Republic Act No. 9700 or CARPER Law
Posted by LandWatch Philippines - 2010/01/30 19:46 _____________________________________
The RA 9700 or the CARPER law which was signed by GMA on August 7, 2009 contains an extension of the budget for CARP especially the Land Acquisition and Distribution (LAD) program for five years starting July 1, 2009 and the necessary reforms to complete the acquisition and distribution of the remaining One Million Hectares of private agricultural lands to landless farmers. Moreover, CARPER law provides for clarification of policies and its interpretation by CARP implementation agencies including the decision of judicial courts. RA 6657, the original CARP law (CARL) has not been superseded by the CARPER law but strengthens or improves the CARL. Some provisions of the CARL were amended like the provision on the award to beneficiaries and the schedule of acquisition and distribution, new provisions were introduced like the Gender provisions and the Congressional Oversight Committee and a number of Supreme Court decisions legislated like the indefeasibility of titles given under agrarian reform and exclusive jurisdiction of DAR in agrarian dispute criminal cases. The most challenging part in the crafting of the CARPER law was how to balance the landowners’ interest, the farmer’s interest and the Department of Agrarian Reform’s (DAR) interest. One can see the tension in the provisions of the CARPER law. For instance, the landowners’ interest is dominant in the provision on Just compensation, the 90% trigger completion for acquisition of small land (below 10 hectares), the consideration of 70% of zonal valuation, attestation requirement to ensure that loyal farmers will get the land, priority of tenants and regular farmworkers in distribution to ensure easy consolidation and the support services for land owners; while the farmer’s interest is evident in the provisions on the rights and obligation will begin from the receipt of CLOAs and EPs, distribution of CLOAs and EPs and actual possession, installation of ARBs within 180 days from date of registration in the title of Republic of Philippines, usufructuary rights of identified ARBs pending award and subsidies for initial capital of new ARBs; and the DAR’s interest is apparent in the budget provision and phasing of land acquisition. Although the majority of the provisions in the CARPER law are pro-farmers, many reforms are still pending and continuously advocated at the executive, legislative and judiciary. The succeeding parts will discuss the salient provisions of the CARPER law.
I. New and Bold Provisions
CARP is a Continuing Program With the CARPER law the debate whether CARP will end and DAR will close shop after a fter five years from the extension has been clarified.. Under the Constitution, the State is mandated to undertake an agrarian reform which supports the opinion that CARP is a continuing program. It will only end when ALL agricultural lands have been distributed to landless farmers and that tenancy system has been converted to ownership. What ends in RA 6657 and RA 8532 is the funding for CARP and this is clarified in section 21 of the CARPER law. The fund allocated for CARPER is “to further furthe r implement the CARP” which means that the CARPER law provides funding needed to implement CARP. The same section emphasizes that the CARP will not end after five (5) years and even after 5 years when the LAD is completed, DAR will continue with the delivery of support services and agrarian justice. Section 30 of the CARPER law provides a way to legally continue the implementation of pending CARP cases after the 5-year extension by filing the initiatory process of CARP.
Creation of a Joint Congressional Oversight Committee The Oversight Committee is composed of members of Congress equally distributed between the House of Representatives and the Senate who will closely monitor the implementation of the CARP. Many cases involving implementation of CARP have reached Congress and Congress calls for a legislative investigation. The problems are mostly rooted in the implementing agencies, budget and gaps in the CARL. It has been anticipated that for the next 5 year extension, Congress wants to closely monitor the implementation of CARP in order to achieve its target and complete the distribution of more than 1 Million hectares of agricultural lands. The oversight committee will report periodically to Congress for possible adjustments of the law and executive polices in order to strengthen the implementation of the CARP.
Clear Policy against Conversion of Agricultural Lands One of the sharpened policies in the CARPER law is the relationship of conversion of agricultural land to non-agricultural Gensan Exchange -
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uses and food security. At present, only the DAR has the mechanism to regulate the conversion of agricultural lands to non-agricultural uses because all agricultural lands are covered under CARP. Many landowners convert their land to non-agricultural uses to evade CARP coverage. When the country experienced rice crisis last year, government realized that many of the food producing lands have been converted to non-agricultural uses. Studies show that small farms are food producing farms compared to big plantation. This can be seen in the distributed lands in Negros where the ARBs awarded with less than a hectare of land plant vegetables, raise chicken and other food products which contributed to their food needs as well as the community. The CARPER law strengthens the ban on any conversion of irrigated and irrigable lands and mandates the National Irrigation Administration to identify these. Moreover, it also legislates the resolution of the “Sumilao farmers case” that the non-implementation or violation of the conversion plan will result to automatic coverage of the subject by CARP. Under the CARPER law, any conversion to avoid CARP coverage is a prohibited act. The word “any” makes the defense of good faith or ignorance of the law untenable. Moreover the penalty for conversion is heavier. It will merit imprisonment of 6 to 12 years and/ or a penalty of 200,000 pesos to 1 million pesos. Gender-Sensitive Agrarian Reform The CARPER law institutionalizes reforms recognizing the rights of rural women to be beneficiaries of the CARP and to have meaningful participation in its planning and implementation. Aside from making the language of all the provisions of the law gender-neutral, the policy statement declares the right of rural women– “the State shall recognize and enforce, consistent with existing laws, the rights of rural women to own and control land, taking into consideration the substantive equality between men and women as qualified beneficiaries, to receive a just share of the fruits thereof, and to be represented in advisory or appropriate decision-making bodies. These rights shall be independent of their male relatives and of their civil status”. Such policy pronouncement on rural women is a great improvement of the CARL. The CARPER law defines the identity to the countless of rural in agrarian reform communities and recognizes their productive and reproductive labor. The design of the support services of the ARBs takes into account the specific needs of rural women through the creation of a women’s desk. Moreover, rural women will have a representative in the highest policy make body of DAR which is the Presidential Agrarian Reform Council (PARC) ensuring also that the composition of the PARC will have 20% women members.
II.LAND ACQUISITION AND DISTRIBUTION
150-B Budget For CARPER Implementation The budget allocated for the 5-year extension is 150 Billion pesos which will be sourced from three funds namely: 1.) Agrarian Reform Fund, 2.) other sources of funding like privatization of government asset, foreign donors, etc. and 3.) General Appropriations Acts (GAA). So far, this budget is the largest per year in the history of CARP. In the 2009 GAA, only 13 Billion pesos was allocated for the DAR because of the absence of the law that extends the funding of CARP. Sen. Arroyo specifically inserted a provision in the GAA that disallows any use of this budget for LAD. This has been foreseen in the deliberation of CARPER and the intention of the lawmakers was to allocate the budget to be used for CARPER immediately available when the law takes effect on July 1, 2009. Another improvement in the CARP budget is the continuing appropriation during the 5-year period and the clarification that interest payments of the bonds and just compensation used to acquire private lands will be part of the debt servicing in the GAA or any unprogrammed items in the GAA. This will ensure that the landowners will be paid. The usual complaint of landowners in the implementation of the program is that they are not paid for their land taken under CARP. Phasing Schedule of LAD To Ensure Completion by June 14, 2014 Under the CARPER law, Congress updated the phasing of the LAD implementation in the CARP for the next five (5) years. The intention was to provide a time table for DAR to manage the acquisition and distribution of the remaining backlog. The target period for each phase mandates DAR to work hard in order to be on schedule. The BICAM clarified that the target period does not stop the coverage of agricultural land after the deadline. At first glance, the phasing schedule seems complicated but a careful reading of provision will show straight forward schedule. The first phase will cover the landholdings 24 hectares and above which have been issued notice of coverage Gensan Exchange -
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by December 10, 2008, government lands and those offered under Voluntary Land Transfer (VLT) and Voluntary Offer to Sell (VOS). This phase will start on July 1, 2009 and should be completed on June 30, 2012. The second phase will cover the landholdings 24 hectares and above which have not been issued notice of coverage by December 10, 2008 and all landholdings below 24 but above 10 hectares which have been issued notice of coverage by December 10, 2008. This phase will start on July 1, 2012 to June 30, 2013. The last phase covers below 10 hectares. However, this last phase will only begin if all the previous phase has been 90% completed in a particular province. The last phase will start on July 1, 2013 and end on June 30, 2014. Public Agricultural lands will not be covered by the phasing and can be covered anytime. Another important improvement for this provision is the deletion of the phrase “insofar as the excess hectarage” in the CARL. The phrase was interpreted to limit the coverage to the excess area of a piece of landholding for that phase. Then cover the next excess for the next phase and so on. To illustrate the interpretation before, given 51 hectares; for the first phase, 1 hectare will be covered being the excess of 50 hectares, the next phase will cover the 26 hectares the excess from 24 hectare and the next phase the entire 24 hectares. Such interpretation was absurd, expensive and would definitely prolong the LAD. In the CARPER law, a particular landholding above 10 hectares can be acquired and distributed only once. There is a mandate in the CARPER law to resolve by June 30, 2012 all the valuation cases pending in the DAR. No More Voluntary Land Transfer (VLT) After June 30, 2009 Compulsory Acquisition and Voluntary Offer To Sell will be the main mode of land acquisition when the law takes effect. Many studies have shown that VLT has been abused by the landowners to put people who are not qualified or people who are loyal to them as beneficiaries. A cut-off date for VLT applications has been set on June 30, 2009. No VLT applications will be allowed after July 1, 2009.
Retention Limit Exemption Of Local Government Units (LGUs) LGUs except the Barangays can own agricultural lands beyond the five (5)-hectare limit set by CARL. This privilege is only applicable to lands that will be used for public purposes such as roads, bridges, public markets, school, resettlement, LGU facilities, public parks and barangay plazas. There are two limitations to this exemption: 1.) the use of the land must be actual, direct and exclusive; and 2.) the use must be consistent with the approved comprehensive land use plan. Moreover, if the land is covered under CARP and the LGU wants to use it for one of the public purpose mentioned earlier then it must be expropriated first and the farmers therein must be justly compensated. The law on conversion will still apply to the LGUs because the public purpose projects will entail conversion of agricultural lands to non-agricultural uses. The LGUs are not exempted from the application of the Conversion Order from DAR. Review of Land Size Limits For Each Type of Crop For the next six (6) months, DAR will submit a study to Congress for the appropriate land size of each crop. The purpose is for a possible review on the limit of land sizes. For instance, for coconut what is the most productive land size to maximize yield and minimize cost. However, before the 3 hectare award be adopted, a new law is needed.
Tenants and Regular Farmworkers Are First Priority Beneficiaries This provision was formulated and strongly advocated by Rep. Pablo Garcia (hence this was known as the Garcia Amendment). The provision provides that in a certain landholding the qualified beneficiaries who are tenants and regular farmworkers will receive 3 hectares each before distributing the remaining land to the other qualified beneficiaries like seasonal farmworkers and other farmworkers under Section 22 of CARL. The practice now is that any qualified beneficiary in the area will receive a piece of land however small through collective ownership. Such is beneficial to farmers because no matter how small the land, they can always make it productive. If this provision will be implemented strictly, a number of seasonal farmworkers in Negros and many other places that will not receive land because they can only benefit if there is extra land or if there are no tenants or regular farmworkers. Most of the time, the Tenants and Regular Farmworkers are the most loyal workers to the landowners and it will be easier for the landowner to get back, lease back or consolidate the lands distributed under CARP. Attestation Requirement of Farmer Beneficiary Another Garcia Amendment, under the CARPER law a new procedure for the identification of agrarian reform Gensan Exchange -
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beneficiaries requires the Barangay Agrarian Reform Council (BARC) to first certify that the potential beneficiaries are Farmers or Regular Farmworkers actually tilling the lands and the list should by attested under oath by the Landowner and lastly will state under oath before a judge that he/she is willing to work on the land and make it productive and assume the obligation of paying the amortization. The problem will arise because landowners are not the most available persons to make an attestation. The attestation requirement can be used as leverage against the farmers. Secondly, with this requirement the Landowner can choose the beneficiaries and only those favorable to him/her will be on the list. Another problem is the proximity of the Judge from the place of the farmer beneficiaries which are far from the farms. This requirement will actually pose a serious problem to the farmer beneficiaries and hamper the selection process of beneficiaries. A provision to check the correctness of the attestation and the undue delay in giving out the attestation might cause in the implementation is in place. Section 25 provides penalties to the landowner who will cause undue delay in complying with the obligation of attestation and/or falsification of the certification or attestation required is prohibited and is punishable with 6 to 12 years imprisonment or up to 1 million pesos penalty. Encourage Empowerment and Organizing of Farmer Beneficiaries The CARPER law has a bias for organized farmers to be beneficiaries. Congress believes that the success rate of organized farmers is high and can make their awarded lands productive. The DAR is mandated to conduct seminars and trainings for the farmers to organize. The DAR shall also assist the farmers form or join cooperatives. Individual Titles of Award The CARPER law adopted the recommendation from the economists that individualized Certificate of Land Ownership Award (CLOA) and Emancipation Patent (EP) is beneficial for the farmer beneficiaries. This will encourage farmers to invest in the awarded land and will have a sense of ownership. As a matter of policy in the CARPER law, land awarded should be in the form of individual title. The DAR will do the parcelization of the existing collective CLOAs and must be completed within three (3) years from the effectivity of the law. However, this is without prejudiced to collective CLOAs that are effective and need not be parcelized. A group of farmer beneficiaries can also decide to have a collective CLOA subject to the conditions in section 10 of CARPER. Their collective CLOA must indicate the names of the beneficiaries. Shortened Period For Installation of Farmer Beneficiaries The CARPER law mandates that the award of the land must be completed within 180 days from the date of registration of title in the name of the Republic of the Philippines. Such period is shorter than that of CARL. Another reform that can help shorten the period for installation is the inclusion of the standing crop in the computation of the just compensation for the land. This is the learning from the Hacienda Malaga Case were the only reason for the delay in installation is the standing crop. From experience, delay in installation causes violence and insecurity to the farmers. The CARPER law emphasize that farmer beneficiaries will only start payment of amortization if they have been physically installed on the awarded land for one (1) year. Ministerial Duty for the Registry of Deeds To Register Land in the Name Republic of the Philippines and CLOA The unfortunate experience in Negros (especially the Arroyo Lands in Bacan, Negros) where Registry of Deeds refuse to register the title in the name of the Republic of the Philippines bring about the provision under the CARPER law which states– “it is the ministerial duty of the registry of deeds to register the title of the land in the name of the republic of the Philippines, after the Landbank of the Philippines (LBP) has certified that the necessary deposit in the name of the landowner constituting full payment in cash or in bond with due notice to the landowner and the registration of the certificate of land ownership award issued to the beneficiaries, and to cancel previous titles pertaining thereto. Upon certifying the payment of Land Bank, the Registry of Deeds cannot refuse to cancel the title of the landowner, register the same title under RP title and to register the CLOA to be awarded to beneficiaries. This will lessen the stumbling blocks in the process of CLOA generation. Actual and Physical Distribution The CARPER law specifies that award of land must be actual and physical possession of the land which is in contrast to non-distributed schemes like Stock-Distribution Option and Leaseback arrangements. This can be the basis for the farmers to demand from the DAR for an actual and physical award of the land to them and they can legally reject any non-distributive schemes similar to the Hacienda Luisita experience.
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Indefeasibility of EP and CLOA The CARPER law legislates the Supreme Court decision in Estribillo vs. DAR (G.R. No. 159674, June 30, 2006) declaring titles of land awarded under any agrarian reform program are indefeasible and imprescriptible. The titles (i.e. EP and CLOA) will be afforded the same protection as Torrens title under the Torrens system. This provision provides protection to the CLOA’s or EP’s of farmers being cancelled after it has been registered already for a long time.
Usufructuary Rights Over Awarded Land Pending Award of EP or CLOA Under the CARPER law, “identified and qualified agrarian reform beneficiaries, shall have usufructuary rights over the awarded land as soon as the DAR takes possession of such land, and such right shall not be diminished even pending the awarding of the emancipation patent or the certificate of land ownership award”. This is will be useful to secure the rights of farmers in cases when the title of the landholding is in the name of the Republic but there is a delay in installing them as farmer beneficiaries. Instead of waiting for the awarding of the CLOAs, the farmers can already occupy the land and cultivate it to prevent the land from being idle or abandoned.
Cancellation of CLOA or EP is under the Exclusive and Original Jurisdiction of the DAR Secretary Congress intended to change the current rules on cancellation of CLOAs or EPs. The cancellation of registered CLOA goes to the DARAB while unregistered CLOAs to the DAR Secretary. The transfer of all cases on cancellation of CLOA to the DAR secretary will make it easier to the petitioner because of the simpler rules. The appeal to the Office of the President (OP) is available and is strategic for dialogue. Again this provision is double edge because the landowners can also go to the OP and will have chances of getting a favorable decision. This is the case of Banasi farmers in Camarines Sur where the favorable decision of the DAR secretary was reversed after seven (7) years at the OP. Moreover, the decision of the DAR Secretary under the CARPER law is immediately executory even pending appeal to judicial courts.
Affordability Clause Made Mandatory The CARPER law explicitly mandates that farmers will pay reduced amortizations established by PARC for the first 3 years. For the next years, the law put a ceiling on the annual amortization to not more than 5% to 10% of the value of the annual gross production. The Land Bank of the Philippines (LBP) is mandated to reduce the interest or the principal to make repayment affordable. The amortization depends on the annual gross production determined by the DAR which will effectively make the amortization of farmer beneficiaries affordable. This is a great improvement from the CARL because the affordability clause here is made mandatory for LBP and DAR to implement. ============================================================================
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