of conflicts on IDRM, as practiced, vis-à-vis the
wider divide of indigenous justice, versus the formal justice system.

Colonization

After “discovering” the group of islands which would later be called the Philippines, Spain imposed the
Law of Indies. The law did not only introduce the legal fiction and western concept of jura regalia, it also
reduced existing justice and legal systems of the non-hispanized indios and moros to mere customs and
traditions. By doing so, customs and traditions, by law, automatically became a secondary source of law
operating in their laws’ absence.

The colonial and neo-colonial experiences heavily impinged upon the growth and development of IDRM,
indigenous justice systems and other indigenous institutions. Resilient as the peoples who are the bearers
of these systems and processes, IDRM - that was reduced into “norms and custom” and practically
considered in contra legem – evolved and endured. Its bearers bore labels ranging from paganos, infiels
and moros, which slowly shifted to “non-christian tribes”, and then to “national cultural minorities”. It
was only recently that the term “indigenous cultural communities” and “indigenous peoples” became the
norm.

Philippine law is mostly of foreign origin or derivation, and has not been drawn from indigenous sources.

The constitutional recognition of customary law should be construed as one of the more symbolic
responses in correcting a grave historical injustice.

IDRM at the Barangay Level through the Barangay Judicial System where the law mandates that customs
and traditions of indigenous cultural communities shall be applied in settling disputes between members
of the cultural communities.
IPRA: provides for the primacy of customary law, as it mandates that disputes involving indigenous
peoples are to be settled using customary law and practices.

RA 9054 creates a system of tribal courts for the indigenous peoples in the ARMM. Said system may
include a tribal appellate court, as determined by the Regional Legislative Assembly (RLA), which is also
mandated to define the composition and jurisdiction of the said tribal courts. The law recognizes the
power of these tribal courts to determine, settle, and decide controversies and enforce decisions involving
personal and family and property rights of members of the indigenous cultural community concerned in
accordance with their own tribal codes.

Indigenous Dispute Resolution Process

IDMR: Non-adversarial, non-confrontational and participatory.

The process is generally initiated by a complainant or an offended party approaching an elder to report
an offense and seek resolution. The elder confers with members of the council of elders and calls for a
dialogue. A date or a given time is set for the actual dialogue, and the involved parties are notified.

The opening ritual or its equivalent is common to all IDRM/IJS documented. The closing ritual however,
does not necessarily apply, for some processes.

E.g.,

Opening Ritual: Tongtong is opened through a prayer or petik led by an elder or one of the Papangoan.
Offering a drop of tapuey, the traditional rice wine in the place, the elder chants the petik that asks the
heavenly spirits to guide the conscience and the hearts of the contending parties so the truth may come
out.

Closing Ritual: In the case of the Tiwayan System of Conflict Resolution, the ritual called Iném Kénugéw is
performed only when there is a perceived need to finally settle any ill feelings remaining between the
parties. After the ritual, the relationship between the two is considered restored.

Nature and Venue of the IDRM/IJS

The aggrieved, the offender, their families, women, children and all other concerned members of the
community may participate in the settlement process.

There are no designated mediation centers or courts of justice for purposes of the IDR/IJS.

Most of the focus areas however, do not have fixed venues. Usually the venue for the conflict resolution
process is the house of the Datu, Tribal Chieftain or any member of the Council of Elders.

The prevailing element and institutional foundation of these IDRM/IJS is still driven by the need to
strengthen community relationships and instill good values and norms. The main purpose of IJS has been
the maintenance of stability, peace and harmony in the community.

Nature of Crimes and the Penalty System

Offenses are appreciated not solely in the context of the offender and offended, but also within the
community and, if inter-tribal, between communities. The strong sense of community and territory is
closely connected to the appreciation of the impact a conflict creates on the harmony and sense of
stability and peace of the community, as a whole. Thus, disputes are generally always seen in a personal
context (offender-offended) and in the context of the community. As a consequence, when an offense or
crime is committed against a member of a community, it is usually treated as if it was committed against
the whole community, not only against a particular individual.

This communal perspective is also seen as the reason why conflicts are not strictly defined. There are no
definitive lists that provides for specific offenses with corresponding penalties. Rather, “the offenses are
evaluated based on threats to or infringements on the life, property and dignity of the offended party or
community.”

Most of the IDRM/IJS documented do not impose capital punishment. These communities arrived at the
decision to abolish the penalty on various grounds but the two main reasons are: (1) Catholic and Christian
teachings; and (2) prohibition by the State.

The coexistence of different systems of rules at the same time, in the same geopolitical space, may
produce conflicts of inter-legality.

The most common aspect of interface documented is when a barangay council and a Lupon are composed
of the same tribal leaders holding traditional leadership posts. In conflict resolutions however, tribal
leaders cum barangay council members generally prefer the use of customary law in settling disputes. If
there is any modification in the process, it is the adoption of the documentation requirement of the BJS.

Incongruent Justice Systems

The recognition of customary laws accorded by the BJS can be confusing at best. So, while the law
recognizes the customs and traditions of indigenous cultural communities by allowing its application in
settling disputes, the same provision limits its application only between members of the cultural
communities. The limitations imposed by the BJS cover the following: (1) territorial limitation; (2)
limitations on the authority to impose criminal sanctions and; (3) limitations on the cognizability of serious
offenses.

IPRA: Provides for the primacy of customary law. Section 63 states that customary laws, traditions and
practices of the ICCs/IPs of the land where the conflict arises shall be applied first with respect to property
rights, claims and ownerships, hereditary succession and settlement of land disputes. The provision as
stated tends to give an impression that customary law is applicable only in conflicts arising from property
rights, claims and ownerships, hereditary succession and settlement of land disputes.

The existing justice systems are worlds apart and only through methods inspired by communicative action
can these divergent systems slowly begin to work towards a common understanding, without necessarily
subsuming the other. Without communicative action, it would be difficult, if not impossible, to appreciate
the call for a more meaningful recognition of indigenous justice systems.