Exemptions and Exclusions Sec. 10 of RA of RA 6657, 6657, as amended by RA 7881 (1995), specifically enumerates the exemptions and exclusions from CARP, as follows: a) Lands actually, directly or exclusively used for parks and wildlife, forest reserves, reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves (Rep. (Rep. Act No. 6657 [1988], sec. 10 [a], as amended by Rep. Act No. 7881 [1995]). b) Private lands actually, directly and exclusively used for prawn farms and fishponds: Provided, That said prawn farms and fishponds have not been distributed and Certificate of Land Ownership Award (CLOA) issued to agrarian reform beneficiaries (ARBs) under CARP (Sec. 10 [b]). c) Lands actually, directly and exclusively used and found to be necessary for national defense, school sites and campuses, including experimental farm stations operated by public or private schools for educational purposes, seeds and seedling research and pilot production center, church sites and convents appurtenant thereto, mosque sites and Islamic centers appurtenant thereto, communal burial grounds and cemeteries, penal colonies and penal farms actually worked by the inmates, government and private research and quarantine centers and all lands with eighteen percent (18%) slope and over, except those already developed (Sec. 10 [c]).
Lands devoted devoted to raising raising of livestock, livestock, swine swine and poultry. poultry. The Luz Farms Case. Before its amendment by RA 7881, 7881, Sec. 3(b) of RA of RA 6657 included in its definition of agricultural activity the "raising of livestock, poultry or fish". Likewise, the original Sec. 11 of RA of RA 6657 on commercial farming provided that "lands devoted to commercial livestock, poultry and swine raising shall be subject to compulsory acquisition within ten (10) years from the effectivity of the Act." However, the Supreme Court in Luz in Luz Farms vs. Secretary of Agrarian Reform , supra, supra, held that Sec. 3 (b) and Sec. 11 of RA of RA 6657 (along with Sec. 13 and 32) are unconstitutional in far as they include the raising of livestock and swine in the coverage of CARP.
Luz Farms vs. vs. Secretary of the Department Department of Agrarian Agrarian Reform 192 SCRA 51 (1990)
Facts: Petitioner Luz Farms is a corporation engaged in livestock and poultry business. business. It seeks seeks to nullify nullify Sec. 3 (b) and Sec. 11 of RA 6657 in so far as they apply to livestock and poultry business. Held: Sec. 3 (b) and Sec. 11 of RA 6657 are unconstitutional unconstitutional in so far as they include lands devoted to raising livestock, swine and poultry within its coverage. The use of land is incidental to but not the principal factor factor or consideration consideration of of productivity productivity in this this industry. industry. The Supreme Court held that: The transcripts of deliberations of the Constitutional Commission of 1986 on the meaning of the word "agricultural," clearly show that it was never the intention of the framers of the Constitution to include livestock and poultry industry in the coverage of the constitutionallymandated agrarian reform program of the government. The Committee adopted the definition of "agricultural land" as defined under Section 166 of RA 3844, as land devoted to any growth, including but not limited to crop lands, saltbeds, fishponds, idle and abandoned land (Record, CONCOM, August 7, 1986, Vol. III, p. 11). The Supreme Court noted that the intention of the Committee to limit the application of the word "agriculture" is further shown by the proposal of Commissioner Commissioner Jamir to insert insert the word "arable" to distinguish this kind of agricultural land from such lands as commercial and industrial lands and residential properties. The proposal, however, however, was was not considered considered because because the Committee Committee contemplated that agricultural lands are limited to arable and suitable agricultural lands and therefore, do not include commercial, industrial and residential lands (Record, CONCOM, 7 August 1986, Vol. III, p. 30). Moreover, in his answer to Commissioner Regalado's interpellation, Commissioner Commissioner Tadeo clarified that the term "farmworker" was used instead of "agricultural worker" in order to exclude therein piggery, poultry and livestock livestock workers (Record, (Record, CONCOM, CONCOM, August August 2, 1986, 1986, Vol. II, p. 621). DAR AO 9 (1993) imposes two (2) conditions in order that these lands may be exempted: (a) that the land or portion thereof is exclusively, directly, or
actually used for livestock, poultry and swine raising as of 15 June 1988; and (b) the farm must satisfy the ratios of land, livestock, poultry and swine, as follows:
cattle, carabao and horse raising maximum of 1 head to 1 hectare; 21 heads for every 1.7815 hectares of infrastructure sheep and goat raising 7 heads to 1 hectare; 147 heads for every 0.7205 hectare of infrastructure swine raising 21 heads of hogs for every 0.5126 hectare of infrastructure poultry raising 500 layers for every 0.53 hectare of infrastructure or 1000 boilers for every 1.428 hectares of infrastructure Fishponds and prawn ponds With the amendment of Sec. 3 (c), 10 and 11 of RA 6657 by RA 7881, fishponds and prawnponds are also exempted from the coverage of CARP, provided that said lands have not been distributed to ARBs and no CLOAs have been issued. To be exempted, the agricultural land must have been actually, directly and exclusively used for prawn farms and fishponds as of 12 March 1995, the date of effectivity of RA 7881. To avail of the exemption, a landowner or his authorized representative still has to file a written application for land exemption/exclusion with the DAR Provincial Office (DAR Adm. O. No. 3 [1995]). In cases were the fishponds or prawn farms have been subjected to CARP, by voluntary offer to sell, commercial farms deferment or notice of compulsory acquisition, they can be exempt from CARP if a simple and absolute majority of the actual regular workers or tenants consent to the exemption within one (1) year from the effectivity of RA 7881 or on 12 March 1995. In cases where the fishponds or prawnponds have not been subjected to CARP, the consent of the farm workers shall no longer be necessary (Rep. Act No. 6657 [1988], sec. 10[b], as amended). Sec. 4 of RA 7881 also amended RA 6657 by introducing a new provision mandating the introduction of an incentive plan for employees of all fishponds and prawn farms. Operators and entities owning or operating fishponds and prawn farms are directed to execute within six (6) months from its effectivity an incentive plan with their regular fishpond or prawn farm worker's organization, if any, whereby seven point five percent (7.5%) of net profits
before tax from the operation of the fishpond or prawn farms are distributed within sixty (60) days at the end of the fiscal year as compensation to regular and other pond workers over and above their current compensation. This incentive plan requirement, however, does not apply to agricultural lands subsequently converted to fishponds or prawn farms provided that the size of the land converted does not exceed the retention limit of the landowner. Lands used for academic or educational use. The CMU case. In Central Mindanao University vs. DARAB, 215 SCRA 85 (1992), the Supreme Court passed upon the exemption of lands directly, actually and exclusively used and found to be necessary for school sites and campuses, including experimental farm stations operated by public or private schools for educational purposes provided for under Sec. 10 of RA 6657, as amended.
Central Mindanao University vs. Department of Agrarian Reform Adjudication Board 215 SCRA 86 (1992) Facts: On 16 January 1958, President Carlos Garcia issued Proclamation No. 467 reserving for the Mindanao Agricultural College, now the CMU, a piece of land to be used as its future campus. In 1984, CMU embarked on a project titled "Kilusang Sariling Sikap" wherein parcels of land were leased to its faculty members and employees. Under the terms of the program, CMU will assist faculty members and employee groups through the extension of technical know-how, training and other kinds of assistance. In turn, they paid the CMU a service fee for use of the land. The agreement explicitly provided that there will be no tenancy relationship between the lessees and the CMU. When the program was terminated, a case was filed by the participants of the "Kilusang Sariling Sikap" for declaration of status as tenants under the CARP. In its resolution, DARAB, ordered, among others, the segregation of 400 hectares of the land for distribution under CARP. The land was subjected to coverage on the basis of DAR's determination that the lands do not meet the condition for exemption, that is, it is not "actually, directly, and exclusively used" for educational purposes. Issue:
Is the CMU land covered by CARP? Who determines whether lands reserved for public use by presidential proclamation is no longer actually, directly and exclusively used and necessary for the purpose for which they are reserved? Held: The land is exempted from CARP. CMU is in the best position to resolve and answer the question of when and what lands are found necessary for its use. The Court also chided the DARAB for resolving this issue of exemption on the basis of "CMU's present needs." The Court stated that the DARAB decision stating that for the land to be exempt it must be "presently, actively exploited and utilized by the university in carrying out its present educational program with its present student population and academic faculty" overlooked the very significant factor of growth of the university in the years to come. SHECcT The CMU case is unique as it involves land transferred by the state to CMU through PD 467 which provided for its commitment to a specific use and purpose. Thus, the said land was already set aside for a specific purpose and, in effect, was taken outside the coverage of agrarian reform by law. It is submitted that a more accurate basis for the exemption should have been that the exclusive use of the land — both present and future — has been determined by law, and not because of the determination of the CMU of what it needs and how it intends to use it. In ruling that the CMU is in the best position to determine the use of the land and not DAR, the Supreme Court seems to have overlooked EO 407 (1990), as amended by EO 448 (1991), which provides that DAR is vested with the power to determine whether lands reserved for public uses by presidential proclamation is no longer actually, directly and exclusively used and necessary for the purpose for which they are reserved. Said EO provides that:
Sec. 1-A. All lands or portions thereof reserved by virtue of Presidential proclamations for specific public uses by the government, its agencies and instrumentalities, including government-owned or controlled corporations suitable for agriculture and no longer actually, directly and exclusively used or necessary for the purposes for which they have been reserved, as determined by the Department of Agrarian Reform in coordination with the government agency or instrumentality concerned in whose favor the reservation was established, shall be segregated from the reservation and transferred to the Department of Agrarian Reform for distribution to
qualified beneficiaries under the Comprehensive Agrarian Reform Program. Thus, DAR in coordination with the agency or department involved, can determine whether the purpose or use for which the lands reserved continues to exist and therefore establish if they continue to be exempt from CARP coverage. The Supreme Court's statement that lands of universities and academic institutions need not be actually, directly and exclusively used for educational or research purposes at the time of the effectivity of the RA 6657 to be exempt from CARP also fails to consider Sec. 10 of RA 6657. Sec. 10 is explicit that only those lands that are "actually, directly, and exclusively" used and found necessary for the uses enumerated therein are exempt from CARP coverage. A literal interpretation of the provision implies that the exemption applies only to those lands already committed for the enumerated purposes at the date of the effectivity of law on 15 June 1988. Thus, agricultural land acquired by academic institutions for academic, educational, or research purposes after 15 June 1988, or those owned by them but not committed exclusively, actually, and directly to the abovementioned uses before or on such date, are covered by CARP. For its exclusion from acquisition and distribution, and for its commitment to said purposes, the institution may file before DAR for clearance to convert these lands into non-agricultural use. Lands with 18% slope Lands with 18% slope or over are exempt from CARP coverage unless these are found to be agriculturally developed as of 15 June 1988. This rule on exemption is based on PD 705 (1975), or the "Revised Forestry Code of the Philippines," which provides that lands with a slope of 18% or over are generally reserved as forest lands. Sec. 15 thereof states that "no land of the public domain eighteen per cent (18%) in slope or over shall be classified as alienable and disposable" and that "lands eighteen per cent (18%) in slope or over which have already been declared as alienable and disposable shall be reverted to the classification of forest lands by the Department Head, to form part of the forest reserves, unless they are already covered by existing titles or approved public land application, or actually occupied openly, continuously, adversely and publicly for a period of not less than thirty (30) years as of the effectivity of this Code, where the occupant is qualified for a free patent under the Public Land Act. If the land has 18% slope or over and is agriculturally developed as of 15 June 1988, the same shall be allocated to the qualified applicants in the following manner:
a) If land is classified as forest land, and therefore is inalienable and indisposable, this shall be allocated by the DENR under its Integrated Social Forestry Program; b) If classified as alienable and disposable, this shall be allocated by the Land Management Bureau-DENR and DAR pursuant to the provisions of CA 141 and the Joint DAR-DENR AO 2 (1988); and c) If private agricultural land, this shall be acquired in accordance with the provisions of RA 6657 (DAR Adm. O. No. 13 [1990], item E, part II). Effects of exemption Sec. 10 of RA 6657 provides that exempted or excluded lands are removed from the coverage of CARP. However, there are two (2) contending views on whether these exempted or excluded lands are perpetually taken out from coverage of the CARP. The first view is that lands exempted or excluded from the law are permanently taken out from coverage of the CARP. The basis of this interpretation is the phraseology of Sec. 10 which states that exempted lands are "exempt from the coverage of the law." The legal effect of this interpretation is that the owner can use and dispose the land as he deems fit without the need for any clearance from DAR. The second view is that excluded and exempted lands can be covered by CARP when the reason for their exemption ceases to exist. Thus, when the reason for exemption ceases to exist for lands exempt under the Luz Farms ruling or Sec. 10, as amended by RA 7881 (except lands with 18% slope), they are removed from the exemption and are treated like any other agricultural land. It must be remembered that the lands subject of exemption under Sec. 10 of RA 6657 and the Luz Farms ruling are considered agricultural lands as defined by Sec. 3 (c) of RA 6657, that is, they are in fact suitable to agriculture and not classified as mineral, forest, residential, commercial or industrial lands, but are exempt or excluded from CARP by reason of their actual use and their necessity for other purposes. Thus, in the event that these lands cease to be used or necessary for the purposes for which they are exempted, they are removed from the application of Sec. 10 and are then subject to CARP coverage. The second view is anchored on the spirit and intent of the law to cover all agricultural lands suitable to agriculture. Moreover, as RA 6657 is a social welfare legislation the rules of exemptions and exclusions must be interpreted
restrictively and any doubts as to the applicability of the law should be resolved in favor of inclusion. In either case, the security of tenure of tenants enjoyed prior to 15 June 1988 shall be respected even when the lands are exempted. As to farmworkers, the exemption of the land shall not cause the loss of the benefits to which they are entitled under other laws. In addition, they are granted preference in the award of other lands covered by CARP (DAR Adm. O. No. 13 [1990], part II). Homesteads In Alita vs. CA, the Supreme Court stated that homesteads are exempt from agrarian reform.
Alita vs. Court of Appeals 170 SCRA 706 (1989) Facts: Subject matter of the case consists of two (2) parcels of land acquired by respondents' predecessors-in-interest through homestead patent under the provisions of CA 141. Respondents wanted to personally cultivate these lands, but the petitioners refused to vacate, relying on the provisions of PD 27 and PD 316 and appurtenant regulations issued by the then Ministry of Agrarian Reform. Issue: Are lands obtained through homestead patent covered under PD 27? Held: No. While PD 27 decreed the emancipation of tenants from the bondage of the soil and transferring to them ownership of the land they till, the same cannot be invoked to defeat the very purpose of the enactment of the Public Land Act or CA 141. In Patricio v. Bayog , 112 SCRA 45, it was held that: The Homestead Act has been enacted for the welfare and protection of the poor. The law gives a needy citizen a piece of land where he may build a modest house for himself and family and plant what is necessary for subsistence and for the satisfaction of life's other needs. The right of the citizens to their homes and to the things necessary for their subsistence is as vital as the right to life itself. They have a right to live with a certain degree of comfort as
become human beings, and the State which looks after the welfare of the people's happiness is under a duty to safeguard the satisfaction of this vital right. In this regard, Sec. 6 of Article XIII of the 1987 Constitution provides: Section 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. Moreover, Sec. 6 of RA 6657 contains a proviso supporting the inapplicability of PD 27 to lands covered by homestead patents like those of the property in question, reading: Section 6. Retention Limits. . . . Provided further, That original homestead grantees or their direct compulsory heirs who still own the original homestead at the time of the approval of this Act shall retain the same areas as long as they continue to cultivate said homestead. xxx
xxx
xxx
While homestead lots are declared exempt under PD 27, they are not expressly declared as such under RA 6657. However, Sec. 6 of RA 6657 provides that homesteaders are allowed to retain the total homestead lot subject to the conditions provided in the same section and as set DAR MC 4 (1991), to wit: a) That the original homestead grantee or his/her direct compulsory heirs still own the land on 15 June 1988; b) The original homestead grantee or his or her compulsory heirs cultivate the land as of 15 June 1988 and continue to cultivate the same. It also provides that the tenants of lands covered by homestead patents exempted from PD 27 or retained under RA 6657 shall not be ejected therefrom but shall remain as leaseholders therein. Schedule of Implementation
Sec. 7 of RA 6657 lays out the schedule of acquisition and distribution of all agricultural lands through a period of ten (10) years from the effectivity of the Act:
Phase
Lands Covered Schedule
I 1992
•
• • • • •
II 1995
•
•
• •
III-A 1992
•
Rice and corn lands under Presidential
1988-
Decree No. 27; all idle or abandoned lands; all private lands voluntarily offered by the owners for agrarian reform; all lands foreclosed by the government financial institutions; all lands acquired by the Presidential Commission on Good Government (PCGG); and all other lands owned by the government devoted to or suitable for agriculture All alienable and disposable public agricultural
1992-
lands; all arable public agricultural lands under agroforest, pasture and agricultural leases already cultivated and planted to crops in accordance; all public agricultural lands which are t o be opened for new development and resettlement; and all private agricultural lands in excess of fifty (50) hectares, Landholdings above twenty-four (24)
1998-
hectares up to fifty hectares; and III-B 1998
•
Private agricultural lands with areas above the
1994-
retention limit up to 24 hectares
Though Sec. 7 of RA 6657 provides a fixed time table for the implementation of the CARP law, this provision should be interpreted as merely directory, rather than mandatory in character. This is the gist of DOJ Opinion No. 9 (1997). It has been held that the difference between a mandatory and a directory provision is often determined on grounds of expediency. Where a provision embodies a rule of procedure rather than one of substance, the provision as to time will be regarded as directory only notwithstanding the mandatory nature of the language used. Sec. 5 of RA 6657 is more procedural in nature than substantive. The ten (10)-year period is merely a time frame given to DAR for the acquisition and distribution of public and private agricultural lands covered by RA 6657. It is merely a guide to DAR in setting its priorities, and it is not, by any
means, a limitation of its authority. Hence, Sec. 5 of RA 6657 should not be construed as a prescriptive period, the lapse of which bars the DAR from covering the land under CARP. Thus, DAR need not wait for the full coverage of those lands in the first phase before those in the succeeding phases could be covered. DAR may also proceed with the coverage of lands in different phases simultaneously. In view of the passing of the ten (10)-year period in 1998, Congress passed RA 8532 (1998) providing for the funding for land acquisitions for another ten (10) years. Idle or abandoned lands Sec. 22 of Art. XVIII of the 1987 Constitution and Sec. 18 (h) of EO 229 prioritizes the immediate expropriation or acquisition of idle or abandoned lands. Sec 3 (e) of RA 6657 defines idle or abandoned land as "any agricultural land not cultivated, tilled or developed to produce any crop nor devoted to any specific economic purpose continuously for a period of three (3) years immediately prior to the receipt of notice of acquisition by the government as provided under RA 6657. However land that has become permanently or regularly devoted to non-agricultural purposes is not to be considered as idle or abandoned. Neither can it be considered as abandoned or idle any land which has become unproductive by reason of force majeure or any other fortuitous event, provided that prior to such event, such land was previously used for agricultural or other economic purpose." Lands owned by government To expedite the disposition of lands owned by the government, President Corazon C. Aquino issued EO 407 (1990) directing all government instrumentalities, government agencies, government owned and controlled corporations or financial institutions to transfer to the Republic of the Philippines, through the DAR, all landholdings suitable for agriculture. Sec. 3 of EO 407 (1990) likewise provides for the redistribution and award of fishponds, pasturelands and other lands of public domain suitable for agriculture subject of cancelled or amended lease agreement to the agrarian reform beneficiaries. EO 448 (1991) and EO 506 (1992) amended EO 407 by including all lands or portions thereof reserved by virtue of presidential proclamations for specific public uses by the government, its agencies and instrumentalities, and no longer actually, directly and exclusively used or necessary for the purposes for which they have been reserved. These also excluded national parks and other protected areas, proposed national parks, game refuge, bird sanctuaries, wild-life reserves, wilderness areas and other protected areas, including old growth or virgin forests and all forests above
1,000 meters elevation or above 50 percent slope until such time that they are segregated for agricultural purposes or retained under the National Integrated Protected Areas System. Commercial farms Sec. 11 of RA 6657 allowed the deferment of the coverage of commercial farms. Deferred commercial farms shall be subject to immediate compulsory acquisition and distribution after ten (10) years from the effectivity of RA 6657 on 15 June 1988. For new farms, the ten (10)-year deferment will begin from the first year of commercial production and operation. For a commercial farm to be qualified for deferment, it must have been planted to commercial crop or devoted to commercial farming operations before 15 June 1988. DAR AO 16 (1988) provided a 60-day period for the filing of applications of deferment which lapsed on 2 May 1989. DAR AO 16 (1988) explicitly allows the DAR to automatically subject the lands to redistribution when it determines that the purpose for which deferment is granted no longer exists as when the particular farm areas ceases to be commercially productive. During the deferment period, the DAR shall initiate steps to acquire the lands. Final land transfer to the beneficiaries shall be effected at the end of the deferment period. The acquisition and distribution of these deferred commercial farms are governed by DAR AO 9 (1998). Retention Sec. 4, Art. XIII of the 1987 Constitution subjects the distribution of agricultural lands for agrarian reform to "reasonable retention limits as Congress may prescribe. Sec. 6 of RA 6657 operationalizes this mandate and observes the right of persons to own, or retain, directly or indirectly public or private agricultural land, the size of which shall vary according to factors governing a viable family-size farm in such as commodity produced terrain, infrastructure, and soil fertility, but in no case shall exceed five (5) hectares. The retention limits under Sec. 6 of RA 6657 covers all persons whether natural or juridical. Juridical persons like corporations and partnerships are therefore subject to the five (5)-hectare limit. With respect to married couples, their maximum retention limit is determined by the nature of their property relations. For marriages covered by the New Civil Code, in the absence of an agreement for the judicial separation of property, spouses who own only conjugal properties may retain a total of not more than five (5) hectares of such properties. However, if either or both of them are landowners in their own respective rights (capital and/or paraphernal), they may retain not more than five (5) hectares of their respective landholdings.
In no case, however, shall the total retention of such couple exceed ten (10) hectares. (DAR Adm. O. No. 5 [2000], sec. 9 [g]). For marriages covered by the Family Code, which took effect on 3 August 1988, a husband owning capital property and/or a wife owning paraphernal property may retain not more than five (5) hectares each provided they executed a judicial separation of properties prior to entering into the marriage. In the absence of such an agreement, all properties (capital, paraphernal and conjugal) shall be considered to be held in absolute community, i.e., the ownership relation is one, and, therefore, only a total of five (5) hectares may be retained. (DAR Adm. O. No. 5 [2000], sec. 9 [h]). The five (5)-hectare retention limit applies to all lands regardless of how acquired (i.e., by purchase, award, succession, donation) as the law does not distinguish. Thus, a child who was awarded three (3) hectares as a preferred beneficiary under Sec. 6 of RA 6657 and subsequently acquires a five (5)hectare landholding of his parent by succession can retain only five (5) hectares of the total landholding. Landowners have the obligation to cultivate directly or through labor administration, and thereby make productive the area he retains. He is also prohibited from making any constructions therein or commit it to purposes incompatible with its agricultural nature. Before a landowner can commit the retained land to non-agricultural purposes, he must first secure a conversion order from DAR, otherwise he can be held liable for premature conversion (see DAR Adm. O. No. 1 [1999]). Award to children If a landowner has children, three (3) hectares may be awarded to each subject to the following qualifications: a)
that he is at least fifteen (15) years old as of 15 June 1988; and
b) that he is actually tilling the land or directly managing it (Rep. Act No. 6657 [1988], sec. 6). DAR MC 4 (1994) defined the term "directly managing" as the cultivation of the land through personal supervision under the system of labor administration. DHcESI
The award to the child is not to be taken from the retained land of the landowner and is awarded to the child in his own right as a beneficiary. Thus, the award is not automatic. The child is merely given a preference over other beneficiaries.
As the right of the child is derived from his being a beneficiary, he must not only meet the requirements of preference laid out in Sec. 6 of RA 6657, but also all the other qualifications of a beneficiary enumerated under Sec. 22 of RA 6657. Thus, he must also be landless, a resident of the barangay or municipality where the land is located, and must have the willingness, aptitude and ability to cultivate and make the land as productive as possible. Moreover, he is subject to the same liabilities, responsibilities and limitations imposed on all agrarian reform beneficiaries. Exceptions to the 5-hectare retention limit The five (5)-hectare retention limit under RA 6657 does not apply to original homestead grantees or their direct compulsory heirs at the time of the approval of RA 6657 who continue to cultivate the same, and to those entitled to retain seven (7) hectares under PD 27. In the Association cases, the Supreme Court held that landowners who failed to exercise their rights to retain under PD 27 can avail of their rights of retention under Sec. 6 of RA 6657 and retain only five (5) hectares. However, in the resolution of the Supreme Court on the motion for consideration in the said case, the Court qualified that those who, prior to the promulgation of RA 6657, complied with the requirements under Letter of Instruction (LOI) Nos. 41, 45 and 52 regarding the registration of the landholdings, shall be allowed to enjoy the seven (7) hectare retention limit. All those who refused to comply with the requirements cannot, in view of the passage of CARL, demand that their retention limit be determined under PD 27. Thus, the following OLT owners are still entitled to retain seven (7) hectares even if they exercised their right of retention under PD 27 after 15 June 1988: a) Those landowners who complied with the requirement of either LOI 41, 45 or 52; b) Those who filed their applications before the deadline set (27 August 1985 as provided by AO. 1 [1985]) whether or not they have complied with LOI Nos. 41, 45 or 52; c) Those who filed their applications after the deadline but complied with the requirements of LOI 41, 45 or 52; and d) Heirs of a deceased landowner who manifested, while still alive, the intention to exercise the right of retention prior to 23 August 1990 (the finality of the Supreme Court decision in Association of Small Landowners vs. Hon. Secretary of DAR; supra) (DAR Adm. O. No. 4 [1991]). Exercise of right of retention
While Sec. 6 of RA 6657 acknowledges the right of the landowners to choose the area to be retained, it requires that the area be compact and contiguous, and shall be least prejudicial to the entire landholding and the majority of the farmers therein (DAR Adm. O. No. 5 [2000], sec 2 [b]). Sec. 4 of DAR AO 5 (2000) provides that under the Compulsory Acquisition (CA) scheme, the landowner shall exercise his right of retention within sixty (60) days from receipt of the Notice of Coverage from DAR. Failure to exercise this right within the prescribed period means that the landowner waives his right to choose which area to retain. Thereafter, the Municipal Agrarian Reform Officer (MARO) shall designate the retained area for the landowner. Under the Voluntary Offer to Sell (VOS) scheme, the right of retention shall be exercised at the time the land is offered for sale. The offer should specify and segregate the portion covered by VOS and the portion applied for retention; otherwise, the landowner shall be deemed to have waived his right of retention over the subject property (DAR Adm. O. No. 5 [2000], sec. 4). As a matter of policy, all rights acquired by the tenant-farmers under PD 27 and the security of tenure of the farmers or farmworkers on the land prior to the approval of RA 6657 shall be respected (DAR Adm. O. No. 5 [2000], sec. 2 [c]). In case the area selected by the landowner or awarded for retention by the DAR is tenanted, the tenant has two (2) options: a) To remain as a lessee. If he chooses to remain in the area retained, he shall be considered a lease holder and shall lose his right to be a beneficiary; or b) Be a beneficiary in the same or another agricultural land with similar or comparable features. The tenant must exercise either option within one (1) year after the landowner manifests his choice of the area for retention, or from the time the MARO has chosen the area to be retained b y the landowner, or from the time an order is issued granting the retention (DAR Adm. O. No. 5 [2000], sec. 10). Sec. 10 of DAR AO 5 (2000) further provides that in case the tenant declines to enter into leasehold and there is no available land to transfer, or if there is, the tenant refuses the same, he may choose to be paid disturbance compensation by the landowner. Where Certificates of Land Transfer (CLTs), Emancipation Patents (EPs) or Certificates of Land Ownership Award (CLOAs) have already been issued on the land chosen by the landowner as retention area, the DAR shall immediately
inform the agrarian reform beneficiaries (ARBs) concerned and provide them the opportunity to contest the landowner's claim. Moreover, the DAR shall ensure that the affected ARBs, should they so desire, be given priority in the distribution of other lands of the landowner or other lands identified by the DAR for redistribution, subject to the rights of those already in the area (DAR Adm. O. No. 5 [2000], sec. 11) Waiver of right of retention Sec. 7 of DAR AO 5 (2000) provides that the following acts constitute waiver on the landowner's right of retention: a) Executing an affidavit, letter or any other document duly attested by the MARO, Provincial Agrarian Reform Officer (PARO) or Regional Director (RD) indicating that he is expressly waiving his retention right over subject landholding; b) Signing of the Landowner-Tenant Production Agreement and Farmer's Undertaking (LTPA-FU) or Application to Purchase and Farmer's Undertaking (APFU) covering subject property; c) Entering into a Voluntary Land Transfer/Direct Payment Scheme (VLT-DPS) agreement as evidenced by a Deed of Transfer over the subject property; d) Offering the subject landholding under VOS scheme and failure to indicate his retained area; e) Signing/submission of other documents indicating consent to have the entire property covered, such as the form letter of the LBP on the disposition of the cash and bond portions of a land transfer claim for payment, and the Deed of Assignment, warranties and undertaking executed in favor of the LBP; f)
Performing acts which constitute estoppel by laches; and
g) Doing such act or acts as would amount to a valid waiver in accordance with applicable laws and jurisprudence. Public Lands Public lands pertain to all lands that were not acquired by private persons or corporations either by grant or purchase. These lands are either (a) disposable (alienable) public lands or (b) non-disposable public lands. CA 141 (1936), otherwise known as the "Public Land Act", governs the administration and disposition of lands of the public domain. Sec. 9 thereof
classifies alienable or disposable lands of the public domain as (a) agricultural; (b) residential, commercial, industrial or for similar productive purposes; (c) educational, charitable, or other similar purposes; or (d) reservations for town sites and for public and quasi-public uses. Non-disposable public lands or those not susceptible of private appropriation and include the following: (a) timber lands which are governed by PD 705 (1975) or the Revised Forestry Code; and (b) mineral lands which are governed by RA 7942 (1995) or the Philippine Mining Act of 1995 and other related laws. All lands of the public domain are under the exclusive jurisdiction of the DENR except those placed by law and/or by executive issuances under the jurisdiction of other government agencies. Under Sec. 3 and 5 of CA 141, the Secretary of Agriculture and Natural Resources (now the Secretary of DENR) is the executive officer charged with carrying out the provisions of the Public Land Act. It is empowered to prepare and issue such forms, instructions, rules and regulations consistent with the Public Land Act. Sec. 6 of CA 141 (see also EO 192 [1987]) reserves the power to classify lands in the public domain into either agricultural (disposable), timber or mineral lands to the President, with the recommendation of the Secretary of DENR. Under Sec. 4 of RA 6657, public and private agricultural lands and lands of the public domain suitable for agriculture are covered by CARP. It provides, among others, that all alienable and disposable lands of the public domain devoted or suitable or devoted to agriculture (Sec 4 [a]) and all lands of the public domain in excess of the specific limits of the public domain as determined by Congress (Sec. 4 [b]) shall be covered by CARP. It has also been determined that public agricultural lands that are untitled and privately claimed are covered by CARP. In response to a query by DAR, the Department of Justice issued Opinion No. 176 (1992) which stated:
. . . Thus, it has been held that there should be no distinction in the application of the law where non is indicated therein ( SSS vs. City of Bacolod, 115 SCRA 412) . . . By said rule, the term "private agricultural lands" in the aforementioned section should be interpreted as including all private lands, whether titled or untitled. . . . RA 6657 has created an overlapping of jurisdictions between the DENR and the DAR over the disposition of these lands. RA 6657 mandates DAR to acquire and distribute these public lands to agrarian beneficiaries while CA 141 vests upon the DENR the power to control, survey, classification, lease, sale or any other form of concession or disposition and management of the lands of the public domain.
To resolve the overlapping mandates of the DENR and DAR in the disposition and distribution of public lands for CARP purposes, the two agencies issued Joint DAR-DENR MC 9 (1995) which recognizes that lands of the public domain are under the jurisdiction of the DENR unless placed by law and/or by executive issuances under the jurisdiction of other government departments or entities. Under the said circular, the disposition of nonregistrable lands of the public domain is the exclusive responsibility of the DENR under its various programs (i.e., the Integrated Social Forestry). In this instance, the role of the DAR is to assist the DENR in identifying and screening of farmer beneficiaries. The responsibility and authority of DAR to distribute public lands shall be limited to the following: a) Lands proclaimed by the President as DAR Resettlement Projects and placed under the administration of the DAR for distribution to qualified farmer beneficiaries under CARP; b) and
Lands which are placed by law under the jurisdiction of DAR;
c) Lands previously proclaimed for the various government departments, agencies and instrumentalities and subsequently turned over to the DAR pursuant to EO 407 (1990), as amended by EO 448 and 506. Untitled public alienable and disposable lands are still within the exclusive jurisdiction of DENR pursuant to CA 141. However, in accordance with DOJ Opinion No. 176 (1992), Joint DAR-DENR MC 14 (1997) provides that all untitled public alienable and disposable lands are deemed "private" if the criteria specified in RA 6940 for the determination of whether or not a person has already acquired a recognizable private right over a landholding is met, namely: a) Continuous occupancy and cultivation by oneself or through one's predecessors-in-interest for at least thirty (30) years prior to the effectivity of RA 6940 on 16 April 1990; b) The land must have been classified as alienable and disposable for at least thirty (30) years prior to the effectivity on 16 April 1990; c)
One must have paid the real estate tax thereon; and
d)
There are no adverse claims on the land.
For these privately claimed public alienable and disposable lands, the DENR first issues a Free Patent to qualified applicants for the retained area of not more than five (5) hectares. The DAR shall then cover the excess area and issue a CLOA or EP and distribute these to qualified beneficiaries. TcCDIS
For untitled public alienable and disposable lands which are tenanted and with claimants not qualified under the criteria specified in RA 6940, the disposition shall be under the jurisdiction of the DENR. The role of the DAR in this case is limited to the documentation and protection of the leasehold arrangement between the public land claimant and the tenants. If the alienable and disposable land is not tenanted but has actual farm occupants, and the public land claimant lacks the requisite thirty (30)-year possession, these shall be under the jurisdiction of the DENR and the appropriate tenurial instrument shall be applied. It is submitted, however, that these alienable and disposable lands that are privately claimed by claimants who are not qualified under the criteria set under RA 6940 (1990) should be turned over to DAR for distribution under CARP. As these claimants/tenants are mere occupants and can not be granted Free Patents by the DENR, these land should instead be committed for agrarian purposes. A recently issued DENR MC 22 (1999) entitled "DENR Jurisdiction over all Alienable ad Disposable Lands of the Public Domain," seems to abrogate or set aside Joint DAR-DENR MC 14 (1997). It directs all Regional Executive Directors to strictly exercise DENR's jurisdiction over all alienable and disposable lands of the public domain, including those lands not specifically placed under the jurisdiction of other government agencies, and prepare the same for disposition to qualified and legitimate recipients under the People's Alliance for the Rehabilitation of Environment of the Office of the Secretary of the DENR. This recent issuance impliedly prohibits the turnover of alienable and disposable lands to CARP, and thus, effectively removes remaining public alienable and disposable lands out of the scope of CARP. While merely an administrative order that can not overturn legislation on the matter, DENR MC 22 (1999) poses another roadblock which if not corrected or legally challenged in court can derail the already delayed coverage of public agricultural lands. Sec. 7 of RA 6657 explicitly provides that alienable and disposable public agricultural lands are among the priority lands for distribution. Needless to say, the political implications of government's reluctance to commit public agricultural lands for agrarian ends in the face of its relentless expropriation of private landholdings is serious. Ancestral Lands Sec. 9 of RA 6657 defines ancestral lands as those lands that include, but not limited to, lands in actual, continuous and open possession of an indigenous cultural community and its members. Sec. 3 (b) of RA 8371 (1997) or the "Indigenous Peoples Rights Act of 1997," has a more encompassing definition, to wit:
Sec. 3.
Definition of Terms. — . . .
b). Ancestral Lands — Subject to Section 56 hereof, refers to lands occupied, possessed and utilized by individuals, families, and clans who are members of the ICCs/IPs (indigenous cultural communities/indigenous peoples) since time immemorial, by themselves or through their predecessors-in-interests, under claims of individual or traditional group ownership continuously, to the present, except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects and other voluntary dealings entered into by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and treelots; Policy for ancestral lands under CARP CARP ensures the protection of the right of ICCs/IPs to their ancestral lands to ensure their economic, social and cultural well being. Systems of land ownership, land use, and modes of settling land disputes of the ICCs/IPs shall be recognized and respected in line with principles of self-determination and autonomy. The Presidential Agrarian Reform Committee (PARC), notwithstanding any law to the contrary, has the power to suspend the implementation of the CARP with respect to ancestral lands for the purpose of identifying and delineating such lands. It shall also respect laws on ancestral domain enacted by the respective legislators of autonomous regions, subject to the provisions of the Constitution and the principles enunciated in RA 6657 and other national laws. However, the full protection of the rights of the ICCs/IPs to their ancestral lands under CARP is hampered by various legal constraints. For one, while Sec. 9 respects or protects the rights of the ICCs/IPs to their ancestral lands as means to protect their economic, social and cultural well-being, its definition of ancestral lands is circumscribed by the limitation that the Torrens System shall be respected. This is a fundamental legal setback to the rights of ICCs/IPs. It should be noted that the vested rights of these communities to ancestral lands have been recognized to have pre-existed the Regalian Doctrine which underlie the government's perspective to full ownership and control over natural resources as well as the current legal system that regulates private property rights. CARP involves alienable and disposable lands only while ancestral lands of ICCs/IPs encompass forest and mineral lands and other lands of the public domain which are by definition inalienable and indisposable. Thus, the benefit
of being awarded CLOAs over ancestral lands to these ICCs/IPs are limited to private agricultural lands and public agricultural lands transferred to DAR. In any case, to promote and protect the rights of the ICCs/IPs over ancestral lands situated in inalienable and indisposable public lands, DAR issues member/s of the ICCs who are engaged in agricultural activities over the said lands CARP Beneficiary Certificate (CBC). Though these do not vest title, it likewise recognizes the claim of the ICC over these lands and allows them to access support services from DAR. RA 8371 (1997) has a more expansive definition of ancestral domains and ancestral lands which includes lands that are legally determined as indisposable and inalienable public lands. RA 8371 is a clear departure from earlier law and regulation for not only does it expand the definition of ancestral lands but recognizes the right of the ICCs/IPs to own these lands. National Commission on Indigenous Peoples (NCIP), a body created by RA 8371, is vested, among others with the power and issue Certificates of Ancestral Domain/Land Titles over ancestral lands.
