Scope of CARP
The Constitution in
Sec. 4, Art. XIII, mandates the just distribution of all agricultural lands,
subject to such priorities and reasonable retention limits that the Congress
may prescribe, taking into account ecological, developmental or equity
considerations and subject to the payment of just compensation.
Prior to RA
6657,
the operative law on land distribution was PD 27 (1972). However, PD 27 is limited in scope, covering only
tenanted private agricultural lands primarily devoted to rice and corn
operating under a system of share-crop or lease tenancy, whether classified as
landed estate or not. The constitutional provision therefore expanded the scope
of agrarian reform to cover all agricultural lands.
RA 6657 operationalized this constitutional
mandate and provides in Sec. 4 thereof that the CARP shall cover, regardless of
tenurial arrangement and commodity produced, all public and private
agricultural lands, as provided in Proclamation No. 131 and EO 229including other lands of the public domain
suitable for agriculture. More specifically, the following lands are covered by
CARP:
a) All
alienable and disposable lands of the public domain devoted to or suitable for agriculture;
b) All
lands of the public domain in excess of the specific limits as determined by
Congress in Sec. 4 (a) of RA 6657;
c) All
other lands owned by the government devoted to or suitable for agriculture; and
d) All
private lands devoted or suitable for agriculture regardless of the
agricultural products raised or that can be raised thereon (Rep. Act No. 6657 [1988],
Sec. 4).
Definition of agricultural land
Sec. 3 (c) of RA
6657 defines
agricultural lands as follows:
(c)
Agricultural Land refers to land devoted to agricultural activity as defined in
this Act and not classified as mineral, forest, residential, commercial or
industrial land.
(b)
Agriculture, Agriculture Enterprise or Agricultural Activity means cultivation
of soil, planting of crops, growing of fruit trees, including the harvesting of
such farm products, and other farm activities and practices performed by a
farmer in conjunction with such farming operations done by persons whether
natural or juridical.
In Natalia
v. DAR,
225 SCRA 278 (1993), the Supreme Court held:
Section
4 of RA 6657 provides that the CARL "shall cover, regardless of tenurial
arrangement and commodity produced, all public and private agricultural
lands." As to what constitutes "agricultural land," it is
referred to as "land devoted to agricultural activity as defined in this
Act and not classified as mineral, forest, residential, commercial or
industrial land." The deliberations of the Constitutional Commission
confirm this limitation. "Agricultural lands" are only those lands
which are "arable and suitable agricultural lands" and "do not
include commercial and industrial lands" (at 282, 283).
Agricultural
lands reclassified by local governments into "forest conservation
zones"
Agricultural lands reclassified by local government units (LGUs) into "forest
conservation zones" even prior to the effectivity of CARLdo not become forest land under Sec. 3 (c)
of RA
6657 as
to be exempted from CARP coverage.
It should be noted that under the Constitution, lands of the public domain are
classified into agricultural, forest or timber, mineral lands and national
parks (CONST.,
Art. XII, Sec. 3). These classifications are called primary classifications or
"classification in the first instance." The same provision of the
Constitution also provides that agricultural lands of the public domain may be
further classified according to the uses to which they may be devoted. This
further classification of agricultural land is referred to as secondary
classification. The responsibility over primary classification of lands of the
public domain is vested in the President who exercises such power upon the recommendation
of the Department of Environment and Natural Resources (DENR) (Com. Act No. 141 [1936],
Sec. 6;EO
192 [1987]).
On the other hand, the authority to reclassify agricultural lands into
residential, commercial or industrial is lodged, among others, in cities and
municipalities (Rep.
Act No. 7160 [1991],
Sec. 20).
The group of lands referred to in Sec. 3 (c) of RA 6657 as non-agricultural (i.e., mineral,
forest, residential, commercial or industrial) is a mix of primary and
secondary classifications. Forest and mineral lands are, under the Constitution and Commonwealth Act No. 141 (1936),
primary classifications, while the rest are secondary classifications.
Reclassification by LGUs of agricultural lands into "forest conservation
zones" does not have the effect of converting such lands into forest lands
as to be exempted from CARP. Firstly, an agricultural land is already a primary
classification and, hence, can only be subjected to secondary classification.
Secondly, LGUs have no authority or power to make primary classifications
considering that such power is the sole prerogative of the President exercising
such power upon the recommendation of the DENR.
The forest (or mineral) land referred to in Sec. 3 (c) of RA 6657is therefore to be understood as referring to
forest (or mineral) land declared to be such by the President/DENR and not by
the LGUs.DAR
Administrative Order No. 1 (1990) makes this qualification in its
definition of "agricultural land," as follows:
. .
. Agricultural land refers to those devoted to agricultural activity as defined
in R.A. 6657 and not classified as mineral or forest by the Department of
Environment and Natural Resources (DENR) and its predecessor agencies, and not
classified in town plans and zoning ordinances as approved by the Housing and
Land Use Regulatory Board (HLURB) and its preceding competent authorities prior
to 15 June 1988 for residential, commercial or industrial use.
Agricultural
lands reclassified LGUs into residential, commercial or industrial
Taking into consideration the effectivity of the law, the secondary classifications
mentioned in Sec. 3 (c) of RA 6657 are treated according whether they were
classified as such before or after the effectivity of the law on 15 June 1988.
If the agricultural land was classified as residential, commercial or
industrial by the LGU and approved by the Housing and Land Use Regulatory Board
(HLURB), or its predecessor agencies, prior to 15 June 1988, the land will be
recognized as so classified under Sec. 3 (c) of RA and is therefore not covered
by CARP. However, anexemption clearance from DAR is still necessary
to confirm or declare its exempt status. (DAR Adm. O. No. 6 [1994]).
This is based on Department
of Justice Opinion No. 44 (1990)which provides that with respect to the
conversion of agricultural lands covered by RA 6657 to non-agricultural uses, the authority
of the DAR to approve such conversion may be exercised from the date of its
effectivity or on 15 June 1988. Thus, all lands already classified as
commercial, industrial or residential before that date no longer need any
conversion clearance from the DAR.
If an agricultural land is reclassified after 15 June 1988, the provisions on
land conversion under CARL and its implementing rules will apply (Rep. Act No. 6657 [1988],
sec. 65; DAR
Adm. O. No. 1 [1999]).
Conversion
prior to 15 June 1988 through presidential proclamation binding before DAR
The reasoning in DOJ
Opinion No. 44 (1990) was validated by the Supreme Court
in Natalia
v. DAR, supra. This case involved the question of whether
or not lands already classified for residential, commercial or industrial use,
as approved by HLURB and its precursor agencies, prior to 15 June 1988 are
covered by CARP.
Natalia
Realty, Inc. vs. Department of Agrarian Reform
225
SCRA 278 (1993)
Facts:
Petitioner
Natalia Realty, Inc. is the owner of a 125.0078-ha land set aside by
Presidential Proclamation No. 1637 (1979) as townsite area for the Lungsod
Silangan Reservation. Estate Developers and Investors Corporation (EDIC), the
developer of the area, was granted preliminary approval and locational
clearances by the then Human Settlements Regulatory Commission (HSRC) for the
establishment of the Antipolo Hills Subdivision therein. In November 1990, a
Notice of Coverage was issued by DAR on the undeveloped portion of the
landholding. The developer filed its objections and filed this case imputing
grave abuse of discretion to respondent DAR for including the undeveloped
portions of its landholding within the coverage of CARP.
Issue:
Are
lands already classified for residential, commercial or industrial use, and
approved by HLURB and its precursor agencies prior to 15 June 1988, covered by
RA 6657?
Held:
Sec.
4 of RA 6657 states that the CARL covers "regardless of tenurial
arrangement and commodity produced, all public and private and agricultural
lands" and as per the transcripts of the Constitutional Commission,
"agricultural lands" covered by agrarian reform refers only to those
which are "arable and suitable lands" and "do not include
commercial, industrial and residential lands." The land subject of the
controversy has been set aside for the Lungsod Silangan Reservation by
Proclamation No. 1637 prior to the effectivity of RA 6657 and in effect
converted these lands into residential use. Since the Natalia lands were
converted prior to 15 June 1988, DAR is bound by such conversion, and thus it
was an error to include these within the coverage of CARL.
Exemptions and Exclusions
Sec. 10 of RA
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 wild-life, forest
reserves, reforestation, fish sanctuaries and breeding grounds, watersheds and
mangroves (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 to raising of livestock, swine and poultry. The Luz Farms Case.
Before its amendment by RA 7881, Sec. 3(b) of RA 6657included in its definition of agricultural
activity the "raising of livestock, poultry or fish". Likewise, the
original Sec. 11 of RA 6657on 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 Farms vs. Secretary of Agrarian Reform,
supra,
held that Sec. 3 (b) and Sec. 11 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. Secretary of the Department of Agrarian Reform
192
SCRA 51 (1990)
Facts:
Petitioner
Luz Farms is a corporation engaged in livestock and poultry business. It seeks
to 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 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 or consideration of
productivity in this 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 constitutionally-mandated 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 Jamir to 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, was not
considered because the 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 Tadeo
clarified that the term "farmworker" was used instead of
"agricultural worker" in order to exclude therein piggery, poultry
and livestock workers (Record, CONCOM, August 2, 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 thePublic 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 ofRA
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 • Rice
and corn lands under Presidential
1988-1992
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
II • All
alienable and disposable public agricultural
1992-1995
lands;
• all
arable public agricultural lands under agro-
forest,
pasture and agricultural leases already
cultivated
and planted to crops in accordance;
• all
public agricultural lands which are to be opened
for
new development and resettlement;
• and
all private agricultural lands in excess of
fifty
(50) hectares,
III-A • Landholdings
above twenty-four (24)
1998-1992
hectares
up to fifty hectares; and
III-B • Private
agricultural lands with areas above
the 1994-1998
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) ofEO
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 6657operationalizes 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 6657and 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 27can 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 27after 15 June 1988:
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 inAssociation 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 by 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 ofCA
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, theDepartment 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
6657mandates
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 non-registrable 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) Lands
which are placed by law under the jurisdiction of DAR; and
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 tScope of CARP
The Constitution in
Sec. 4, Art. XIII, mandates the just distribution of all agricultural lands,
subject to such priorities and reasonable retention limits that the Congress
may prescribe, taking into account ecological, developmental or equity
considerations and subject to the payment of just compensation.
Prior to RA
6657,
the operative law on land distribution was PD 27 (1972). However, PD 27 is limited in scope, covering only
tenanted private agricultural lands primarily devoted to rice and corn
operating under a system of share-crop or lease tenancy, whether classified as
landed estate or not. The constitutional provision therefore expanded the scope
of agrarian reform to cover all agricultural lands.
RA 6657 operationalized this constitutional
mandate and provides in Sec. 4 thereof that the CARP shall cover, regardless of
tenurial arrangement and commodity produced, all public and private
agricultural lands, as provided in Proclamation No. 131 and EO 229including other lands of the public domain
suitable for agriculture. More specifically, the following lands are covered by
CARP:
a) All
alienable and disposable lands of the public domain devoted to or suitable for agriculture;
b) All
lands of the public domain in excess of the specific limits as determined by
Congress in Sec. 4 (a) of RA 6657;
c) All
other lands owned by the government devoted to or suitable for agriculture; and
d) All
private lands devoted or suitable for agriculture regardless of the
agricultural products raised or that can be raised thereon (Rep. Act No. 6657 [1988],
Sec. 4).
Definition of agricultural land
Sec. 3 (c) of RA
6657 defines
agricultural lands as follows:
(c)
Agricultural Land refers to land devoted to agricultural activity as defined in
this Act and not classified as mineral, forest, residential, commercial or
industrial land.
(b)
Agriculture, Agriculture Enterprise or Agricultural Activity means cultivation
of soil, planting of crops, growing of fruit trees, including the harvesting of
such farm products, and other farm activities and practices performed by a
farmer in conjunction with such farming operations done by persons whether
natural or juridical.
In Natalia
v. DAR,
225 SCRA 278 (1993), the Supreme Court held:
Section
4 of RA 6657 provides that the CARL "shall cover, regardless of tenurial
arrangement and commodity produced, all public and private agricultural
lands." As to what constitutes "agricultural land," it is
referred to as "land devoted to agricultural activity as defined in this
Act and not classified as mineral, forest, residential, commercial or
industrial land." The deliberations of the Constitutional Commission
confirm this limitation. "Agricultural lands" are only those lands
which are "arable and suitable agricultural lands" and "do not
include commercial and industrial lands" (at 282, 283).
Agricultural
lands reclassified by local governments into "forest conservation
zones"
Agricultural lands reclassified by local government units (LGUs) into "forest
conservation zones" even prior to the effectivity of CARLdo not become forest land under Sec. 3 (c)
of RA
6657 as
to be exempted from CARP coverage.
It should be noted that under the Constitution, lands of the public domain are
classified into agricultural, forest or timber, mineral lands and national
parks (CONST.,
Art. XII, Sec. 3). These classifications are called primary classifications or
"classification in the first instance." The same provision of the
Constitution also provides that agricultural lands of the public domain may be
further classified according to the uses to which they may be devoted. This
further classification of agricultural land is referred to as secondary
classification. The responsibility over primary classification of lands of the
public domain is vested in the President who exercises such power upon the recommendation
of the Department of Environment and Natural Resources (DENR) (Com. Act No. 141 [1936],
Sec. 6;EO
192 [1987]).
On the other hand, the authority to reclassify agricultural lands into
residential, commercial or industrial is lodged, among others, in cities and
municipalities (Rep.
Act No. 7160 [1991],
Sec. 20).
The group of lands referred to in Sec. 3 (c) of RA 6657 as non-agricultural (i.e., mineral,
forest, residential, commercial or industrial) is a mix of primary and
secondary classifications. Forest and mineral lands are, under the Constitution and Commonwealth Act No. 141 (1936),
primary classifications, while the rest are secondary classifications.
Reclassification by LGUs of agricultural lands into "forest conservation
zones" does not have the effect of converting such lands into forest lands
as to be exempted from CARP. Firstly, an agricultural land is already a primary
classification and, hence, can only be subjected to secondary classification.
Secondly, LGUs have no authority or power to make primary classifications
considering that such power is the sole prerogative of the President exercising
such power upon the recommendation of the DENR.
The forest (or mineral) land referred to in Sec. 3 (c) of RA 6657is therefore to be understood as referring to
forest (or mineral) land declared to be such by the President/DENR and not by
the LGUs.DAR
Administrative Order No. 1 (1990) makes this qualification in its
definition of "agricultural land," as follows:
. .
. Agricultural land refers to those devoted to agricultural activity as defined
in R.A. 6657 and not classified as mineral or forest by the Department of
Environment and Natural Resources (DENR) and its predecessor agencies, and not
classified in town plans and zoning ordinances as approved by the Housing and
Land Use Regulatory Board (HLURB) and its preceding competent authorities prior
to 15 June 1988 for residential, commercial or industrial use.
Agricultural
lands reclassified LGUs into residential, commercial or industrial
Taking into consideration the effectivity of the law, the secondary classifications
mentioned in Sec. 3 (c) of RA 6657 are treated according whether they were
classified as such before or after the effectivity of the law on 15 June 1988.
If the agricultural land was classified as residential, commercial or
industrial by the LGU and approved by the Housing and Land Use Regulatory Board
(HLURB), or its predecessor agencies, prior to 15 June 1988, the land will be
recognized as so classified under Sec. 3 (c) of RA and is therefore not covered
by CARP. However, anexemption clearance from DAR is still necessary
to confirm or declare its exempt status. (DAR Adm. O. No. 6 [1994]).
This is based on Department
of Justice Opinion No. 44 (1990)which provides that with respect to the
conversion of agricultural lands covered by RA 6657 to non-agricultural uses, the authority
of the DAR to approve such conversion may be exercised from the date of its
effectivity or on 15 June 1988. Thus, all lands already classified as
commercial, industrial or residential before that date no longer need any
conversion clearance from the DAR.
If an agricultural land is reclassified after 15 June 1988, the provisions on
land conversion under CARL and its implementing rules will apply (Rep. Act No. 6657 [1988],
sec. 65; DAR
Adm. O. No. 1 [1999]).
Conversion
prior to 15 June 1988 through presidential proclamation binding before DAR
The reasoning in DOJ
Opinion No. 44 (1990) was validated by the Supreme Court
in Natalia
v. DAR, supra. This case involved the question of whether
or not lands already classified for residential, commercial or industrial use,
as approved by HLURB and its precursor agencies, prior to 15 June 1988 are
covered by CARP.
Natalia
Realty, Inc. vs. Department of Agrarian Reform
225
SCRA 278 (1993)
Facts:
Petitioner
Natalia Realty, Inc. is the owner of a 125.0078-ha land set aside by
Presidential Proclamation No. 1637 (1979) as townsite area for the Lungsod
Silangan Reservation. Estate Developers and Investors Corporation (EDIC), the
developer of the area, was granted preliminary approval and locational
clearances by the then Human Settlements Regulatory Commission (HSRC) for the
establishment of the Antipolo Hills Subdivision therein. In November 1990, a
Notice of Coverage was issued by DAR on the undeveloped portion of the
landholding. The developer filed its objections and filed this case imputing
grave abuse of discretion to respondent DAR for including the undeveloped
portions of its landholding within the coverage of CARP.
Issue:
Are
lands already classified for residential, commercial or industrial use, and
approved by HLURB and its precursor agencies prior to 15 June 1988, covered by
RA 6657?
Held:
Sec.
4 of RA 6657 states that the CARL covers "regardless of tenurial
arrangement and commodity produced, all public and private and agricultural
lands" and as per the transcripts of the Constitutional Commission,
"agricultural lands" covered by agrarian reform refers only to those
which are "arable and suitable lands" and "do not include
commercial, industrial and residential lands." The land subject of the
controversy has been set aside for the Lungsod Silangan Reservation by
Proclamation No. 1637 prior to the effectivity of RA 6657 and in effect
converted these lands into residential use. Since the Natalia lands were
converted prior to 15 June 1988, DAR is bound by such conversion, and thus it
was an error to include these within the coverage of CARL.
Exemptions and Exclusions
Sec. 10 of RA
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 wild-life, forest
reserves, reforestation, fish sanctuaries and breeding grounds, watersheds and
mangroves (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 to raising of livestock, swine and poultry. The Luz Farms Case.
Before its amendment by RA 7881, Sec. 3(b) of RA 6657included in its definition of agricultural
activity the "raising of livestock, poultry or fish". Likewise, the
original Sec. 11 of RA 6657on 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 Farms vs. Secretary of Agrarian Reform,
supra,
held that Sec. 3 (b) and Sec. 11 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. Secretary of the Department of Agrarian Reform
192
SCRA 51 (1990)
Facts:
Petitioner
Luz Farms is a corporation engaged in livestock and poultry business. It seeks
to 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 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 or consideration of
productivity in this 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 constitutionally-mandated 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 Jamir to 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, was not
considered because the 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 Tadeo
clarified that the term "farmworker" was used instead of
"agricultural worker" in order to exclude therein piggery, poultry
and livestock workers (Record, CONCOM, August 2, 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 thePublic 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 ofRA
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 • Rice
and corn lands under Presidential
1988-1992
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
II • All
alienable and disposable public agricultural
1992-1995
lands;
• all
arable public agricultural lands under agro-
forest,
pasture and agricultural leases already
cultivated
and planted to crops in accordance;
• all
public agricultural lands which are to be opened
for
new development and resettlement;
• and
all private agricultural lands in excess of
fifty
(50) hectares,
III-A • Landholdings
above twenty-four (24)
1998-1992
hectares
up to fifty hectares; and
III-B • Private
agricultural lands with areas above
the 1994-1998
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) ofEO
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 6657operationalizes 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 6657and 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 27can 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 27after 15 June 1988:
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 inAssociation 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 by 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 ofCA
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, theDepartment 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
6657mandates
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 non-registrable 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) Lands
which are placed by law under the jurisdiction of DAR; and
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. 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.
