Philippines-Australia Land Administration and Management Project

LAND LAWS AND REGULATIONS POLICY STUDY

FINAL REPORT Volume 2

July 2002

REPORT A2

Department of Justice

This report is a result of technical assistance managed by Land Equity International to the Government of Philippines. The TA was funded by AusAID and the views expressed in this work do not necessarily represent the views of the Commonwealth of Australia.

VOLUME 2

CONTENTS

Position Papers prepared by University of the Philippines 1. Examining the 1987 Constitution Relative to Land Policies and Principles Prof. Carmelo V. Sison and Prof. Eduardo A. Labitag 2. Land Use Prof. Myrna S. Feliciano 3. Land Registration Atty. Ricardo Arandilla 4. Land Use Regulation and Control Atty. Ernesto C. Mendiola 5. Land Tenure Rights in the Philippines: Terrain and Trajectory Asst. Prof. Dante B. Gatmaytan 6. Public Land Laws of the Philippines Atty. Ramon N. Casanova Inventory of Land Administration Laws prepared by University of the Philippines Supreme Court Cases (2000-2002) Position Paper prepared by Hector Fabros former Assistant Director, DENR-LMB A Revisitation of the Public Land Disposition in the Philippines Report by Atty Berlin Berba Report by Carlos Isles

EXAMINING THE 1987 CONSTITUTION RELATIVE TO LAND POLICIES AND PRINCIPLES

CARMELO V. SISON and EDUARDO A. LABITAG

Professors-of-Law, U.P. College of Law

1. PRELIMINARY

Cognizant of the multifarious problems confronting the Philippine land administration system, this paper examines the major reasons causing the problems of land administration using the 1987 Constitutional policies and principles relating to land as framework of analysis. This paper begins with a review of the ideas behind including an article on the National Economy and Patrimony in the 1987 Constitution, then proceeds with the identification of the major constitutional land policies and principles. This paper then considers at the 1987 Constitution land classification system and the overlapping or jurisdictional conflicts among different administrative agencies involved in land titling, registration and transfers of interests in land. Finally, this paper studies the concept of land stewardship and a possible broadened constitutional application on the concept providing a major policy shift as to how the Constitution mandates the State to deal with lands of the public domain. 2. CONSTITUTIONALIZING STATE CONTROL OF NATURAL RESOURCES In general, the essential parts of a written constitution are divided into three distinct subjects: (1) the bill of rights, (2) governmental organization and functions, and (3) method of amendments1. The 1987 Philippine Constitution, in substantially adopting the provisions of the 1935 Constitution, went further by enlarging and strengthening the role of the state in the economic and social life of the nation2. The state became an all-embracing authority capable of protecting the national wealth and of providing for the material welfare of the people as a group from being a primarily political organization. The constitutional control on natural resources furthered the nationalistic tone of the Constitution and is responsible for the expanded use of governmental action in economic enterprises. Being vital factors for national survival, land and other natural resources are given specific attention. The Preamble in the 1935, 1973 and 1987 Constitutions explicitly provide for the conservation and development of the patrimony of the nation for the Filipino people and themselves for their posterity. The principles embodied in the 1935 Constitutional provisions on natural resources rest on the following premises: 1. That land and other natural resources of the Philippines constitute the exclusive heritage of the Filipino nation; 2. That the existence of big landed estates is one of the causes of economic unequilibrium and social unrest; 3. That the multiplication of landowners by the subdivision of land into smaller holdings is conducive to social peace and individual contentment; 4. That the encouragement of ownership over small landholdings destroys that institution so deeply entrenched in many parts of the Philippines known as caciquism. It is preventive of absentee landlordism, an institution which springs directly from the establishment of big landed estates and has, time and again served as an irritant to the actual toilers of the soil3.

1 V. G. Sinco, Philippine Political Law: Principles and Concepts (11th ed., 1962) p. 72. 2 Former Supreme Court Justice Isagani Cruz criticizes the wording with loquacity of the policies on social justice and the national economy to give the legislature more leeway in their implementation. To him, these portions of the 1987 Constitution sound like a political speech rather than a formal document stating only basic precepts. He states that the policies could have been expressed briefly without loss of substance if the framers had more expertise in the art of constitution-making and less personal vainglory, let alone distrust of the legislature. In I. A. Cruz, Philippine Political Law (1998 ed.) p. 11. 3 V. G. Sinco, supra at note 1, pp. 445-446.

3. MAJOR LAND POLICIES IN THE 1987 CONSTITUTION Considering that natural resources are the main basis for national survival and land is the single biggest major resource of the nation4, the framers of the 1987 Constitution deemed it important to include an Article on the National Economy and Patrimony in the 1987 Constitution. The natural resources in the National Territory consisting of land, sea and air, are the National Patrimony. The wealth of the Philippines in the lands and national public domain, agricultural, forest or timber, mineral lands and national parks should be developed and utilized to sustain a National Economy that will assure people of peace and prosperity in the enjoyment of the blessings of democracy5. Section 1, Article XII of the 1987 Constitution6 states some general constitutional economic policies. Three directives may be gleaned from this provision. First, it sets the dual goal of dynamic productivity and a more equitable distribution of what is produced. Second, it seeks complimentarity between industrialization and agricultural development. Third, it is protective of things Filipino7. Specifically, the goals of the national economy are three-fold: more equitable distribution of opportunities, income, and wealth, sustained increase in the amount of goods and services produced by the nation, and expanding productivity. Equitable distribution of opportunities, income, and wealth is part of the promotion of Social Justice in Art. XIII, which mandates Congress to give the highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequities by equitably diffusing wealth and political power for the common god8. Equitable distribution refers not just to distribution among people and sectors of the economy but also to distribution among geographic regions9. This goal is constitutionally-enunciated in the provisions relating to the State undertaking an agrarian reform program by law10, the restriction that only public agricultural land may be disposed of11, citizenship and area limitations12, and the provision that State by law may further classify agricultural lands of the public domain according to use13. While Section 1 speaks of general economic policies, this provision becomes essential in the analysis of the problems on land administration for two major reasons: (1) since this a constitutional provision, it provides the framework in the review and possible amendment of inconsistent provisions or policies with it, and (2) as land is a major economic resource, the aforementioned major policies and goals of National Economy become a set of criteria that has to be considered if existing laws are amended or new statutes passed.

Most laws on the acquisition, transfer and disposition of public lands and the interests therein and land registration were enacted long before the ratification of the 1987 4 J. D. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (1996 ed.) p. 1018. 5 A. B. Padilla, The 1987 Constitution of the republic of the Philippines (Vol. 3, 1991) p. 89. 6 Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key raising the quality of life for all, especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. 7J. D. Bernas, supra at note 4, p. 1006. 8 Sec. 1, par. 1. Art. XIII, also provides for land stewardship which will be discussed in the latter section of this paer. 9 Ibid, pp. 1006-1007. 10 CONST, art. XIII, secs. 4-6. 11 CONST, art. XII, sec. 2. 12 CONST, art. XII, secs. 3, 7-8. 13 CONST, art. XII, sec. 3.

Constitution14. This necessitates consideration of possible inconsistencies between the old statutes and the new Constitution15. This is relevant considering that the Constitution is the basic and paramount law of the land to which all other laws must conform and to which all persons, including the highest officials of the land, must defer16. Consequently, when the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern17.

A close examination of the major reasons for the problems in land registration, the procedures involved in titling and the overlapping or conflicting jurisdiction among the various agencies actually involved in the issuance of a land title, reveals that there is a gross incompatibility between the procedures that have been adopted and the goals of the National Economy. The goal to expand productivity is greatly hampered by inefficient and cumbersome procedures in titling. This is so, probably because it is inherently judicial as adopted from the American Torrens system. While the original Torrens system as conceived by Robert Torrens of Australia called for an administrative registration, the system as applied under American laws18 adopted a judicial process for land registration. The judicial process evolved from the separation of branches into executive, judicial, and legislative where no officer belonging to one department may exercise any power belonging to either of the others. Under such separation of powers, a registrar, being an executive officer, may not exercise any judicial power to determine and vest title to land. Thus, under American law, only the court has the power to settle and adjudicate or confirm title and order its registration in the name of the landowner19. Productivity cannot be expanded when the main resource for production, namely land, is not available for transfer or for transactions because it is locked in titling or registration proceedings and cannot be developed or utilized for economic activities. Cumbersome procedures translate into no land title is given until after the expense of a great deal of time, money, and effort. Moreover, cumbersome procedures coupled with conflicting jurisdictions of various agencies also frustrate the goals of agrarian reform and urban land reform and that of equitable distribution of wealth. Concretely, they frustrate the operationalization of Sec. 22 of Art. XVIII (Transitory Provisions) providing that, “(A)t the earliest possible time, the Government shall expropriate idle or abandoned lands as may be defined by law, for distribution to the beneficiaries of the agrarian reform program.” 4. JURISDICTIONAL ISSUES As earlier mentioned, overlapping or conflicting jurisdictions of the various agencies involved in land registration, along with the cumbersome procedures, are major reasons for the problems of delay in processing in titling, acquisition and transfers in land administration. Conflicts in jurisdiction may have been indirectly spawned by the Constitution itself, as the creation of the Department of Agrarian Reform (DAR) to implement R.A. 6657 (Comprehensive Agrarian Reform Law of 1988)20 was pursuant to Sec. 4 of Art. XIII21.

14 For instance, the main statute for public land disposition, CA 141 or the Public land Act was enacted November 7, 1936 while the main statute for land registration, PD 1529 or the Property Registration Decree, was enacted June 11, 1978. Act 496 or the Land Registration Act of 1902 and Act 2259 or the Cadastral Act were even enacted long before the 1935 Constitution, being enacted November 6, 1902 and February 11, 1913 respectively. 15 Under CA 141 (Public Land Act) for instance, the area for individual ownership has been limited to 12 hectares under the 1987 Constitution and the original classification of lands in CA 141 as alienable or disposable, timber or mineral lands (sec. 6) has to conform to the present classification of agricultural, forest, mineral, and national parks. Moreover, the judicial process for land titling and registration as provided for under Act 496 and Act 2259 may hamper the goal of the 1987 Constitution of an increasing productivity. 16 I. A. Cruz, supra at note 2, p. 12. 17 Civil Code, art. 7. 18 The Philippines adopted its Torrens system from the Massachusetts law while the latter adopted the Illinois land registration system. 19 F. Ventura, Land Titles and Deeds, (4th ed., 1955) pp. 62-63. 20 Enacted June 10, 1988. 21 Sec. 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the

Likewise, the Housing and Urban Development Coordinating Council (HUDCC) and the Housing and Land Use Regulatory Board (HLURB) implementing RA 7279 (Urban Development and Housing Act of 1992)22 was only giving effect to the policies enunciated in Sec. 9 of Art. XIII23, which is urban land reform and housing. Further, the National Commission on Indigenous Peoples (NCIP) implementing RA 8371 (Indigenous Peoples Rights Act of 1997)24 was pursuant to Sec. 5 of Art. XII25. This is not to mention the role of the Department of Finance (DOF) through the Bureau of Internal Revenue which must determine and collect taxes on land transactions before transactions may be registered by the Register of Deeds.26 On top of all these would be the reclassification27 and zoning ordinances of Local Governments, which the Constitution authorizes through the Local Government Code to have local autonomy28 and mandates Congress to enact a local government code29, the task of the Department of Environment and Natural Resources (DENR) to delineate forest boundaries from the alienable and disposable lands, and the role of the Department of Agrarian Reform (DAR) to convert agricultural lands to other uses. The Constitution may make explicit the authority for administrative process in order to expedite transfers and maintain stable interests in land. It may provide guidelines to coordinate or simplify the functions of the agencies involved, or even provide for a unified office solely tasked with the functions of land titling and registration of interests in land.

5. PRINCIPLES ON LAND Following the major economic policies, the 1987 Constitution also included provisions specific to lands of the public domain. An examination of these provisions outlines the constitutional principles relating to land, to wit: 1. Natural resources including lands of the public domain are owned by the State30; 2. Exploration, development, and utilization of natural resources shall be under full State control and supervision31 specifically through the following means:

a. directly by the State; b. co-production, joint venture, or production-sharing agreements with

Filipino citizens, or corporations or association at least 60% of the capital of which is Filipino-owned, for 25 years, renewable for not more than 25 years;

case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary land-sharing. 22 Otherwise known as the Lina law, enacted March 24, 1992. 23 Sec. 9. The State shall, by law, and for the common good, undertake, in cooperation with the public sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. 24 Enacted October 29, 1997. 25 Sec 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. 26 The payment of taxes for transactions on land presents another problem, for schedules used for land valuation are outdated. 27 RA 7610, sec. 20. 28 CONST, art. X, sec. 2. 29 CONST, art. X, sec. 3. 30 CONST, art. XII, sec. 2. 31 Ibid.

c. Small-scale utilization of natural resources by Filipino citizens; d. Agreements with foreign-owned corporations involving either

technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum and other mineral oils;

3. Natural resources except agricultural lands shall not be alienated32; 4. Lands of the public domain classified as agricultural, forest or timber, mineral

lands, and national parks33; 5. Congress may further classify agricultural lands according to use34; 6. Alienable lands of the public domain are limited to agricultural lands but35:

a. private corporations or associations not allowed to hold except by lease for 25 years renewable for not more than 25 years, and not exceeding 1,000 hectares;

b. citizens may lease not more than 500 hectares and may not acquire more than 12 hectares by purchase, homestead or grant;

c. Congress shall determine the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor, considering conservation, ecology, development, and agrarian reform;

7. Congress shall set specific limits of forests and national parks for conservation36; 8. The State shall protect the rights of indigenous cultural communities to their

ancestral lands37; 9. Private lands shall be transferred or conveyed only to qualified individuals,

corporations, or associations except in cases of hereditary succession38; State ownership of natural resources is founded on the concept of jura regalia or the regalian doctrine which according to the Supreme Court in Lee Hong Hok v. David39, was adopted by the Constitution, ownership however being vested in the state as such, rather than the head thereof. The principle of state ownership of all natural resources was adopted in virtue of the power of the State to control the disposition, exploitation, development or utilization of natural resources. The state ownership of natural resources and the limitation of the transfer of alienable and disposable lands to Filipino citizens was intended (1) to insure their conservation for Filipino posterity; (2) to serve national interest by preventing the extension into the country of foreign control through peaceful economic penetration; and (3) to prevent making the Philippines a source of international conflicts with the consequent danger to its internal security and independence40. Confined with the State ownership of natural resources, the 1987 Constitution also provides for a more active role for the State in the exploration, development, and utilization of natural resources. This departs from the licensing concession or lease schemes under the former Constitutions. Under the latter schemes, the government benefits from such activities only through fees, charges, ad valorem taxes, and income taxes of the exploiters of the natural resources. Such benefits are very minimal compared with the enormous profits reaped by these licensees, grantees, concessionaires. Moreover, some of them had disregarded the conservation of natural resources and have not protected the environment from degradation. The more active role for the State under the 1987 Constitution enables it to obtain a greater share in the profits and will also allow the State to actively husband its natural resources and engage in developmental programs that will be beneficial to the nation41 The Constitution also

32 ibid. 33 CONST, art. XII, sec. 3. 34 Ibid. 35 ibid. 36 CONST, art. XII, sec. 4. 37 CONST, art. XII, sec. 5. 38 CONST, art. XII, sec. 7. 39 48 SCRA 372 (1972). 40 Position Papers on the 1986 Constitution – National Economy and Patrimony; Roman Catholic Apostolic Bishop of Davao v. Register of Deeds, 102 Phil. 596 (1957) citing Aruego, The Framing of the 1935 Constitution. 41 Ibid.

mandates the State to protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature42. The 25-year limit dates back to the 1935 Constitution and is considered to be a reasonable time to attract capital, local and foreign, and to enable them to recover their investment and make a profit43. On the other hand, the citizenship limitation means that only qualified natural persons can acquire alienable public lands. In Lauson Ayog v. Judge Cusi44, the prohibition is to equitably diffuse land ownership or to encourage owner-cultivatorship and economic family size farms and thereby prevent the recurrence of huge landholdings by corporations or private persons. Moreover, according to Republic v. Judge Villanueva45, it was aimed against undue exploitation of our public lands and natural resources by large corporations. Perusing the constitutional policies and principles relating to land, one cannot largely fault the Constitution for the problems on land administration. The 1987 Constitution enunciated sufficient general directives in provisions relating to land. It has already provided the basic directions, and laws need only conform to it and implement its basic purposes, leading to the fulfillment of the goals of the National Economy. If at all, what may further be included in the Constitution are: (1) a major Constitutional policy on the necessity for the expeditious, transparent and simplified procedure for titling and subsequent transfer of interests in land; (2) an explicit grant of authority for adopting an administrative process in land registration, in contrast to the current practice which is largely-dependent on the judicial process. As for the challenges to its constitutionality for being violative of the separation of powers doctrine, suffice to say, that even with an administrative procedure for land registration, decisions by administrative officers are always subject to judicial review; (3) a provision providing for an office with coordinating functions for land administration; and (4) a provision mandating Congress to adopt a Comprehensive Land Use Act. 6. CLASSIFICATION OF PUBLIC LANDS The 1935 Constitution did not contain a specific provision the sole purpose of which was to classify lands of the public domain. Article XIII, however, actually classifies lands of the public domain into “agricultural”, “timber”, and “mineral”. In the case of Krivenko v. Register of Deeds46, the Supreme Court declared that all lands of the public domain are classified into said three groups, namely, agricultural, timber, and mineral47, and what is not timber or mineral is necessarily agricultural such that residential lands, not being timber or mineral, are agricultural in character. Hence residential lands could not be transferred to aliens. Sec. 10 of the 1973 Constitution classified lands of the public domain into seven separate categories: agricultural, industrial or commercial, residential, resettlement, mineral, timber or forest, and grazing land. A final clause authorized the Batasang Pambansa to make other classifications. The 1987 Constitution has returned to the 1935 Constitution classification, which was based on the nature of the land, but added national parks48. The classification of agricultural land into industrial or commercial, residential, resettlement, and other types of land according to the use to which that may be devoted is now left to the discretion of Congress. The rationale for the change is to limit the lands of other public domain which may be alienated, to public agricultural lands. This would prevent widespread and indiscriminate disposition of public land, especially timber and mineral lands which occurred in the past by the simple expedient of classifying such lands into industrial, commercial, residential or resettlement lands. This aims to safeguard against land speculation49. The actual identification of the lands which are agricultural or mineral or forest has been given by statute (i.e., by the legislative branch, through delegation) exclusively to the executive department. This has been done by positive acts of the executive departments. The

42 CONST, art. II, sec. 16. 43 J. D. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (1996 ed.) p. 1015. 44 118 SCRA 492 (1982). 45 114 SCRA 875 (1982). 46 79 Phil. 461 (1947). 47 J. D. Bernas, supra at note 28, p. 1018. 48 Ibid at p. 1019. 49 Position papers on the 1986 Constitution – National Economy and Patrimony.

classification is descriptive of the legal nature of the land and not of what it looks like. Hence, the fact that a forest land has been denuded does not by that fact mean that it has ceased to be forest land. Moreover, classifications must be categorical: that is, land is either completely agricultural or completely forest or park. This “all-or-nothing” approach in land classification however, failed to realize overlapping classes of land, for instance, an agricultural land may be sitting on a mineral land, or a forest land may also have minerals underneath it. It may have been the Supreme Court which defined an “all-or-nothing” approach in land classification, nonetheless the interpretation forms a part of the Philippine legal system50. 7. BROADENED APPLICATION OF LAND STEWARDSHIP The previous sections of this paper analyzed the issues on land administration in relation to the provisions of the 1987 Constitution, suggesting recommendations aiming to fill in the perceived deficiencies of the 1987 Constitution. This penultimate section presents a major shift in policy recommendation as advocacy on land stewardship instead of private land ownership means changing the present constitutional approach of State disposition of alienable lands to qualified individuals, corporations or associations in order to achieve the identified goals of the National Economy. Of the four classifications of the lands of the public domain, only agricultural lands may be alienated. As of 1999, of the 30 million hectares representing the total land area of the Philippines, 14,117,244 hectares are certified as alienable and disposable lands51. Considering a national population of 79,503,675 as of 200252 with an increasing population rate of 2.36% as of 200053, demands on finite land resources becomes tremendous. With the Constitution providing for the mechanism by which lands of the public domain, after being classified as alienable, are to be disposed of for private ownership, there will come a time when no more alienable lands can be disposed of. Remedying this by reclassifying inalienable lands as agricultural lands would in turn breed more problems, considering demands for a fixed percentage of the country’s total land area reserved for forest lands for sustainable development. The current thrust for private land ownership results in the State becoming incapable of controlling such lands that might have been more effectively redistributed or managed were it not divested of ownership. Further, Philippine laws grant a bundle of rights to landowners. The laws grant the right to use (even abuse or destroy), possess, enjoy the fruits as owner thereof, alienate it, and the recover the thing owned54. This conception of private ownership, first introduced by the Spanish Regime, provides extension rights of exclusion, control and alienation to the owner. Such conception under the economic efficiency paradigm resulted in the treatment of land as a commodity. The goal has been to maximize pleasure and minimize pain. Short-term profit maximization is pursued without due regard to the environmental impact of economic activities55. The ethics of economic advantages and survival have almost everywhere taken precedence over the ethics of ecology and seldom does society reconcile the two ethics56. The current awareness as a result of scientific studies on environmental degradation has provided the impetus to reexamine adherence to the current private land ownership conception. Stewardship is seen as an alternative to limit the extensive rights present in private ownership. The constitutional basis for a reexamination of the current land ownership conception is provided by Art. XIII, sec 157. The State can regulate the acquisition, ownership, use, and disposition of property and its increments58.

50 Civil Code, art. 8 which states: “Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines”. 51 1999 Philippine Forestry Statistics at a glance. <www1.fmb.denr.gov.ph> 52 <www.census.gov.ph/data/quickstat> 53 ibid. 54 Civil Code, arts. 428-429. 55 J. P. Karp, “A Private Property Duty of Stewardship: Changing Our Land Ethic” Northwestern School of Law of Lewis and Clark College, 23 Envtl Law 735 (1993). 56 L. K. Caldwell, “Land and the Law”, 1986 U. Ill. L. Rev. 32 (1986). 57 Sec 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

The term “stewardship” appears in Art. XIII, sec. 659 of the 1987 Constitution. Commissioner Romulo proposed its inclusion in the provisions on Agrarian and Natural Resources Reform, and characterized the concept as akin to usufruct. It means giving the individual “free use or free occupancy but he would not be given a legal title to the land”60. The section however only applies to other natural resources not open to alienation. Hence, under the Constitution, an application for land stewardship depends on the land classification. It is when alienation of the public land is prohibited that stewardship may be applied. The conception of stewardship by the members of the Constitutional Commission was still undeveloped. Its scope and purpose is larger than the analogy of a usufruct. In a usufruct the emphasis is the interest of the usufructuary over the thing in usufruct. Subject only to the limitation that the thing be preserved in form and substance, the usufructuary enjoys extensive rights to use the property even if it may be harmful or wasteful to the community. On the other hand, the concept of stewardship has been defined as “the socially and ecologically responsible custody of the land”61. Its hallmark is “landholding subject to responsibilities of careful use, rather than the extensive rights to exclude, control and alienate that are characteristic of private property”62. Stewardship may be likened to a trust in that the steward is given some control and rights over the resource, but the control must in the main be exercised for the benefit of specific others63. It must be noted, however, that the proponents of stewardship differ as to how it is to be effected. Some propose a complete rejection of private land ownership, others advocate incorporating stewardship to private land ownership, while still others propose the application of stewardship principles to the further grant of alienable lands of the public domain. Nonetheless, while the proponents differ on the approach to be taken, they agree of the importance of communal rights and the responsibilities or duties that landowners, or stewards, should possess relative to the community. There is emphasis on both present and future generation rights and the need to adopt a shift in the current land ethics towards limiting private landowners’ rights or abolishing private land ownership completely. The Philippine Experience

Following Sec. 6 of Art. XIII, stewardship has been utilized to implement an Integrated Social Forestry Program (ISFP) pursuant to Letter of Instruction No. 126064. The ISFP seeks to:

(1) Protect the environment, alleviate poverty, and promote social justice by enlisting the people directly using forest lands in the task of stewarding the uplands65, and

(2) Recognize individual property rights within forest lands in order to encourage private investments in the development of marginal forest lands, promote socio-economic upliftment, and enhance active participation in Community-Based Forest Management Strategy activities66.

The intended beneficiaries of the program were the kaingeros and other occupants and communities dependent on areas classified as forest lands for their livelihood.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of

property and its increments. 58 Ibid. 59 Sec. 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 the 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.

The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law. 60 Records of the Constitutional Convention, August 7, 1986, Vol. 3, No. 50. 61 L. K. Caldwell, supra at note 50, p. 323. 62 W. N. R. Lucy and C. Mitchell, “Replacing Private Property: The Case for Stewardship” 55 Cambridge L. J. 584 (1996). 63 Ibid. 64 Promulgated July 28, 1982. 65 DENR Administrative Order No. 04-91, sec. 1. 66 DENR Administrative Order No. 45-98, sec. 1.

Numerous implementing rules and regulations have since been issued by the Department of Environment and Natural Resources (DENR) defining the rights and obligations of individuals who are qualified to enter into stewardship contracts with the government. Under the Revised Regulations Governing the Integrated Social Forestry Program the program participants shall have the following responsibilities67:

(1) Participate in the delineation of project area and parcellary survey as a means to resolve boundary conflicts;

(2) Develop their allocated land into productive farm to make their families economically viable and self-reliant consistent with accepted scientific practices and with environmental protection;

(3) Devote at least twenty percent (20%) of the land within the project area to tree farming of suitable species to contribute to the reforestation efforts of the government;

(4) Protect and conserve the forest growth within the project area and cooperate with the Department of Environment and Natural Resources (DENR) in protection forest areas adjacent thereto;

(5) Preserve monuments and other landmarks indicating corners and outlines of boundaries within the projects area in the course of implementing the project development plan;

(6) Prevent and suppress fires within the project areas and other areas immediately adjacent thereto;

(7) Protect and preserve trees or other vegetation within a twenty (20) meter strip of land along the edge of the normal high waterline of rivers and streams with channel of at least five (5) meters wide, bordering or passing through their allocated land. In case of rivers less than five meters in width, the strip shall be ten meters on each side of the river or creek;

(8) Abstain from cutting or harvesting naturally growing timbers within and adjacent to social forestry area except when authorized by DENR in accordance with existing forest regulations and guidelines; and

(9) Refrain from transferring or assigning their allocated land or any portion thereof without prior approval from the DENR Secretary or his authorized representative.

If the participants do not comply with these duties, the stewardship agreement may be cancelled68.

In contrast to the intention of the framers of the 1987 Constitution, stewardship is not strictly speaking equivalent to usufruct. It is less than usufruct or a very limited form of usufruct. The beneficiary of the stewardship agreement cannot transfer his stewardship rights without the approval of the DENR Secretary. In addition, numerous restrictions are placed on him relative to the use and care of the forest land under his control. The emphasis has been responsible use and not simply free occupancy and use. It appears, therefore, that as implemented in the Philippines, stewardship conforms to the conception in American legal thought.

Since the State is not divested of ownership and can restrict the use of the forest land under the stewardship agreements, it becomes apparent why it is more advantageous to extend stewardship agreements to alienable and disposable lands of the public domain. The State would no longer have to contend with the extensive rights of control, exclusion and alienation present in private land ownership that is susceptible to abuse. It can restrict the use to such extent it deems necessary to protect the public interest specially in areas of environmental protection and conservation while at the same time grant qualified individuals the use and enjoyment of the fruits of the land. In cases of violation of stewardship agreement, the land reverts to the State.

Thus, the extension of stewardship to alienable and disposable lands of the public domain would allow the State to subject the grantee to all the limitations and restrictions it deems necessary. This affords the State greater control in the use of public lands as opposed to the current policy of disposing public lands to qualified private individuals or corporations or associations. Nonetheless, the extension of stewardship principles to alienable and

67 DENR Administrative Order No. 04-91, sec. 10. 68 DENR Administrative Order No. 04-91, sec. 12(1).

disposable lands of the public domain should not impair vested rights acquired under the Public Land Act. 8. SUMMING UP

Two major alternatives come up with the examination of the 1987 Constitution relative to land policies and principles. First is to give effect to the constitutional directives in provisions relating to land. Statutes have to conform with in policy and procedure with the Constitution as the Constitution is the highest law of the land. Inconsistent statutes then have to be amended or repealed for new conforming statutes to be enacted. In the review of land laws, the Constitution has laid down criteria which Congress must consider in order to achieve the goals of the National Economy. Of course, if the Constitution can be amended, the paper has recommended the inclusion of some provisions which still gives effect to the current Constitutional policy of state control of natural resources and disposition of lands for private ownership. Then there is an alternative of instituting a major policy shift in the Constitution. There are again two considerations to this: the nationalistic policies of the National Economy and Patrimony may be changed, amending both area and citizenship requirements for the acquisition of lands while retaining the policy of private land ownership, or instituting land stewardship not just for inalienable lands but even extending it to the remaining alienable and disposable lands of the public domain for conservation of the country’s natural resources.

Appendix A Provisions in the 1987 Constitution relating to land

ARTICLE II Declaration of Principles and State Policies

SECTION 10. The State shall promote social justice in all phases of national

development. SECTION 21. The State shall promote comprehensive rural development and

agrarian reform.

SECTION 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. SECTION 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

ARTICLE XII National Economy and Patrimony

SECTION 1. The goals of the national economy are a more equitable distribution

of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key raising the quality of life for all, especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.

SECTION 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical of financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

SECTION 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands, and national parks. Agricultural lands of the public domain may be further classified by law according to the uses which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.

SECTION 4. The Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the

ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide, for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas.

SECTION 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.

SECTION 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.

SECTION 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

SECTION 8. Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law.

SECTION 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

SECTION 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

SECTION 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law.

ARTICLE XIII Social Justice and Human Rights

SECTION 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

SECTION 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

Agrarian and Natural Resources Reform

SECTION 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary land-sharing.

SECTION 5. The State shall recognize the rights of farmers, farmworkers, and

landowners, as well as cooperatives, and other independent farmers' organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and other support services.

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 the 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.

The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law.

SECTION 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of local marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.

SECTION 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice.

Urban Land Reform and Housing

SECTION 9. The State shall, by law, and for the common good, undertake, in cooperation with the public sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.

SECTION 10. Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban and rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated.

ARTICLE XVIII Transitory Provisions

SECTION 21. The Congress shall provide efficacious procedures and adequate remedies for the reversion to the State of all lands of the public domain and real rights connected therewith which were acquired in violation of the Constitution or the public land

laws, or through corrupt practices. No transfer or disposition of such lands or real rights shall be allowed until after the lapse of one year from the ratification of this Constitution.

SECTION 22. At the earliest possible time, the Government shall expropriate idle or abandoned lands as may be defined by law, for distribution to the beneficiaries of the agrarian reform program.

Appendix B

Laws and regulations implementing land stewardship (relevant provisions extracted)

Laws and Rules and Regulations governing land stewardship in the Philippines:

President Marcos, through Executive Order No. 715 (August 6, 1981), established the Kilusang Kabuhayan at Kaunlaran (KKK) as a priority program of the government, whose goal was to “transform the rural communities into more viable human settlements, with the people relying primarily on their own human, financial, and physical resources in the locality through self-help and self-reliance.”

Pursuant to EO No. 715, Marcos promulgated LOI No. 1260, which formed and

assimilated into the “KKK” movement the Integrated Social Forestry Program (PROFEM II) for the benefit of kaingineros and other occupants and communities dependent on areas clssified as forest lands for their livelihood. The then Ministry of Natural resources became the agency primarily responsible for the implementation of PROFEM II.

For the first time, the granting of stewardship contracts to kaingineros and other forest

occupants was recognized by the government as a means of “democratized disposition of public forest land”.

On October 7, 1982, Minister of Natural Resources Teodoro Peña issued the

Regulations and Guidelines Implementing LOI 1260, through MNR Administrative Order 48-82. DENR Administrative Order No. 02-88 (January 20, 1988) amended Par. C, Section 10 of MNR Administrative Order 48-82. Thus, the granting of stewardship contracts over public forest lands was started.

With the promulgation of the 1987 Constitution, then DENR Secretary Fulgencio Factoran issued DENR Administrative Order No. 97-88, revising the regulations implementing LOI 1260. On April 10, 1989, DENR Administrative Order No. 28-89 amended Sec. 8 (b) of DENR Administrative Order No. 97-88. DENR Administrative Order No. 97-88 was further amended by DENR Administrative Order No. 77-90.

On July 9, 1989, DENR Administrative Order No. 38-89 was issued, ordering Integrated Social Forestry Program (ISFP) participants to devote at least twenty percent (20%) of their allocated lands exclusively for tree farming and/or tree plantation. On February 11, 1991, the Integrated Social Forestry Program (ISFP) was expanded through DENR Administrative Order No. 03-91, which provided for Policy and Guidelines for the Award and Administration of the Mangrove Stewardship Agreement. On February 27, 1991, the DENR issued the Revised Regulations Governing the Integrated Social Program (DENR Administrative Order No. 04-91). On July 19, 1995, President Ramos issued Executive Order No. 263, adopting Community-Based Forest Management (CBFM) as the national strategy to ensure the sustainable development of the country's forestlands resources.

Pursuant to EO 263, the DENR issued Administrative Order No. 29-96 (Rules and Regulations for the Implementation of Executive Order 263, Otherwise Known as the Community-Based Forest Management Strategy [CBFMS]), which integrated and unified all people-oriented forestry programs of the government, including the Integrated Social Forestry Program (ISFP).

The integration was strengthened by DENR Administrative Order 30-96, which

provided for the Integration of All the Community-Based Forest Management Strategy and People-Oriented Forestry Programs and Projects into the DENR Regular Structure.

On June 24, 1998, the DENR issued Administrative Order No. 45-98, providing for the Guidelines Governing the Issuance and Transfer of Certificate of Stewardship (CS) Within CBFM Areas.

Thus, the rules and regulations that apply at present are provided by DENR

Administrative Order No. 04-91, Administrative Order No. 29-96, Administrative Order 30-96, and Administrative Order No. 45-98. Objectives of the present Integrated Social Forestry Program (ISFP): 1. Protect the environment, alleviate poverty, and promote social justice by enlisting the

people directly using forest lands in the task of stewarding the uplands. (DENR Administrative Order No. 04-91)

2. Recognize individual property rights within forest lands in order to encourage private investments in the development of marginal forest lands, promote socio-economic upliftment, and enhance active participation in CBFM activities. (DENR ADMINISTRATIVE ORDER NO. 45-98)

Available Areas: 1. Open and denuded areas (with less than ten percent stocking) suited for ISF areas; 2. Areas covered by former Projects on Forest Occupancy Management (FOM), Family

Approach to Reforestation (FAR), Communal Tree Farm (CTF) and other suitable reforestation/afforestation projects;

3. Areas within existing TLA, PLA, ITP or AFLA which have been developed as of 31 December 1981 and as concurred by the Secretary and provided further that it is not in conflict with the reforestation obligations of licensee/lease holder;

4. Communal forest, communal pasture and other leases which have ceased to serve their original intention, neglected or abandoned as determined by a study team to be designated by the Secretary.

Size of stewarded areas:

Individual and family stewardship Agreements shall, with due consideration to the need for equitable distribution of lands to all qualified stewards cover land areas of economically viable size, which depending on topography, soil, and general conditions of the area, shall cover not more than five hectares. The size of communal Stewardship Agreements shall depend on the nature of the site, the history of the group in the area, and the potential of the group to promote productive and protective activities within the stewarded area. Areas prohibited for development under the ISF program: 1. Areas wherein continued occupancy would result to massive soil erosion, sedimentation

of rivers and streams, reduction in water yield and impairment of other resources to the serious detriment of community and public interest;

2. Areas already covered by existing DENR reforestation projects, Community Forestry Program (CFP), Forestland Management Agreements (FLMA), and such other similar projects; and

3. Areas designated strictly for protection purposes such as virgin forests, areas for biodiversity conservation and areas beyond 50% slope and 1000 meters elevation.

Stewardship Qualifications and Requirements: 1. Must be citizens of the Philippines; 2. Must be of legal age; 3. Must be actual tillers or cultivators of the land to be allocated; 4. Must be living within the project area or adjacent barangay/Sitio in order to actively

participate in stewardship activities. Persons who are disqualified: 1. Those who already have Stewardship Agreements or are married to holders of

Stewardship Agreements; and 2. Those who have had previous Stewardship Agreements cancelled for cause. Duration of the stewardship: 25 years, renewable for another 25 years. Incentives for qualified persons: 1. No fees shall be collected for the use of the allocated land under the Stewardship

Agreement; 2. All income/proceeds derived from the land shall accrue to Program participants; 3. Unless the law otherwise provides, forest products derived and/or harvested from the

Project Area shall be exempted from the payment of forest charges; 4. Technical, legal, financial, marketing, credit and other needed assistance shall be

extended to program participants; 5. Program participants may avail of assistance provided by other government agencies and

non-government and/or private organizations; and 6. Upon expiration of the Stewardship Agreement, Program participants or their direct next-

of-kin shall have the right of pre-emption to any subsequent Stewardship Agreement covering their allocated land, and when for some reasons the government opts not to allocate the land for Stewardship, the participants concerned shall be entitled to just compensation for permanent improvements introduced including trees.

Responsibilities of the Program Participants: 1. Participate in the delineation of project area and parcellary survey as a means to resolve

boundary conflicts; 2. Develop their allocated land into productive farm to make their families economically

viable and self-reliant consistent with accepted scientific practices and with environmental protection;

3. Devote at least twenty percent (20%) of the land within the project area to tree farming of suitable species to contribute to the reforestation efforts of the government;

4. Protect and conserve the forest growth within the project area and cooperate with the Department of Environment and Natural Resources (DENR) in protection forest areas adjacent thereto;

5. Preserve monuments and other landmarks indicating corners and outlines of boundaries within the projects area in the course of implementing the project development plan;

6. Prevent and suppress fires within the project areas and other areas immediately adjacent thereto;

7. Protect and preserve trees or other vegetation within a twenty (20) meter strip of land along the edge of the normal high waterline of rivers and streams with channel of at least five (5) meters wide, bordering or passing through their allocated land. In case of rivers less than five meters in width, the strip shall be ten meters on each side of the river or creek;

8. Abstain from cutting or harvesting naturally growing timbers within and adjacent to social forestry area except when authorized by DENR in accordance with existing forest regulations and guidelines; and

9. Refrain from transferring or assigning their allocated land or any portion thereof without prior approval from the DENR Secretary or his authorized representative.

Transfer of Stewardship Rights and Responsibilities (under DENR Administrative Order No. 04-91)

Subject to approval of the Secretary or his authorized representative, transfer of stewardship rights shall be allowed in cases of:

1. Death or incapacity of the original stewards; 2. Movement outside of the area by the steward (s); and 3. Change of vocation of the stewardship agreement holders from upland farmers or when

the stewards cease to be actual tillers of the area; Stewards shall be encouraged to nominate their heir to the Stewardship, Agreement

again, subject to the approval of Secretary or his authorized representative, to facilitate orderly transfer in cases of death or capacity. In the absence of such a nomination, the children or next-of-kin may nominate who among them should inherit the Stewardship Agreement.

Such transfer should be approved after the nominated person's stewardship qualifications

have been verified by DENR in consultation with the Stewardship Association, should such exist.

The new steward shall exercise stewardship rights and responsibilities over the subject land for the remaining unexpired term of the original Stewardship Agreement. Transferability of the Certificate of Stewardship (under DENR Administrative Order No. 45-98)

The Certificate of Stewardship (CS), including those issued prior to this Administrative

Order, may be transferred, sold or conveyed in whole or in part under the following conditions: 1. The transferee is a qualified beneficiary provided that the total land area under the

stewardship of the latter does not exceed 10 hectares. 2. At least 50% of the area covered by the CS has been developed, i.e., planted to

agricultural crops, trees, or forest species, developed pasture or fishpond, and other productive land uses.

3. The terms and conditions of the original Agreement shall remain in force and effect. However, the provision prohibiting the subleasing of the land or portion thereof in old CS issued prior to this Order is hereby revoked;

4. The Agreement shall remain valid for the remaining unexpired term of the original agreement;

5. The transfer is endorsed by the People’s Organization (PO), through a resolution of its Officers;

6. The instrument of transfer is duly notarized. 7. The new CS and Stewardship Agreement, map and other supporting documents shall be

forwarded to the PENRO for approval Cancellation of Stewardship Agreement and Compensation The Stewardship Agreement may be cancelled for any of the following causes: 1. When a program participant fails to comply with the terms and conditions of the

Agreement within one (1) year after being notified of his neglect in writing by the RED; 2. When a program participant had willfully used false information to obtain the Agreement; 3. Serious and continued violation of forestry laws, rules and regulations; and 4. When public interest as determined by the Secretary of DENR so demands. The Stewardship Agreement may be preterminated by mutual agreement of the contracting parties.

LAND USE Prof. Myrna S. Feliciano

I. INTRODUCTION

Control of the use of land is a major problem in both developed and developing countries

because of the increase in population and the rapid pace of urbanization. The 1976 United Nations Conference on Human Settlements (HABITAT) held in Vancouver, Canada, expressed the importance of having a national action on land:

“Land, because of its unique nature and the crucial role it plays in human settlements, cannot be treated as an ordinary asset, controlled by individuals and subject to the pressures and inefficiencies of the market. Private land ownership is also a principal instrument in accumulation and concentration of wealth, and therefore contributes to social injustice; if unchecked, it may become a major obstacle in the planning and implementation of development schemes. Social justice, urban renewal, development, and the provision of decent dwellings and healthy conditions for the people can only be achieved if land is used in the interest of social as a whole.”1

As defined by the government’s five-year development plan, land use is “employment of a site or holding so as to derive revenue or other benefits from it; also, the delineation by a governing authority of the utilization of the land within a particular jurisdiction so as to promote the most advantageous development of the community such as industrial, residential, commercial, recreation, and other uses under a plan.”69 Land use, according to the Agriculture and Fisheries Modernization Act of 1997, refers to the manner of utilizing the land, including its allocation, development and management.70 The Constitution itself states that “the use of property bears a social function, and all economic agents shall contribute to the common good.”71

II. URBAN LAND REFORM

Initially, Section 12, 3rd paragraph of Article XIV of the 1973 Constitution mandated that “The State shall moreover undertaken an urban land reform and social housing program to provide deserving landless, homeless or inadequately low income residential citizens reasonable opportunity to acquire land and decent housing.”

In 1975, a United Nations report indicated that the concentration of urban lands in the

hands of a few has contributed markedly to the general inflation by inflating land prices, obstructed the rational development of urban areas, deprived people of land on which to build houses and spurred those deprived of land to appropriate it in violation of the law.72 In addition, speculative land hoarding and the wide disparity between the cost of land bought in large tracts and the cost of individual lots after having been subdivided both contributed to the spiraling of land prices.

1 Report of the Third Committee, HABITAT, Vancouver, A/CONF. 70/ 11, June 8, 1976,

Recommendations D (Agenda item 10 (d)). 69 NATIONAL ECONOMIC & DEVELOPMENT AUTHORITY, FIVE-YEAR

DEVELOPMENT PLAN, 1978-1982, 426 (1977). 70 Rep. Act No. 8435 (1997), sec. 4. 71 Art. XII, sec. 6 72 2 U.N. DEPT. OF ECONOMIC AND SOCIAL AFFAIRS, URBAN LAND POLICIES AND

LAND-USE CONTROL MEASURES: ASIA AND FAR EAST 67 (1973).

This abnormal situation has necessitated the intervention of the government so that on June 11, 1978, Presidential Decree No, 151773 was promulgated proclaiming urban land reform in the Philippines. The Decree declares it to be a policy of the State “(a) to liberate our human communities from blight, congestion, and hazard, and to promote their development and modernization; (b) to bring about the optimum use of land as a national resource for public welfare rather than as a commodity of trade subject to price speculation and indiscriminate use; (c) to provide equitable access and opportunity to the use and enjoyment of the fruits of the land; (d) to acquire such lands as are necessary to prevent speculative buying of land for public welfare; and (e) to maintain and support a vigorous private enterprise system responsive to community requirements in the use and development of urban lands.74

Urban lands, according this Act, refer to land which conform to any of the following

criteria:75 1. In their entirety, all cities and municipalities which have the population density of

at least 1,000 persons per square kilometer and where at least 50 percent of the economically active population are engaged in non-agricultural activities.

2. All barangays comprising the former poblacion or barangays including a part of

the former poblacion of cities and municipalities which have a population density of greater than 500 but less than 1,000 persons per square kilometer; and where at least 50 percent of the economically active population are engaged in non-agricultural activities.

3. All barangays not included in items 1 and 2 above which have a population size

of at least 1,000 and where at least 50 percent of the economically active population are engaged in non-agricultural activities.

On the other hand, urbanizable lands refer to sites and land areas which, considering

present characteristics and prevailing conditions, display a marked and high probability of becoming urban lands within the period of five to ten years.76 Under the Act, the President has to proclaim which of the parcels of urban and urbanizable lands will be specified as Urban Land Reform Zones.77

Presidential Decree No. 1517 is not self-executory because it requires urbanizable

lands be declared as urban land reform zones. Pursuant to Section 4 of the Act, the following presidential issuances were made:

1. Proclamation No. 1767, dated August 9, 1978, declaring parcel of land of

approximately 1,334 hectares adjoining the National Government site in Quezon City, as urban land reform zone, and withdrawing the same from sale, settlement, expropriation, development or exploitation, subject to private rights, if there be any.

2. Proclamation No. 1893 dated September 11, 1979 declaring the entire Metro

Manila as Urban Land Reform Zone. This created an adverse impact on the real estate as well as construction industries in Metro Manila so that the subsequent Proclamation was issued.

3. Proclamation No. 1967, dated May 14, 1980, amending Proclamation No. 1893,

by specifying 244 sites in Metro Manila as Areas for Priority Development (APD).

73 75 O.G. 9-15 (Jan., 1979). 74 Pres. Decree No. 1517 (1978), sec. 2. 75 Id., sec. 3 (g). 76 Id., sec. 3(h). 77 Id., sec. 4.

4. Proclamation No. 2284, dated April 13, 1983, amended Proclamation No. 1967, by including Dagat-Dagatan in Metro Manila as APD.

It should be noted that Letter of Instructions No. 1204 dated February 27, 1982

affords trenurial rights to residents or occupants landed estates which have over the years become communities under specific political units or barangays. Likewise, Presidential Decree No. 1640 dated September 21, 1979 froze the prices of lands in Metropolitan Manila at current market value.78

Under Presidential Decree No. 1517, no urban land can be disposed, used or

constructed on, unless its disposition or use conforms with the development plans.79 All owners of lands or improvements within the Urban Zone are required to declare to the Human Settlements Regulatory Commission, any proposal to sell, lease, or encumber lands and improvements thereon, including the proposed right, rent and value of encumbrance, and secure approval of said proposed transaction. The Government shall have the pre-emptive right to acquire the said lands or improvements.80 For this purpose, an official development registry is established for the registration of existing rights and interests on lands or their improvements and development proposals of public and private entities. It shall contain, among others, copies of land titles or other evidences of ownership, survey maps with technical descriptions, names of tenants and intent to acquire or develop specific parcels of land.81 Aside from thus, the Bureau of Lands will provide the necessary cadastral maps and other information to be entered in the development registry. The Land Registration Commission (now Land Registration Authority)82 has to secure clearance from the Ministry of Human Settlements (now with the Housing and Land Use Regulatory Board)83 before the registration of any transaction affecting properties in the urban zones.84

A comprehensive development use permit system I also instituted to govern the

development of land in every urban zone and Bagong Lipunan sites. A permit is required for every development, use or change in use of and construction on land within the urban zone. Applications for the permit are filed with the Housing and Land Use Regulatory Board, together with supporting documents such as site development plan, vicinity maps, proof of ownership and project timetable.85

In the identification and selection of Urban Zones, the following factors are

considered:86 a. scale of existing or proposed government investments in the area; b. areas characterized by blight and insecure land tenure problems with potentials

for development into self-sustaining communities;

c. need to stimulate and encourage private investment in the area;

d. major constraints in the implementation of approved development plans such as excessive land prices, highly fragmented land ownership, and speculative withholding of land from development; and

e. need for special zoning design or environmental management.

78 75 O.G. 9273 (Nov., 1979). 79 Pres. Decree No. 1517 (1978), sec. 4. 80 Id., sec. 9. 81 Id., sec. 13. 82 Ex. Order No. 292, otherwise known as the Administrative Code of 1987, Title III, Chapter 9,

secs. 28-30. 83 Ex. Order No. 90 (1986), 83 O.G. 88 (Jan., 1987) 84 Id., sec. 14. 85 Id., sec. 16. 86 Rules and Regulations to Implement Pres. Decree No. 1517, hereinafter referred to as URBAN

LAND RULES, Rule II, sec. 4.

Within the Urban Zone, legitimate tenants who have resided on the land for ten years

or more, who have built their homes on the land, and residents who have legally occupied the lands by contract, continuously for the last ten years or more at the time of the proclamation cannot be dispossessed of the land. The tenants are given the right of first refusal to purchase the land within a reasonable time and at reasonable prices under the terms and conditions determined by the Urban Zone Expropriation and land Management Committee.87 The right or first refusal is limited to natural persons who are Filipino citizens and are actually occupying the land and structures primarily for residential purposes.88 It shall be exercised within the time to be determined by the Urban Zone Committee which shall not exceed six months from the time the owner made a written offer to sell to the tenant or resident or it may be waived through a sworn statement.89 The maximum size of lands to be owned in an urban zone is to be determined by the Batasang Pambansa (now Congress of the Philippines). As alternative to land purchase and expropriation, any innovative land acquisition techniques, which might involve any or a combination of the following may be utilized.90

1. Land Assembly which refers to the acquisition of lots of varying ownership

through, among others, expropriation or negotiated purchase, for the purpose of planning and development unrestricted by individual property boundaries.

2. Land Banking which refers to the acquisition of land in advance of actual need for

the purpose of acquiring lands at existing use value and disposing them in a manner which would influence land price formation and promote planned development. The Ministry may acquire land through land purchase, land exchange or expropriation.

3. Land Exchange which refers to the process of bartering land for another piece of

land and/or shares of stock of equal value in government or quasi-government corporation. Upon initiative of either the private party or the Ministry, it may be effected subject to the availability of government land for the purpose.

4. Joint Venture which refers to the commitment, for more than a limited duration, of

funds, land resources, facilities, and services by two or more legally separate interests, to an enterprise for their mutual benefit. The arrangements may provide for a sharing of management responsibilities according to equity contribution through the creation of subsidiary development or management corporation.

5. Land consolidation or readjustment which refers to the pooling of individual lots

for the purpose of development and replotting, unrestricted by individual property boundaries, and according to an approved development plan. The Ministry may undertake land consolidation or readjustment for portions of an urban zone upon petition of at least 50 percent of the landowners holding an interest on the land area. It may, likewise, encourage and assist private landowners in undertaking land consolidation or readjustment on their own and to organize themselves for this purpose.

Other innovative land disposition techniques include neighborhood-ownership,

residential freeholds, reservation of development rights, and tenure in improvements.91 In case of disposition through the neighborhood ownership technique, new or existing neighborhood associations may be organized for the purpose of assuming collective responsibility for the management and administration of neighborhood units and for the collection and amortization of land payments.92 Residential freehold is a grant of residential

87 Pres. Decree No. 1517 (1978), sec. 6. 88 URBAN LAND RULES, Rule X, sec. 36. 89 Id., secs. 37 & 38. 90 Id., sec. 11; URBAN LAND RULES, Rule VIII. 91 Id., sec. 15: URBAN LAND RULES, Rule IX, sec. 30. 92 URBAN LAND RULES, Rule IX, sec. 31.

land within an urban zone made by the State upon compliance with development use and related conditions.93 Tenure in improvements is a system whereby the Ministry retains title to certain parcels of land while enabling occupants to own occupant-introduced improvements on such as dwelling units.94

Expropriation by the government is done by filing a petition before the Regional Trial

Court.95 Upon filing of the petition for expropriation and the deposit of the amount equivalent to ten percent of the declared assessment value of the land in 1975 with the Philippine National Bank, the Government or its authorized agency shall immediately have possession, control and disposition of the real property with the power of demolition, if necessary, even pending resolution of the issues that may be raised before the court.96

To ensure and encourage private participation in land development and management

activities, the Government, with appropriate public and private agencies shall develop program which will mobilize land development funds from private individual groups, government financial institutions, joint public-private ventures, and private financial institutions.97 A land development accounting system for urban zones will be instituted which will constitute a record of market transactions and revenues related to government land acquisition, development and management activities.98

Within the Urban Zones or Bagong Lipunan sites, the government shall implement at

taxation system in support of the basic principles underlying the urban land reform program.99 For this purpose the Departments of Environment and Natural Resources and Finance will conduct an inventory assessment of idle lands throughout the Philippines, with priority given to urban zones.100 New valuation techniques and assessment levels will be utilized and a listing of real properties in the assessment rolls in cities and municipalities shall be prepared by the assessors.101

To effectively enforce the provisions of the Urban Land Reform Law, Presidential

Decree No. 2016, dated January 26, 1986, prohibited the eviction of occupant families from land identified as APDs or Urban Land Reform Zones and exemptions such land from payment of real property taxes.

Article XII of the 1987 Constitution contains the following specific provisions on urban

land reform and housing:

“Sec. 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.

Sec. 10. Urban or rural poor dwellers shall not be evicted, not their

dwellings demolished, except in accordance with law and in a just and humane manner.

93 URBAN LAND RULES, Rule I, sec. 2(n) and Rule IX, sec. 32. 94 URBAN LAND RULES, Id., sec. 33. 95 Pres. Decree No. 1517 (1978), sec. 7. 96 Id. 97 Pres. Decree No. 1517 (1978), sec. 18; URBAN LAND RULES, Rule XII, sec. 42. 98 Id., sec. 19; URBAN LAND RULES, id., sec. 43. 99 Id., sec. 17. 100 Id. 101 Id., sec. 12; URBAN LAND RULES, Rule XI, secs. 39 & 40.

No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated.”

The Urban Land Reform Law is far from perfect. As has been observed, it is not self-executory since it depends on the President to issue proclamations designating specific parcels of urban and urbanizable lands as urban land reform zones. As mentioned earlier, the right of first refusal is given to legitimate tenants in the urban zones, who have resided on the land for ten years or more, or who have built their homes on the land, and residents who have legally occupied the lands by contract continuously for the last ten years cannot be dispossessed of land. However, this right of first refusal appears illusory upon closer examination because it is contingent upon the landowner’s decision to sell. If he decides not to sell his property, the tenant has no right whatsoever. This right of first refusal has been placed in issue in two Supreme Court cases. In Emeterio Guzman v. Court of Appeals,102 spouses Evangelista had been occupying a parcel of land at Navotas since 1937 by virtue of an oral lease agreement with the late Policarpio wherein a monthly rental of P38.00 was paid. By 1984, the spouses had stopped paying rentals because of a verbal promise by the administratrix of the property that the property will be subdivided and sold to them for cash in the sum of P25,000.00. However, they were informed that it would take sometime before individual titles could be issued to them. In 1986, Lolita Guzman bought said property and sent a letter demanding that they vacate it in view of their failure to pay monthly rentals since October, 1983 despite previous demands by the former owner and to pay the rentals in arrears. Thus, Guzman filed an ejectment suit against them. The Supreme Court held that defendants had no right under Section 6 of PD No. 1517 because at the time of the sale of the property to Guzman, Proclamation No. 1967 which was the prevailing law, specified 244 sites in Metropolitan Manilas as APDs and the spouses Evangelista were not even tenants within the purview of PD No. 1517, because Section 3(f) of this Decree defines the term “tenant” as the rightful occupant of land and its structures, but does not include those whose presence on the land is merely tolerated and without benefit of contract, those who enter the land by force or deceit or those whose possession is under litigation. “ They are not the “legitimate tenants” is envisaged in Section 6 of PD No. 1517 considering that their possession of the property has been rendered illegal by their stubborn and unjustifiable refusal to comply with their obligation to pay monthly rentals to petitioners. The second case on urban land reform which brought out a question on the right of first refusal was Esmilla v. Alvarez.103 Respondents in an ejectment case invoked PD No. 1517 which gives the tenant of a residential land who has continuously occupied it for at least ten years, the right of first refusal to purchase it. They further contended that if they are unable to do so, the government will acquire the same by expropriation or some other land acquisition techniques under the said law. The Supreme Court said that the judgment of ejectment had become final for their failure to appeal on time. Moreover, the rights under PD No. 1517 may be availed only in cases where the owner of the property intends to sell it to a third party.104 It can be gleaned from these cases that in order to have the right of first refusal, the land must be designated as an APD and that the tenant must have a legal contract. Residents in the APDs who meet the other requirements under the law but do have contracts with the landowners deserve some form of protection since their de factor occupancy is dictated by a basic human need for shelter and survival. Thus, there should be a prescriptive period from the declaration of the land as an APD within which the land owner must bring an action of ejectment or else be barred forever which would bring security of tenure to the tenant. There must also be a scheme for compulsory sale and purchase of the land or structure occupied by the tenant or resident in an APD site wherein the tenant may have the

102 G.R. No.81949, September 15, 1989, 177 SCRA 604 (1989). 103 G.R. No. 80486, November 15, 1989, 1979 SCRA 443 (1989). 104 Citing the case of Bermudez v. Intermediate Appeliate Court, G.R. No. 73206, August 6, 1986,

143 SCRA 351 (1986).

option to compel the landowner to sell to him the property within a period of five years from the time an area is proclaimed as an urban land reform zone.105 It is said that security of tenure in slum and squatter settlements acts as stimulus to the residents to improve their dwelling and in terms of social and economic costs, and is far less expensive than demolition and resettlement.

III. HOUSING

To expedite the acquisition of lands for housing purposes, Presidential Decree No. 1224 was issued defining the policy on the expropriation of private property for socialized housing upon payment of just compensation.106 Under the Decree, socialized housing is defined to include among others:

a. The construction and/or improvement of dwelling units for the middle and lower

income groups of society, including the construction of the supporting infrastructure and other facilities.

b. Slum clearance, relocation and resettlement of squatters and slum dwellers as

well as the provision of related facilities and services;

c. Slum improvements which consists basically of allocating home lots to the dwellers in the area or property involved, re-arrangement and re-alignment of existing houses and other dwelling structures and the construction of basic community facilities and services, where there are none, such as roads, footpaths, drainage, sewage, water and power system, schools, barangay centers, community centers, clinics, open spaces, parks, playgrounds and other recreational facilities;

d. The provision of economic opportunities including the development of commercial

and industrial estates and such other facilities to enhance the total community growth; and

e. Such other activities undertaken in pursuance of the objective to provide and

maintain housing for the greatest number of people under Presidential Decree No. 757.

In order to encourage the private sector to construct houses, the Government Service

and Insurance System and the Social Security System were directed to liberalize the financing and credit terms for low-cost housing projects of domestic corporations and partnerships with at least 300 employees or workers.107 This was further extended to landowners organized and existing under Philippine law if the housing projects were for low-income families in general.108 The National Housing Authority is authorized to finance these projects under liberalized credit terms using any of the following schemes: (a) affordable interest rates and repayment terms; (b) graduated amortization scheme in a manner that beneficiaries shall pay smaller amortizations during the initial period of repayment; and (c) government subsidy of a portion of the interest payment or a portion of the capital cost of construction. Corporations are allowed a reasonable margin of profit if lots and dwelling units are to be sold to low-income groups on easy installment terms or leased to them on a monthly rental basis.109 In addition, the incentives offered by the government are tax exemptions on: (1) real state taxes on the improvement which will be used on housing by low-income groups; (2) taxes on income derived from the installment sales of houses to low-income groups or

105 A.B. Deloria, The Law on Urban Reform (May, 1984), p. 15 (Typescript). 106 Dated October 21, 1977 which was amended by Pres. Decree Nos. 1259 (1977) and 1313

(1978). 107 Pres. Decree No. 745 (1975) 108 Pres. Decree No. 1217 (1977). 109 Id., sec. 2.

income derived from rentals thereof; and (3) taxes on interest earned due to the financing of houses for low-income groups.110

As early as 1970, the rentals of dwelling units or land on which another’s dwelling is

located where the monthly rental rate does not exceed three hundred pesos a month could not be increased.111 However, the Supreme Court has held in Sinclair v. Court of Appeals that PD No. 20 should not be applied to dicriminately even to the extent of depriving the owner of his property rights protected by the Constitution.112 The lessee could not be eject on the following grounds: (a) non-payment of price stipulated; (b) violation of any of the conditions agreed upon in the contract; or (c) when the lessee devotes the thing leased to any use or service not stipulated which causes its deterioration.113 Personal use by owners or lesson or their families of covered dwelling units occupied by bona fide tenants is not a recognized cause for the judicial ejectment of the latter.114 However, the Supreme Court has held that a strict and rigid compliance with PD No. 20 is not in order where the personal use of the property for humanitarian reasons which entitles the owner to exemption from the operation of PD No. 20.115 Presidential Decree No. 20 suspended ejectment when the lease is for an indefinite period but did not suspend ejectment on other grounds like non-payment of the rent as stipulated.116

This rental law has been extended and modified many times but if the dwelling unit is

located in a APD site, one can neither raise the rent nor eject the tenant. In 1990, Congress passed Republic Act No. 6846 an act known as the Abot-Kaya

Pabahay Fund, otherwise known as the Social Housing Support Fund Act. The fund consisted of Two billion and five hundred million pesos (P2,500,000,000.00). The fund shall be used exclusively for the objectives of enhancing affordability of low-cost housing by low-income families, providing developmental financing for low-cost housing projects, and eliminating risks for the funding agencies involved in housing, namely: Social Security System (SSS), the Government Insurance System (GSIS) and the Home Development Mutual Fund (HDMF). The shall be devoted to provide amortization support, expedite the development of land into suitable sites for social housing by providing developmental financing to developers of low-cost housing projects, and establish a strong guarantee system to ensure viable cash flow for the funding agencies involved in housing.

The Urban Development and Housing Act of 1992 (Republic Act No. 7279) was

created to uplift the conditions of the underprivileged and homeless citizens in urban areas and in resettlement areas by making available to them decent housing at affordable cost, basic services, and employment opportunities and to provide for the rational use and development of urban land. The program covered all lands in urban and urbanized areas, including existing areas for priority development, zonal improvement sites, slum improvement and resettlement sites, and in other areas that may be identified by the local government unit as suitable for socialized housing. These lands were inventoried by the city and municipal government to identify which lands may be acquired for socialized-housing. The modes of acquiring lands for the purpose of the act included among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint-venture agreement, negotiated purchase and expropriation. Socialized Housing shall be the primary strategy in providing shelter for the underprivileged and homeless.

110 Id., sec. 3. 111 Rep. Act No. 6126 (1970) provided for a one-year rental freeze which was extended to two

years by Rep. Act No. 6359 (1971). Pres. Decree no. 20 (1972) extended it for an indefinite period until finally Batas Blg. 25 (1979) regulated the rates of rental not exceeding P300. This was further amended by Pres. Decree No. 1642 (1979), Batas Blg. 877 (1985) and Rep. Act. No. 6643 (1988).

112 G.R. No. 52435, July 20, 1982, 115 SCRA 318 (1982). 113 CIVIL CODE, art. 1673 (2)-(4). Paragraph 1 of this article was suspended by Pres. Decree No.

20 (1972). 114 Office of the President Memo. Circular No. 970, dated March 15, 1972. 115 Onchangco v. City Court of Zamboanga, G.R. No. 44657, January 22, 1980, 95 SCRA 313

(1980). 116 Cursino v. Bautista, G.R. no. 50335, August 7, 1989, 176 SCRA 65 (1989).

The HLURB came out with Resolution No. R-521 Series of 1992 “approving the

guidelines for the inventory and identification of lands and sites for socialized housing in relation to R.A. 7279. The guidelines covered the inventory of all lands and the identification of suitable sites for socialized housing in urban and urbanized areas. The following lands is covered by the inventory : (a) all underdeveloped and vacant lands zoned for residential purposes as delineated in the Zoning Ordinance of the Local Government Units, duly approved by the Housing and Land Use Regulatory Board; (b) government-owned lands, whether owned by the national government or any of its subdivision, instrumentalities, or agencies including government-owned or controlled corporations and their subsidiaries; (c) unregistered or abandoned agricultural and idle lands including idle government lands; (d) lands located outside the zoned built-up areas but suitable for socialized housing, per suitability criteria contained in these guidelines; (e) squatter settlements, including Areas for Priority Development (APD), Zonal Improvement Program (ZIP) Sites and Slum Improvement and Resettlement Program (SIR) Sites; (f) marginal agricultural lands which comply with conversion criteria of DAR; (g) government-owned lands which have not been used for the purpose for which they have been reserved or set aside for the past ten (10) years from the effectivity of the Act and identified as suitable for socialized housing.

In 1992, the function of subdivision processing and approval of the HLURB was devolved to the LGUs that were willing ready and capable to assume that function through HLURB Office CIRCULAR No. 13 series of 1992.

The 1996 Rules of Procedure of the Housing and Land Use Regulatory Board,

approved by the Board of Commissioners on June 10, 1996 under Resolution No. R-586 was published in Malaya on June 1996 and took effect on July 10, 1996. The rules are liberally construed and the proceedings are summary in nature.

Resolution No. R-555 amended the 1996 HLURB Rules of Procedure. Basically, the resolution amending the 1996 HLURB Rules of Procedure embodies, among others, the following procedural changes: (a) Provisions of rules for the disposition or resolution of contested applications for clearance, permits and licenses as well as for cases filed for the revocation thereof; (b) Vesting of power in the Executive Committee of the Board to resolve, among others, cases impressed with significant economic, social, environmental or national policy implications; (c) Vesting of power in the Regional Officer to approve or disapprove decisions of the Arbiter in other cases. (d) Vesting power in the Regional Officer to resolve contested applications not otherwise falling under the jurisdiction of the Executive Committee.

IV. ADMINISTRATIVE LAND-USE CONTROLS

1. Zoning Zoning has been defined as the separation of the municipality into districts and the regulation of buildings and structures within the districts so created, in accordance with their construction, and nature and extent of their use.117 In simpler terms, it is the governmental regulation of the use of land and buildings according to districts or zones. On the other hand, zoning law or ordinance is either or both a national or local legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs warrant.118 The Philippine experience reveals that during the 1920’s, a number of local governments enacted rudimentary zoning ordinances restricting the location of noxious industries.119 These ordinances were sustained by the Supreme Court relying on nuisance concepts and

117 Pampanga Bus Co. v. Municipality of Tarlac, 113 Phil. 800 (1961) citing 8 MCQUILLIN,

MUNICIPAL CORPORATIONS 27-8 (3rd ed., 1949-50). 118 Pres. Decree No. 449 (1974) sec. 4 (b). 119 A.M. Santiago & J.L. Magavern, Planning Law and Administration in Philippine Local

Government, 3 PHIL., PLANNING J. 15 (1971).

police power granted to municipal corporations. In Gabriel v. Provincial Board of Pampanga,120 it was held that a municipal council had the right to supervise installation of steam engines and to delimit the zone within which they could be installed. This dictum is also the essence of the ruling in People v. Cruz121 where it ruled that an ordinance is not unconstitutional or illegal if it does not prohibit the installation of motor engines within a municipality, but only within a zone therein fixed, and the municipal council being authorized to establish the said zone, it is also authorized to provide what kind of engines maybe installed therein. Two zoning cases which dealt with non-conforming uses were Seng Kee & Co. v. Earnshaw122 wherein the Supreme Court upheld the validity of the Manila Ordinance which divided the city into residential and industrial zones and limited the manufacture of soy sauce in the latter zone; and Tan Chat v. Municipality of Iloilo123 where the ordinance which prohibited lumber yards in residential was considered a valid exercise of police and welfare power conferred by the Revised Administrative Code. In both cases, there was not deprivation of property but merely a restriction of such right in certain fixed places for the proper protection of the public health and for the benefit of the community which the State was bound to safeguard. As succinctly stated by the Supreme Court;

“The benefits to be derived by cities adopting such regulations (zoning) may be summarized as follows: they attract and assure a permanent citizenship; they foster pride in and attachment to the city; they promote happiness and contentment; they stabilize the use and value of property and promote the peace, tranquility, and good order of the city. We do not hesitate to say that the attainment of these objectives affords a legitimate field for the exercise of police power. He who owns property in such a district is not deprived of its use by such regulations. He may use it for the purposes to which the section in which it is located is dedicated. That he shall not be permitted to use it to the desecration of the community constitutes no unreasonable or permanent hardship and results in no unjust burden (State exrel Carter v. Harper, 182 Wis. 148). It is a matter definitely settled by both Philippine and American cases, and the defendant-appellant so admits, that municipal corporations may, in the exercise of their police power, enact ordinances or regulations or zonification.”124

The general rule was that non-conforming uses were allowed to continue for four years before the prohibition applied to them.125 In 1949, the National Urban Planning Commission prepared the physical planning and master plan for urban areas, the principal elements of which were proposal for streets, location of transportation terminals sites for government buildings, recreation sites, proposal for land-use or zones and sometimes the lines of utilities.126 Quite similar to the American models, this master plan was to be enforced by the implementation of zoning ordinances, subdivision regulations, building code, zoning map and other administrative regulations. The Subdivision Regulations provided for general requirements and minimum standards of design such as conformity with the approved general plans and zoning ordinances, street layout, minimum roadway and street widths, sidewalks, grades and vertical curves, alignment and visibility, minimum size of lots and maximum length of blocks, areas for community use

120 50 PHIL. 686 (1927). 121 54 PHIL. 24 (1929). 122 56 PHIL. 204 (1931). 123 60 PHIL 465 (1934). 124 Supra note 147 at 212. 125 J.L. Magavern, Physical Planning in the Philippines: The Need for Legislation, 43 PHIL. L.J.

571, 620 (1968). 126 Created by Ex. Order No. 98, s. 1946, 42 O.G. 425 (March, 1946).

such as public open spaces, preservation of natural and historical features, school sites, change of public use, easements and improvements.127 Any owner wishing to subdivide his land had to submit his subdivision plan to the Director of Planning for approval before it could be sold or filed with the Director of Lands and registered with the Register of Deeds. Variations from Subdivision Regulations requirements and minimum standards had to be authorized by the Commission. If the variation sought was believed to be prejudicial to surrounding areas, the owners affected were notified and given adequate opportunity to present their objections. The government’s attempts at urban planning suffered a setback when the Supreme Court declared the inapplicability of some of the regulations. In Hipolito v. City of Manila, request for permission to erect a residential building of strong materials on plaintiff’s corner lot was denied because according to the adopted plan for that area, the streets would be widened which would affect the proposed building on the abutting property of the owner.128 The Supreme Court interpreted Section 6 of Executive Order No. 98, s. 1946 dealing on the legal status of general plans, to apply only to “residential buildings financed in whole or in part by public funds or assistance” and as such did not apply to the proposed construction of the building which was did not apply to the proposed construction of the building which was to be done with private funds plus the fact that there was no allegation that the petitioner had not complied with the requisites of the Revised Ordinances of Manila. Inasmuch as there was not legislative authority to establish a building line and since the City of Manila did not expropriate the strip of land affected by the proposed widening of the streets, the denial of the permit amounted to the taking of private property under the power of eminent domain without following the procedure prescribed for the exercise of such power. An example of conflict in zoning powers was illustrated in University of the East v. City of Manila129 regarding an application for a building permit. The applicant submitted all the plans and specifications in conformity with the Manila Zoning Ordinance No. 2930 to which the National Planning Commission objected on the ground that the plans did not conform with its zoning regulation. The Supreme Court ruled against the Commission by stating that its regulations had not binding force because it was necessary for the local legislative body to adopt it but which in this instance was rejected by the Municipal Board of Manila. The Court upheld the power of local governments to enact zoning ordinances and further averred that the issuance of zoning regulations cannot be delegated to an administrative body without specific standards and limitations to guide in the exercise of such wide discretion. The validity of the Subdivision Regulations as approved by the City of Manila was sustained in Javillonar v. National Planning Commission,130 but the Supreme Court said that these regulations did not apply to the bona fide tenants in this case because they had occupied the four lots for many years, and it is at their instance, that the land was expropriated by the government. Another justification made was that Republic Act No. 1162 laid down the policy to be followed in the subdivision of lands expropriated by the government which provided that each lot shall not exceed 150 square meters in area instead of the 180 square meter requirement imposed by the Subdivision Regulations. In another case involving the same subdivision requirement, the petitioners wanted to terminate a co-ownership by subdividing the estate into twelve lots since there were twelve heirs. The Supreme Court pronounced in Francisco v. National Urban Planning Commission,131 that subdivision regulations applied only to lands for sale or building development and cannot interfere with the right of co-owners of a trace of land to divide it into lots for partition by agreement between themselves under Articles 494 of the Civil Code and Rule 71, Section 12 of the Rules of Court which do not involve the sale of lots.

127 V.G. SINCO & CORTES, PHILIPPINE LAW ON LOCAL GOVERNMENTS 82 (1955). 128 87 Phil. 180, 183 (1950). 129 96 Phil. 317 (1955). 130 100 Phil. 485 (1956). 131 100 Phil. 984 (1957)

In both the Javillonar and Francisco cases, the Subdivision Regulations were not applied retroactively to rights which already existed at the time of their enactment although there were no explicit statements from the Court that these situations involved prior non-conforming uses. As compared with American experience which utilizes the amortization device as the most active tool in dealing with non-conforming uses,132 the local governments in the Philippines never employed this method. Instead, they eliminated non-conforming uses through the use of the nuisance doctrine or eminent domain. In People v. De Guzman,133 the owners had been operating the lumber yards in the area before the enactment of the ordinance which prohibited the operation of lumber yards within certain zones. The Supreme Court upheld the validity of the ordinance and said that “there is no dispute that the passage of the ordinance was prompted by a desire to abate nuisances resulting from the operation of lumber yards within residential zones and this falls under the legitimate exercise of police power by the municipal council.” Notwithstanding the enunciation of the general rule that a municipal zoning ordinance is for the protection of the people and their property and is accordingly an exercise of the police power,134 there have been instances where the Supreme Court had not sustained the validity of such ordinances. One example is an ordinance which prohibited the establishment of bus or freight terminals in certain street intersections and allowed the owners or operators of such bus or freight terminals, a period of six months from the date of the affectivity of the said ordinance to remove and transfer them to other places and imposed a penalty for its violation. The Court, in the case of Pampanga Bus Co., Inc. v. Municipality of Tarlac,135 said that what was contemplated by the ordinance was a nuisance that may only be abated in accordance with procedure prescribed according to the provisions of the Revised Administrative Code and Civil Code. It is interesting to note here that the appellant argued that this was a zoning ordinance to which the Court countered by observed that the ordinance made no reference to zoning. Another instance is found in People v. Fajardo,136 where a municipal ordinance made the construction of any building which destroys the view of its public plaza illegal. The Court nullified this ordinance and reasoned that although property may be regulated in the interest of general welfare, the State may not, in the guise of police power, permanently divest owners of the beneficial uses of their property and practically confiscate them solely to preserve or assure their aesthetic appearance. The use of police power to reserve land for future public use by districting development has also been frowned upon by the Court. In Clemente v. Municipal Board of Iloilo137 where a municipal ordinance banned the construction or repair of buildings on a certain area needed for the extension of a public street, the Court nullified the said ordinance because it was adopted with a view to later expropriating it which amounted to a deprivation of property without just compensation and without due process of law. A similar ruling was also made in Hipolito v. City of Manila.138 As could be gleaned from these cases, the Supreme Court has acknowledged the validity of zoning ordinances but would nullify them where there was lack of authority in promulgating

132 Grant v. Mayor & Council of Baltimore, 212 Md. 301, 129 A. 2nd 363 (1957); Harbison v. City

of Buffalo, 4 N.Y. 2nd 550, 152 N.E. 2d 42 (1958); City of Los Angeles v. Gage, 127, Cal. App. 2d 442, 274 P. 2d 34 (1954).

133 90 Phil. 132 (1951). 134 Tiu San v. Republic, G.R. No. 7301, April 20, 1955, 96 Phil. 817 (1955). 135 G.R. No. 15759, December 30, 1961, 3 SCRA 816 (1961). 136 G.R. No. 12172, August 29, 1958, 104 Phil. 443 (1958). Contra Churchill v. Bafferty, 32 Phil.

580 (1915). 137 G.R. No. 18633, April 27, 1956. 138 Supra, note 153.

such regulations or where such regulations would amount to eminent domain without just compensation. By 1950, in accordance with Republic Act No. 422 (1948), Executive Order No. 367, series of 1950, created the National Planning Commission which took over the functions of the Capital City Planning Commission139 and the Real Property Board.140 The municipal councils were authorized to adopt zoning and subdivision ordinances or regulations for their respective cities and municipalities subject to the approval of the mayor. However, the National Planning Commission was consulted on matters pertaining to planning and zoning.141 Likewise, local government units were required to submit proposed and approved zoning and subdivision ordinances to the National Planning Commission.142 In view of the inefficient implementation and enforcement of master plan and zoning ordinances by the local governments, the Human Settlements Commission was created to evolve a single regulatory system relative to regulations in coordination with appropriate agencies, guidelines, standards and reporting system of physical planning activities on national, regional, and local levels, as well as the formulation of model ordinances and development regulations such as zoning, subdivision and building regulations and housing and rental codes for the guidance of and possible consideration by regional and local planning authorities.143 These functions were subsequently transferred to the Human Settlements Regulatory Commission (HSRC) by virtue of Presidential Decree No. 1390 (1978) which created the Department of Human Settlement.144 Among the powers and functions given the new Department were:

(a) Promulgate national standards and guidelines for human settlements which shall govern land use plans and zoning ordinances of local governments, civil works and infrastructure programs and projects of the National Government, and subdivisions or estate development projects of both the public and private sectors;

(b) Promulgate national standards and guidelines for environmental

management relative to air quality, water quality, land use and waste management which shall govern development programs and projects and other activities in settled communities, urban or rural, as well as in those areas immediately contiguous thereto and develop an environmental impact assessment system for the operationalization of said standards and guidelines;

(c) In coordination with appropriate agencies, effect a single regulatory

system relative to subdivision, zoning (including architectural design), building, fire and related regulations;

(d) Prepare and submit to the Board of the National Economic and

Development Authority a National Multi-year Human Settlements Plan which shall translate the Philippine Development Plan into spatial and temporal terms, based on the locational distribution of national resource endowments (including energy), population, climate, and production capacity.

139 Rep. Act No. 333 (1948). 140 Adm. Order No. 38, dated July 12, 1947, 43 O.G. 3036 (August, 1947). 141 Rep. Act No. 2264 (1959), sec. 3. 142 Adm. Order No. 152, s. 1968. This same requirement was reiterated in DLGCD Memo

Circular No. 73-39, s. 1976. 143 Pres. Decrree No. 933 (1976). 144 Sec. 18.

(e) Formulate plans and programs and implement, either on its own initiative and operational responsibility or through the agencies or corporations placed under its supervision, projects for:

i. Urban renewal and development including but not limited to the

construction and management of social economic housing. ii. Estate or New Town development within sites designated by the

Office of the President as Bagong Lipunan sites. iii. Land assembly and installation on a community scale of waste

management systems and of appropriate technologies. Town planning is defined as the holistic and comprehensive process of preparing a proposal for desirable future physical development of a community through an integrative and interdisciplinary analysis of the following basic areas of concern: social, economic, physical, infrastructural, fiscal and administrative sectors.145 The output of the process are: a land use plan, a local development investment program, and a municipal atlas.146 As a result of reorganization in 1986, the HSRC was converted into the Housing and Land Use Regulatory Board (HLURB) under the Office of the President.147 The Local Government Code contains provisions that gives the power to the Sangguniang Bayan to adopt zoning and subdivision ordinances or regulations, subject to the provisions of existing laws;148 the Sangguniang Panlungsod to enact integrated zoning ordinances in consonance with the approved comprehensive land use plan subject to exiting laws, rules and regulations, to establish fire limits or zones, determine the kinds of buildings and structures that may be erected within said limits or zones and regulate the manner of constructuring and repairing the same subject to applicable provisions of law;149 and to the Sangguniang Panlalawigan to review the comprehensive land use plan and zoning ordinances of coponent cities and municipalities and adopt a comprehensive provincial land use plan, subject ot existing laws.150 Each local government unit provides for a Planning and Development Coordinator whose function is to prepare comprehensive plans and other development planning documents.151 The problem in land use arises when there is a conflict between the zoning ordinance and a deed of restrictions or easements found in the title to the land. The Supreme Court had upheld the validity of zoning ordinances, vis-à-vis deed restrictions in the case of Ortigas and Co., Unlimited Partnership v. Feati Bank and Trust Co.152 where the Court said that the police power is superior to contractual stipulations between parties on the use of land by subdivision seven if annotated on the Torrens Title because to use the two lots for residential purposes is hazardous to health and comfort, as well as unprofitable. In Sangalang v. Intermediate Appellate Court and other cases,153 the Supreme Court upheld the validity of Makati Ordinance No. 81 delineating the Residential Zone and the Administrative Office Zone, which was followed by the Comprehensive Zoning Ordinance for the National Capital Region adopted by the Metropolitan Manila Commission as Ordinance 81-01 on March 14, 1981. It considered it as a legitimate exercise of police power and that the “non-impairment” guaranty of the Constitution is secondary to the more compelling interests of general welfare. However where the owner of a lot filed a case to cancel an annotation “that no factories will

145 O.M. Danao, Laws and Regulations on Town Planning and Zoning 1 (1984). 146 Ibid. 147 Ex. Order No. 90, x. 1986, 83 O.G. 88 (Jan., 1987). 148 Rep. Act. No. 7160 (1991), skec. 447 (a) (2) (vii). 149 Id., sec. 468 (a) (2) (ix). 150 Id., sec. 468 (a) (2) (vii). 151 Id., sec. 476 (b) (5). 152 G.R. No. 24670, December 14, 1979, 94 SCRA 533 (1979). 153 G.R. Nos. 71169, 74376, 76394, 78182, and 82281, December 22, 1988, 168 SCRA 634

(1988).

be permitted in this section” appearing on her Torrens Certificate of Title, on the ground that it was a mere surplusage because there are zoning ordinances prohibiting establishment of factories in the district, the Court ruled that as declared by Section 39 of Act. No. 496, as amended, “every purchaser of registered land shall hold the same free from all encumbrances except those noted in said certificate and the existence of a zoning ordinance prohibiting factories in such area is immaterial since the ordinance might be repealed at any time.154 Likewise, the Supreme Court upheld a deed of restrictions which bound the owner to use lot “for residential purposes and should not have more than one single family residential building constructed in one lot” in the case of Cariday Investment Corporation v. Court of Appeals.155 The purpose of such restriction was to avoid overcrowding both in the houses and in the subdivision which would result in pressure upon the common facilities such as water, power and telephone connections, accelerate the deterioration of the roads, and create problems of sanitation and security in the subdivision. The Court was also persuaded that the restrictions were for aesthetic considerations and for the preservation of the peace, beauty, tranquility, and serenity of those living in Forbes Park. From these cases, one can deduce the deed of restrictions in land titles are held valid provided that, such limitation is not contrary to law, public policy or public order and that such restrictions are not arbitrary or capricious insofar as its enforcement is concerned. Moreover, in the two latter decisions, the easements were made for the general welfare of the subdivision residents.

154 Trias v. Gregorio Araneta, Inc., G.R. no. 20786, October 30, 1965, 15 SCRA (1985). 155 G.R. no. 83358, August 2, 1989, 176 SCRA 31 (1989).

2. Land Development Control and Monitoring

The Housing and Land Use Regulating Board (HLURB) is the regulatory agency which administers the laws on land development and monitors compliance with its regulations. Control of land development is made not only through zoning but through building regulations, subdivision controls, real estate management, urban renewal, and land reform. The building regulations covered by the National Building Code156 are administered by the Department of Public Works and Highways while the other forms of control are administered by the HLURB. Zoning is effected by the HLURB’s issuance of locational clearance permits, real estate management through development permits and certificates of registration and license to sell, and urban land reform development through development use permits and land transaction approval. A location clearance is required for any kind of development or construction over a parcel of land and this has to be secured from the HLURB prior to the application for a building permit from the local building official or city engineer’s office.157 In areas where there are zoning ordinances or local development plans, locational clearance permits are not needed but a certificate of zoning compliance (CZC) is obtained from the deputized zoning administrator which is usually with the Office of the Mayor of the local government unit. However, the issuance of a CZC is not applicable to projects of national significance i.e., power generating plants, sawmills, large-scale poultry projects, cemeteries, etc. and instead, it is HLURB who issues the permit. When the project is located within Metro Manila area, the Metropolitan Manila Commission (MMC)158 issues the permit. Exceptions to the rule are: any application for subdivision, condominium or town house approval; any application within the 245 sites declared as APDs pursuant to PD No. 1517 or the Urban Land Reform Law, and any application located in Capitol Hills.159 For subdivisions, condominiums or town houses a plan indicating therein the parks, open spaces, road network system, drainage and sewerage system, water facilities should be submitted before a development permit can be issued. Once this permit is secured, the owner or developer has to file an application for registration and license to sell which is issued by the HLURB upon its site inspection, as well as the posting of a performance bond and publication of the application.160 A development use permit is required for applications located within the APDs while a location clearance permit is needed for those outside the APDs. For untenanted areas that have been zoned as non-agricultural lands before July 1988, there is no need for a conversion clearance under the Comprehensive Agrarian Reform Law but local clearance permits have to be obtained from HLURB. If the untenanted are subject to conversion is located in a municipality whose town place or zoning ordinance has been approved by the HLURB, there is need to secure a conversion clearance from the Department of Agrarian Reform (DAR).161 As for tenanted public lands that have imperfect titles, clearance must first be sought from the Department of Environmental and Natural Resources (DENR) before he could apply for title with the DAR.

156 Rep. Act No. 6541 (1972), as revised by Pres. Decree No. 1096 (1977). 157 MPWH Circular No. 27, dated march 30, 1982. 158 Converted into the Metropolitan manila Authority by Ex. Order No. 392, s. 1990, 86 O.G. 1617

(Feb., 1990). 159 J.L. Jorvina, Jr., Development Control and Compliance Monitoring: Procedures and Policy

Measures, p. 3 (1984) Typescript. 160 Pres. Decree No. 1216 (1978). See also J.T. Villanea, laws and Regulations Affecting the Real

Estate Industry – Part II (Residential Subdivisions and Condominiums). In A.M. SANTIAGO (Ed.), INSTITUTE ON THE LEGAL ASPECTS OF REAL ESTATE SUBDIVISION DEVELOPMENT, 1301-50(1984).

161 DAR Adm. Order No. 15, s. 1989, 1 NAR 67 (Jan.- March, 1990).

Under Sec. 20 of the Local Government Code of 1991, a city or municipality may, through an ordinance passed by the Sanggunian after conducting public hearings for the purpose, authorize the reclassification of agricultural lands and provide for the manner of their utilization or disposition in the following cases:

(1) When the land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture, or

(2) Where the land shall have substantially greater economic value for residential,

commercial or industrial purposes, as determined by the Sanggunian concerned.

However, such reclassification shall be limited to the following percentage of the total agricultural land area at the time of the passage of the ordinance:

(1) For highly urbanized and component cities – 1.5% (2) For component cities and first to third class municipalities – 10%

(3) For fourth to sixth class municipalities – 5%

Nevertheless, agricultural lands distributed to agrarian reform beneficiaries under RA

6657 are not to be affected by the said reclassification. In order to ensure an effective and efficient devolution to the Sangguniang

Bayan/Panlungsod, the processing and approval of subdivision plans pursuant to Section 447 (a) (2) (x) and Section 458 (a) (2) (x) of R.A. No. 7160, certain procedures for reclassification, submission of revised comprehensive land use plan/zoning ordinance, conduct of public hearings and the required certifications from the Regional Offices of the Department of Agrarian Reform and Agriculture are to be submitted to the Regional Offices of the HLURB.

The Agriculture and Fisheries Modernization Act mandates the Department of

Agriculture to identify a strategic Agriculture and Fisheries Development Zones (SAFDZ) within the network of protected areas for agriculture and agro-industrial development to ensure that lands are efficiently and sustainably utilized for food and non-food production and agro-industrialization.162

In consultation with the local government units, appropriate government agencies,

concerned NGOs and organized farmers’ and fisherfolk’s groups, the SAFFZ shall be identified on the basis of the following criteria:

(a) Agro-climatic and environmental conditions giving the area a competitive

advantage in the cultivation, culture production and processing of particular crops, animals and aquatic products;

(b) Strategic location of the area for the establishment of agriculture or fisheries

infrastructure industrial complexes, production and processing zones;

(c) Strategic location of the area for market development and market networking both at the local and international levels; and

(d) Dominant presence of agrarian reform communities (ARCs) and/or small owner-

cultivators and amortizing owners/agrarian reform beneficiaries and other small farmers and fisherfolk in the area.

The SAFDZ shall have an integrated development plan consisting of production,

processing, investment, marketing, human resources and environmental protection components.

162 Rep. Act No. 8435 (1997), sec. 6.

All irrigated or irrigable lands already covered by irrigation projects with firm funding

commitments, and lands with existing or having potential for growing high-value crops so delineated and included within the SAFZ cannot be converted for a period of five years from January 1998. Also not more than 5% of the said lands located within the SAFZ may be converted upon compliance with existing laws, rules and regulations relating to land use conversion. Likewise, conversion may be allowed on a case-to-case basis but the land owner will have to pay the Department of Agriculture the amount equivalent to the government’s investment cost including inflation.163

Every city and municipality have to prepare their respective land use and zoning

ordinances incorporating the SAFDZ, where applicable. These land use plans and zoning ordinances shall be updated every four years or as may be deemed necessary upon the recommendation of the HLURB and must be completed within the first term of the term of the mayor.

The owner of any agricultural land, seven hectares or larger within the protected

areas for agricultural development, shall be subject to an idle land tax of P3,000 per hectare annually if he knowingly or deliberately causes such land to be idle and unproductive for a period not exceeding one year.164

Any person found guilty of premature or illegal conversion can be penalized with

imprisonment of two to six years or a fine equivalent to 100% of the government’s investment cost, or both. In addition, the DAR in an administrative proceeding may impose the cancellation or withdrawal of the authorization for land use conversion, and blacklisting or automatic disapproval of pending and subsequent conversion applications that they may file with the DAR.165

163 Id., sec. 9. 164 Id., sec. 10. 165 Id.

3. Nuisances

The Philippine law of nuisance has been adapted from American law with certain modifications.166 Under the Civil Code, nuisance is defined as “any act, omission, establishment, business, condition of property or anything else which: (1) injures or offends the senses; or (2) shocks, defies or disregards decency or morality; or (3) obstructs or interferes with the free passage of any public highway or street, or any body of water; or (4) hinders or impairs the use of property.”167 Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger, or damage upon individuals may be unequal while a private nuisance is one that is not included in the foregoing definition.168 Philippine courts have also adduced to private or public nuisances as nuisances per se or at law and nuisances per accidens or in fact. A nuisance per se is generally interpreted as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location of surroundings,169 while a nuisance per accidens is one that becomes a nuisance by reason of circumstances and surroundings.170 Cases have shown that the indiscriminate discard of garbage,171 the erection of a temporary stall inside a public market without permit,172 the construction of houses on public streets and waterways,173 as well as “squatting” on public property,174 constituted nuisances per se. The Code on Sanitation defines nuisances also and designates the following as offensive trades or occupations: soap boiling; guts cleaning, boiling of offal, bones, fat or lard; manufacturing of glue or fertilizer; skin curing; scrap processing; manure storing; lime burning, lye making; and any manufacturing process in which lead, arsenic, phosphorous, or other poisonous substances is used.175 It also considers the following nuisances:

a) public or private premises maintained and used in a manner injurious to health; b) breeding places and harborages of vermin; c) animals and their carcassses which are injurious health; d) accumulation of refuse; e) noxious matter or waste water discharged improperly in streets; f) animals’ stockage maintained in a manner injurious to health; g) excessive noise; and

166 CAL. CIV. CODE, secs. 3479-3481, 3483-3483, 3491, 3493, 3495, 3501, & 3502. 167 Rep. Act No. 386 (1950), art. 694. 168 Id., art. 695. 169 2 A.M. TOLENTINO, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE

OF THE PHILIPPINES 418 (1972) citing Wheeler v. River Falls Power Co., 215 Ala. 655, 111 So. 907(1926).

170 Ibid., citing Iloilo Ice & Cold Storage Co. v. Municipal Council of Iloilo, 24 Phil. 471 (1913). 171 Reyes v. Villegas, 12 C.A. Rep. 2d 302 (1970). 172 Farrales v. City Mayor of Baguio, G.R. no. 24245, April 11, 197, 44-SCRA 239 (1972). 173 Sitchon v. Aquino, 98 Phil. 456 (1956); Espiritu v. Municipal Council, G.R. No. 11014,

January 21, 1958; Quinto v. Lacson, G.R. No. 14700, May 30, 1960, 50 O.G. 5095 (July, 1962); Dela Cruz v. Tianco, G.R. No. 19326, July 31, 1964, 11 SCRA 693.

174 Halili v. Lacson, 98 Phil. 772 (1956); City of Manila v. Garcia, G.R. No. 26053, February 21, 1967, 19 SCRA 413 (1967); Homeowners Association of El Deposito, Barrio Corazon de Jesus, San Juan, Rizal v. Lood, G.R. No. 31864, September 29, 1972, 47 SCRA 174 (1972).

175 Pres. Decree No. 856 (1975), sec. 84.

h) illegal shanties in public or private properties.176

There are other laws which impose penalties for the improper disposal of garbage and other forms of uncleanliness177 and for obstructing and encroaching portions of rivers, creeks, esteros, drainage channels and other similar waterways.178 Presently, factories that are declared nuisances per se due to noise, or the discharging of effluents into rivers and bodies of water, or oppressive odor caused by their wastes or by-products are directed to submit to the National Pollution Control Commission (now the Pollution and Adjudication Board) their plans for the installation of effective anti-pollution devices.179 By far the greater nuisances are the nuisances per accidens. Instances of nuisances of this type were found in cases involving the operation of a rice mill in front of a hospital,180 auto repair and body-building shop business in a commercial zone,181 noise continuously emitted by an electric company substation,182 the manufacture of soy sauce in a residential district,183 and the maintenance of a stand-pipe pumping station and open reservoir immediately adjacent to a residence.184 A person who creates a nuisance is liable for the resulting damages and his liability continues as long as the nuisance continues. This general rule is supported by Article 696 of the Civil Code when states that “every successive owner or possessor of property who fails or refuses to abate a nuisance in the property started by a former owner or possessor is liable therefor in the same manner as the one who created it.” The abatement of a nuisance does not preclude the right of any person injured from it to recover damages for its past existence.185 Lapse of time cannot legalize any nuisance, whether public or private.186 The remedy against a public nuisance is: (1) a prosecution under the Penal Code or any local ordinance; or (2) a civil action; or (3) abatement, without judicial proceedings.187 In this jurisdiction, the city or municipal health officer takes care that one or all of the remedies against a public nuisance are availed188 of and he determines whether or not abatement without judicial proceedings is the best remedy against it.189 But if a civil action is brought by reason of the maintenance of public nuisance, such action shall be commenced by the district city or municipal mayor.190 When necessary to insure the public safety, the legislature may under its police power authorize municipal authorities to summarily destroy property without legal process or previous notice to the owner.191 This is in accordance with Revised Administrative Code, when it provides that “it shall be the duty of the municipal council, comfortably with law, to declare and abate nuisances.”192 Illegal constructions on public property can be abated summarily without the need of judicial action.193

176 Id., art. 85. 177 Pres. Decree No. 825 (1975). 178 Pres. Decree No. 296 (1973). 179 Letter of Instruction No. 551, s. 1977. 180 Canlas v. de Aquino, G.R. No. 17760, Ocotober 31, 1962, 6 SCRA 517 (1962). 181 Ramcar, Inc. v. Millar, G.R. no. 16815, July 24, 1961, 2 SCRA 812 (1961). 182 Velasco v. Manila Electric Co., G.R. No. 18390, August 6, 1971, 40 SCRA 342 (1971). 183 Seng Kee & Co. v. Earnshaw, 56 Phil. 204 (1931). 184 Bangzon v. Province of Pangasinan, 62 Phil 816 (1936). 185 CIVIL CODE, art 697. 186 Id., art. 698. 187 Id., art. 699. 188 Id., art. 700. 189 Id., art. 702. 190 Id., art. 701. 191 Sitchon v. Aquino, supra, note 194. 192 Sec. 2242 (h). 193 City of Manila v. Garcia, supra, note 195; Homeowners Ass’n. of El Deposito v. Lood, supra,

note 195.

The remedy against a private nuisance is a civil action or an abatement without judicial proceedings.194 Any person may file an action on account of a public or private nuisance, if it is specially injurious to himself, by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. But before he could do thus, there must be a reasonable notice of his demand to the owner and that such demand has been rejected and that the abatement has been approved by the district city or municipal health officer. The value of the property to be destroyed should not exceed three thousand pesos and the abatement must be executed with the assistance of the local police.195 A private persons or a public official extrajudicially abating a nuisance shall be liable for damages if he causes unnecessary injury or if an alleged nuisance is later declared by the courts to be not a real nuisance.196

4. Environmental Controls Since land is the primary resource base for sustainable development and human activities are closely tied to it, the most common form of legal intervention are environmental controls. The Philippine Environmental Code197 establishes the management policies and quality standards for the following: air, water, and land use, natural resources utilization of surface and ground waters, and wastes. Presidential Decree No. 1151 (1977) makes compulsory the submission by all agencies and instrumentalities of the national government, including government-owned and controlled corporations as well as private corporations, firms and entities, of a detailed statement on the environmental impact of the proposed action, project or undertaking.198 Presidential Decree No. 1586 (1978) establishes the environmental impact statement (EIS) system and limits its preparation to areas or projects that are environmentally critical. The other forms of environmental control are found in technical standards prescribed by a number of codes and their implementing regulations such as the Sanitation Code,199 the Water Code,200 the Fire Code,201 the Forestry Code202 and the National Building Code.203 The Department of Health implements and enforces the provisions of the Code on Sanitation. The Code prescribes standards for the following: water supply; food establishments; markets and abattoirs; public laundries; school sanitation and health services; industrial hygiene; public swimming or bathing places; rest area; but terminals, but stops and service stations; camps and picnic grounds; dancing schools, dance halls and nigh clubs; tonsorial and beauty establishments; hotels, motels and apartments, lodging, boarding or tenement houses and condominiums; port, airport, vessel and aircraft sanitation; vermin control; sewerage collection and disposal, extra disposal and drainage; refuse disposal; nuisances and offensive trades and occupations; pollution of the environment; and the disposal of dead persons. The approval of the Secretary of Health or his authorized representative is required in the following cases:

(a) sites of water sources before their construction; (b) delivery of water to consumers from new or recently repaired water systems; (c) operation of a water system after an order of closure was issued by the

Department;

194 CIVIL CODE, art. 705. 195 Id., arts. 703-704 & 706. 196 Id., art. 707. 197 Pres. Decree No. 1152 (1977). 198 Sec. 4. 199 Pres. Decree No. 856 (1975). 200 Decree No. 1067 (1976), 73 O.G. 3554 (May, 1977). 201 Decree No. 1185 ( 1977), 73 O.G.10202 (October, 1977). 202 Decree No. 705 (1975), 71 O.G. 4289 (July, 1975). 203 Rep. Act No. 6541 (1972), as revised by Pres. Decree No. 1096 (1977).

(d) plans and specifications of water systems of subdivisions and projects prior to the construction of housing units thereat; and

(e) certification of potability of drinking water.204 Sanitary permits are required for food establishments, public laundries, industrial establishments, public swimming or bathing places, camps and picnic grounds, dancing schools, dance clubs and night clubs, tonsorial and beauty establishments, massage clinics and sauna bath establishments, hotels, motels, apartments, lodging, boarding or tenement houses and condominiums, and funeral and embalming establishments.205 Under the Code, the Secretary of Health is also authorized to promulgate rules and regulations for the control and prevention of the following types of pollution:

(a) Pollution of pesticides and heavy metals; (b) Pollution of food caused by chemical, biological agents, radioactive, materials,

and excessive or improper use of food additives; (c) Non-ionizing radiation caused by electronic products such as laser beams or

microwaves; (d) Noise pollution cause by industry, land and air transport and building

construction; (e) Biological pollutants including the causative agents of intestinal infections; (f) Pollution of agricultural products through the use of chemical fertilizers and plant

pesticides containing toxic chemical substances and unsanitary agricultural practices; and

(g) Any other type of pollution which is not covered by the provisions of Republic Act

3931, the Rules and Regulations of the National Water and Air Pollution Control Commission, the provision of Presidential Decree No. 480 and the rules and regulations of the Radiation Health Office of the Department of Health which is likely to affect community health adversely.206

For the protection of the health of workers, there are environmental provisions in the Sanitation Code applicable to all industrial establishments such as the control of atmospheric contaminants, infectious agents and possible sources of radiation hazards, measures to reduce intensity of noise, adequate illumination and ventilation standards.207 To provide for all buildings and structures, a framework of minimum standards and requirements to regulate and control their location, site, design, quality of materials, construction, use, occupancy and maintenance, the National Building Code was enacted consistent with the principles of sound environmental management and control.208 The Secretary of Public Works, Transportation and Communications (now Public Works and Highways)209 is charged with the administration and enforcement of the Code, while building officials in their respective territorial jurisdictions are responsible for carrying out the provisions in the field and charged with duties of issuing building permits.210 In cases of sites or buildings intended for use and human habitation or abode, the same shall be at a safe distance, as determined by competent authorities, from streams or bodies of water and/or

204 Pres. Decree No. 856 (1975), sec. 10. 205 Id., secs. 15, 37, 45, 51, 55, 56, 58, 59, 64, 93. 206 Id., sec. 88. 207 Id., sec. 48. 208 Pres. Decree No. 1096 (1977) revising Rep. Act No. 6541 (1972), sec. 1.02. 209 Exec. Order No. 124-A, s. 1987, 83 O.G. 3422-0-4 Suppl. 30 (July, 1987). 210 Id., secs, 2.05 & 2.07.

sources of air considered to be polluted, from a volcano or volcanic site and/or any other building considered to be a potential source of fire or explosion.211 On the other hand, the Fire Code sets uniform fire safety standards and the incorporation of fire safety construction and provisions of protective and safety devices in buildings and structures.212 The following acts punishable under the Code are:

a. Obstructing or blocking the exit ways or across to buildings clearly marked for fire safety purposes, such as but not limited to aisles in interior rooms, any part of stairways, hallways, corridors, vestibules, balconies or bridges leading to a stairway or exit of any kind, or tolerating or allowing said violations;

b. Constructing gates, entrances and walkways to building components and yards

which obstruct the orderly and easy passage of fire fighting vehicles and equipment;

c. Prevention, interference or obstruction of any operation of the Fire Service, or of

duly organized and authorized fire bridges; d. Obstructing designated fire lanes or access to fire hydrants; . e. Overcrowding or admission of persons beyond the authorized capacity in movie

houses, theaters, coliseums, auditoriums or other public assembly buildings, except in other assembly areas on the ground floor with open sides or open doors sufficient to provide safe exists;

f. Locking fire exits during periods when people are inside the building; g. Prevention or obstruction of the automatic closure of fire doors or smoke

partitions or dampers; h. Use of fire protective for fire fighting equipment of the Fire Service other than for

fire fighting except in other emergencies where their use are justified; i. Giving false or malicious fire alarms; j. Smoking in prohibited areas as may be determined by Fire Service, or throwing

of cigars, cigarettes, burning objects in places which may start or cause fire; k. Abandoning or leaving a building or structure by the occupant or owner without

appropriate safety measures; l. Removing, destroying, tampering or obliterating any authorized mark, seal, sign

or tag posted or required by the Fire Service for fire safety in any building, structure or processing equipment; and

m. Use of jumpers or tampering with electrical wiring on overloading the electrical

system beyond its designed capacity or such other practices that would tend to undermine the fire safety features of the electrical system.213

Fire hazards can be abated immediately214 and the Director General of the Integrated National Police if responsible for the enforcement of the provisions of the Code.215

211 Id. Sec. 1.05. 212 Pres. Decree No. 1185 (1977). 213 Id., sec. 9. 214 Id., sec. 10. 215 Id., sec. 6.

The Water Code and the Forestry Code dealing on land use will be discussed in the appropriate chapters of this book accordingly.

V. ASSESSMENT

From the overall picture just presented, one can see that the Philippines does not only have an abundance of laws but a panoply of government agencies which in one way or another are involved in land-use planning. Notwithstanding the attention given by the government to the coordination of functions in government agencies, there is overlapping of functions in certain instances. For example, the task of reclaiming lands belongs to the Department of Public Works and Highways, while the management of disposable public lands is administered by the Department of Environment and Natural Resources (DENR). There is also the Public Estates Authority216 that was created to provide for a coordinated, economical and efficient reclamation of land and the administration and operation of such lands owned, managed and controlled or operated by the government. As an independent authority, the Public Estates Authority can undertake development project by itself or through a real estate developer and is exempted from the real estate subdivision regulations. This would mean that the development projects undertaken by the Public Estates Authority are not subject to the national standards imposed by the HLURB and neither does this agency coordinate with the DENR or the Department of Public Works and Highways on its projects.

Another example is the Commission on the Settlement of Land Problems217 which

coordinates the activities and investigation work of the various government agencies involved in land problems or disputes involving squatters, small settlers, and cultural minorities. This Commission, which resolves disputes in certain instances, is directly under the Office of the President. But on the other hand, it duplicates the functions of the National Land Registration Authority, Land Management Bureau, and the Offices for the Northern and Southern Cultural Communities, as well as the Committee for the Urban Poor.

Then, there is the Department of Tourism, which has exclusive jurisdiction to

undertake development projects and grant permits for all forms of tourism establishments and services within the designated tourist zones.218 Although there is coordination in the formulation of the development plans and the zoning ordinance between the local government units and the HLURB, there is no such coordination with the Department of Tourism on their development plans. Further, the Secretary of Justice has opined that despite the grant of power to local government units to impose fees on all establishments within its jurisdiction under the Local Government code, it did not supersede the proclamation declaring Pagsanjan Tourist Zone as under the control of the Department of Tourism.219

Another observation is that different permits have to be secure for the different kinds

and uses of lands from various government agencies but there is no dissemination of information as to where such clearances can be obtained and its requirements. It is recommended that there should be a centralized system of clearances and this could only be accomplished through the establishment of a computerized data bank available to the concerned agencies.

Another major problem is that planning goals and objectives in Metro Manila as well

as the local government units have been mainly statements of intent. Most of the laws set up administrative structures, a laundry list of responsibilities but no new powers and no funds are given which just continues the old pattern of “words for deeds” syndrome. Moreover, there are no strategies, indicated in the implementation of development plans or if there are strategies, these have not been clearly outline. Without such strategies, the authorities have not been able to direct growth into preferred areas because they have lacked the necessary

216 Pres. Decree No. 1084 (1977). 217 Exec. Order No. 561, s. 1979. 218 Proclamation No. 1801 (1978). 219 Sec. of Justice Opinion No. 218, s. 1988.

controls over public and private investment and over land availability.220 Basically, what has evolved is a development pattern partly reflecting the physiographic characteristics of the area, largely the result of market forces, and only partly reflective of government policy. The Agriculture and Fishery Modernization Act provides for strategies but due lack of political will has not been implemented fully.

Various suggestions have been made that planners should not ignore the fact that a

majority of urban residents cannot possibly conform to these often Western society-derived criteria of urban planning. One proposal is that, no attempt should be made in the zoning regulations to control building height, area or bulk, no side and rear yard standards, and should radically depart from traditional concepts of separation of uses by allowing most land to be used for any purpose, subject only to standards and exceptions intended to exclude nuisance uses, and to establish additional zones only to achieve particular planning objectives.221 The experience of the Philippines as well as of other countries shows that the building process of a low-income urban house might take as long as 20 years, during which time the house gradually evolves from a shanty to a dwelling unit that meets regular local housing standards.222 This observation has led to suggestions ranging from the establishment of an “eco-settlement” which is intended to describe high level of interdependence of human and natural resources so developed in order to maximize returns to the settlement as a whole,223 to a site and services approach which encourages owner-user created housing supplemented by a scheme of loans for materials on a gradual self-help basis.224

In conclusion, the over-all approach of the government should not only be institutional

but attitudinal as well. Although it is acknowledged that “any public planning is inevitably an invasion of private rights to some extent and that if a better physical environment is desired, the means thereto must be accepted,”225 its implementation must not be done arbitrarily. Effective land-use planning and control measures cannot be implemented unless the public and all levels of the government have access to adequate information and unless the government exercises its substantive planning powers within the carefully defined limits of the law. Legal regulations should also encourage self-reliance and tailored to the comprehension, time availability, and economic resources of the poor. Specific policies regarding the agrarian and urban land reform program should be spelled out where it is vague because as the number of ad-interim decisions increases, vested interests are bound to become stronger, thus, threatening a clear and equitable solution to the Philippine land problem.

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220 U.N. Dept. of International Economic and Social Affairs, Population Growth and Articles in

Mega-Cities: Metro Manila 45 (1986). 221 Santiago & Magavern, op. Cit., note 143 at 22-23. 222 INTERNATIONAL LABOR OFFICE, SHARING IN DEVELOPMENT IN A PROGRAMME

OF EMPLOYMENT, EQUITY AND GROWTH FOR THE PHILIPPINES 217 (1974) hereinafter cited as the RANIS REPORT.

223 A.B. Etherington, Eco-Settlements: An Alternative Solution for human Settlements, 8 PHIL., PLANNING J.48-57 (1976).

224 RANIS REPORT, p. 218; W.J. Keyes Economic Development and the housing Problem, 27 PHIL., STUDIES 210, 230 (1979); M. Hollnsteiner, Urban Planning: A Curbside View, 4 PHIL. PLANNING J. 65, 71 (1973).

225 C. HAAR, LAND PLANNING IN A FREE SOCIETY: A STUDY OF THE BRITISH TOWN AND COUNTRY PLANNINGACT 156 (1951).

LAND REGISTRATION Atty. Ricardo Arandilla

There are at present two basic systems of land registration prevailing in this jurisdiction — the Torrens system and the system of registration for unregistered lands. The registration system under the Spanish Mortgage Law was discontinued with the issuance of Presidential Decree No. 892 in 1976 and all lands recorded under said system which are not yet covered by Torrens titles were considered as unregistered lands. The Torrens System Conceived by Sir Robert Torrens, in whose honor the system was named, it was initially adopted in South Australia through the passage of the Real Property Act of 1858. Under the Act, a person who claims a fee simple title to the land files an application for registration with the registrar-general who causes a notice thereof to be published. After it has been established that the description of the land is definite and clear; that the applicant is in undisputed possession thereof; that he appears to be rightfully entitled thereto; and that from the evidence submitted it appears that no other person will be prejudiced by the adjudication of the property in favor of the applicant, title to the land is registered and the registrar issues a certificate of title which serves as a conclusive evidence of ownership to the property.

Once the land is brought within the operation of the system, title thereto becomes indefeasible and imprescriptible. It cannot be subject again to another proceeding for registration. The purpose of the Torrens System is to quiet title to land; to put a stop forever to any question of the legality of the title, except claims which were noted, at the time of registration, in the certificate, or which may arise subsequent thereto. Consequently, once title is registered, the owner may rest secure, without the necessity of waiting in the portals of the court or sitting in the mirador de su casa, to avoid the possibility of losing his land (Legarda vs. Saleeby, 31 Phil. 590). The system provides a method by which at any given time the landowner is identified, and the conditions, limitations and encumbrances affecting his estate therein easily determined. Act No. 496 The Torrens System was introduced in the Philippines during the American regime when the Philippine Commission passed, on November 6, 1902, Act No. 496 otherwise known as the “Land Registration Act” which took effect on February 1, 1903. Substantially based on the Massachusetts Law of 1898, the proceedings under Act No. 496 were basically voluntary and judicial in character. Proceedings thereunder were initiated by filing an application for registration with the Court of Land Registration which was created for the sole purpose of bringing land titles in the Philippines under one comprehensive and harmonious system, the cardinal features of which are indefeasibility of title and State intervention as a requisite to the creation and transfer of titles and interests. The court does not create nor vest title. It simply confirms a title already created and vested. Through subsequent legislation, the Court of Land Registration was abolished and its powers and functions transferred to the Courts of First Instance now, Regional Trial Courts. Much later, Act 496 itself was amended and modified by Presidential Decree No. 1529, otherwise known as the Property Registration Decree. Act No.2259 For lack of initiative on the part of landowners, registration of land titles under Act No. 496 moved at a very slow pace. For this reason an innovation was conceived to hasten and accelerate registration of lands. Thus, Act No. 2259, otherwise known as the Cadastral Act, was enacted on February 11, 1913 for the purpose of expediting the settlement and adjudication of titles to properties.

Following the mandate in the Act that title to lands be settled and adjudicated, the then Director of Lands was required to conduct surveys of municipalities and cities identifying each lot or parcel therein and marking the boundaries thereof by monuments. When the lands have been surveyed and platted, a petition is filed in court against the claimants, praying that title to such lands be settled and adjudicated. The court sets the date of initial hearing of the petition and any person claiming interest in the land shall file his answer within the time fixed in the notice. In the trial of the case, all conflicting interests shall be adjudicated by the court and decrees awarded in favor of persons entitled to the lands. Such decree shall be the basis for the original certificate of title which shall have the same effect as those issued under Act No. 496. Ordinary and Cadastral Proceedings, Compared The Land Registration Act (496) and the Cadastral Act (2259) both fall under the Torrens System of land registration, the latter law being merely an innovation designed to hasten the process of bringing lands within the System. While the proceedings in both Acts are judicial in character and the certificate of title issued thereunder is indefeasible and imprescriptible, yet there are points of differences between the two laws. Under Act No. 496 the survey of the land is conducted at the instance and expense of the landowner and confined to the area claimed by him while under Act No. 2259 the survey is undertaken by the Government who advances the expenses and covers an entire municipality. Ordinary land registration proceedings under Act No. 496 are voluntary in nature as the filing of the application depends upon the initiative of the landowner, while cadastral proceedings are compulsory in the sense that the landowner is compelled to file his answer to the petition filed by the Government, otherwise he loses his rights over the land. In proceedings under Act No. 496, if the applicant’s evidence is not sufficient to prove ownership, the application is simply dismissed and the applicant may still have another chance to put up a successful claim. On the other hand, in cadastral proceedings if the claimant fails, the property is declared public land. Administrative Registration Proceedings While proceedings for initial registration of title under Act No. 496 are essentially judicial in nature, the law allows land titles to be originally registered through administrative proceedings. Thus, Section 103 of Presidential Decree No. 1529 (formerly Sec. 122, Act No. 496) states:

“SEC. 103. Certificates of title pursuant to patents. – Whenever public land is by the Government alienated, granted or conveyed to any person, the same shall be brought forthwith under the operation of this Decree. It shall be duty of the official issuing the instrument of alienation, grant, patent or conveyance in behalf of the Government to cause such instrument to be filed with the Register of Deeds of the province or city where the land lies, and to be there registered like other deeds and conveyances, whereupon a certificate of title shall be entered as in other cases of registered land, and an owner’s duplicate issued to the grantee. The deed, grant, patent or instrument of conveyance from the Government to the grantee shall not take effect as a conveyance or bind the land, but shall operate only as a contract between the Government and the grantee and as evidence of authority to the Register of Deeds to make registration. It is the act of registration that shall be the operative act to affect and convey the land, and in all cases under this Decree, registration shall be made in the office of the Register of Deeds of the province or city where the land lies. The fees for registration shall be paid by the grantee. After due registration and issuance of the certificate of title, such land shall be deemed to be registered land to all intents and purposes under this Decree.”

The instruments of alienation referred to above, are those processed and issued in the form of land grants and conveyances under the Public Land Act (Commonwealth Act No. 141) like the homestead, free patent, and sales patent. Once the grant or conveyance is recorded in

the registry of deeds, title to the land is registered and the effect of such registration and the issuance of a certificate of title is to vest in the grantee an incontestable title to the land in the same manner as if ownership had been determined by final decree of the court. In other words, the certificate of title administratively issued pursuant to any grant or patent involving public lands is as conclusive and indisputable as any other certificate of title issued under the ordinary or cadastral registration proceedings. Also under the agrarian reform laws, the Department of Agrarian Reform is authorized to issue Emancipation Patents (P.D. No. 27) and Certificates of Land Ownership Award (R.A. No. 6657) over agricultural lands in favor of farmers or agrarian reform beneficiaries. If the land involved is originally an untitled land, registration of the patent or award in the registry of deeds results in the title to such land being brought administratively within the operation of the registration system. Subsequent Registration Act No. 496 as amended by P.D. 1529 allows the initial registration, either judicially or administratively, only of fee simple titles. The system does not provide for the initial registration of interests less than fee simple. But once the title is registered and the corresponding certificate issued, transactions subsequent thereto are admissible for registration. In fact, the law requires that these dealings be registered in order to affect third persons, otherwise, the transaction is binding only between the parties. The subsequent dealings may take the form of voluntary transactions, i.e., those freely entered into by the registered owner like sales, mortgages, leases and the like, or involuntary — those created against the will of the landowner or against his consent such as an adverse claim, a notice of lis pendens, an attachment or a levy on execution. The law prescribes the requirements and the procedure in the recording of these transactions. System of Registration for Unregistered Lands

Transactions involving lands previously registered under the Torrens system may be registered only under that system while transactions affecting lands previously registered under the Spanish Mortgage Law at the time it was still in operation can only be recorded under that law. Under this situation, no provision is made with respect to transactions involving lands which have neither been registered under the Torrens system or the Spanish Mortgage Law. To fill this gap in the law, a system of registration for unregistered lands was provided. Under this system, the ownership of the land has not yet been settled in a judicial or administrative proceeding. Holders of such lands base their claims on tax declarations or deeds of conveyance from individuals who themselves did not have title thereto from the government. Hence, what may be registered are the instruments affecting unregistered lands.

The provision on the system of registration for unregistered lands was originally found

in Section 216 of the first Administrative Code and later carried over as Section 194 of the Revised Administrative Code of 1917. Subsequently, amendments were introduced by Act Nos. 2837 and 3344. At present, the law on the matter is found in Section 113 of P.D. 1529.

As originally conceived only instruments or deeds establishing, transmitting,

acknowledging, modifying or extinguishing rights with respect to unregistered lands wherein the parties have agreed to have the same registered under Act 3344 may be admitted for record. In other words, this system of registration is applicable exclusively to voluntary instruments resulting from the agreement of the parties. The law finds no application to involuntary transactions. Thus, it has been held that a sheriff’s deed conveying unregistered land that has been sold under execution is not registrable under this system (Williams vs. Suñer, 49 Phil. 534). However, under Section 113 of P.D. 1529, by express provision thereof, “tax sale, attachment and levy, notice of lis pendens, adverse claim and other instruments in the nature of involuntary dealings with respect to unregistered lands, if made in the form sufficient in law, shall likewise be admissible to record under this section.”

As the law now stands, both voluntary and involuntary instruments involving

unregistered lands may be recorded under this system of registration. Registration is designed to bind third parties through constructive notice. However, the law itself declares that “any recording made under this section shall be without prejudice to a third party with a

better right.” Under this situation an earlier unregistered instrument prevails over a later instrument notwithstanding registration of the latter. In fine, the constructive notice resulting from registration is effective and binding only to future and subsequent dealings on the land.

Problems and Suggested Solutions 1. The proceedings Torrens system as originally conceived in Australia are basically administrative in nature. But under Act 496, as well as under Act 2259, the proceedings are judicial. Unquestionably, judicial proceedings are tedious and expensive. It is perhaps for this reason that landowners who cannot afford the expenses of court litigation are discouraged from filing applications for registration of title. Besides, Regional Trial Courts where land registration cases are usually filed, are courts of general jurisdiction, hearing all kinds of cases. Land cases fall within the low priorities of these courts and therefore take a longer time to be decided. To accelerate proceedings and at lower cost, administrative proceedings in the confirmation and registration of land titles in uncontested cases should be adopted. The courts will only intervene where conflicting claims of title arise. This will considerably lessen the backlog of land registration cases in the courts. An alternative remedy is to create special land registration courts or designate existing courts to hear and decide exclusively land registration cases. To this end Section 2 of P.D. 1529 on the nature of registration proceedings need to be amended. 2. Under Section 23 of P.D. 1529 the notice of initial hearing of the application for registration shall be published once in the Official Gazette and once in a newspaper of general circulation in the Philippines. Since the law itself declares that “the publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court”, for purposes of acquiring jurisdiction publication in the newspaper appears to be unnecessary. Besides, newspaper publication is more expensive. Alternatively, the situation may be reversed by doing away with publication in the Official Gazette which is seldom read anyway and limiting publication only in the newspaper. 3. Section 40 of P.D. 1529 prescribes the procedure to be followed by the register of deeds in entering in the record book the original certificate of title forwarded to him by the Land Registration Authority. It has been the experience that original certificates of title transmitted to the register of deeds sometimes get lost in transit or are lost or destroyed in the office of the register of deeds prior to their entry in the record book. The present law being silent as to the procedure in the re-issuance of original certificates of title lost or destroyed prior to their entry in the registry of deeds, a process should be inserted under Section 40 that will authorize the Land Registration Authority to re-issue the original certificate of title. Suggestions are to the effect that if prior to such entry the certificate of title is lost or destroyed but the decree of registration is intact in the records of the Land Registration Authority, the certificate of title may be reissued by the Administrator of Land Registration upon verified petition therefor filed by the party in interest and satisfactory and convincing proof of its loss or destruction on the basis of the available copy of the decree. However, where no copy of the decree of registration is available, both said decree and certificate of title may be reissued only upon order of the court

4. Under Section 4, Rule 74 of the Rules of Court when the estate of a deceased is extrajudicially settled by the heirs a two-year liability within which other heirs and creditors who may have been deprived of their participation in the estate of a deceased may file their claims is reserved. If the estate consists of titled lands this liability is annotated on the certificate of title issued to the heirs. Under Section 7 of R.A. No. 26 a two-year reservation is imposed on administratively reconstituted certificates of title in favor of parties whose right or interest was duly noted in the original copy of the certificate at the time it was lost or destroyed but entry or notation of which has not been made on the reconstituted certificate. This reservation is annotated on the reconstituted certificate of title. Following the provisions of Section 59 of P.D. 1529, these annotations will be carried over on the new title to be issued even after the two-year period has expired. Since the period within which the claim, rights or interest may be enforced has already prescribed, to carry over these annotations on the new title to be issued will serve no useful purpose. To cleanse the new title of these expired

annotations, provisions should be made under this section authorizing the register of deeds not to carry over these annotations on the new certificates to be issued.

5. Another provision that should be looked into is Section 108 of P.D. 1529 which invariably requires a court order to effect any erasure, correction or amendment in a certificate of title. Thus, any clerical or typographical error or mistake committed in the preparation of a certificate of title or any memorandum thereon will have to be referred to the court for correction. To assist the landowners as well as the registering public in effecting a less expensive and more expeditious procedure in the correction of land titles, the registers of deeds should be authorized to undertake administrative corrections of clerical or typographical errors in certificates of title. 6. With respect to title reconstitution, the following amendments to R.A. No. 26 are suggested: (a) Administrative cancellation of the two-year reservation under Section 7 should be allowed after the two-year period has expired. Under Section 9 of the law to cancel the two-year reservation a petition has to be filed in court regardless of whether the two-year period has expired or not. The proposal is to file the petition directly with the register of deeds if the two-year period has already expired. (b) In the case of Register of Deeds of Malabon vs. Regional Trial Court of Malabon (181 SCRA 788) the Supreme Court ruled that the register of deeds is not the proper party to file the petition for reconstitution because under R.A. 26, petitions for reconstitution may be filed only by the registered owner, his assigns, or any person having an interest in the property. As a result of this ruling, landowners whose titles were lost or destroyed in the office of the registers of deeds are forced to file the petition for reconstitution. Since the loss or destruction of the certificates of title occurred in the office of the register of deed without the fault of the titleholder and in order to unburden the latter of the obligation to initiate the reconstitution proceedings, a provision should be inserted in R.A. 26 authorizing the register of deeds to file the petition for reconstitution in cases where the owner’s duplicate certificates are available. (c) A period should be fixed within which a petition for reconstitution may be filed reckoned from the date when the certificate of title was lost or destroyed. Under the present law, a petition for reconstitution may be filed at any time. Thus, we still find petitions for reconstitution of titles alleged to have been destroyed as a result of the last World War, which is about 60 years ago. This has resulted in the fraudulent reconstitution of titles, adding to the already numerous problems besetting the land titling system. To avert further abuse of the reconstitution process, the period for filing reconstitution proceedings should be limited. 7. As to the problem of fake or irregularly issued titles, this is being addressed by the computerization project of the Land Registration Authority where changes in procedures and adoption of computerized security features are being developed. To adapt to the electronic process, amendments to the existing laws are being prepared by a committee created for this purpose. Perhaps it would be appropriate for LAMP at this time to coordinate with LRA to avoid conflicting proposals to amend the law on land registration. ADDIONAL COMMENTS AND OBSERVATIONS 1. P.D. 1529, per its first whereas clause, is a codification of the various laws relative to registration of property. With Act 496 as the basic law, some its provisions were updated by relevant amendments and the incorporation therein of the pertinent provisions of related laws such as Act 3344 concerning registration of transactions involving unregistered lands (Sec. 113); Act 1508 on chattel mortgages (Secs. 114 to 116); the Rules of Court and Act 3135 on foreclosure of mortgages (Sec. 63); the Rules of Court on extrajudicial settlement of estate of deceased persons (Sec. 86); and Act 2259 on cadastral proceedings (Secs. 35 to 38). It also adopted the provisions of P.D. 892 discounting the system of registration under the Spanish Mortgage Law (Sec. 3), as well as the provisions of presidential decrees relative the registration of emancipation patents (Secs. 104 to 106). Likewise, it abrogated the provisions of R.A. 26 on administrative reconstitution of titles (Sec. 110).

It is observed, however, that P.D. 1529 did not incorporate all the pertinent provisions of the related laws, leaving many provisions still intact in the source statutes. Thus, we now have a situation where the law on registration may be found in different sources. This is further compounded by the passage of laws affecting land registration after the promulgation of P.D. 1529 such as R.A. 6657 on land reform providing for, among others, the registration of certificates of land ownership awards, and R.A. 6732 reviving the procedure for administrative reconstitution of certificates of titles lost or destroyed under certain conditions. Consequently, if the intention is to codify all registration laws for their effective and efficient implementation, then the need to assemble all the laws on the subject and come up with one comprehensive and systematic statute is imperative. 2. The Assurance Fund is an indemnity fund created for the purpose of compensating a person who sustains loss or damage, or is deprived of land or any interest therein in consequence of the bringing of the land under the operation of the Torrens system or arising after original registration of the land, through fraud or in consequence of any error, omission, mistake or misdescription in any certificate of title or in any entry or memorandum in the registration book. The Fund is sourced from the amount collected by the register of deeds upon the entry of a certificate of title in the name of registered owner, as well as upon the original registration on the certificate of title of a building or other improvement on the land covered by said certificate equivalent to one-fourth of one per cent of the assessed value of the real estate on the basis of the last assessment for taxation purposes. All the money received by the register of deeds shall be paid to the National Trea- surer who shall keep the same in an Assurance Fund which may be invested in the manner and form authorized by law. The income of the Fund shall be added to the principal unit said fund amounts to P500,000.00. The excess income from investments as well as from the collections of such shall be paid to the National Treasurer to the account of the Assurance Fund. In order to successfully claim from the Fund, the claimant (1) must have title, right or interest in the property; (2) he must have been deprived of the land through the fraudulent registration thereof in the name of another; (3) the loss is not caused by breach of trust; (4) he can no longer recover the property; (5) he is not guilty of negligence; (6) the action to recover from the Fund has not prescribed; and (7) the loss was not caused by a mistake in the resurvey or subdivision resulting in the expansion of the area in the title. The Fund is an essential feature of the Torrens system of registration designed to relieve innocent persons from the harshness of the doctrine that a certificate of title is conclusive evidence of an infeasible title to land and from any injustice which may arise to them by operations under the Act making for the conclusiveness of certificate, whether such injustice arises from the fraud or error of someone connected with the registry office, or some of third person dealing with the land. On the other hand, title insurance is an entirely different concept. It is not an inherent feature of the system and may provide for compensation due to loss for causes other than those arising for the effects of the doctrine that a certificate to title is conclusive evidence of an indefeasible title to property. It is usually established as a private enterprise, a form of insurance business. It aims to fill the gap created by the limited scope and coverage of the Assurance Fund. Thus, it can insure against risks other than that provided in the Fund. Due perhaps to its wider coverage and the perceived proliferation of fraudulent land titles, the clamor for title insurance has revived. It may be worthwhile mentioning that several attempts to put up title insurance companies have been made in the past. None, so far, has succeeded probably for the reason that the risk factor on the part of the insurer is great because of the difficulty of establishing title history due to incomplete and unreliable records, not to mention the expense involved. 3. The Land Registration Authority is presently in the process of computerizing its operations. One of the main purposes of computerization is the prevention of fake or irregularly issued land titles. Under the computerized system, because of its highly technical security features, fake or fraudulently issued would virtually be a thing of the past. The remaining problem that LRA has to cope with is the issue of questionable titles manually issued prior to computerization. To address this problem, a process has been adopted

whereby in the course of data conversion title history is established, source documents are linked with certificates of title and property description are projected into a graphical information system. Manually issued titles pass through a strict process of examination where the title examiners gauge their authenticity and regularity of issuance on the basis of guidelines on the detection of fake or fraudulently issued titles. Through this process, though it may take some time, fake titles can be ferreted out and expunge from the records of the registry. 4. The paper on land registration treats of two kinds of two-year liens. The first refers to the two-year liability under Sec. 4, Rule 74 of the Rules of Court. After the two-year period has expired, the Register of Deeds without need of a court order may cancel this lien administratively. Since this is already expressly authorized under Section 86 of P.D. 1529, there is no more need for authority to allow its administrative cancellation. The second two-year lien is that provided in Sec. 7, in relation to Sec. 9, of R.A. 26. This reservation may be cancelled during the two-year period of after the expiration of two years. In both cases, however, the cancellation may be effected only through a court order. The proposal is to allow administrative cancellation of this reservation after the expiration of the two-year period in order to save time and expense. The expiration of two years does not automatically result in the cancellation of these liens. As long as they have not been cancelled in the manner authorized by law, they will remain annotated on the certificate of title affected. Hence, if the title is cancelled as a result of a conveyance, these expired liens will be carried over in the new title to be issued in favor of the transferee, and so on to the next transferee until carry over these two liens once that have expired on the new titles that may subsequently be issued by way of exception to Section 59 of P.D. 1529. 5. Existing laws allow the issuance by the government of several kinds of administrative patents. Under the Public Land Act, we have the homestead patent, free patent and sales patent. The President through the Secretary of Environment and Natural Resources issues these patents. Lands involved are alienable and disposable agricultural lands of public domain. It is the responsibility of the DENR Secretary and his concerned subordinates to determine the nature of the land, qualifications of the grantees, as well as the conditions and legal requisites applicable to each kind of patent. Under the agrarian reform laws, (P.D. 27 and R.A. 6657), we have the emancipation patents (EPs) and the certificates of land ownership award (CLOAs). Issuance thereof is the task of the Department of Agrarian Reform Secretary in behalf of the President. P.D. 27 applies only to agricultural lands devoted to the production of rice and/or corn, while R.A. 6657 has a wider scope as it covers, regardless of tenurial arrangements and commodity produced, all public and private agricultural lands. It is the responsibility of the DENR Secretary to identify to the land to be distributed, the landowner thereof and the beneficiaries t whom the landowner thereof and the beneficiaries to whom will be distributed. 6. Under the present system of land registration, both registered and unregistered lands may be the subjects of transaction. Where the land is registered, transactions affecting the same are registered on the certificate of title and the registration serves as a constructive notice of such transaction and binds the whole so to speak. Thus, all rights and interests acquired subsequent to registration are deemed subordinate to the registered transaction. In fact even those rights and interests, which were created prior to the registered transaction, but not had not been registered, have to give way to the latter. And as between two registered transactions, the rule is that the transaction first registered prevails. As aptly stated in Secs. 51 and 52 of P.D. 1529, the act of registration shall be operation act to convey or effect the land insofar as third persons are concerned, and every conveyance, mortgage, lease, lien or judgment affecting regsitered land shall, if registered in the office of the register of deeds, be constructive notice to all persons from the time of registering, filing, or entering. In fine, the registered transaction prevails not only over those that are subsequently registered but also cover transactions constituted earlier but had not been registered.

On the other hand, where the land is unregistered or not titled, the effect of registration of a transaction is prospective in the sense that it serves as a constructive notice only with respect to transactions subsequently entered into or registered. An earlier transaction entered into by the landowner although not registered will prevail over a later transaction executed by the same landowner although the second transaction was registered. This is so because the law itself in Sec. 113 (b) of P.D. 1529 states that “any recording made under this section shall be without prejudice to a third party with a better right.” Thus, it has been ruled that with reference to unregistered land, an earlier instrument prevails over a later one, and the registration of any one of them is immaterial (Mota vs. Concepcion, 56 Phil. 712). Because of this “better right” principle, the effect of registration has somehow been defused and recording under this system has lost its public appeal. Inasmuch as there are still numerous properties without Torrens titles that may be subject of transactions, it is about time that the law on the matter be re-examined. Perhaps to make the law more effective, rights registered under the system should no longer yield to any other right or interest except those previously recorded thereunder. Likewise, where title to land has been made of record through the registration of a deed conveying ownership and such record has existed for a required number of years, the same should be considered sufficient basis for confirmation of title under the Torrens system.

LAND USE REGULATION AND CONTROL

By Ernesto C. Mendiola

Various government agencies are mandated by laws to classify lands according to uses under their respective jurisdictions. Thus RA 705, The Forestry Reform Code (1975) provides, “The Department Head shall study, devise, determine and prescribe the criteria, guidelines and survey of all lands of the public domain into agricultural, industrial or commercial, residential, resettlement, mineral, timber or forest and grazing lands, and such other uses as now or may hereafter be provided by law rules and regulations. Section 15, thereof, prescribes what should remain forest and it states: “no land of the public domain eighteen percent (18%) in slope or over shall be classified as alienable and disposable, nor any forest land fifty percent (50%) in slope or over, grazing land.” Other sub-classifications of forestlands are enumerated in said law. R.A. 141, The Public Land Act (1936) provides that alienable lands of the public domain open to disposition shall be classified according to the use or purpose to which such lands are destined as follows: a) agricultural, b) residential, commercial, industrial or for similar productive purposes; c) educational, charitable or other similar purposes; and d) reservations for town sites, and for public or quasi-public use. The President, upon recommendation by the Secretary of Environment and Natural Resources, shall from time to time make the classifications provided in this section (Sec. 19) and may act at anytime and in a similar manner, transfer lands from one class to another. R.A. 6657, the Comprehensive Agrarian Reform Law (1988) provides in Section 65 that “ After the lapse of five (5) years from its award, when the land ceases to be economically feasible and sound for agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes, the Department of Agrarian Reform (DAR), upon application of the beneficiary or the landowner, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land and its disposition.” Executive Order 129-A, Series of 1987, mandates the Department of Agrarian Reform to approve or disapprove the conversion, restructuring or readjustment of agricultural lands into non-agricultural uses. Pursuant to the foregoing mandates, DAR issued rules and regulations governing conversion of agricultural lands to non-agricultural uses, a consolidated version of which is Administrative Order No.12. Series of 1994.

R.A. No. 7160, the Local Government Code (1991) also empowers cities and municipalities to reclassify agricultural lands to non-agricultural uses where 1) the land has ceased to be economically feasible and sound for agricultural purposes as determined by the department of agriculture or 2) the land shall have substantially greater economic value for residential, commercial or industrial purposes as determined by the Sanggunian concerned, provided that such reclassification shall be limited to the following percentage of total agricultural land area at the time of the passage of the ordinance: 1) for highly urbanized and independent component cities fifteen percent (15%); 2) for component cities and first to third class municipalities, ten percent (10%); and for fourth to six class municipalities, five percent (5%). R.A. 7160, also provides that the local government units (LGUs) shall, in conformity with existing laws, continue to prepare their respective comprehensive land use plans (CLUPs) enacted thru zoning ordinances which shall be the primary and dominant bases for future use of land resources. The law further provides that the requirements for food production, human settlements, and industrial expansion shall be taken into consideration in the preparation of the CLUPs. Executive Order No. 648, Series of 1981, as amended by Executive Order No. 90, series of 1986, empowered the Housing and Land Use Regulatory Board (HLRB) to review, evaluate and approve or disapprove land use plans of cities and municipalities. They also authorize

HLRB to prescribe the standards and guidelines governing the preparation of land use plans, to monitor the implementation of such plans and to adjudicate and settle the dispute among local government units, over their land use plans and zoning ordinances, as well as over subdivisions, condominiums and other estate development projects. R.A. 7279, the Urban Development and Housing Act, reaffirms the above powers and functions of the HLRB. The existence of several agencies engage in land use planning activities, although with different areas; for instance, DENR on forest and alienable lands of the public domain, the DAR on all agricultural lands, public or private, the LGUs in all kinds of lands within their territorial boundaries, and the HLRB excluded from prescribing standards and guidelines, and prevented from monitoring forest land and without the authority to rule on agricultural land conversion, caused inter-agency jealousies resulting in bureaucratic red-tapes in implementation also resulting in delays in service to the great majority of the public. The absence of a central planning agency in charge of harmonizing and synchronizing planning and development activities prevents the realization of a holistic approach therefore. Criteria, guidelines and standards are issued to meet only the agency’s concerned mandates. This sometimes result in opposing policies or conflicting actions, as each agency tend to look only after its turf and interest. There is, therefore, a need for the creation of a super planning body to referee competing demand for land. With a super body in place, hopefully, all standards and criteria in land use allocation will be harmonized. Presently, there is a problem of lack of accurate base maps to be used by local government units. There is also need for maps indicating the critical areas to be protected, the areas for relaxation and tourism and in agricultural lands, the areas which cannot be converted or the non-negotiable areas in hazardous areas. Where are the flood prone lands, the areas which should not be built up because of earth faults and other natural calamity prone areas. Production of these critical tools for land use planning will improve land use in this country. The local government units are tasked to plan their cities and towns but planning and implementation needs money. Perhaps, the poor towns can be supported by national funds while those towns strive to be self sufficient. They need assistance not only in the formulation but especially in the budget for implementation.

The task of planning was devolved to the LGUs at a time when they did not have competence and trained planners. Hence, a training component is necessary to make the LGUs capable of performing their assigned task. Relative to this problem of training and the problem of maps, more often than not the boundaries of land uses are not clearly delineated so that during implementation, delays in issuing or disapproving permits become the rule rather than the exception. We are also confronted oftentimes with politics rearing its head even in plan implementation. Sometimes or more often than not, we find Mayors not continuing with the unfinished land use plans or not implementing his predecessor’s land use plans or zoning ordinance. Maybe an injunction should be made in the law that approves land use plan and zoning ordinances must be enforced whoever caused than to be prepared. A must for plans and zoning ordinance is consultation or public hearings. In our experience, some public hearings are not announced, or they are held in private places to avoid objections to certain portions of a land use plan or zoning ordinance. A guideline on public hearings must be issued, and if the responsible official fails to follow it, he must suffer some sanction, either administrative or penal. Most of the foregoing observations have found their way to the land use bills now pending in both houses of Congress. A Land Use Policy Administration (LUPA) is being created and Cabinet Secretaries are members of the Board. Categories of land uses for planning purposes are spelled over for guidance of all concerned. It establishes a national land use allocation system which shall provide detailed guidelines and a national land resource information and management system which will integrate and process information on land use and allocation generated by the various national government agencies. It is authorized to hear and resolve conflicts in land use planning, classification and allocation that may arise between

NGAs, between NGAs and an LGU, between an NGA and any regional or local planning bodies. It provides consultation with the public as a must. It defines clearly the levels of planning formulation and approval of land use plans and zoning ordinances. National base maps, national geo-hazard maps will be provided. All NGAs are required to periodically report to LUPA on the various activities and accomplishments in relation to land use. It now assumes responsibility for approval of land conversion as recommended by DAR and DA. Sub-classification / Reclassification shall constitute actual plan for allocating the future uses of land within the territorial jurisdiction of LGU and is not synonymous to conversion. Maps for protected area, will be furnished by DAR and DA to LGUs. Other criteria and guidelines for sub-classification of public lands coastal zones, water sheds, tourism zones, mineral lands, and energy lands are also clearly spelled out. Socialized Housing Sites in Urban and Urbanizing area are also designated. So also with industrial areas of lands for infrastructure development. Sanctions and penalties complete the enumeration of the features of the pending “National Land Use Act of the Philippines.” Hopefully said bill will be passed by both houses of Congress. LAND USE ISSUES (Relevant To Land Tenure, Registration And Public Land

Disposition)

The current land tenure systems in the country are leasehold, freehold (fee simple) and ancestral rights (communal or individual & clan ownership). The Public Land Act, C.A.141 (1936) grants land patents thru homestead, sale, free patent and judicial confirmation of imperfect titles over public lands or alienable and disposable lands of the public domain. Homestead patents are granted to qualified Filipino citizens, for not more than twelve (12) hectares of public land after compliance with one fifth (1/5) cultivation and one (1) year residence requirements. Any qualified citizen may purchase available public land also for not more than twelve (12) hectares and after payment of purchase price and satisfaction of cultivation requirements he is awarded a sales patent. The free patent and judicial confirmation of imperfect titles are presently suspended but maybe revived if the bill for the extension of the time for filing them is passed by Congress. These are modes of acquiring ownership by prescription or adverse possession against the state for not more than twelve (12) hectares if they satisfy the required period of occupation pursuant to Sections 44 and 48 as amended. The Public Land Act also issues leases over public lands to corporations, sixty (60%) percent of the capital stock of which are owned by Filipinos for not more than one thousand (1,000) hectares, and to Filipino citizens for not more than five hundred (500) hectares (as amended by the Philippine Constitution of 1987). The Emancipation Decree (PD27, 21 Oct.1972) decreed that there is no more leasehold in tenanted rice and corn land. The tiller automatically becomes amortizing owner of the land he tills without even the benefit of expropriation. Maximum area given to tiller is five (5) hectares for unirrigated and three (3) hectares for irrigated land. The landowner retains not more than seven (7) hectares. An emancipation patent (EP) issues to the beneficiary after full payment of amortization with the Land Bank. The Comprehensive Agrarian Reform Law (RA 6657, 1988) covers all agricultural lands and gives certificates of landownership awards (CLOA) to beneficiaries. Beneficiaries are awarded an area not exceeding three (3) hectares while a landowner retains not more than five (5) hectares. Both EP and CLOA are issued Torrens Certificate of Title when landowners are already fully paid. The Indigenous Peoples Rights Act, R.A. 8371 (1997) grants a certificate of ancestral domain title to indigenous cultural communities/indigenous people (ICCs/IPs) to all areas claimed by them, and a certificate of ancestral land title to individuals, families and clans who are

members of ICCs/Ips since time immemorial and who possess them by themselves or through their predecessors-in-interest, continuously to the present. Batas Pambansa No.220 (1982) granted the then Ministry of Human Settlements Authority to establish and promulgate different levels of standards and technical requirements for economic and socialized housing projects in urban and rural areas from those provided by the subdivision law (PD 957), open space law (PD1216), national building code (PD1096) and Fire Code (PD 1185). Socialized housing refers to housing units which are within the affordability level of the average and low income earners which is thirty (30%) percent of the gross family income as determined by the National Economic Development Authority (NEDA) from time to time. The program of the government is to encourage private sector developers to produce units of land and housing to augment what the National Housing Authority is producing on behalf of the government. Land suitable for housing titled under the Torrens Systems are the subject of these projects. Beneficiaries buy these housing and land units either in cash or in installment. The Forestry Reform Code, PD 705, (1975), grants leases, licenses, license agreements and permits over forestlands and grazing lands. DENR Administrative Order No.04-91 (1991) provides for an integrated Forestry Program based on the principle of land stewardship. The program applies to the lands classified as public forest lands and enlists the people directly using the forestlands in the task of stewarding the uplands. The Fisheries Decree, PD 704 (1975) provides that public lands available for fishpond development including those earmarked for family sized fishponds and not yet leased prior to 9 November 1972 shall be leased only to qualified persons, corporations, associations or cooperatives, provided that the lease will be for a period of twenty five (25) years renewable for another twenty five (25) years. Fifty (50%) percent of the area leased shall be developed and be producing in commercial scale within three (3) years and the remaining portion shall be developed and be producing in commercial scale within five (5) years, both periods to begin from the execution of the lease contract. All areas not fully developed shall revert to the public domain for disposition by government. Maximum areas to be leased are fifty (50) hectares for individuals and five hundred (500) hectares for corporations and associations. Under the 1987 constitution, the State has full control and supervision of the exploration, development and utilization of natural resources. It may undertake such activities directly or may enter into co-production, joint venture or production sharing agreements with Filipino citizens or corporations sixty (60%) percent of the capital stock of which is owned by Filipino citizens. Such agreements maybe for a period not exceeding twenty five (25) years, renewable for not more than twenty five (25) years and under such terms and conditions as may be provided by law (Sec.3, Art.XII, Constitution). A mineral agreement shall grant to the contractor the exclusive right to conduct mining operations and to extract all mineral resources found in the contract area. In addition, the contractor may be allowed to convert his agreement into any of the modes of mineral agreements or financial or technical assistance agreement covering the remaining period of the original agreement subject to the approval of the DENR Secretary (Sec.26, R.A. 7942, Philippine Mining Act of 1995) The Water Code of 1976 (PD 1067) provides that all waters belong to the State but may be appropriated for: a) domestic, b) municipal, c) irrigation, d) power generation, e) fisheries, f) livestock raising, g) industrial, h) recreational, and i) other uses. Users of Water are required to register any right under grant, certificate or permit, or an approved water rights application or concession to use water from any source with the National Water Resource Council. The National Land Use Bill now pending in Congress provides guidelines, criteria and procedures on how lands shall be classified for use purposes. It does not touch on tenure or title issues. Those relevant to public land disposition. The people are always ahead in occupying lands of the Public Domain. Before government, in this case DENR, thru the Forest Management

Bureau, can classify areas below 18% slope, people are already in place. Their occupation will meet the period required for free patent. However, because of the delay in land classification, said areas are still considered or presumed forest lands. This presumption must be corrected if we wish to give justice to occupants of lands of the public domain by a law which will make the occupation while not yet classified alienable lands credited to the occupant when the area below 18% in slope is finally classified as A&D. So the occupation prior to release as A&D must be credited in favor of occupant, if he has a possession of the land sufficient to meet the free patent law requirements. The judicial confirmation of imperfect title under Section 44 of C.A.141, the right to file for which is presently suspended is recommended not to be revived anymore. We suggest we allow the occupant to just file a free patent application. To make the free patent acceptable, the restrictions on sale within five (5) years and approval of the Secretary of DENR after five (5) years but within twenty five (25) years must be removed. All other restrictions as well as the five (5) years redemption period should be likewise removed. In other words, make the Original Certificates of Title (OCTs) of a free patent be equal to the OCT in a judicially issued title. One hardly, if at all, find any public lands available for disposition. In fact, if one goes to a DENR provincial office he will not be advised where available public lands can be found. Most often than not, if an A&D land is available, there will already be people occupying the same. There is hardly any vacant public lands now. If any is found it will be better for government to just lease or sell it. Homestead may have outlived its usefulness. Moreover, R.A.6657, the CARL, provides that ALL public agricultural lands fall within the jurisdiction of the Department of Agrarian Reform (DAR). This provision of law should be harmonized with the provision of CA 141, The Public Land Act, that A&D lands, (public agricultural lands) are within, also, the jurisdiction of the Department of Environment and Natural Resources (DENR). Even within the DENR itself, so much delay has been experienced in classifying lands of the Public Domain. Classification of forestlands must be expedited, these must all be mapped, and all offices having to do with lands should be furnished copies of these maps so that these forestlands can be properly protected and A&D lands can either be alienated under any of the modes of disposition and properly made productive. As of now, whoever is fast in asking for release to A&D of forestland is able to acquire patents to public lands fastest. With population now reaching about seventy (70) million or so, and with land resources remaining at an estimated thirty (30) million hectares, the competition for forestlands, agricultural and urban lands will soon come to a head. We are experiencing a lot of urban blight around the bigger cities and municipalities of the country. This is a sign of lack of urban lands for settlement sites. The contest between agricultural lands, for food production, and the need for shelter of the very poor is getting serious year after year. One of the causes of this problem is the system of conversion of agricultural lands to urban use. An agency that is mandated to give agricultural lands to beneficiaries of Land Reform, when given authority to approve conversion will most probably adopt a policy of no or slow conversion. Perhaps, approval of conversion should be given to an agency which is not mandated to preserve agricultural lands to its beneficiaries, so that the urban needs will have a better chance of being attended to. This is similar to Bureau of Forestry being given authority to classify what is forest and what is A&D. Of course, it will first attend to forestlands before it confronts the needs for A&D or agricultural public lands. In the case of PD 27, The Emancipation Decree, and R.A. 6657, CARL, while our attention is focused on the farmer tenants and leases, we seem to neglect the plight of the farmer landowners. Until now, how many hectares of land have not been paid for by the government but are already transferred to the beneficiaries of land reform. The land transfer might be completed but the landowners will still be waiting to be paid. And many landowners are small

landowners. Perhaps, we should also look at the funding aspect of this problem as we go all out to give land to the landless. The Integrated Forestry Program based on the principle of land stewardship needs to be given more attention. Our land hungry population cannot all be owners of land. This program can supplement our land distribution programs. The land use bills pending in Congress can probably answer many of the problems of unequal allocation of land uses. We hope they are passed into law. RECOMMENDATIONS

1. Create an independent central physical planning and development body to harmonize

and synchronize planning and development activities.

— To assure a holistic approach to the allocation of lands to the different conflicting uses and needs, for instance, for forest and other protected uses, for farmlands and other food needs; and for urban uses;

— To set up criteria, guidelines and standards to effect the rational allocation of

lands;

— To reduce into a map of standard scale all these allocation of uses, and distribute these maps to all sectors who are in need of land, to government agencies for planning and control, to private sector for guidance on which land to develop. This will remove a lot of discretions and abuse in the grants of permits for development.

2. Push for the approval of the Land Use Code, which provides the foregoing features

and many others. 3. Interpret the term forestland as only those that have already been classified as forest.

Areas not yet classified, or those that remain unclassified should not be presumed to be forestland. When classification is done, areas classified as A and D lands if occupied, occupation rights should be respected so as to retroact to the date occupants first set foot on the land, and if they meet the number of years for a grant, they should be granted the privilege. Possession should not be counted from the date of actual classification but from the date actual possession was made.

4. The filing for judicial confirmation of imperfect title may no longer be extended.

Instead, only the filing of free patent application should be extended indefinitely. Restrictions on sale within five (5) years and approval by Secretary of DENR after five (5) but within twenty-five (25) years should be removed. All other restrictions should, likewise be removed. Make the Original Certificate of Title of a free patent have the same characteristics and qualities of the present judicially issued OCT.

5. One hardly finds alienable and disposable lands ready for disposition nowadays.

Whatever is disposed of is followed up by interested individuals to be released from the unclassified portion of the public domain. If any vacant A and D land is found or still available, it is recommended that they just be leased or sold. Homestead may have outlived their purpose and usefulness and is recommended no longer to be accepted.

6. R.A. 6675, CARL, provides that ALL public agricultural lands fall within the jurisdiction

of the Department of Agrarian Reform (DAR). This must be harmonized with CA 141, The Land Public Act, which provides that all A and D lands (public agricultural lands) are within the jurisdiction of the Department of Environment and Natural Resources (DENR).

7. Classification of unclassified lands of the public domain into forest/timber, agricultural (A & D), mineral and national parks should be expedited, properly mapped, and copies of maps furnished all offices having to do with lands and made available to private sectors engaged in development.

8. PD 1517, the Urban Land Reform decree (1978), must be reexamined because

currently it is in limbo.

Land and Tenure Rights in the Philippines: Terrain and Trajectory

Dante B. Gatmaytan*

INTRODUCTION

Skewed land ownership patterns in the Philippines—a continuing pattern of impoverishment and landlessness on the part of the majority of Filipinos—sustain rural unrest. This unrest is credited with producing political instability in the Philippines.226

A large cast of players—the State, commercial interests, strong families, local communities, and even international financial institutions—have fashioned a body of laws and presented a discourse on tenure rights. A cursory look at legislation will suggest that there are incremental changes in the recognition of tenure rights of traditionally marginalized groups such as peasants and indigenous peoples. The implementation of these laws, however, is heavily contested and the Philippine case will show continuing tensions in the determination of land rights.

This paper attempts to discuss three of the key issues involving tenure issues in the Philippines: a) agrarian reform, b) ancestral domain rights, and c) social forestry programs. All three are designed in part, to address social justice and impoverishment on the part of a great majority of Filipinos. All three also present cases where these attempts at addressing the problem of landlessness problems in both design and implementation.

This paper will attempt to present the basic features of these issues, an assessment of their implementation and possible suggestions for improvement.

A. Agrarian Reform Laws

There have been several, if ineffectual attempts at addressing landlessness, underemployment and poverty in the Philippines. Many come in the form of laws that addressed landowner-tenant relations over a limited area of croplands.227 The laws that attempted to rectify this imbalance are many.

The American colonial government enacted The Friar Lands Act of 1903, which was designed to redistribute some 166,000 hectares held by the Catholic Church. Most of these lands passed to business concerns and hacenderos directly or through subsequent sale of lease.

The Rice Share Tenancy Act of 1933 attempted to regulate landlord-tenant relationships rather than redistribute property by requiring written contracts providing for 50-50 sharing of the crop. The law required only one-year contracts that offered little by way of security, and applied only when a majority of the municipal councils of a given province petition for application of the law.

The Agricultural Rice Tenancy Act of 1954 228 provided security of tenure for tenants. It granted tenants the choice of shifting from share tenancy to leasehold system and created the Courts of Agrarian Relations. The Land Reform Act of 1955 229 provided for the acquisition of large tenanted rice and corn lands over 200 hectares if owned by individuals; 600 hectares,

* Assistant Professor, University of the Philippines, College of Law. LL.B., University of the Philippines, 1991; M.S.E.L., Vermont Law School, 1995; LL.M., University of California, Los Angeles, 1996. 226 See JEFFREY M. RIEDINGER, AGRARIAN REFORM IN THE PHILIPPINES: DEMOCRATIC TRANSITIONS AND REDISTRIBUTIVE REFORMS 41-69 (1995). 227 The following discussion is taken largely from RIEDINGER, id at 86-98. 228 Republic Act No. 1199. 229 Republic Act No. 1400.

if owned by corporations. Both laws were watered down versions of bills introduced by the Magsaysay Administration that was swept into power largely by rural support.

Republic Act No. 3844, or the Agricultural Land Reform Code abolished share tenancy; institutionalized the leasehold system; invested rights of preemption and redemption for tenant farmers; provided for an administrative machinery for implementation; institutionalized a judicial system of agrarian cases; incorporated extension, marketing and supervised credit system of services to farmer beneficiaries.

Republic Act No. 6389 was the Code of Agrarian Reform and created the Department of Agrarian Reform.

Ferdinand Marcos had his Presidential Decree No. 27 (which covered only rice and corn lands) but Marcos did not undermine the oligarchy and the landowning class but only the families that could threaten him or his supporters. Indeed, Marcos placed more lands under land reform prior to the declaration of martial law than the nine years that followed the declaration.230

Republic Act No. 6655, otherwise known as the Comprehensive Agrarian Reform Law (CARL) was enacted on June 10, 1988. It instituted the Comprehensive Agrarian Reform Program and it is still the law being implemented at present. In February 23, 1998, then President Fidel Ramos signed Republic Act No. 8532 extending CARP for ten years and infusing it with another 50 billion pesos.231

Apart from the aspect of land distribution, CARP—unlike past programs on land reform—includes the provision of support services to both farmer-beneficiaries and affected landowners. These include irrigation facilities, credit, infrastructure, training, marketing and management assistance, and support for cooperatives and farmers' organizations.

CARP covers all agricultural lands regardless of tenure and crop. Past programs were concerned only with tenanted rice and corn lands.

These laws, limited by vested interests to begin with, have encountered difficulties as they were implemented.

Although the CARL is mandated by the Constitution,232 peasant organizations criticized the law as deceptive and short of being a true social justice measure.233 Even legislators who participated in the crafting of the law called it “extremely faulty”234 and later succeeded in further crippling it by amendment.235

Spurned by peasant groups and lawmakers, and challenged by landowners, the CARL seemed destined to fail like the agrarian reform laws of the past. By 1998, the government distributed only 98,000 hectares of the nearly 500,000 hectares of private estates, which are larger than 50 hectares, making up a poor 22 percent of the target under the law. Only around three percent of private lands less than 50 hectares have been

230 JAMES PUTZEL, A CAPTIVE LAND: THE POLITICS OF AGRARIAN REFORM IN THE PHILIPPINES 153 (1992). 231Rep. Act No. 8532 (1998). Then President Fidel V. Ramos declared that the new law, “underscored his administration’s commitment to uplifting the standard of living of peasants and small farmers.” See, Mia Gonzalez, Hope for 6-M farmers: CARP funds increased, Today, February 24, 1998. 232See, Const., art. II, § 21, art. XII, § 1, 2nd paragraph, art. XIII, § 4, and art. XVIII, § 22. 233Jose Z. Grageda, Congress for a Peoples’ Agrarian Reform, in STUDIES IN COALITION EXPERIENCES IN THE PHILIPPINES 65, 76 (Cesar P. Cala & Jose Z. Grageda eds., 1994). See also, Pi Villanueva, The Influence of the Congress for a People’s Agrarian Reform (CPAR) on the Legislative Process, in 2 STATE-CIVIL SOCIETY RELATIONS IN POLICY-MAKING 81, 90 (Marlon A. Wui & Ma. Glenda S. Lopez eds., 1997). 234JEFFREY M. RIEDINGER, AGRARIAN REFORM IN THE PHILIPPINES: DEMOCRATIC TRANSITIONS AND REDISTRIBUTIVE JUSTICE 175 (1995). Less than three days after the bill was signed into law, for instance, Senator John Osmeña, attempted to increase the land retention rate for landowners from the five-hectare limit under the CARL, to fifty hectares. 235See Rep. Act No. 7881 (1995).

distributed so far.236 Nearly 70 percent of the ten million hectares of farmlands remain in the hands of a few landowners, a credit to “the ability of the great land owning families to stall these reforms.”237

The Department of Agrarian Reform (DAR) attributes the pace of distribution of private agricultural lands to strong resistance of landowners and the lack of government funds.238

The most recent reports from the DAR claim that in the year 2001, 104,261 hectares of lands were distributed to 71,188 farmers. DAR claims that this figure exceeded its targets for land distribution.239

Too often, criticisms of the CARL focus on the law’s congenital defects and its fainthearted implementation.240 Experience, however, shows that a large part of the problem lies in the manner in which the law is interpreted in court.241

Lawyers working on agrarian reform also presented a host of problems in the implementation of the program,242 concluding that most of these problems can be addressed if those responsible for the implementation of the program could only comprehend the role of agrarian reform as an instrument of social justice and a necessary strategy for national development.

Pertinent to land registration issues, the study noted that even when farmers are registered owners of land under the program, landowners persist in harassing them by filing cases for the cancellation of these titles. In some cases, farmers hold title to land but are not installed, and in still other instances, landowners avoid program coverage by applying for the conversion of their lands into non-agricultural uses.243

Land use conversion is a major problem in the implementation of agrarian reform. Local governments often oppose agrarian reform by citing the principle of autonomy as an argument. Projects with high social benefits but low recovery rates get little support from local governments because their development priorities differ from those of the national government.244

236Of the private lands between 24 and 50 hectares, only 10,000 hectares of the 312,000 hectares covered by the CARL were distributed. On the other hand, of the lands between 5 to 24 hectares, only 25,000 hectares of the 736,000 hectares covered by the program were distributed. In contrast, the Department of Agrarian Reform has given away about 686,059 hectares of government-owned lands, a figure slightly above the 657,843 hectares that were targeted for distribution. See, Richel B. Langit, Cory, FVR met CARP targets, but..., Manila Times, November 2, 1998. 237Paulynn Sicam, ‘Full Circle’ Land Reform, The World Paper, February 1998, (visited at February 10, 1999) <http://www.world-paper.com/FEB98/sicam.html>. 238Id. The land distribution rate during the first six months of the administration of President Joseph Estrada was also hampered by resistance of landowners and the lack of technical documents, and illegal conversion. Mirasol Ng, Slow grind for land distribution program, Journal, December 28, 1998. 239 See http://www.dar.gov.ph 240See, e.g. Eduardo Tadem, Agrarian Reform Implementation in the Philippines: Disabling a Centerpiece Program, in INTERNATIONAL CONFERENCE ON AGRARIAN REFORM (Proceedings and Documentation) 79 (1993), Lourdes Saulo-Adriano, A Critique of Agrarian Reform Under the Aquino Administration, (KAISAHAN Occasional Papers, July 1992), and Joel Rocamora, Land Reform Under Cory Aquino: Making Much of Very Little, in LUPA AT BUHAY: AGRARIAN REFORM IN THE PHILIPPINES 27 (n.d.). 241 See Dan Gatmaytan, The Construction and Constriction of Agrarian Reform Law, 73 PHIL. L. J. 661-723 (1999) for a critique of Supreme Court decisions on agrarian reform. 242 See Paralegal Education, Skills Advancement and Networking Technology Project, Stalled: The Legal Struggles of Farmers for Agrarian Reform, in 1ST ALTERNATIVE LAW CONFERENCE: LAWYERING FOR THE PUBLIC INTEREST 126-164 (Marvic M.V.F. Leonen ed, 2000). The study stressed three major problems, a) government personnel responsible for its implementation display an acute ignorance of agrarian reform concerns, b) policy decisions that contradict the nature of the program, and c) the lack of political will on the part of those charged with the implementation of the program. 243 Id., at 131. 244Id.

Local governments favor land conversions because they are a potent source of revenue;245 they prefer to convert lands because they can impose higher real estate taxes on commercial or industrial estates, than on agricultural lands.246

Land use conversion also encourages illegal acts by local government officials. At one point, former President Estrada suspended all applications for land conversions after receiving reports that local officials were offered large sums of money to undertake or sanction land use conversion.247

All this happens even as land conversion has been identified as a cause of the decrease in food production and the increase in the pollution of the environment.248 Land conversion also erodes the gains made under the CARL. Peasant organizations claim that the DAR has been “canceling certificates of land titles . . . from farmers displaced by massive land conversions”.249 They further stated that more than 20,000 CLTs, 2,500 Emancipation Patents and 320 CLOAs covering more than 70,000 hectares have been canceled or confiscated by the DAR.250

The DAR also facilitates the conversion of lands. Since 1987, the annual average approval rate for land conversion has been at 202.5 percent. In the first quarter of 1998, 1,575 hectares of lands were converted to non-agricultural uses. This figure already amounted to fifty-nine percent of the total area converted in 1997. In that same period, ninety-one percent of the total applications covering 22,871 hectares were approved. Only 176 applications covering 3,536 hectares were denied.251 By the end of 1998, the DAR approved the conversion of 29,233 hectares of agricultural lands were approved for conversion, which represents a 38.56% increase from the 1997 total of 21,105 hectares.252

The DAR often gripes about the difficulty of proving cases of illegal land conversion253 but the problem is not only the illegal conversion of lands, but also the legal conversion of lands for the development of golf courses, shopping malls and subdivisions.254

The siege on agrarian reform is persistent. Every Congress has a fair share of bills that seek to stall or repeal the Comprehensive Agrarian Reform Law of 1998.255 It is not

245Dona A. Sermeno, Circumventing Agrarian Reform: Cases on Land Conversion, PULSO, Monograph No. 14, July 1994 at 15. 246Earl Warren B. Castillo, DAR against devolved conversion power, BUSINESS WORLD, 28 September 1999 at 15. 247Estrada pointed out that when agricultural property is put up for industrial conversion, local officials get a share of the amount involved. Local officials in Bulacan, Cavite and Laguna were identified as those involved in these tainted deals. Martin P. Marfil, Erap stops land conversions, PHILIPPINE DAILY INQUIRER, 4 January 1999. Landowners criticized the President claiming that the decision “violates the property rights of landowners under the Constitution.” They suggested that the President crack down on erring local officials instead of suspending land conversions. See, Earl Warren B. Castillo, Landowners slam conversion suspension, BUSINESS WORLD, 5 January 1999. 248The Bureau of Soils and Water Management released a report stating that conversion of irrigated rice land for settlements and industrial use was averaging 2,267 hectares a year. To make up for the 11,337 hectares of irrigated lands that have been converted into non-agricultural uses, some 33,000-55,000 hectares of upland areas must be cultivated in order to replace the losses. See, Priscila R. Arias, Farm losses cited in 15 provinces, MANILA BULLETIN, 1 January 1999 and Henrylito D. Tacio, Shrinking agricultural lands cause food shortage, TODAY, 28 October 1997. 249See, Ric Puod, CARL failed after 10 yrs, TODAY, 11 June 1998 and Annie Ruth Sabangan, Land reform lost under Estrada, MANILA TIMES, 12 October 1998 at 5. 250Id. 251 Conversion of agricultural lands still growing, BUSINESS WORLD, 15 October 1998. 252A total of 2,026 out of 2,219 applications were approved. The number of approved applications rose nationwide with the exception of northern Mindanao. The land conversion applications came mostly from agricultural regions such as Southern Tagalog, Central Luzon and Southern Mindanao. See, Land conversions up in 1998, says DAR, BUSINESS WORLD, 17 February 1999. 253Eduardo L. Jalbuna, Illegal land reclassification hard to prove, DAR official admits, BUSINESS WORLD, 18 September 1998 at 11. 254Carlos Marque, Graft charges filed against DAR execs, TODAY, 6 November 1997. 255 Rep. Act No. 6657 (1988).

uncommon for some sectors to assert that agrarian reform failed in the Philippines. Studies on the implementation of the program, however, are not entirely bleak.256

And while critics often claim that agrarian reform does not help alleviate poverty, there are recent empirical studies that show otherwise.257

The forces conspiring to defeat agrarian reform are arguing without any basis.

B. Ancestral Domains On December 6, 2000, the Philippine Supreme Court upheld the constitutionality of

the Indigenous Peoples’ Rights Act of 1997.258 The Court brushed aside a Motion for Reconsideration on September 21, 2001.

The resolution of the case provided one of the closest votes in the history of the Philippine Supreme Court. Seven Justices voted to declare the law unconstitutional. Six voted to dismiss the petition and to uphold the constitutionality of the law. One voted to dismiss the petition on the ground that the petitioners had no standing to sue. There was a vacancy in the Supreme Court. Technically, the vote was 6-5-1. Under the Philippine law, it was one vote short needed to declare the law unconstitutional.

There are opinions that the Supreme Court in failing to declare the law unconstitutional sanctioned a violation of the Constitution. The view is anchored on the premise that the law allows the ownership and registration of lands of the public domain.

Those who study or work in the field of indigenous peoples’ rights, however, have been arguing that Philippine case law since 1909 has held that lands that are held since time immemorial are presumed never to have been public. In their view, there is no ground breaking ruling by the Supreme Court, much less, a violation of the Constitution. What was surprising was how close the Supreme Court cam to embarrassing itself by declaring that indigenous peoples in the Philippines have no rights over their resources.

The challenge to the constitutionality of IPRA can be appreciated if one analyzes the manner in which land laws are commonly taught in law schools.

There is a misconception that the adoption of the regalian doctrine in the Philippines bars the recognition of ancestral domain rights. Broadly, the doctrine states that all lands and natural resources are owned by the King (or the State) unless an individual could show that he or she is the beneficiary of a grant. Private ownership is restricted to the latter.

Lynch, in his doctoral thesis on Philippine land laws debunked the commonly taught belief that Spain unconditionally claimed all the lands in the Philippines. Instead, he argues, Spain respected indigenous land rights until the twilight of the Spanish regime in the Philippines. It was only through the Maura Law of 1984 when Spain attempted to usurp ownership of these lands. That law provided a deadline for the landowners to secure documentation of these rights or else lose their claims. As Lynch explains,

Enactment of the Maura Law demonstrated the colonial regime’s insensitivity to the plight and potentials of the masses. There was nothing new in this. The decree’s novelty lay in the fact that the government in Madrid, during the waning years of Spain’s Pacific empire, reneged on its centuries-old commitment to respect customary land rights… The Maura Law provided the legal basis by which the U.S. colonial regime denied any effective recognition of ancestral property rights. More significantly, the

256 Saturnino M. Borras Jr., The Philippine Agrarian Reform: Relatively Vibrant Land Redistribution Amidst Less-Than-Dynamic Agricultural Transformation, in POWER IN THE VILLAGE: AGRARIAN REFORM, RURAL POLITICS, INSTITUTIONAL CHANGE AND GLOBALIZATION 245-322 (Horacio R. Morales, Jr., et al. eds., 2001). 257 See Philippine Institute of Development Studies, Development Research News, vol. XIX, no. 6 November-December 2001, p. 4, 10 and Klaus Deininger, et al., Redistribution, Investment and Human Capital Accumulation: The Case of Agrarian Reform in the Philippines (2000). 258 347 SCRA 128 (2000).

philosophy behind the Maura Law provided the legal foundation for the prevailing twentieth-century version of the Regalian Doctrine.259

Contrary to common belief, the introduction of the regalian doctrine did not preclude recognition of ancestral domains rights because these were recognized even by Spain.

Skeptics and critics might point out that regardless of what Spain’s intent was, the fact is that these lands were not registered and were later classified as part of the public domain. As such, they cannot be registered in favor of indigenous peoples.

However, the United States Supreme Court determined the effect of such non-registration when the Philippines passed to her new colonial master. The rights of these peoples were determined in the case of Carino v. Insular Government of Philippine Islands.260 The case stemmed from very few facts:

… The applicant and plaintiff in error is an Igorot of the province of Benguet, where the land lies. For more than fifty years before the treaty of [212 U.S. 449, 456] Paris, April 11, 1899 [30 Stat. at L. 1754], as far back as the findings go, the plaintiff and his ancestors had held the land as owners. His grandfather had lived upon it, and had maintained fences sufficient for the holding of cattle, according to the custom of the country, some of the fences, it seems, having been of much earlier date. His father had cultivated parts and had used parts for pasturing cattle, and he had used it for pasture in his turn. They all had been recognized as owners by the Igorots, and he had inherited or received the land from his father, in accordance with Igorot custom. No document of title, however, had issued from the Spanish Crown, and although, in 1893-1894, and again in 1896-1897, he made application for one under the royal decrees then in force, nothing seems to have come of it, unless, perhaps, information that lands in Benguet could not be conceded until those to be occupied for a sanatorium, etc., had been designated,-a purpose that has been carried out by the Philippine government and the United States. In 1901 the plaintiff filed a petition, alleging ownership, under the mortgage law, and the lands were registered to him, that process, however, establishing only a possessory title, it is said.

The issue was likewise simple: “whether the plaintiff owns the land.” The Court ruled in Cariño’s favor:

Whatever the law upon these points may be, and we mean to go no further than the necessities of decision demand, every presumption is and ought to be against the government in a case like the present. It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to give the applicant the benefit of the doubt. Whether justice to the natives and the import of the organic act ought not to carry us beyond a subtle examination of ancient texts, or perhaps even beyond the attitude of Spanish law, humane though it was, it is unnecessary to decide. If, in a tacit way, it was assumed that the wild tribes of the Philippines were to be dealt with as the power and inclination of the conqueror might dictate, Congress has not yet sanctioned the same course as the proper one 'for the benefit of the inhabitants thereof.'

The Court’s pronouncement is significant because it held that lands held since time immemorial are not public. This means that the Regalian Doctrine has no application in such lands. It is not even an exception to the Regalian Doctrine—they are entirely separate spheres.

259 Owen Lynch, Jr., Land Rights, Land Laws, and Land Usurpation: The Spanish Era, 63 PHIL. L. J. 82, 109 (1988). 260 212 U.S. 449 (1909).

The Court decided the case, it seemed on principles of fairness, noting that because Cariño’s people were resisting Spanish incursions, “It seems probable, if not certain, that the Spanish officials would not have granted to anyone in that province the registration to which formerly the plaintiff was entitled by the Spanish laws, and which would have made his title beyond question good.” Besides, said the Court, “Whatever may have been the technical position of Spain, it does not follow that, in the view of the United States, he had lost all rights and was a mere trespasser when the present government seized his land.” More potently, the court added: “The argument to that effect seems to amount to a denial of native titles throughout an important part of the island of Luzon, at least, for the want of ceremonies which the Spaniards would not have permitted and had not the power to enforce.”

The Court also noted that the conquest of the Philippines was unlike the conquest of the United States:

Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy the land. It is obvious that, however stated, the reason for our taking over the Philippines was different. No one, we suppose, would deny that, so far as consistent with paramount necessities, our first object in the internal administration of the islands is to do justice to the natives, not to exploit their country for private gain. By the organic act of July 1, 1902, chap. 1369, 12, 32 Stat. at L. 691, all the property and rights acquired there by the United States are to be administered 'for the benefit of the inhabitants thereof.' It is reasonable to suppose that the attitude thus assumed by the United States with regard to what was unquestionably its own is also its attitude in deciding what it will claim for its own.

Significantly, the decision also rested on the Bill of Rights. The Court pointed out that:

The same statute made a bill of rights, embodying the safeguards of the Constitution, and, like the Constitution, extends those safeguards to all. It provides that 'no law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws.' 5. In the light of the declaration that we have quoted from 12, it is hard to believe that the United States was ready to declare in the next breath that 'any person' did not embrace the inhabitants of Benguet, or that it meant by 'property' only that which had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as public land what they, by native custom and by long association, -one of the profoundest factors in human thought,-regarded as their own.

The Bill of Rights, said the Court, includes the inhabitants of Benguet, and property includes those, which are considered as such under customary law.

This decision was never reversed in Philippine jurisprudence. In fact, the Philippine Supreme Court expanded this doctrine to cover lands claimed by communities261 and possessed by them in significantly shorter time than the time-immemorial” standard of Cariño.262 This doctrine has been applied so consistently it is a wonder most lawyers are not aware of it.263

It should also be stressed that running parallel to the Cariño case are a series of cases wherein the Supreme Court recognized vested rights of occupants of public lands if

261 Ankron v. Government of the Philippine Islands, .40 Phil. 10 (1919). 262 Abaoag v. Director of Lands, 45 Phil. 518 (1923). In this case, Philippine Supreme Court applied the Cariño doctrine even though the land was in the community’s possession for less than forty years. 263 The list of cases is virtually endless, but see Oh Cho v. Director of Lands, 75 Phil. 890 (1946), Manarpaac v. Cabanatan, 21 SCRA 743 (1967), and Republic v. Court of Appeals, 182 SCRA 290 (1990) for some prominent examples.

such possession preceded classification of the land as such. These cases are discussed extensively in a recent article in the Philippine Law Journal.264

An analysis of these cases shows that land which has not been declared alienable and disposable is not necessarily forest. The Supreme Court does not rely solely on official government classification alone as a basis for determining whether a Torrens title should be issued in favor of a claimant.

Legislation

The Philippines had other laws that attempted to recognize ancestral domain rights.

In Commonwealth Act No. 146 (1936) was amended in 1964 to allow indigenous peoples to register imperfect titles over “lands of the public domain suitable to agriculture, whether disposable or not.”265 The benefits of the amendment, however, were short lived because Presidential Decree No. 1073 (1997) amended the law once again to limit its application to “alienable and disposable land of the public domain”. In short, this Decree limited registration to agricultural lands of the public domain.

Under Presidential Decree No. 410 (1974), all unappropriated agricultural lands forming part of the public domain as of March 11, 1974 which were occupied and cultivated by indigenous peoples for at least ten years before the effectivity of the Decree were declared part of their ancestral lands and declared alienable and disposable to be distributed exclusively among the occupants.

The Decree covered only public agricultural lands and automatically precluded communities residing in forest lands as beneficiaries. It was also limited only to specific provinces. In other areas not listed in the law, the President designated the ancestral lands. No title was ever granted under this Decree.

The Comprehensive Agrarian Reform Law266 also contains a definition of ancestral lands and suspends application of the agrarian reform over these lands program pending the delineation of these ancestral lands.

The Peoples’ Small-Scale Mining Act267 provides that ancestral lands cannot be declared as small-scale mining areas unless the occupants thereof give their consent.

There are a host of other laws that at least mention ancestral domain rights. The National Integrated Protected Areas System Act of 1992268 introduced a provision which prohibited the eviction of indigenous peoples aw well as their resettlement without their consent.

The Indigenous Peoples’ Rights Act of 1997

On October 29, 1997, President Fidel V. Ramos signed the Indigenous Peoples' Rights Act of 1997 into law.269 IPRA was the culmination of ten years of a legislative lobby for the passage of a law to flesh out the constitutional mandate to protect ancestral domain rights. Ramos was aware that the recognition of ancestral domain rights is a politically charged issue and that IPRA was passed “in the midst of opposition from many influential groups whose interests would be diminished by returning ancestral rights to our indigenous communities.” He predicted that the law would have repercussions on, among others, the landowners whose wealth came from the exploration of ancestral lands, the “natural resource investors” who should now deal with the rightful owners of the lands they use, and agricultural workers who have unwittingly squatted on ancestral lands. Ramos correctly pointed out that

264 See Eduardo P. Lizares, The Dangerous Fallacy that there can be no Valid Title to Land Unless and Until it has been Previously Declared Alienable and Disposable, 75 PHIL. L. J. 64-87 (2000). 265 Republic Act No. 3872 (1964), § 1. 266 Rep. Act No. 6657 (1988). 267 Rep. Act No. 7076 (1992). 268 Rep. Act No. 7586 (1992). 269Rep. Act No. 8371 (1997).

the success of the IPRA would be measured at a later date—when “we start the more difficult task of implementing it in its letter and spirit.”270

The President’s speech is significant. For the first time in Philippine history, the Chief Executive demonstrated an understanding of the crucial role of land ownership in the impoverishment of the indigenous peoples. Departing from the State’s traditional role of marginalizing and impoverishing indigenous peoples, the President announced that:

For so long, the superior force of the lowlanders had deprived the members of our cultural communities not only of their ancestral lands but also of their livelihood and their way of living. Those who resisted through force were called bandits while those who did not adjust to the mores of the lowlands were deemed as savages and were marginalized just because they were different. Mounting injustice against our indigenous cultural communities bred a host of other problems, affecting both rural areas and urban centers, even as it diminished the rights and opportunities of our indigenous peoples.

The problems had to be dealt with directly at their roots, meaning the issue of land ownership.271

Portions of IPRA are quoted herein to give the reader an idea of the comprehensive changes that Congress wanted to introduce. The law provides for rights to ancestral domains:

SECTION 4. Concept of Ancestral Lands/Domains. — Ancestral lands/domains shall include such concepts of territories which cover not only the physical environment but the total environment including the spiritual and cultural bonds to the areas which the ICCs/IPs possess, occupy and use and to which they have claims of ownership.

SECTION 5. Indigenous Concept of Ownership. — Indigenous concept of ownership sustains the view that ancestral and all resources found therein shall serve as the material bases of their cultural integrity. The indigenous concept of ownership generally holds that ancestral domains are the ICC's/IP's private but community property which belongs to all generations and therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional resource rights.

SECTION 6. Composition of Ancestral Lands/Domains. — Ancestral lands and domains shall consist of all areas generally belonging to ICCs/IPs as referred under Sec. 3, items (a) and (b) of this Act.

SECTION 7. Rights to Ancestral Domains. — The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include: a) Right of Ownership. — The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains;

b) Right to Develop Lands and Natural Resources. — Subject to Section 56 hereof, right to develop, control and use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the territories and uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the

270See President Fidel V. Ramos, The ancestral domain law: A triumph of political will, Statement during the Enactment into Law of Republic Act No. 8371 to “Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) and for Other Purposes” at the Ceremonial Hall, Malacañang, Manila, October 29, 1997, available at <http://www.mb.com.ph/1997/OCT97/30om11b.htm>. 271Id.

purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws; the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights;

c) Right to Stay in the Territories. — The right to stay in the territory and not to be removed therefrom. No ICCs/IPs will be relocated without their free and prior informed consent, nor through any means other than eminent domain. Where relocation is considered necessary as an exceptional measure, such relocation shall take place only with the free and prior informed consent of the ICCs/IPs concerned and whenever possible, they shall be guaranteed the right to return to their ancestral domains, as soon as the grounds for relocation cease to exist. When such return is not possible, as determined by agreement or through appropriate procedures, ICCs/IPs shall be provided in all possible cases with lands of quality and legal status at least equal to that of the land previously occupied by them, suitable to provide for their present needs and future development. Persons thus relocated shall likewise be fully compensated for any resulting loss or injury;

d) Right in Case of Displacement. — In case displacement occurs as a result of natural catastrophes, the State shall endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have temporary life support systems: Provided, That the displaced ICCs/IPs shall have the right to return to their abandoned lands until such time that the normalcy and safety of such lands shall be determined: Provided, further, That should their ancestral domain cease to exist and normalcy and safety of the previous settlements are not possible, displaced ICCs/IPs shall enjoy security of tenure over lands to which they have been resettled: Provided, furthermore, That basic services and livelihood shall be provided to them to ensure that their needs are adequately addressed;

e) Right to Regulate Entry of Migrants. — Right to regulate the entry of migrant settlers and organizations into the domains;

f) Right to Safe and Clean Air and Water. — For this purpose, the ICCs/IPs shall have access to integrated systems for the management of their inland waters and air space;

g) Right to Claim Parts of Reservations. — The right to claim parts of the ancestral domains which have been reserved for various purposes, except those reserved and intended for common public welfare and service; and

h) Right to Resolve Conflict. — Right to resolve land conflicts in accordance with customary laws of the area where the land is located, and only in default thereof shall the complaints be submitted to amicable settlement and to the Courts of Justice whenever necessary.

It also recognizes the rights over ancestral lands:

SECTION 8. Rights to Ancestral Lands. — The right of ownership and possession of the ICCs/IPs to their ancestral lands shall be recognized and protected.

a) Right to transfer land/property. — Such right shall include the right to transfer land or property rights to/among members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned.

b) Right to Redemption. — In cases where it is shown that the transfer of land/property rights by virtue of any agreement or devise, to a non-member of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs,

or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right to redeem the same within a period not exceeding fifteen (15) years from the date of transfer.

SECTION 9. Responsibilities of ICCs/IPs to their Ancestral Domains. — ICCs/IPs occupying a duly certified ancestral domain shall have the following responsibilities:

a) Maintain Ecological Balance. — To preserve, restore, and maintain a balanced ecology in the ancestral domain by protecting the flora and fauna, watershed areas, and other reserves;

b) Restore Denuded Areas. — To actively initiate, undertake and participate in the reforestation of denuded areas and other development programs and projects subject to just and reasonable remuneration; and

c) Observe Laws. — To observe and comply with the provisions of this Act and the rules and regulations for its effective implementation.

The law also provides for a host of other rights never before expressly recognized by Philippine law:

SECTION 10. Unauthorized and Unlawful Intrusion. — Unauthorized and unlawful intrusion upon, or use of any portion of the ancestral domain, or any violation of the rights hereinbefore enumerated, shall be punishable under this law. Furthermore, the Government shall take measures to prevent non-ICCs/IPs from taking advantage of the ICCs/IPs customs or lack of understanding of laws to secure ownership, possession of land belonging to said ICCs/IPs.

SECTION 11. Recognition of Ancestral Domain Rights. — The rights of ICCs/IPs to their ancestral domains by virtue of Native Title shall be recognized and respected. Formal recognition, when solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated.

SECTION 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the Land Registration Act 496. — Individual members of cultural communities, with respect to their individually-owned ancestral lands who, by themselves or through their predecessors-in-interest, have been in continuous possession and occupation of the same in the concept of owner since time immemorial or for a period of not less than thirty (30) years immediately preceding the approval of this Act and uncontested by the members of the same ICCs/IPs shall have the option to secure title to their ancestral lands under the provisions of Commonwealth Act 141, as amended, or the Land Registration Act 496.

For this purpose, said individually-owned ancestral lands, which are agricultural in character and actually used for agricultural, residential, pasture, and tree farming purposes, including those with a slope of eighteen percent (18%) or more, are hereby classified as alienable and disposable agricultural lands.

The option granted under this section shall be exercised within twenty (20) years from the approval of this Act.

CHAPTER IV

RIGHT TO SELF-GOVERNANCE AND EMPOWERMENT

SECTION 13. Self-Governance. — The State recognizes the inherent right of ICCs/IPs to self-governance and self-determination and respects the integrity of their values, practices and institutions. Consequently, the State shall guarantee the right of ICCs/IPs to freely pursue their economic, social and cultural development.

SECTION 14. Support for Autonomous Regions. — The State shall continue to strengthen and support the autonomous regions created under the Constitution as they may require or need. The State shall likewise encourage other ICCs/IPs not included or outside Muslim Mindanao and the Cordilleras to use the form and content of their ways of life as may be compatible with the fundamental rights defined in the Constitution of the Republic of the Philippines and other internationally recognized human rights.

SECTION 15. Justice System, Conflict Resolution Institutions, and Peace Building Processes. — The ICCs/IPs shall have the right to use their own commonly accepted justice systems, conflict resolution institutions, peace building processes or mechanisms and other customary laws and practices within their respective communities and as may be compatible with the national legal system and with internationally recognized human rights.

SECTION 16. Right to Participate in Decision-Making. — ICCs/IPs have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through procedures determined by them as well as to maintain and develop their own indigenous political structures. Consequently, the State shall ensure that the ICCs/IPs shall be given mandatory representation in policy-making bodies and other local legislative councils.

SECTION 17. Right to Determine and Decide Priorities for Development. — The ICCs/IPs shall have the right to determine and decide their own priorities for development affecting their lives, beliefs, institutions, spiritual well-being, and the lands they own, occupy or use. They shall participate in the formulation, implementation and evaluation of policies, plans and programs for national, regional and local development which may directly affect them.272

The delineation and recognition of ancestral domains

SECTION 51. Delineation and Recognition of Ancestral Domains. — Self-delineation shall be the guiding principle in the identification and delineation of ancestral domains. As such, the ICCs/IPs concerned shall have a decisive role in all the activities pertinent thereto. The Sworn Statement of the Elders as to the scope of the territories and agreements/pacts made with neighboring ICCs/IPs, if any, will be essential to the determination of these traditional territories. The Government shall take the necessary steps to identify lands which the ICCs/IPs concerned traditionally occupy and guarantee effective protection of their rights of ownership and possession thereto. Measures shall be taken in appropriate cases to safeguard the right of the ICCs/IPs concerned to land which may no longer be exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities, particularly of ICCs/IPs who are still nomadic and/or shifting cultivators.

SECTION 52. Delineation Process. — The identification and delineation of ancestral domains shall be done in accordance with the following procedures:

a) Ancestral Domains Delineated Prior to this Act. — The provisions hereunder shall not apply to ancestral domains/lands already delineated according to DENR Administrative Order No. 2, series of 1993, nor to ancestral lands and domains delineated under any other community/ancestral domain program prior to the enactment of this law. ICCs/IPs whose ancestral lands/domains were officially delineated prior to the enactment of this law shall have the right to apply for the issuance of a Certificate of Ancestral Domain Title (CADT) over the area without going through the process outlined hereunder;

272 See also Republic Act No. 8371 (1997), §§ 21-28.

b) Petition for Delineation. — The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. — The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and participation by the members of the communities concerned;

d) Proof Required. — Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. — On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein;

f) Report of Investigation and Other Documents. — A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. — A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available;

h) Endorsement to NCIP. — Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed

to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the section below.

i) Turnover of Areas Within Ancestral Domains Managed by Other Government Agencies. — The Chairperson of the NCIP shall certify that the area covered is an ancestral domain. The secretaries of the Department of Agrarian Reform, Department of Environment and Natural Resources, Department of the Interior and Local Government, and Department of Justice, the Commissioner of the National Development Corporation, and any other government agency claiming jurisdiction over the area shall be notified thereof. Such notification shall terminate any legal basis for the jurisdiction previously claimed;

j) Issuance of CADT . — ICCs/IPs whose ancestral domains have been officially delineated and determined by the NCIP shall be issued a CADT in the name of the community concerned, containing a list of all those identified in the census; and

k) Registration of CADTs. — The NCIP shall register issued certificates of ancestral domain titles and certificates of ancestral lands titles before the Register of Deeds in the place where the property is situated.

SECTION 53. Identification, Delineation and Certification of Ancestral Lands. —

a) The allocation of lands within any ancestral domain to individual or indigenous corporate (family or clan) claimants shall be left to the ICCs/IPs concerned to decide in accordance with customs and traditions;

b) Individual and indigenous corporate claimants of ancestral lands which are not within ancestral domains, may have their claims officially established by filing applications for the identification and delineation of their claims with the Ancestral Domains Office. An individual or recognized head of a family or clan may file such application in his behalf or in behalf of his family or clan, respectively;

c) Proofs of such claims shall accompany the application form which shall include the testimony under oath of elders of the community and other documents directly or indirectly attesting to the possession or occupation of the areas since time immemorial by the individual or corporate claimants in the concept of owners which shall be any of the authentic documents enumerated under Sec. 52 (d) of this Act, including tax declarations and proofs of payment of taxes;

d) The Ancestral Domains Office may require from each ancestral claimant the submission of such other documents, Sworn Statements and the like, which in its opinion, may shed light on the veracity of the contents of the application/claim;

e) Upon receipt of the applications for delineation and recognition of ancestral land claims, the Ancestral Domains Office shall cause the publication of the application and a copy of each document submitted including a translation in the native language of the ICCs/IPs concerned in a prominent place therein for at least fifteen (15) days. A copy of the document

shall also be posted at the local, provincial, and regional offices of the NCIP and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from the date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspapers and radio station are not available;

f) Fifteen (15) days after such publication, the Ancestral Domains Office shall investigate and inspect each application, and if found to be meritorious, shall cause a parcellary survey of the area being claimed. The Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification. In case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP. In case of conflicting claims among individuals or indigenous corporate claimants, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to Sec. 62 of this Act. In all proceedings for the identification or delineation of the ancestral domains as herein provided, the Director of Lands shall represent the interest of the Republic of the Philippines; and

g) The Ancestral Domains Office shall prepare and submit a report on each and every application surveyed and delineated to the NCIP, which shall, in turn, evaluate the report submitted. If the NCIP finds such claim meritorious, it shall issue a certificate of ancestral land, declaring and certifying the claim of each individual or corporate (family or clan) claimant over ancestral lands.

SECTION 54. Fraudulent Claims. — The Ancestral Domains Office may, upon written request from the ICCs/IPs, review existing claims which have been fraudulently acquired by any person or community. Any claim found to be fraudulently acquired by, and issued to, any person or community may be cancelled by the NCIP after due notice and hearing of all parties concerned.

SECTION 55. Communal Rights. — Subject to Section 56 hereof, areas within the ancestral domains, whether delineated or not, shall be presumed to be communally held: Provided, That communal rights under this Act shall not be construed as co-ownership as provided in Republic Act No. 386, otherwise known as the New Civil Code.

The law also delineates rules on resource use within ancestral domains:

SECTION 56. Existing Property Rights Regimes. — Property rights within the ancestral domains already existing and/or vested upon effectivity of this Act, shall be recognized and respected.

SECTION 57. Natural Resources within Ancestral Domains. — The ICCs/IPs shall have priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains. A non-member of the ICCs/IPs concerned may be allowed to take part in the development and utilization of the natural resources for a period of not exceeding twenty-five (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and written agreement is entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision making process, has agreed to allow such operation: Provided, finally, That the NCIP may exercise visitorial powers and take appropriate action to safeguard the rights of the ICCs/IPs under the same contract.

SECTION 58. Environmental Considerations. — Ancestral domains or portions thereof, which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation as determined by appropriate agencies with the full participation

of the ICCs/IPs concerned shall be maintained, managed and developed for such purposes. The ICCs/IPs concerned shall be given the responsibility to maintain, develop, protect and conserve such areas with the full and effective assistance of government agencies. Should the ICCs/IPs decide to transfer the responsibility over the areas, said decision must be made in writing. The consent of the ICCs/IPs should be arrived at in accordance with its customary laws without prejudice to the basic requirements of existing laws on free and prior informed consent: Provided, That the transfer shall be temporary and will ultimately revert to the ICCs/IPs in accordance with a program for technology transfer: Provided, further, That no ICCs/IPs shall be displaced or relocated for the purpose enumerated under this section without the written consent of the specific persons authorized to give consent.

SECTION 59. Certification Precondition. — All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process.

As expected, IPRA dissatisfied sectors traditionally involved with the exploitation of natural resources. Several foreign mining companies withdrew their investments in the Philippines in part because of the enactment of IPRA. In a letter to President Ramos, the Chamber of Mines of the Philippines called the passage of IPRA, “a gross violation of due process with no formal notice to affected private and public stakeholders” and expressed alarm at the “the speed within which the law was promulgated with no public hearing.”273

The mining industry used the press to vilify IPRA and to turn public opinion against it,274 claiming that “IPRA is pitted against industry”, and that it threatens to minimize its financial contributions to the national economy.275 Under pressure from the mining industry,276 the government overhauled its implementing rules to eliminate controversial provisions that scare off prospective foreign investors.277 Not satisfied with the dilution of IPRA, mining

273Some foreign mine investors give up plan, Manila Bulletin, April 27, 1998. 274See Earl Warren B. Castillo, Law gives indigenous peoples the final say, Business World, August 12, 1998. 275 New IPRA policy in mine law sought, Manila Bulletin, November 18, 1998. The industry has been urging the government to prevent massive withdrawals of investments triggered by the enactment of IPRA. They cite the decline in investments, which increased to $59.2 million in 1996 following the enactment of the mining law, and dropped to $53.3 million in 1997. The Chamber of Mines of the Philippines projects investments to decline to $24.3 million this year. Romulo T. Luib & Earl Warren B. Castillo, Government to issue supplemental mining rules, Business Wrold, October 14, 1998. 276Connie D. Vercasion, Gov't to drop anti-mining rules, Manila Times, October 7, 1998 and Romulo T. Luib, Gov't creates task force to guide miners' concerns, BusinessWorld, October 7, 1998. At one point, the government offered to mediate between the industry and indigenous peoples when some mining firms threatened to pull their investments out of the country. Bernie Cahiles-Maglikat, BOI steps in to resolve tribal groups' opposition, Manila Bulletin, September 3, 1998. 277Romulo T. Luib & Cecille M. Santillan, Gov't recognizes mining contracts in ancestral lands, Business World, October 23, 1998.

companies threatened to bring the issue of the constitutionality of the IPRA to the Supreme Court.278

A major problem is the enactment of the Philippine Mining Act of 1995.279 Although there are provisions in that law for the resolution of disputes arising from the incursion of mining operations, experience so far presents a dim future for tenure rights over mineral lands. Experience has shown that the MGB is always wary of releasing information regarding applicants of mining permits and contracts, in violation of the right of citizens to information.280

Part of the problem is the manner in which the law is written. The Mining Act created the Panel of Arbitrators under the Mining and Geo-sciences Bureau and vested it with jurisdiction over “mining disputes” at the regional level.281 The Panel of Arbitrators are designated by the Environment Secretary from the regular staff of the MGB. Most of the time, the designees are MGB Regional officials “whose primary task is to encourage and facilitate the entry of mining companies in their jurisdiction.”282 While it is true that their decision may be appealed to the Mines Adjudication Board, this Board is composed of the DENR Secretary, the Director of the MGB, and the DENR Undersecretary for Operations.

Historically, the functions of what is now the Panel of Arbitrators was precisely to “hasten the exploration and development of our mineral resources”.283 Even under the present law, the Panel simply performs an administrative function—to grant or reject applications. The panel is designed to provide a forum “for expressing and then eliminating oppositions and adverse claims that obstruct the entry and operation of mining companies.”284

In 1997, for example, a coalition of women, youth, religious, farmers, and indigenous peoples filed their opposition to some 30 applications for various forms of mining contracts and permits in the Province of Aurora. However, the Panel of Arbitrators, contrary to their own rules, refused to recognize the right of the coalition’s paralegal to represent those opposing the mining activities. The Panel then dismissed the opposition despite the failure of the applicants to consult them regarding their application. And suggested, instead, that the matter be taken up when the applicants apply for their Environmental Compliance Certificate (ECC). The ECC is not required for purposes of securing mining permits and contracts under the Mining Act.285

Bernal also cites the case of Subanen farmers and women organizations who opposed the application of mining permits in Zamboanga del Sur. The opposition was based on the fact that the application covered a watershed and old growth forests. They also pointed out that the application was written in English, and not generally understood by the local communities. The Panel dismissed the opposition, claiming simply that these matters were not under their jurisdiction. The Panel’s decision was mailed to the oppositors six months after it was rendered. A Motion for Reconsideration of the decision was filed, but which the Panel claimed they never received—despite contrary evidence in their own records.286

When the law is allowed to work, the results can be encouraging.

One unique case of dispute settlement involved the depletion of coastal resources in Coron, Northern Palawan. These communities applied for an ancestral domain claim under the DENR’s Administrative Order No. 02, of 1993 which is the precursor of the IPRA. In this case, the Tagbanwa, an indigenous fishing community faced serious

278See William A. de Lange, Jr., Mining firms plan to take IPRA issue to High Court, Business World, June 29, 1998. 279 It should also be noted that there is a case pending with the Supreme Court challenging the constitutionality of the Mining Act. 280 Edgar Bernal, Engaging a Biased and Unjust Structure: The Case of the Mines and Geo-Sciences Bureau and the Panel of Arbitrators, in LAWYERING FOR THE PUBLIC INTEREST: 1ST ALTERNATIVE LAW CONFERENCE 45 (2000). 281 Rep. Act No. 7942 (1995), § 77. 282 Id., at 46. 283 Id., at 46-47. 284 Id. at 47. 285 Id., at 47. 286 Id., at 47-48.

environmental problems when dynamite and cyanide fishing threatened to deplete their resources. In the 1970s, local officials auctioned off caves from where the Tagbanwa traditionally harvested swiftlet nests and reduced them to hired hands for their new owners. Tourist resorts and cattle ranchers were slowly encroaching into their territories.

In response to these threats to their livelihood, the Tagbanwa met among themselves to determine the range of their ancestral domains. They agreed that the coral reefs formed the backbone of their traditional fishing grounds and then set out to map their claims using global positioning systems. The used the data they gathered to generate their own maps to explain the importance of recognizing their claims for their survival.

Despite the obstacles hurled at them by local officials, the government recognized the Tagbanwa’s claim over the “ancestral waters”—a first in Philippine history.287

No problems arising from the recognition of these rights have been noted. If anything, the communities that acquired these titles are improving as a report notes:

“The indigenous peoples have been thirsty for tenurial security,” says the Palawan NGO Network’s Cleofe Bernardino, who has spent much of her life promoting the rights of indigenous people in this province. With their CADC and CADT to back them up, many communities are finding renewed vigor in earning a living from their territory, knowing that they will no longer be driven away and they have greater control over the natural resources in their domain.288 The same report continues:

The revival of indigenous knowledge systems and practices has extended to farming, the environment, spirituality, healing methods, and community institutions. In Bakun, for example, community members have taken renewed interest in developing their muyong or clan-owned tree farms that had been abandoned in the past. In Kitaotao, which is almost entirely covered by the CADC of the Matigsalog and Manobo tribes, the healing ritual known as panubad accounts for nearly 10 percent of preventive remedies despite its proximity to Davao City.

Community structures such as the traditional system for bartering goods and possessions, called balaw in Tagakaolo and saslang among the B’laan, are regaining wider usage after the tribes’ CADC was awarded in the town of Malungon in 1997.

Some outsiders may think the return to such practices and structures are steps backward, but the indigenous peoples know better, and are growing more confident of their rights and abilities as time passes. These successes could be replicated if the law is fully implemented. Before President Fidel Ramos left office in June 1998, the DENR issued 181 CADCs

covering more than 2.5 million hectares of land and waters in the Philippines.289

Recently, the NCIP approved about 600 Certificates of Ancestral Land or Domain Titles (CALTs and CADTs) for an initial 6,158 hectares in Baguio, Davao, Palawan and Zambales. These titles become the first that were processed since the constitutionality of the IPRA was brought before the Supreme Court.290

C. Social Forestry

287 See Philippine Association for Intercultural Development, Mapping the Ancestral Lands and Waters of the Calamian Tagbanwa of Coron, Northern Palawan, in, MAPPING THE EARTH, MAPPING LIFE 44-63 (Ponciano L. Bennagen & Antoinette G. Royo eds, 2001). 288 Yasmin Arquiza , Reclaiming Tribal Territories, 15-16 OCTOBER 2001, available at http://www.i-site.ph/readthirdlevelframe.cfm?artid=57. 289 Id. 290 Vincent Cabreza , Midnight ancestral land titles alarm LGUs, Philippine Daily Inquirer, March 8, 2001, although these titles are being challenged by migrant settlers.

It is said that the Philippine environmental movement grew immensely in the 1990s291 when Filipinos attempted to curb the ecological degradation in the country. Filipino environmentalism, however, is unique in the sense that it unites environmental protection with democratic access to natural resources.292 Indeed, one study of Philippine forestry policy was inspired by the Department of Environment and Natural Resources’ move to “give the forests back to the people”—a distinct practice compared to other countries in the region.293 Of course, in none of these programs offered by the DENR is the question of recognizing rights of ownership actually implicated. All these programs apply only to lands of the public domain, particularly forestlands.294

Social forestry was borne out of necessity because the government cannot politically and logistically evict people in forests, which number in the millions.295

Social forestry was viewed as a solution to the increasing denudation of Philippine forests, which was blamed, inaccurately, on swidden farmers. In 1975, the Forest Occupancy Management program was implemented. Briefly, the program attempted to relocate forest occupants if their operations would adversely affect the forest. They were allowed to remain in their areas if they did not expand their operations. In 1978, the government implemented the Communal Tree Farming Program, which attempted to establish tree farms in every city or municipality and to promote reforestation through a partnership among government agencies, local communities and the private sector. In 1979, the Family Approach to reforestation was implemented. In this program, the Forest Management Bureau (FMB) entered into short-term contracts with families to establish tree plantations on public land. Families were paid depending for seedlings, which survived after two years, and a sum at the end of the program. None of the programs fared well as it covered a mere 33,000 hectares.296

These programs were abandoned in 1982 in favor of the Social Forestry Program.297

Under this program, forest occupants enter into a Stewardship Agreement with the government where they are allowed to occupy and possess a designated area. In return, they are obliged to undertake forest-guard duties and plant certain trees. It gives participants a measure of security of tenure over the land for 25, which is renewable for another 25. But the government may cancel the agreement if the participants fail to comply with the terms of the agreement.298 This is because the program aims to mobilize forest resources for the economic and social progress of the nation through the involvement of kaingineros and other forest occupants of forestlands who shall be effective agents of the State in food production and rehabilitation of forestlands.299

One analysis pointed out that:

The establishment of the ISFP in 1982 was in some ways a premature attempt to create a national program when the reasons for the lack of success in the 1970s were still unclear and the capacity and resources for a major new program were unavailable. However, the political pressure on government for a high-profile approach to upland development was considerable. There were public demands from environmentalists for sustainable management of the public forest, from social workers for

291 Francisco Magno, The Growth of Philippine Environmentalism, KASARINLAN, vol. 9, n. 1 (1993), pp. 7-18. 292 Id., at 7. 293 See David M. Fairman, Forest Policy Reform in the Philippines, 1986-1996, 13 WORLD BULLETIN 175-185 (January-April 1997). 294 For a critique of these programs, see Augusto Gatmaytan, Land Rights and Land Tenure Situation of Indigenous Peoples in the Philippines, 5 PHIL. NAT. RES. L. J. 5-42 (1992). 295 Id., at 24. 296 Christopher Gibbs et al., The Growth of the Philippine Social Forestry Program, in KEEPERS OF THE FOREST: LAND MANAGEMENT ALTERNATIVES IN SOUTHEAST ASIA 253, 254 (Mark Poffenberger ed., 1990). 297 Initially promulgated under Letter of Instruction No. 1260 (1982). 298 See DENR Administrative Order No. 48 (1982), § 8; DENR Administrative Order No. 97 (1988), § 8, and DENR Administrative Order No. 04 (1991), § 10. 299 DENR Administrative Order No. 04 (1991), § 12.4.

improved standards of living for upland peoples, from indigenous peoples seeking political autonomy, and from military analysts concerned about communist insurgency in the uplands among the economically disadvantaged provinces. Confusion also existed among upland communities over the array of earlier FMB projects and parallel programs offered by other government agencies. Further, a growing sense of urgency over the shrinking resource base and growing population pressures forced planners to rapidly implement more intensive land management schemes.300

By the time the Aquino Administration began, aid institutions were funding environmental protection generously. Both the ISFP and the Community-Based Forest Management Program of 1995 were influenced by the policies of western aid institutions. Aid from the Ford Foundation and the United States Agency for International Development required a “participatory” component. In contrast, aid from Japanese Official Development Assistance required more control by the central government because the loans required government-initiated large-scale monoculture tree plantations.301

One study contends that the Forest Management Bureau project a forestry crisis to secure a large amount of “environmental aid”. As it phased logging concessions out, the Department of Environment and Natural Resources (DENR) implemented forestry projects, relying heavily on ODA. It was the Aquino administration that initiated Contract Reforestation in 1988—a component of the National Forestry Program funded by Japanese aid institutions. The restrictions imposed by government under these projects engendered conflict with local communities.302

Under Contract Reforestation, local people are hired as plantation workers to plant and tend crops for three years. Government pays fees depending on the level of tasks completed. Most of these failed as most were cancelled due to non-performance of the contract. There were also reports that stories of successful sites were falsified and some areas were burned down after the termination of the contract “due to the lack of incentive by the local people to protect the plantation site.”

At least 80 percent of the total project area may have no remaining trees or were never planted. At least two reasons for the failure have been noted—restrictions on access to land intensified land-based conflicts, and corruption was wide spread, and plantation workers were not paid. In many cases, workers were simply drafted into the labor force, despite the program’s claims to being “participatory.” The program also failed to achieve its environmental and social justice goals.303

Another study summarized the assessments thus:

a. The plantations were often of poor quality because the sites were poorly prepared.

b. Disgruntled contractors subsequently destroyed many plantations.

c. The contracts’ short duration (typically lasting three years) were a disincentive; and

d. Participation in these programs was limited and essentially amounted to the recruitment of forest workers.304

During the mid-1990s, the Philippine government started moving towards forest management by communities, and away from evicting occupants to promote large-scale plantations. In 1995, President Fidel V. Ramos issued Executive Order No. 263 establishing community-based forest management as the “national strategy to achieve sustainable forestry and social justice.” The implementing rules of that order305 provided for three types of 300 Id., at 259-260. 301 Yoshiki Seki, The Political Ecology of the Philippine Reforestation Program: ODA, Government, and Local People, in 22 PHILIPPINE POLITICAL SCIENCE JOURNAL 79-80 (2001). 302 Id., at 82-83. 303 Id., at 83-85. 304 Benjamin C. Bagadion, Jr., Social and Political Determinants of Successful Community-Based Forestry, in FOREST POLICY AND POLITICS IN THE PHILIPPINES: THE DYNAMICS OF PARTICIPATORY CONSERVATION 117, 121-122 (Peter Utting ed., 2001). 305 DENR Administrative Order No. 29 (1996).

instruments: a) Community Based Forest Management Agreement (CBFMA), which is “a production sharing agreement designed to ensure that participating communities enjoy the benefits of sustainable utilization, management and conservation of forestlands and natural resources therein; (b) Certificate of Stewardship Contract (CSC), which are contracts awarded to individuals or families actually occupying or tilling portions of forest lands; and (c) Certificate of Ancestral Domain/Land Claim-Community Based Forest Management Agreement (CADC-CBFMA or CALT-CBFMA), which are holders of ancestral domains/land claims who wish to participate in the program.306

It has been noted, however that “there is still a bias for establishing large-scale timber plantations rather than guaranteeing the rights of the local people to possess individual lots.” The DENR tries to allocate vast denuded areas for monoculture tree plantations.307

There are some notable changes under the program:

Based on the experience of past failures, however, the DENR has changed its reforestation strategy. The improved points under CBFRM are as follows: (a) site selection for tree plantation are now carefully conducted by environmental NGOs while DENR officials under the previous Contract Reforestation simply designated these sites on the map without careful feasibility studies; (b) the people’s organization which manages CBFM program automatically becomes the contractor of the reforestation project. The overall management rights, including tree plantations, now belong to people’s organizations in order to avoid previous corruption problems involving outsiders who got the contracts; and (c) the people’s organizations assume responsibility over the activities from planting stage until harvesting. In the case of the previous Contract Reforestation, contractors have no incentive to maintain the plantations since these were entrusted to the government after the termination of the three-year contract.308

Problems like corruption and land conflicts, however, persist. There are still problems with the maintenance of the site since responsibility is now vested in communities or cooperatives. Seki suggests that the alternative is the government’s realization that reforestation can take place without large-scale projects. His studies show that reforestation is most successful when farmers plant trees as their own property in their private possession. Thus, government’s role “is to secure individual land possession in the uplands, provide technical assistance, and help create an efficient system of timber distribution.” Seki concludes by suggesting that where market conditions and topographical conditions do not encourage plantations, government may subsidize the communities’ activities in the former of grant aids.309

More importantly, social forestry projects must overcome the myths that have so far informed the design of these programs. Lynch and Talbott point out that these programs are influenced by disproved beliefs:

a. Forest-dependent peoples are few in number;

b. They use forest resources illegally, and

c. They are destroying forests especially with slash –and-burn farming.

These authors note:

A growing body of evidence demonstrates that many forest-dependent people actually protect biologically rich areas and sustainably manage local ecosystems. In particular, many forest-dwellers rely on elaborate systems of community-based property rights which have been

306 Andre Gerard G. Ballesteros, Ancestral Domain Recognition and Community Based Forest Management: Two Sides of Different Coins, 11 PHIL. NAT. RES. L.J. 41-42 (2001). 307 Seki, supra note 76 at 86-87. 308 Id., at 87. 309 Id., at 92-93. For other critiques of the social forestry program, see FOREST POLICY AND POLITICS IN THE PHILIPPINES: THE DYNAMICS OF PARTICIPATORY CONSERVATION (Peter Utting ed., 2001).

developed over many generations, systems that often spring from long experience and a deep sense of obligation to the natural world.310

In their study of forest management programs across Asia and the Pacific, they concluded that effective community-managed programs could meet both the government’s and local peoples’ interests in protecting forests if there is an equitable bargaining process between government and the communities.311 Among the goals of this dialogue between government and communities is provision for appropriate legal and economic incentives to protect remaining natural forests and to regenerate degraded ones. “They should be simple, straightforward, and reflect local variables.”312 They reiterate the need for participation early in the process and that persistent, widespread opposition should stop the project.313

The success of social forestry programs, however, relies on the acts of all the stakeholders. Contreras notes:

What is crucial is a plurality of collective action. In the end, radical pluralism or “polycentrism” will have to take root as a dynamic web of political action at different levels. This would involve the establishment of broad alliances of social political, cultural, and economic movements manifesting a wide range of strategies, from militant confrontation to diplomatic dialogue. More importantly, a certain kind of transformation will have to take place in the context of this web of parallel struggles. Civil society needs to struggle with its own evils. The state needs to exorcise itself of its own sins. Aid and development assistance agencies will have to start reexamining their modes of engaging the “development” problems of the South, and begin deconstructing the concepts of “aid” and “assistance” to reveal the hidden agendas and self-interest. Furthermore, communities will have to take the lead in establishing a preponderance of organized collectives that would provide civil society, the state, and the “aid givers” no choice but to undergo such rites of exorcism and purification if they want to remain relevant. In this scenario, they will have to deal with upland communities as equal and active subjects capable of “empowering” themselves, and not as “participants” who are objects for “organizing” and “assistance.”314

Comments

This paper presented the variety of laws and programs that seek to improve tenure rights of economically marginalized groups of society.

The country’s history of inequitable land ownership skewed heavily in favor of a small sector of society has fueled unrest and impoverishment. Despite decades of legislation on these issues, compromise and resistance dilute these efforts at poverty alleviation and social justice.

Agrarian reform laws, one clear program for the redistribution of wealth, historically do little over a limited area. Theoretically, it redistributes wealth to the landless with a view to providing the landless with an economic base from which they can have economic development at the family level. Even with the expanded coverage of the CARL, the program has been delayed by other forces that seek to prevent this redistribution of wealth. At present, landowners have managed to wrest much of the lands targeted for redistribution by having

310 OWEN J. LYNCH & KIRK TALBOTT, BALANCING ACTS: COMMUNITY-BASED FOREST MANAGEMENT AND NATIONAL LAW IN ASIA AND THE PACIFIC 135-136 (1995). 311 Id., at 125. 312 Id., at 126. 313 Id., at 129. Other requirements listed by the authors include information dissemination, informed consent, notice, community legal personalities, (possibly) third parties, formal negotiations and benefit-sharing. See id at 130-133. 314 Antonio P. Contreras, Rethinking Participation and Empowerment in the Uplands, in FOREST POLICY AND POLITICS IN THE PHILIPPINES: THE DYNAMICS OF PARTICIPATORY CONSERVATION 144, 170 (Peter Utting ed., 2001).

them reclassified or converted to non-agricultural uses. Many times, the judiciary has abetted these efforts by constricting the coverage of the law.

Every loophole or ambiguity in the law is exploited by those opposed to the program to the hilt. The courts and the entire administrative machinery offers little by way of support in this case.

The IPRA, which recognizes ancestral domain rights of indigenous peoples was a product of centuries of impoverishment and injustice was held up in court and upheld by the Supreme Court with the slimmest of margins. Mining and other commercial interests have been at the forefront of diluting the law. In the end, the law simply enshrines a rule that has been recognized by the Supreme Court for decades—long-term occupation of lands creates vested rights that cannot be taken by the State. These lands are private by virtue of such long-term possession and, therefore, may be registered. The significance of the IPRA is not that created a new rule that flirts with the limits of the Constitution against registration of inalienable property. The significance is that Congress attempted to address centuries of injustice by recognizing rights that are vested. This belated attempt at rights recognition has sufficient legal basis and should be lauded, not assaulted.

Initial surveys of beneficiaries of IPRA and its precursor programs are encouraging even as they extinguish fears of social conflict generated by critics of the law.

Social forestry grew in part out of the refusal of the State to recognize rights of long-term public land occupants and resource users. In the end, these programs are short-term.

Without suggesting that these laws are perfect, it does seem that many of the perceived failures of these laws are the result—generally—of implementation, not design.

This is certainly true in the case of agrarian reform. In this field of law, many of the problems lie with the failure of those in the legal profession to appreciate the nature of the program. It has been recommended that members of the bench undergo training through the Judicial Academy of the Philippines. Members of the bar may be trained through the efforts of the Integrated Bar of the Philippines. Such training should emphasize the basic premises of the program into the participants.315

In many cases, the program is delayed by the cases attempting to exclude properties from coverage of the law. These cases are filed long after the properties are distributed and registered under the names of the farmer beneficiaries. This violates the basic premises of the Torrens system, which allows contests to rights over properties, generally for a period of one year. Yet, courts fail to equate Certificates of Land Ownership Awards as titles. To this end, perhaps legislation should be enacted to emphasize that these issuances are titles as well, and should be treated as indefeasible under the Property Registration Decree.316 To do this, Congress should impose a period for challenging titles issued to farmers under agrarian reform laws similar to other titles that may be registered under the Torrens System.

To stem the tide of land conversion, Congress should reiterate what the Supreme Court already said—that the Department of Agrarian Reform has jurisdiction over land conversion317 not local governments.

These are only some of the recommendations made by those practicing agrarian reform law.318

The IPRA attempts to remedy centuries of indifference and oppression towards indigenous peoples. However, was held up in court for more than two years. Some observers comment that the narrow split votes. The split decision of the Supreme Court is still the Court’s decision—IPRA does not violate the Constitution and, therefore, should be implemented. The slim margin and the division in the Court should not be used as an excuse for inaction—it is irrelevant. It should be pointed out the Petitioners in that case filed a motion for reconsideration of the Court’s decision but the votes did not change. Significantly, the Office of the Solicitor General changed its stance and no longer supported the arguments of the petitioners.

Sadly, this delay prevents us from assessing the impact of the law. In any case, state agents should begin implementing the law to end speculations regarding the nature and ownership of the properties involved. The recognition of the rights of indigenous peoples should begin the end of their political and economic marginalization.

315 PESANTEch, supra note 17 at 158. 316 Presidential Decree No. 1529 (1978). 317 Roxas & Co., Inc. v. Court of Appeals, G.R. No. 1287876, December 17, 1999. 318 PESANTEch, supra note 17 at 158-161.

In cases where marginalized sectors cannot avail of either agrarian reform laws or the IPRA, innovations such as social forestry and its progeny should remain available. If these lands, however, have been in occupation and use for a long time, then the government should consider classifying these lands as alienable and disposable. In this way, their tenure will be secure. There is no sense retaining the classification as forestlands if they have been settled and developed.

As assessments of these programs have shown, success depends largely on the participants’ sense of ownership over the project. Occupants of public lands that qualify for these projects should genuinely participate in the program and not merely act as conscripted laborers.

Some logistical difficulty in implementing all these programs may seem cumbersome. It is the DAR, for instance that administers the agrarian reform program and the National Commission on Indigenous Peoples (NCIP) that administers the IPRA. It is the DENR that issues tenure instruments for social forestry projects. Thus, three agencies are involved in the government’s programs for poverty alleviation and social justice. This, however, flows from the fact that these agencies administer different issues.

Theoretically, this should not be an impediment to effective land registration because titles issued by the DAR and the NCIP should be registered with the Register of Deeds like other titles. The problem lies in the refusal or delay in the registration of these titles, sometimes due to pressure from landowners. There is a possibility that titles issued under the IPRA will suffer the same fate.

Ideally, the bureaucracy can be trimmed down and every effort should be made to find a way to produce a single source for the issuance of these titles.

Recommendations Many of the problems arising from the implementation of tenure laws arise from the

failure of stakeholders to properly implement the law. Many times, these failures are abetted by loopholes in these laws. The uncertainty caused by the erratic implementation of tenure laws prevent the existence of a healthy land market.

Insofar as agrarian reform laws are concerned, legislation should be introduced to achieve the following ends:

a. Clarify the allocation of powers between local government units and the Department of Agrarian Reform regarding the power to reclassify and convert the use of land. Under the Local Government Code, the former belongs to local governments and the latter to the DAR. The distinction should be maintained to avoid the possibility that local governments can be used to undermine the constitutional mandate of agrarian reform.319

b. Infuse Certificates of Land Ownership Awards (CLOAs) and similar titles under earlier laws with the same status as any other title issued for purposes of land registration. As such, the title should become indefeasible once it is registered with the Register of Deeds.

c. Increase the penalty for government personnel who refuse to implement agrarian reform laws.

d. To ensure that the goals of agrarian reform are met, a ban on the sale of lands transferred to farmers and beneficiaries for five years should be retained, and if possible extended.

e. Extensive training for lawyers and judges on agrarian reform legislation.

Insofar as the Indigenous Peoples’ Rights Act is concerned, the delay in its implementation prevents an accurate assessment of the law. Initially, therefore, all concerned government agencies should see to it that the law is finally properly implemented, regardless

319 See Republic Act No. 7160 (1991), § 20.

of the manner in which the votes were cast in the Supreme Court decision in Cruz v. Secretary of the Environment.320

It would be prudent to insist that the ban on the disposition of ancestral domains should be maintained. Otherwise, economic pressures might prevent force beneficiaries of the law to trade their economic bases and this might ultimately nullify the intended effects of the law.

Conflicts with other laws such as the Mining Act of 1995 should be resolved in favor of the IPRA. IPRA is not only a tenure rights law. It is a social justice measure that seeks to provide redress for centuries of neglect of indigenous peoples. Part of their impoverishment can be traced to the extraction of resources from their territories. State-sanctioned commercial extraction of resources led to their displacement. For a century, laws were designed to encourage extraction without due regard for the impacts of such activities on the cultural integrity of indigenous peoples. The trend should be reversed.

Social forestry projects may be maintained if the forest occupants are unable to avail of rights under other tenure laws. However, the following points must be considered:

a. These programs should be designed to ensure that community participation is genuine. Past experience has shown that the projects work only when participants have a sense of ownership over the projects. To engender this feeling of ownership, they should be involved in the entire project process and not merely be treated as a conscripted labor force to perform forest protection chores.

b. Congress should reconsider the statutory definition of forestlands under the Revised Forestry Code. The 18% slope has no legal basis and creates the absurd situation where many parcels of lands are considered forest when in reality they are planted to trees and other crops. This definition becomes a barrier to the recognition of tenure rights. In the end, the definition merely creates uncertainty in the land market because it sustains conflicting claims over our resources.321

c. The President should likewise review which forest lands may be reclassified as agricultural lands to facilitate the recognition of tenure rights.

d. However, existing policy studies recognize that there may not be a uniform need to grant lands to forest-dependent occupants. Tenurial security required for effective community-based forest management does not require that there be state-sanctioned and documented statutory rights. More important is governments’ fulfillment of their responsibility to help forest-dependent communities defend and benefit from sustainably managed forest resources, whether public or private.322

Government sponsored community-based programs based on public grants that can be cancelled do not provide adequate incentives for sustainable forest resource management. The best way to establish and secure these incentives is to “get appropriate government agencies and officials to recognize existing community-based rights and to consider them as private. This way, holders of such rights would have the same protection as owners of other private property rights.”323

e. Non-government organizations have been identified as agents of disempowerment. As such, these NGOs should be free from control through funding agencies and their concomitant policy conditions. “The key to sustainability is political autonomy manifested in a civil society that is organically established out of the autonomous actions of communities doing things themselves, and not a civil society that thrives on financial stimuli and bureaucratized responses.”324

Earlier, it was noted that certain government agencies refuse to accord CLOAs (and possibly CADCs and CALTs) the respect due to titles. Experience has shown that courts 320 347 SCRA 128 (2000). 321 See Fairman, supra note 68 or a discussion on the problems with the definition of the 18% slope rule. 322 Lynch and Talbott, supra note 24 at 116-117. 323 Lynch & Talbott, supra note 24 at 120. 324 Contreras, supra, note 89 at 169.

entertain cases for the cancellation of CLOAs years after they are registered in the names of farmers. Congress might consider legislation that could infuse these titles with some measure of uniformity. Indeed, the land registration system could benefit if government can produce a system that unifies the titling system to prevent the disparate treatment of titles. This might include creating a single agency that will issue all titles for registration.

Overall, the promotion and recognition of tenure rights must remain as a State policy. Industrialization and economic development must take into account the realities faced by marginalized groups. The State should make proper interventions in the generation of a viable land market, or else it will further ferment unrest among marginalized sectors of society that in turn will lead to more political instability.

The one important lesson we should have learned by now is that economic development cannot be sustained if it is done through the exclusion of certain sectors of society. All efforts towards development should recognize the rights of these sectors. Development should ensure prosperity even as it narrows the gap between the rich and the poor.

Conclusion Too easily, lawyers respond to changes in the law with unjustified conservatism. Too

often, radical changes are viewed with skepticism and measured against the templates under which we were trained. This precludes us from imagining alternative systems that require change, especially when these laws are tempered with reality. Tenure rights became a national issue because restrictions under Philippine law led to the impoverishment of majority of the Filipinos.

Most of the time, the barriers to overhauling laws are intellectual restraints imposed by our colonial training. We fail to think beyond the parameters we are conditioned to believe are necessary for a viable or valid legal system. In effect, we colonize ourselves because we do not challenge the western impositions that we think we cannot live without. Sometimes, however, we manage to break free of these constraints. Philippine politics, for example, has been historically skewed to favor a certain class of the population. Yet we had the courage to introduce the party-list system to challenge the reality of our electoral exercises. Not all perceived remedies would necessarily work. The value of the IPRA is even contested. The trick may be to continuously test possible solutions until a system that is responsive to our needs is crafted.

The solution may not always be to look to “advanced” countries for guidance but to assess our own needs for every situation that we encounter. In the end, we should identify what values we want to infuse into our own laws, rather than adopt systems that evolved from an entirely different historical context.

The resolution of tenure issues requires honest assessments of where the laws cannot accommodate the realities experienced by people in the uplands. It requires impertinence to reconsider the premises upon which the laws are based and the courage to depart from unresponsive legislation and to take on new tracks that help address social injustice and impoverishment.

PUBLIC LAND LAWS OF THE PHILIPPINES

ATTY. RAMON N. CASANOVA

Former Director of Lands

INTRODUCTION

In land economics, we encounter the phrase “man-land ratio” – which refers to the relation or land area to the number of people who depend upon it for their survival, progress development.

The Philippines has an area of 30,000,000 hectares. Some 50 years or so ago when our population was 15,000,000, the ratio was 2 hectares for every Filipino. Now as we crossed the second millenium, our population has ballooned to almost 80,000,000. We now have barely ¼ of a hectare for every Filipino. Literally, our land has shrunk because of uncontrolled population growth.

Yet, we have to depend on the same land to meet the needs of our fast growing population. To make things worse, a lot agricultural lands are fast disappearing because of unbridled conversion into residential subdivisions, golf courses, factory sites and a host or other non-agricultural uses. Not to mention the fact is that the productive capacity of our agricultural lands has been diminished by overuse. It is thus imperative that a honest-to-goodness assessment of the Philippine land situation be made to ensure land’s capability to meet societal needs. One critical aspect that has to be looked into is the legal framework of land administration which would naturally include laws governing the survey, classification, management and disposition of alienable lands to public domain. CONCEPT OF PUBLIC LANDS Public lands and public domain are equivalent terms. The words “public lands” are habitually used in U.S. legislation to describe such lands as are subject to sale and other disposal under general laws. A grant of public lands applies only to lands which at the time are free from existing private claims. It includes any such lands as are thrown open to private appropriation and settlement. Laws Governing “Crown” Lands Under the Spanish Regime Soon after the Philippines was “discovered” by Ferdinand Magellan on March 16, 1521, King Philip of Spain proclaimed that all lands in the newly colony belong to the King, following the Regalian Doctrine. Thus, the King was the source of all assorted rights to ownership in land. Under the laws of the Indies (Book 4, Title 12, Law I) the King was authorized to distribute land to his vassals to foster discovery and settlement of the islands. The King was also authorized to sell crown lands under a Royal Decree of January 14, 1889 (Titulo de Compra). To adjust and confirm imperfect title of occupants under the Royal Decree of September 8, 1880 (Titulo de Composicion Con Re Estado); and to approve applications for possessory information into which, upon the lapse of a certain period, may be converted a record of ownership under the Royal Decree of February 13, 1894. (Titulo de Informacion Possessoria).

Lands Governing Public Lands Under the American Regime On December 10, 1898, the Treaty of Paris was signed between Spain and the United States. This ended the Spanish-American war and transferred sovereignty over the Philippines from Spain to the United States. Initially, President William McKinley, as Commander-in-Chief of the U.S. Armed Forces, appointed a Philippine Commission that assumed legislative functions. Later, the United States Congress enacted the Philippine Bill of 1902 – The First Organic Law of the Philippines which mandated the classification of public lands other than timber or mineral according to its agricultural character and productiveness, and promulgation of rules and regulations for the lease, sale or other disposition of public lands. Thus, on October 7, 1903, the Philippine Commission enacted Act No. 926 – the first Public Land Act. On August 29, 1916, the United States Congress enacted the Jones Law, the second Constitution of the Philippines under the Americans. Pursuant to this Organic Act, the Philippine Legislature enacted Act No. 2874 on November 29, 1919 – the second Public Land Act. Then on March 16, 1934, the United States Congress enacted the Tydings-McDuffie law which authorized the Philippine legislature to convene a constitutional convention to frame a constitution for a new government preparatory to the grant of independence. The third Constitution of the Philippines under the Americans was approved on March 23, 1935, and ratified by the Filipino people on May 24, 1935. On November 7, 1936, Congress enacted C.A. No. 141 -- the third and the current Public Land Act of the Philippines. Coverage

Under Section 2, of C.A. 141, the said Act shall apply to lands of the public domain

but timber and mineral lands shall be governed by special laws and nothing in said Act shall be construed to change or modify the administration and disposition of lands commonly called friar lands and those which, being privately owned, have reverted to or become the property of the Republic of the Philippines. CLASSIFICATION OF THE PUBLIC DOMAIN As in Act 926 and Act 2874, lands of the public domain are classified into:

a. alienable and disposable b. timber c. mineral (Sec. 6, Commonwealth Act. No. 141) The President shall from time to time declare what lands are open to disposition or

concession, but only those lands shall be declared open to disposition or concession which: a. Have been officially delimited and classified b. Have been surveyed c. Have not been reserved for public or quasi-public uses d. Have not been appropriated by the government e. Have not become private property f. Have not been the subject of a private authorized and recognized by this Act or

any other valid law (Section 8, C.A. No. 141) CLASSIFICATION FOR PURPOSES OF ADMINISTRATION AND DISPOSITION Alienable and disposition public lands shall be classified according to the use or purposes to which they are destined as follows:

a. Agricultural b. Residential, commercial, industrial or for similar productive purposes, and c. Educational, charitable or other similar purposes; and d. Reservations for townsite and for public or quasi-public purposes

(Section 9, CA No. 141)

Public lands suitable for agricultural purposes can be disposed of only as follows:

a. homestead settlement b. sale c. lease d. confirmation of imperfect or incomplete titles

1. by judicial legalization 2. by administrative legalization (free patent)

Homestead Settlement (Chapter IV, C.A. 141) Qualification/Disqualifications A homestead grant is available to an applicant who is:

a. A citizen of the Philippines b. 18 years of age or head of the family c. Not owner of more than 24 hectares of land d. Has not had the benefit of any gratuitous allotment of more than 24 hectares

of land since the occupation of the Philippine by the U.S. Obligations of applicant

a. Pay the entry fee b. Within six months from approval of the application - begin the work on the

homestead c. Improve and cultivate 1/5 of the land within five (5) years d. Reside for at least 1 year in the municipality where the land is situated or in

an adjacent municipality e. Execute and file his final papers

A homestead applicant is deemed to have acquired a vested right to the land after he shall have complied with (c), (d) and (e), after which he is entitled to receive a final deed of conveyance called a homestead patent Sale of agricultural lands (Chapter V) 1. Qualifications/Disqualifications of the applicant :

a. Filipino citizen b. Of lawful age or head of the family c. Not the owner of more than 5 hectares of land

2. Procedure a. filing of application b. preliminary investigation c. appraisal of the land and improvements d. approval of appraisal e. publication and posting of notice of sale f. sale at public auction from bidding – with the applicant enjoying the right to

equal the bid of highest bidder g. formal order award h. compliance with terms of award: cultivation of at least 1/5 of the area and

payment of purchase is ten (10) equal annual installments i. issuance of sales patent j. registration of sales patent and issuance or original certification of title (OCT)

Lease of Agricultural Lands (Chapter VI) 1. Qualifications/Disqualifications of the applicant:

a. citizen of the Philippines or if a corporation, 60% of capital stock is owned by such citizens

2. Procedure – by public auction as in the sale of agricultural lands

3. Rental – equivalent to 3% of the value of the land 4. Duration – twenty five years renewable for another 25 years at the option of the

government 5. Cultivation requirement – the lessor shall have not less than 1/3 of the land broken

and cultivated within 5 years form date of approval of the lease Free Patent (Chapter VII) -- Administrative Legalization of Imperfect Title 1. A free patent grant is available to an applicant who is:

a. A natural born citizen of the Philippines b. Not the owner of more twenty four (24) hectares c. Has continuously occupied and cultivated the land by himself or thru his

predecessors-in-interest, or who shall have paid the real estate taxes thereon since April 15, 1990.

2. Procedure:

a. filing of free patent applicant b. posting of notice for fourteen (14) days c. final investigation d. approval e. issuance of free patent

Judicial Confirmation of Imperfect or Incomplete Title to Public Agricultural Land (Chapter VIII) 1. Qualification – This is a mode of acquiring public agricultural lands available to:

a. citizens of the Philippines b. Who, by themselves or thru their predecessors-in-interest have been in open,

continuous, exclusive and notorious possession and occupation of agricultural land of the public domain under a bonafide claim of acquisition of ownership for the period prescribed by law.

2. Procedure:

a. Survey of the land b. Failing of the application with the proper court c. Setting of the date of initial hearing by the court d. Transmittal of the court order together with duplicate copy of the application

to the Land Registration Authority e. Issuance of the notice of initial hearing f. Service of notice of initial hearing by publication in Official Gazette and in a

newspaper of general circulation, registered mail and posting g. Filing of oppositions or answers h. Initial hearing i. Hearing of the merits j. Promulgation of judgments k. Entry of judgment and issuance of order of issuance of decree l. Issuance of decree of registration by LRA m. Transmittal of the decree to the Register of Deeds n. Entry of the decree in the registration book vis-à-vis issuance of the original

certificate of title SALE OR LEASE OF PUBLIC LANDS FOR RESIDENTIAL, COMMERCIAL OR INDUSTRIAL PURPOSES (CHAPTER IX)

Under Chapter IX of the Public Land Act, lands intended for residential, commercial, industrial and similar productive purposes may be disposed of by sale or lease thru public bidding, generally following the procedure prescribed for agricultural lands. The land or the right to lease is acquired also in a public auction thru bidding. The difference, however, lies in the fact that where in agricultural sales, the auction sale is thru sealed bidding with the applicant enjoying the right to equal the highest bid, the auction sale of residential,

commercial and industrial lands is thru oral bidding – where the applicant has to outbid the other bidders in order to be successful bidder. In other words, the applicant does not have preferential right, unless he is an applicant who has introduced improvements on the land by virtue of a permit issued to him by the Bureau of Lands, in which case he has the right to a sealed bidding.

Lands disposable for residential, commercial or industrial purposes are classified as:

a. Lands reclaimed by the Government by dredging, filing, or other means b. Foreshore c. Marshy land or lands covered with water bordering upon the shores or banks

of navigable lakes or rivers. The conditions of the sale are as follows: a. The purchaser shall enter the land and introduce suitable improvements

thereon within six (6) months, and complete such improvements not later than 18 months from the date of the award.

b. The purchaser shall pay the purchase price of the land in ten (10) equal annual installments.

In case of lease, the rental shall be 3% of the value of the land plus 1% of the value

of the improvements. Every ten (10) years, the land and improvements shall be reappraised but the rental shall not be increased by more than 100% every ten years.

The duration of the lease is 25 years renewable for another 25 years at the

government’s option. Under R.A. No. 730 direct or negotiated sale of public land may be resorted to if: (a)

the applicant has occupied the same and has in good faith built a residential house thereon where he lives, (b) he is not the owner of any residential lot, and (c) the land is not needed by the government for any public purpose. DISPOSITION OF PUBLIC LANDS FOR EDUCATIONAL, CHARITABLE AND SIMILAR PURPOSES (CHAPTER X) Lands under this category may be disposed of by the Government in favor of a province, city, municipality or other branches of the Government in the form of donation, sale, lease, exchange, or any form. Such lands may also be sold or leased to qualified private persons for the purpose of founding a cemetery, church, college, school, university or other educational institutions for educational, charitable or philantrophical purposes or scientific research. The Secretary of the DENR has the discretion to sell the land without auction and to waive the condition requiring cultivation. TOWNSITE RESERVATION (CHAPTER XI) The President, upon recommendation of the Secretary of Environment and Natural Resources, may, if public interest so requires, issue a proclamation reserving lands for townsite purposes to found a new town. Procedure:

a. survey of the exterior boundaries of the site b. drafting the proclamation c. signing of the proclamation d. transmittal of copies of the proclamation to the Director of Lands and the

Register of Deeds e. filing of compulsory registration proceedings to settle and adjudicate private

claims within the townsite f. subdivision of the land according to development plans

g. sale of residential lots by oral bidding to the highest bidder RESERVATIONS OF PUBLIC AND QUASI-PUBLIC PURPOSES (CHAPTER XII) The President also has the power to designate by proclamation any tract or tracts of land of the public domain as reservations for the use of the Republic of the Philippines or any of its branches or of the inhabitants thereof, of for quasi-public uses or purposes when public interest requires it, including reservations for highways, rights-of-way for railroads, hydraulic power sites, irrigation systems, communal pasture or legua communales, public parks, public quarries, public fishponds, workingmen’s village and other improvements for public benefit. PREFERENTIAL RIGHTS OF ACTUAL OCCUPANTS

If, before the delimitation and survey of a tract of public land and before its classification as alienable and disposable, such land shall be actually occupied by a person other than the applicant, the Director of Lands shall inform the occupant of his preferential right to apply for the land and shall give him 120 days’ time in which to file the application or apply for the concession by any of the forms of disposition authorized by this Act, if such occupant is qualified to receive a concession under this Act. LEGAL RESTRICTIONS AND ENCUMBRANCES (CHAPTER IV)

Homestead and free patent grants are subject to the following restrictions: a. Sec. 118. Except in favor of the Government or any of its branches,

units, or institutions, lands acquired under free patent or homestead provisions shall not be subject to encumbrance or alienation from the date of the approval of the application and for a term of five years from and after the date of issuance of the patent or grant, nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period, but the improvements or crops on the land may be mortgaged or pledged to qualified persons, associations, or corporations.

No alienation, transfer, or conveyance of any homestead after five years and before

twenty-five years after issuance of title shall be valid without the approval of the Secretary of Agriculture and Commerce, which approval shall not be denied except on constitutional and legal grounds.

b. Sec. 119. Every conveyance of land acquired under the free patent or

homestead provisions, when proper, shall be subject to repurchase by the applicant, his widow, or legal heirs, within a period of five years from the date of the conveyance.

c. Sec. 120. Conveyance and encumbrance made by persons belonging to the so-called "non-Christian Filipinos" or national cultural minorities, when proper, shall be valid if the person making the conveyance or encumbrance is able to read and can understand the language in which the instrument or conveyance or encumbrances is written. Conveyances and encumbrances made by illiterate non-Christian or literate non-Christians where the instrument of conveyance or encumbrance is in a language not understood by the said literate non-Christians shall not be valid unless duly approved by the Chairman of the Commission on National Integration.

d. Sec. 121. Except with the consent of the grantee and the approval of the Secretary of Natural Resources, and solely for commercial, industrial, educational, religious or charitable purposes or for a right of way, no corporation, association, or partnership may acquire or have any right, title, interest, or property right whatsoever to any land granted under the free patent, homestead, or individual sale provisions of this Act or to any permanent improvement on such land.

The provisions of Section 124 of this Act to the contrary notwithstanding, any

acquisition of such land, rights thereto or improvements thereon by a corporation, association, or partnership prior to the promulgation of this Decree for the purposes herein stated is deemed valid and binding; Provided, That no final decision of reversion of such land to the

State has been rendered by a court; And Provided, further, That such acquisition is approved by the Secretary of Natural Resources within six (6) months from the effectivity of this Decree.

e. Sec. 122. No land originally acquired in any manner under the

provisions of this Act, nor any permanent improvement on such land, shall encumbered, alienated, or transferred, except to persons, corporations, associations, or partnerships who may acquire lands of the public domain under this Act or to corporations organized in the Philippines authorized therefor by their charters.

Except in cases of hereditary succession, no land or any portion thereof originally

acquired under the free patent, homestead, or individual sale provisions of this Act, or any permanent improvement on such land, shall be transferred or assigned to any individual, nor shall such land or any permanent improvement thereon be leased to such individual, when the area of said land, added to that of his own, shall exceed one hundred and forty-four hectares. Any transfer, assignment, or lease made in violation hereof, shall be null and void. OBSERVATIONS

1. C.A. No. 141, as amended, was enacted by Congress ion 1936, on the basis of the 1935 Constitution. Its provisions are basically the same as the first Public Land Act of 1903 (Act 926) and the second Public Land Act of 1919 (Act No. 2874). It could be said that the provisions of C.A. No. 141 are almost a century old. Two constitutions have already been promulgated since 1935, but Congress has yet to pass a Public Land Act based on the 1987 Constitution. 2. The Public Land Act covers only lands of the public domain that have been classified as alienable and disposable. (Section 8) Land classification used to be a function of the Bureau of Forestry but it is now with the NAMRIA, although, final approval is by the Secretary of Environment and Natural Resources.

The date of release of the land from the forest zone is very material in titling of lands by free patent under Chapter VII or by judicial confirmation of imperfect or incomplete title to public agricultural land under Chapter VIII of the Public Land Act, because the law requires prior possession and occupation of the land since July 4, 1945, and June 12, 1946, respectively. In Vallarta vs. IAC, 151 SCRA 679, a case for judicial confirmation of imperfect or incompetent title to public agricultural land, the Supreme Court held that:

“If the land was formerly within the forest zone. It is only from the date it was released as an agricultural for disposition under the Public Land Act that the period of occupancy for purposes of confirmation of imperfect or incomplete title may be counted. The possession of the land by the applicant prior to such release or reclassification can not be credited as part of the requisite period, and could not ripen into private ownership, however long it was.”

I believe that for practical considerations applicants for free patent and for judicial confirmation of imperfect title should be credited for their possession prior to the release upon a proper showing that the land is truly agricultural by reason of its slope and actual use especially where the release or classification of the land as alien sale and disposable was delayed because of lack of funds or because the land does not occupy high priority in the government’s program of land classification.

3. Most of the land registration cases brought to court are applications for judicial confirmation of imperfect or incomplete title to public agricultural land under Section 48, Chapter VIII of the Public Land Act. Rarely do we encounter applications for “private lands”. It takes a minimum of six (6) months to secure a land title through judicial process. If the land applied for is still public land or presumed to be so by reason of the Regalian Doctrine, perhaps, we should now to consider the feasibility of shifting to the administrative process.

Free patent application is a shifting to specie of administrative titling thru then the Bureau of Lands now DENR and in fact it is also known as administrative legalization of imperfect title to public agricultural land. Barring legal obstacles, a free patent applicant can get is title to the land in a matter of 30 days. It goes without saying, of course, that the adoption of the administrative process will require a lot of changes of organizational structures, procedures, and substantive requirements, viz-a-viz the kind of land that can be applied for, qualification of the applicant, period and manner of occupancy, and even the contents of the title, viz-a-viz, the liens and encumbrances to be annotated on the title.

4. Citizenship Requirement – Under the present law, a free patent applicant

must be a natural born Filipino citizen. For judicial confirmation of imperfect title under Section 48 of the Public Land Act, he need not be a natural or native born Filipino citizen. It is about time that we remove the distinction.

5. Period of Possession – For free patent, possession and occupation of the

land must be 30 years prior to the effectivity of R.A. No. 6940. Said law took effect upon its publication in a newspaper on April 15, 1990. Possession must have commended in April 15, 1960. Before that, the possession and cultivation required was since July 4, 1945.

For judicial confirmation of imperfect or incomplete title to public agricultural land, the applicant must prove open, continuous, exclusive and notorious possession under a bonafide claim of acquisition of ownership since or before June 12, 1945 (P.D. 1073 and Section 14, P.D. 1529 ) – or a good 57 years. It is not amiss to state in this connection that under the Civil Code, ownership of land can be acquired by adverse possession or acquisitive prescription. With good faith and a just title, possession of the land under conditions laid down by law ripens into ownership after the lapse of ten (10) years, thru ordinary prescription. In the absence of good faith and a just title, possession for 30 years ripens into ownership thru extraordinary prescription.

The free patent law and the law on judicial confirmation or imperfect title to public

land should be amended by shortening the period of occupancy to ten (10) years, following the period required for ordinary acquisitive prescription under the Civil Code. By the way, the first Public Land Act (Act 926) prescribed only ten (10) years occupancy prior to the effectivity of said law in 1903. The periods of occupancy required under the present law since June 12, 1945, (or 57 years) judicial confirmation of title, and 30 years for a free patent grant are just too long – almost a punishment to the applicant who has possessed the land bonafide under a claim of ownership.

The period to file their applications under Chapter VII and Chapter VIII of C.A. No. 141, was up to December 31, 1938; under R.A. No. 107, of June 2, 1947, the period was extended to December 31, 1957; under R.A. No. 2061, of June 13, 1958, the period was extended to December 31, 1968, under R.A. No. 6236, of June 19, 1971, the period was extended to December 31, 1976; under P.D. 1073, the period was extended to December 31, 1987. And under R.A. No. 6940, the period was extended to December 31, 2000. There is now a momentary hiatus because Congress has not yet approved the bill proposing to extend the period up to December 31, 2010.

There should be a law abolishing these deadlines. Anyway, it has been extended every time it expired since 1903. Every time it expires and Congress fails to extend it, it creates some unsettling effect upon the landowners. Besides, it does not serve any useful purpose.

6. Homestead Homestead is a mode of concession designed for frontier areas or virgin lands of the

public domain. Used by the Americans to hasten settlements and development of the West, it was incorporated in the first Public Land Act of 1903, and is still provided for in the present Constitution and C.A. No. 141, as amended.

Most of the public lands now being classified as alienable and disposable, or released from the forest zone have been occupied, and cultivated by settlers for long periods of time even before the government made the classification.

The propriety of using homestead as a mode of concession for these lands is doubtful. Legalization and confirmation of imperfect title to such lands would be more logical.

7. Grant

A land grant is a new mode of concession for acquiring public lands. It was

incorporated for the first time in the 1973 Constitution and reiterated in the 1987 Constitution. It is fair to assume that the framers of the Constitution had intended this mode of

concession to be distinct and separate from those modes already in place like homestead, base, sale, free patent or judicial confirmation of imperfect title to public land.

The proceedings of the Constitutional Commission could not shed light on the concept or definition of “grant” as an additional mode of acquiring public land because it appears that it was a last minute amendment to the draft of the Constitution which was approved by the Committee on the National Patrimony headed by Commissioner Bernardo Villegas without any opposition or debate.

The term grant should be given an acceptable meaning to warrant its inclusion as an additional mode of concession, otherwise, it should be scrapped altogether.

8. Restrictions and Encumbrances on the Patent a. Under Section 118, of the Public Land Act, lands acquired by homestead or

free patent shall not be subject to encumbrances or alienation from the date of approval and for a term of five (5) years from and after the date of issuance of the patent or grant nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period; except in favor of the government or any of its branches of units or institutions or legally-constituted banking corporations.

Said Section provides that no alienation, transfer or conveyance of

any homestead after five years and before 25 years after issuance of title shall be valid without the approval of the Secretary of National Resources which approval shall not be denied except on legal or Constitutional grounds.

This law should now be reexamined to determine whether or not the prohibition to alienate or encumber except to the government or any of its units should be continued or repealed. Unrestricted ownership of the land will be in keeping with the principle of liberal free enterprise as the engine of a nation’s growth and development. Homestead and free patent grantees should be allowed to mortgage their private lands to banking institutions. The prohibition to alienate, transfer, convey or encumber a homestead within 5 years without the approval of the Secretary should be repealed. It serves no useful purpose.

b. Section 119 of the Public Land Act provides that every conveyance of land

acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widows or legal heirs within a period of 5 years from the date of the conveyance.

Cases have occurred where the value of the land had sharply

increased or that the buyer has introduced permanent valuable improvements on the land before the lapse of 5 years.

The Supreme Court has ruled that a homestead or free patent

grantee who exercises his right of repurchase cannot be made to pay more

than the purchase price that he received even if the value of the land has appreciated several times over. This can be unfair to the buyer, especially if the appreciation in the value of the land was due to his efforts and investments. It represents an increment in the value which the homestead or free patent grantee did not deserve.

In like manner, the Supreme Court has ruled that where the buyer

introduces permanent improvements on the land, he is considered as a builder in bad faith, thus, he has to remove the same at his own expense, without any obligation on the payor or the vendor to reimburse the value thereof.

Even in the guise that this is necessary to serve public policy – for

the grantee to keep the land, it can work injustice to the buyer who has invested money to introduce valuable improvements on the land.

c. Section 121 of the Public Land Act provides that except with the consent of

the grantee and the approval of the Secretary of Environment and Natural Resources and solely for educational, religious or charitable purposes, or for a right of way, no corporation, association or partnership may acquire any right, title, interest or property right whatsoever to any land granted under the free patent, homestead or individual sale provisions of this Act or any permanent improvements on such land.

Under P.D. No. 763, Section 121 was amended to allow private

corporations, associations and partnerships to acquire lands granted by homestead, free patent or individual sale, for commercial and industrial purposes. This Section should further be amended by eliminating the requirement of consent of the grantee and the approval of the Secretary of Environment and Natural Resources.

COMMENTS ON SB1691 Atty Ramon N. Casanova

With reference to Senate Bill No. 1691 authored by Sen. Robert Jaworski entitled “Revised Public Land Act of the Philippines”, the following observations are made, to wit: The underlying philosophy and purpose of the proposed bill as articulated in the Explanatory Note are:

a. The present Public Land Act is already obsolete, and, must be revised to make its visions more responsive to the demands of the fast changing technology, and attune them to the Constitution, the agrarian reform laws and other laws.

b. It is an answer to the clamor of the people for economical, simple and expedient

way of titling land compared to the present system of judicial titling. However, the main provisions of C.A. No. 141, as amended, have been retained in the proposed measure, except in the following respects:

a. The bill contains a “Declaration of Policy” (Section 2, page 1, lines 5-6) not found in the present Public Land Act. The bill can stand without it, for it is understood that lands of the public domain are to be managed in a rational and efficient manner in accordance with the Constitution.

b. Section 3 (page 1, lines 11-12) of the bill provides that the Act shall cover “public

agricultural lands as defined hereunder”. The bill will be better if it retains Section 2 of the present Public Land Act.

c. The bill contains a definition of terms (Section 4, page 1, lines 13-18, page 2,

lines 1-28, page 3, lines 1-21) not found in the present Public Land Act. Most of the terms need not be defined because they are already defined in the Constitution, the Public Land Act and in rules and regulations promulgated thereunder. Besides the definition of terms can stand further refinements.

d. Section 5 (page 3, lines 24-28) of the bill provides that the DENR through the

Bureau of Lands shall have jurisdiction to survey, sub-classify, manage and dispose all lands within the coverage of this Act.

The present law simply provides that the Secretary of Environment and Natural Resources shall be the executive officer charged with carrying out the provisions of this Act through the Director of Lands, who shall act under his immediate control (Section 3), and subject to said control. The Director of Lands shall have direct executive control of the survey, classification, lease, sale or any other form of concession or disposition and management of lands of the public domain (Section 4). Having “jurisdiction” over alienable and disposable lands of the public domain is equivalent to having the power and responsibility to carry out the provisions of the Public Land Act. If the idea is to exercise jurisdiction over such lands “through the Bureau of Lands”, the Bureau of Lands Management should be reverted to its status as a “line” bureau and Sections 3 and 4 of the present Public Land Act should be retained.

e. Section 6 (page 4, lines 1-9) of the bill, provides that Congress, upon the recommendation of the Secretary of the DENR shall from time to time classify lands of the public domain into:

1. agricultural lands 2. forest or timber 3. mineral 4. national parks

and may at any time and in like manner transfer such lands from one class to another, for the purpose of their administration and disposition.

Why Congress? Under Section 6 of the Public Land Act it is the President who is tasked to classify lands of the public domain into alienable and disposable, timber and mineral lands. In fact the President is so burdened with multifarious duties and responsibilities as Chief of State. He has long ago delegated the task of land classification to the Secretary viz-a-viz the Director of Forestry, now the NAMRIA. The power of Congress under the present Constitution is, with respect to forest lands and national parks, to determine by law the specific limits thereof, marking clearly their boundaries on the ground (Section 4, Chapter XII). This can only mean that it is the DENR that shall establish the specific limits of the forestland and national park and mark them on the ground, and it is Congress that shall translate the same into law. With respect to “agricultural” or alienable and disposable lands of the public domain, Section 3, Art. XII of the 1987 Constitution provides that the same may be further classified by law according to the uses to which they may be devoted. This means that Congress may pass a law providing for the further classification of agricultural or alienable and disposable lands of the public domain into agricultural, residential, commercial, industrial or other uses to which they may be devoted. Section 6 of the proposed measure creates the impression that it is Congress that shall directly classify the lands upon the recommendation of the Secretary of the DENR which could run afoul with the principle of separation of powers under the Constitution. Congress sets the policy through the law, while it is the President who executes. Section 7 (page 4, lines 10-22) of the proposed measure requiring that a list of public agricultural lands declared open to disposition be posted in the bulletin board of the municipal or city hall and the provincial capitol, and barangay hall and published in a newspaper of general circulation, should be reexamined as to its wisdom, necessity and practicability. Section 8 (page 4 lines 23-29, page 5, lines 1-4) of the bill is lifted from Section 8 of the Public Land Act which provides that only those lands shall be declared open to disposition or concession which have been officially delimited and classified as A and D and when practicable surveyed and which have been reserved for public purpose or quasi-public uses, not appropriated by the Government, nor in any manner become private property, nor those on which a private right authorized and recognized by this Act or any other valid law may be claimed, or which having been reserved or appropriated, having ceased to be so. In other words, to be disposable under the Public Land Act, the land must first be officially delimited and classified as A and D when practicable surveyed. This provision does not apply if:

a) the land has been reserved for public or quasi public purpose; b) the land has been appropriated by the government; c) the land in any manner has become private property; d) the land is subject to a private right authorized and recognized by this Act or

any other valid law; e) the disposition of the land is authorized by the President for reasons of public

interest. Under the proposed measure (page 4, line 29) it is Congress, not the President, that is authorized to declare the land open to disposition, before the land is officially delimited classified and surveyed. This amendment is ill advised, to say the least, because land classification is intrinsically an executive function.

Section 9 (page 5, lines 5-14) of the bill reiterates the classification of alienable and disposable lands of the public domain for purposes of management and disposition into a) agricultural, b) residential, commercial, industrial, or for similar purposes, c) educational, charitable or similar purposes and d) reservations for townsite, public or quasi public purposes; Under Section 9 of the Public Land Act, it is the President who is authorized to make the classification, but in the bill, it is Congress. For reasons already stated above, this power should remain with the President. Section 10 (page 5, lines 15-26) of the bill, provides five modes of disposition of agricultural lands of the public domain, reiterating Section 11 of the Public Land Act, except that it added “special patent” as a mode of acquiring agricultural lands. Under Section 4(h), a special patent shall refer to a gratuitous title over public lands awarded for a particular purpose in favor of the government units or instrumentalities for their use, subject to the terms and conditions provided therein. The present Public Land Act authorizes the President to issue proclamations reserving public lands for the exclusive use and benefit of government agencies. (Section 83) or to execute contracts over any portion of the public domain by way of donation, sale, lease or exchange or any other form in favor of any province, municipality or other branches or subdivision of the government (Section 69). As a form of concession, a special patent is not only unclear as to its nature, but is a superfluity.

Section 11, Chapter IV (page 5, lines 28-29, page 6) of the Bill, provides for homestead as a form of concession of public agricultural land. We no longer have “frontier lands” or virgin lands or the public domain to disposed or by homestead. It is about time that its abolition as a form of concession be considered. 1 Section 15 (page 7, lines 16-18) of the Bill provides that the homestead applicant is deemed to have acquired a vested right to the land upon satisfactory proof of compliance with the requirements of the law regarding cultivation, residence and accomplishment of his final proof papers. The Supreme Court has ruled that the date of the issuance of a patent is not determinative of whether applicant for a homestead acquires ownership of the property. It is rather the time when he has fully complied with all the requirements of the public land law for the acquisition of the patent (Fiel v. Wagas, 48 O.G. 195; Amol v Arroyo, CA-GR No. 15975-R November 7, 1956). Consistent with this ruling, if the final proof was completed and the final fee paid during marriage, the homestead is unquestionable conjugal. But if these are accomplished after dissolution of the marriage by the death of the wife, then the homestead becomes exclusive private property of the husband. Hence, where the final proof paper was submitted to, and approved by the Director of Lands during the subsistence of the applicants first marriage, and the order for issuance of patent was handed down at the time of the second marriage, the land must be regarded as acquired during and becoming to the conjugal partnership of the first marriage (Yebra v. Calatate, 59 OG 51, p. 8791, December 23, 1963, CA). The said rulings gives premium to the submittal of final proof papers, making it a decisive factor in determining the point when the applicant acquires a vested right to the homestead, even if its just a mere formality. This can lead to gross injustice in cases where the substantive requirements of cultivation and improvement and residence have been complied with by the applicant during his first marriage, and submits his final proof papers after dissolution of the first and during the subsistence of the second marriage. Following the rulings of the Supreme Court the land becomes conjugal property of the second marriage even if the second wife contributed nothing to the acquisition and development of the land. It amounts to unjust enrichment of the second, at the expense of the first marriage.

Sections 21 to 29 (page 8, lines 27-29, page 9, lines 1-29, page 10, line 1-28, page 11, lines 1-26) of the bill provide for disposition of public agricultural land by sale, practically adopting

the provisions of Sections 22 to 32 of C.A. No. 141, as amended, with the following modifications:

a) the bill deleted all provisions of C.A. No. 141, insofar as it refers to applications by private corporations and partnership which under the present Constitution, can acquire public agricultural lands only by lease;

b) Section 22 (page 9,lines 5-11) of the bill requires that the Director of Lands shall announce the sale of the land by publishing the notice thereof once a week for three consecutive weeks in two (2) newspapers of general circulation, and by posting the same notice in a conspicuous place in the province, city, municipality and in the barangay where the lands is located. This amends Section 24 of the Public Land Act which requires publication of the notice once a week for six (6) consecutive weeks in the Official Gazette and in two (2) newspapers one published in Manila and the other in the municipality or province where the land is located.

c) Notice by publication may be dispensed with is the appraised value of the land does not exceed P50,000.00, thus amending the present law which dispenses with publication if the value of the land does not exceed P240.00;

d) Section 25 (page 10, lines 9-12) of the bill allows the awardee to pay the land in not more than five (5) equal annual installments from the sale of the award.

e) Section 26 (page 10, lines 13-18) of the bill requires the awardee to fully cultivate the land within three (3) years after the date of award, forbidding the use of tenants. This amends Section 28 of the Public Land Act which requires cultivation of only 1/5 of the area.

All of these amendments and other provisions of the bill are now controversial.

f. Sections 30 to 38 (page 11, lines 28-29, gage 12, lines 1-28, page 13, lines 1-28, and page 14, lines 1-3) of the bill provides for disposition of public agricultural land by lease, practically adopting the provisions of Sections 33 to 43 of the present Public Land Act, except the following:

a) Section 32 (page 12, lines 17-22) of the bill requires that all bids shall be accompanied by an amount equivalent to not less than five (5) months rental as deposit, thus amending Section 35 of the present Public Land Act which requires a deposit for three (3) months rental;

b) Section 34 (page 12, lines 26-28) of the bill provides that the annual rental shall not be less than six (6) percentum of the value of the land, except for lands reclaimed by the government which shall not be less than 4%, thus amending Section 37 of the present Public Land Act which prescribed a rental of not more than 3% of the value of the land 4% in the case of reclaimed land;

c) Section 34(2) (page 14, lines 3-5) of the bill provides that reappraisal of the land leased shall be made every three (3) years from the date of the award of the right to lease, thus amending Section 37 of the

present Public Land Act which provides that the reappraisal of the land shall be made every ten (10) years from the date of the approval of the lease.

This amendment should be studied very carefully. The purpose of the law in providing for reappraisal every ten (10) years is to encourage the private sector to invest in the development of our land resources, and to mitigate the impact of Section 38 that all buildings and all other permanent improvements made by the lessee, his heirs, executors, administrators or assigns shall become the property of the government. Sections 39 to 42 (page 14, lines 10-29, page 15, lines 1-3) of the bill provides for the disposition of public agricultural lands by free patent, otherwise known as administrative legalization of imperfect title, practically adopting Section 44 to 46 of the present Public Land Act except in respect to the following:

a) Landholdings qualification – the bill provides that the applicant must not be the owner of more than twenty four (24) hectares of agricultural lands, thus amending Section 44 of the present Public Land Act which prescribes that the applicant must not be the owner of more than twenty four hectares. This is a harmless amendment.

b) The period of occupancy - Section 39 of the Bill requires occupation and cultivation of the land on full payment of real estate taxes due and payable for at least twenty (20) years preceding the filing of the application thus amending Section 44 of the present Public Land Act. In Senate Bill No. 1695 also sponsored by Senator Jaworksi, he proposed occupation and cultivation of the land for thirty (30) years prior to the effectivity of the amendatory Act. Which is which now? Whatever it is, 30 years or 20 years is too long and unrealistic past free patent laws required a lesser period. Act 926 of 1903, required possession only since August 1, 1890 – or thirteen (13) years. Act 2874 of 1919 required possession since July 4, 1907, twelve (12) years. C.A. No. 141 required possession since July 4, 1926, or ten (10) years. R.A. No. 782 of July 21, 1952, required possession since July 4, 1945, or only seven (7) years under the Civil Code of the Philippines possession ripens into ownership after ten (10) years, by ordinary acquisitive prescription.

c) Section 40 (page 14, lines 19-20) of the bill set the deadline to file free patent applications on December 31, 2020.

The first Public Land Act (Act 926 of 1903) did not prescribe a deadline for filing applications for free patent and judicial confirmation of imperfect titles to public land. The Second Public Land Act (Act 2874 of 1919) prescribed a time limit up to December 31, 1938. The current Public Land Act (C.A. No. 141 of 1936) prescribed a period up to December 31, 1938. Under CA No. 292, the period was extended to December 31, 1942. Under R.A. No. 107, the period was extended up to December 31, 1957. Under R.A. 2061, the period was extended up to December 31, 1968. Congress was failed to enact a law extending the period. There was a hiatus for 3 years. In 1971, Congress enacted R.A. No. 6236 of extending the period before its expiration, thus, for another ten (10) years up to December 31, 1976. On January 5, 1977, President Marcos issued P.D. 1073 extending the period to December 31, 1987. Congress failed to extend the period before expiry date it was only in 1990 when Congress passed R.A. 6940 extending the period to December 31, 2000. Again, Congress failed to passed a law extending the period before its expiry date hence, we have Senate Bill No. 1695

Every time Congress fails to renew the period, and this has happened many times, it creates a hiatus, which causes unsettling effect on the owners of the land. Congress should now consider abolishing the deadline altogether. It does not serve any useful purpose.

Sections 43 to Section 46 (page 15, lines 4-28, page 1-16) of the bill provides for disposition of public agricultural land thru judicial confirmation of imperfect or incomplete title, practically

adopting Section 47 to Sections 57 of the present Public Land Act, except in respect to the following:

a) Sections 43, and 44 (page 15, lines 5-23) of the bill sets the deadline for filing of applications for the judicial confirmation of titles on December 31, 2020.

Please refer to observations on free patent application.

b) With respect to the requirement regarding the period of possession and occupancy, a provision should be inserted to the effect that the applicant’s possession of the land should not be received from the date of classification or reclassification of the land both from the time he commenced his actual, open, continuous, exclusive and notorious possession therefor under a bona fide claim of acquisition of ownership.

Section 47 to 58, Chapter V (page 16, lines 18-29 page 17, lines 1-29, page 18, lines 1-29, page 19, lines 1-29, page 20, lines 1-29, page 21, lines 1-11) of the bill provides for disposition or public lands for residential, commercial and industrial purposes practically adopting the provisions of Section 58 to 68 Chapter IX of the present Public Land Act, except in respect to the following:

a) Section 49 (page 17, line 4-20) of the bill sets a maximum area allowed for sale or lease of residential land in cities and in capital towns and 1,000 sq.m. in all other places and 12 hectares by lease for commercial, industrial or similar productive purposes. The present Public Land Act provides that the land that can be acquired under this Chapter shall not exceed 144 hectares.

The area of the land to be sold or leased shall be such as shall in the judgment of te Secretary of Environment and Natural Resources be reasonable necessary for the purposes for which such sale or lease is requested and shall in no case exceed 144 hectares.

The maximum limits set in the bill stand further improvement. Besides, limiting the disposition of public lands for commercial or industrial purposes only to lease may be ill adjusted.

b) The provision in Section 49 of the bill regarding persons who have occupied residential lots built his dwelling house thereat where he and his family have been living in good faith, free from claims and conflicts, and who has paid real estate taxes thereon for ten (10) years, is not found in the present Public Land Act and should be studied carefully, especially insofar as it provides that the occupant has acquired a vested right to the land. Only the courts can determine whether or not the occupant has acquired a vested right to the land.

c) Section 53 (a) (page 18, line 22) of the bill fixes the rental at not less than six (6) percentum of the appraised value of the land plus two (2) percent of the value of the improvements, and 8% of the value of the land plus 4% of the value of the improvements in case of reclaimed lands, thus amending Section 64 (a) of the Public Land Act which fixes the rental to only 3% of the value of the land plus 1% of the improvements and 4% of the value of the land plus 2% of the improvements in cases of reclaimed land.

d) Section 53 (b) (page 18, lines 27-28) of the bill provides that the land shall be reappraised every three (3) years from the date of the award of the right to lease, thus amending Section 64 (b) of the Public Land Act.

I reiterate my comment and observation regarding the proposed increase of rental on agricultural leases from 3% to 6%, and the reappraisal every ten (10) years.

Section 56 (page 20, lines 7-13) of the bill provides that the lease or sale of the land under Chapter IX shall be made through sealed public bidding thus amending Section 67 of the Public Land Act that the sale or lease of the land shall be through oral bidding to the highest bidder. In an oral bidding the applicant has to outbid the others if he wants to win.

The proposed amendments changes the process from oral to sealed where all bids, including that of the applicant must be submitted in a sealed envelope, and the applicant has the preference right to equal the bid of the highest bidder, if upon opening of the sealed bids, the highest bid turns out to be that of announce bidder.

This is a major departure from the existing procedure which must be explained.

Section 57 (page 20, lines 14-27) of the bill provides for direct or negotiated sale of residential lands under certain conditions which is already allowed under RA. No. 730. However, under the latter law, the applicant has to pay the land in ten (10) equal annual installment.

Section 58 (page 20, lines 28-29, page 21, lines 1 to 11) of the bill allows free patent for residential lands under certain conditions as an exception to the rule that residential lands can only be acquired by sale or lease.

This Section revives B.P. No. 223 which has already lapsed.

Sections 63 to 72 (page 22, line 12-28, page 23, lines 1-29) of the bill provides for the establishment of townsite reservations and the disposition of lots by oral bidding. There is no significant departure from sections 71-82 of the present Public Land Act.

Sections 79-91 (page 25, line 18-29, page 26, line 1-17) of the bill renames the Bureau of Land Management as the Bureau of Lands and restores it to its former status as a line bureau. This is an excellent move. The conversion of the Bureau of Lands into a staff bureau was a big disaster. However, the main responsibility for carrying out the provisions of the Act should stay with the Secretary of Environment who shall act through the Director of Lands.

(restriction on patents) Under Section 118, of the Public Land Act, lands acquired byhomestead or free patent shall not be subject to encumbrances or alienation from the date of approval and for a term of five (5) years from and after the date of issuance of the patent or grant nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period; except in favor of the government or any of its branches of units or institutions or legally-constituted banking corporations.

Said Section provides that no alienation, transfer or conveyance of any homestead after five years and before 25 years after issuance of title shall be valid without the approval of the Secretary of National Resources which approval shall not be denied except on legal or Constitutional grounds.

This law should now be reexamined to determine whether or not the prohibition to alienate or encumber except to the government or any of its units should be continued or repealed. Unrestricted ownership of the land will be in keeping with the principle of liberal free enterprise as the engine of a nation’s growth and development. Homestead and free patent grantees should be allowed to mortgage their private lands to banking institutions. The prohibition to alienate, transfer, convey or encumber a homestead within 5 years without the approval of the Secretary should be repealed. It serves no useful purpose. Section 119 of the Public Land Act provides that every conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widows or legal heirs within a period of 5 years from the date of the conveyance. Cases have occurred where the value of the land had sharply increased or that the buyer has introduced permanent valuable improvements on the land before the lapse of 5 years.

The Supreme Court has ruled that a homestead or free patent grantee who exercises his right of repurchase cannot be made to pay more than the purchase price that he received even if the value of the land has appreciated several times over. This can be unfair to the buyer, especially if the appreciation in the value of the land was due to his efforts and investments. It represents an increment in the value which the homestead or free patent grantee did not deserve. In like manner, the Supreme Court has ruled that where the buyer introduces permanent improvements on the land, he is considered as a builder in bad faith, thus, he has to remove the same at his own expense, without any obligation on the payor or the vendor to reimburse the value thereof. Even in the guise that this is necessary to serve public policy – for the grantee to keep the land, it can work injustice to the buyer who has invested money to introduce valuable improvements on the land. Section 121 of the Public Land Act provides that except with the consent of the grantee and the approval of the Secretary of Environment and Natural Resources and solely for educational, religious or charitable purposes, or for a right of way, no corporation, association or partnership may acquire any right, title, interest or property right whatsoever to any land granted under the free patent, homestead or individual sale provisions of this Act or any permanent improvements on such land.

Under P.D. No. 763, Section 121 was amended to allow private corporations, associations and partnerships to acquire lands granted by homestead, free patent or individual sale, for commercial and industrial purposes. This Section should further be amended by eliminating the requirement of consent of the grantee and the approval of the Secretary of Environment and Natural Resources. Sections 82 to 97 (page 26, lines 18-28, page 27, lines 1-28, page 28 lines 1-28, page 29, lines 1-29, and page 30, lines 1-21) of the bill can be deleted because there are already existing administrative issuances governing the investigation, resolution and disposition of claims and conflicts on public lands

PHILIPPINES – AUSTRALIA LAND ADMINISTRATION AND MANAGEMENT PROJECT (LAMP) LAND LAWS STUDY

CURRENT LAWS AFFECTING LAND ADMINISTRATION

1. Laws Directly Related to Land Disposition

LAW DATE TITLE SHORT TITLE STATUS/EFFECT

Friar Lands

Act 1120 April 26,1904 An Act Providing for the Administration and Temporary Leasing and Sale of Certain Haciendas and Parcels of Land, Commonly known as Friar Lands, for the Purchase of which the Government of the Philippine Islands has recently contracted, Pursuant to the Provisions of Sections Sixty-Three, Sixty-Four and Sixty-Five of an Act of the Congress of the United States, entitled "An Act Temporarily to Provide for the Administration of the Affairs of Civil Government in the Philippine Islands, and for Other Purposes," Approved on the First Day of July, Nineteen Hundred and Two

The Friar Lands Act Regulating Friar Lands or Patrimonial Properties

CA 32 September 15, 1936

An Act Providing for the Subdivision and Sale of all the Portions of the Friar Lands Estates Remaining Undisposed Of

Providing for the sale of friar lands

Lands of the Public Domain

CA 141 November 7, 1936

An Act to Amend and Compile the Laws Relative to the Lands of the Public Domain

Public Land Act Base law on public land classification and disposition

Last fixed period for applications for free patents and judicial

confirmation of imperfect or incomplete titles as provided by RA 6940 expired December 31, 2000

PD 151 allowed Filipino citizens or corporations or associations at least 60% of the capital of which is owed by Filipino citizens to enter into service contracts with foreign persons, corporations for the exploration, development, exploitation or utilization of lands of the public domain

PD 152 prohibiting the employment or use of share tenants in complying with requirements of law regarding entry, occupation, improvement and cultivation of public lands

Now allows commercial and industrial purposes aside from educational, charitable, religious or right of way

purposes as provided by the amendment in PD 763

As amended by CA 292, CA 456, CA 615, BP 187, BP 205, BP 878, PD 151, PD 152, PD 635, PD 763, PD 1073, PD 1361, Proclamation 948, RA 107, RA 436, RA 782, RA 1172, RA 1240, RA 1242, RA 1273, RA 1942, RA 2061, RA 2694, RA 3106, RA 3872, RA 4107, RA 6516, RA 6940

RA 782 June 21, 1952 An Act to Grant Free Patents to Occupants of Public Agricultural Land Since or Prior to July Fourth, Nineteen Hundred and Forty-Five

EO 407 June 14, 1990 Accelerating the Acquisition and Disposition of Agricultural Lands, Pasture Lands, Fishpond, Agro-Forestry Lands and Other Lands of the Public Domain Suitable for Agriculture

Accelerating acquisition and disposition of public lands

As amended by EO 448 (1991), EO 506 (1992)

RA 293 June 16, 1948 An Act Authorizing the Sale of Marshy Lands or Lands Under Water Bordering on Shores or Banks of Navigable Lakes or Rivers

Provides the authority for the sale of marshy lands or lands under water bordering on shores or banks of navigable lakes or rivers to the lessees thereof

Amends section 65 of CA 141

PD 619 December 20, 1974

Authorizing the Classification, Reservation and Development of any Lands of the Public Domain into a Grazing Reserve for Large-Scale Ranching Projects

CA 691 October 15, 1945

An Act to Provide for the Free Distribution,

Under Certain Conditions, of Lots of Twenty-

Four Hectares Each of Agricultural Land of

the Public Domain

Grants right to apply for cultivation of a lot of agricultural land of the public domain and obtain free title to the same to citizens of the Philippines or the United States of America

As amended by RA 63 RA 2348 June 20, 1959 An Act to Authorize the Reconveyance of

Lands Donated to the National Government Under Commonwealth Act Numbered Forty-One, to Provide for the Disposition Thereof, and for Other Purposes

RA 274 June 15, 1948 An Act Authorizing the Director of Lands to Subdivide the Lands Within Military Reservations Belonging to the Republic of the Philippines which are no Longer Needed for Military Purposes, and to Dispose of the Same by Sale Subject to Certain Conditions, and for Other Purposes

DENR AO 66-90

July 17, 1990 Prescribing Guidelines in the Inventory of Alienable or Disposable (A or D) Lands

Guidelines in the inventory of Alienable or Disposable (A or D) lands of the public domain pursuant to EO 192

RA 730 June 18, 1952 An Act to Permit the Sale Without Public Auction of Public Lands of the Republic of the Philippines for Residential Purposes to Qualified Applicants Under Certain Conditions

PD 861 December 29, 1975

Allowing Pasture Lessees to Use their Pasture Lands for Agricultural Purposes

Allows pasture permittees or lessees to use their

Under Certain Conditions pasture lands for agriculture if said lands are suited for this purpose to intensify the food production campaign

Agrarian Reform Lands

RA 3844 August 8, 1963 An Act to Ordain the Agricultural Land Reform Code and to Institute Land Reforms in the Philippines, Including the Abolition of Tenancy and the Channeling of Capital into Industry, Provide for the Necessary Implementing Agencies, Appropriate Funds Therefor and for Other Purposes

Agricultural Land Reform Code

Original Agrarian Reform Law; largely superseded by RA 6657 but the provisions on resettlement areas still applicable

As amended by RA 4366, RA 4886, RA 6389, RA 7907

EO 229 July 22, 1987 Providing the Mechanism for the Implementation of the Comprehensive Agrarian Reform Program

RA 6657 June 10, 1988 An Act Instituting a Comprehensive Agrarian Reform Program to Promote Social Justice and Industrialization, Providing the Mechanism for its Implementation, and for Other Purposes

Comprehensive Agrarian Reform Law of 1988

As amended by RA 7881

RA 7905 February 23, 1995

An Act to Strengthen the Implementation of the Comprehensive Agrarian Reform Program, and for Other Purposes

DENR AO 98-88

December 29, 1988

Implementing Guidelines for the Agrarian Reform in Public Lands - Program D of the Comprehensive Agrarian Reform Program (CARP)

Program D of the CARP covers both public alienable & disposable lands and forestlands and consists of both land transfer and non-transfer (stewardship) schemes of achieving

agrarian reform in public lands

As amended by DENR AO 11-99 to include CBFMS in the coverage of program D

DENR AO 12-93

March 9, 1993 Revised Guidelines Regulating the Implementation and Management of DENR-CARP Activities

As amended by DENR AO 28-99

DAR AO 06-98

May 4, 1998 Rules and Regulations Governing the Acquisition and Distribution of Commercial Farms Under Deferment

Rules and regulations governing the acquisition and distribution of deferred commercial farms in line with expiration of the ten-year deferment period provided for under the CARL (RA 6657)

DAR AO 05-00

August 30, 2000 Revised Rules and Procedures for the Exercise of Retention Right by Landowners

Revised rules and procedures governing the exercise of retention rights under PD 27 and RA 6657 by landowners

DAR AO 06-00

August 30, 2000 Rules of Procedure for Agrarian Law Implementation (ALI) Cases

Rules governing the adjudication of cases involving agrarian law implementation

PD 27 October 21, 1972

Decreeing the Emancipation of Tenants from the Bondage of the Soil, Transferring to them the Ownership of the Land They Till and Providing the Instruments and Mechanism Therefor

Tenants Emancipation Decree

Applicable to private agricultural lands primarily devoted to rice and corn under sharecrop or lease-tenancy system

As amended by PD 57 EO 228 July 17, 1987 Declaring Full Land Ownership to Qualified

Farmer Beneficiaries Covered by Presidential Decree No. 27, Determining the Value of Remaining Unvalued Rice and Corn Lands

Subject of P.D. No. 27, and Providing for the manner of Payment by the Farmer Beneficiary and Mode of Compensation to the Landowner

Forest Lands

PD 705 May 19, 1975 Revising Presidential Decree No. 389, Otherwise Known as the Forestry Reform Code of the Philippines

Revised Forestry Code of the Philippines

Defines forest land and alienable and disposable lands

DENR AO No. 04-91

1991 Revised Regulations Governing the Integrated Social Program

The Integrated Social Forestry program is based on the principle of land stewardship. The program applies to the lands classified as public forest lands and enlists the people directly using forest lands in the task of stewarding the uplands

DENR MC 23-93

1993 Revised procedures on the transfer of Certificate of Stewardship to the next-of-kin holders thereof

DENR AO 15-95

May 10, 1995 Revised General Guidelines in the Implementation of the Sub-classification of Forestlands and other Inalienable Lands of the Public Domain

DENR AO 24-96

August 23, 1996 Rules and Regulations Governing the Socialized Industrial Forest Management Program

Regulation of the Socialized Industrial Forest Management Program – socialized forest plantations

DENR AO 29-96

October 10, 1996

Rules and Regulations for the Implementation of Executive Order 263, Otherwise Known as the Community-Based Forest Management Strategy (CBFMS)

As amended by DENR AO 29-99

DENR AO 30-96

October 10, 1996

Integration of All the Community-Based Forest Management Strategy and People-Oriented Forestry Programs and Projects into the

DENR Regular Structure DENR AO 45-98

June 24, 1998 Guidelines Governing the Issuance and Transfer of Certificate of Stewardship (CS) Within CBFM Areas

DENR AO 36-99

August 10, 1999 Revised Rules and Regulations Governing the Administration, Management, Development and Disposition of Forest Lands Used for Grazing Purposes

LOI 1260 July 28, 1962 TO : The Ministry of Natural Resources The Ministry of Agrarian Reform The Ministry of Agriculture The Ministry of Education and Culture The Ministry of Health The Ministry of Human Settlements The Ministry of Justice The Ministry of Local Government The Ministry of Public Works and Highways The Ministry of Social Service and Development The National Economic Development

Authority

Mandating the identified agencies to implement an Integrated Social Forestry Program (PROFEM II) for kaingeros and other occupants and communities dependent on areas classified as forest lands for their livelihood

DENR AO 04-91

February 27, 1991

Revised Regulations Implementing the Integrated Social Forestry Program

DENR AO 38-89

May 9, 1989 Development of a Minimum of Twenty Percent 20% of the Land Allocation in Integrated Social Forestry (ISF) Projects into Tree Farms and/or Tree Plantations

DENR AO 54-90

June 11, 1990 Guidelines on the Selection, Establishment and Management of Integrated Social Forestry Model Sites

DENR AO 03-91

February 11, 1991

Policy and Guidelines for the Award and Administration of the Mangrove Stewardship Agreement

EO 263 July 19, 1995 Adopting Community-Based Forest Management as the National Strategy to Ensure the Sustainable Development of the

Country's Forestlands Resources and Providing Mechanisms for its Implementation

Ancestral Lands and Protected Areas RA 8371 October 29,

1997 An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for Other Purposes

The Indigenous Peoples Rights Act of 1997

Legislative basis for the recognition and establishment of land rights for indigenous cultural minorities

NCIP AO 01-98

June 9, 1998 Rules And Regulations Implementing Republic Act No. 8371, Otherwise Known as "The Indigenous Peoples' Rights Act of 1997"

Sets forth the rules and regulations to implement RA 8371

RA 7586 June 1, 1992 An Act Providing for the Establishment and Management of National Integrated Protected Areas System, Defining its Scope and Coverage, and for Other Purposes

National Integrated Protected Areas System Act of 1992

Updated the laws on National Parks, relates to ancestral lands and rights over them

DENR AO No. 25-92

June 29, 1992 National Integrated Protected Areas System (NIPAS) Implementing Rules and Regulations

Sets forth the rules and regulations to implement RA 7586

DENR AO 61-91

November 7, 1991

Rules on the Acceptance, Identification, Evaluation and Delineation of Ancestral Land Claims in the Province of Palawan

DENR AO 08-92

March 23, 1992 Rules on the Acceptance, Identification Evaluation and Delineation of Ancestral Land Claims in the Province of Bukidnon

Mineral Lands

RA 7942 March 3, 1995 An Act Instituting a New System of Mineral Resources Exploration, Development, Utilization and Conservation

Philippine Mining Act of 1995

Provides for the rational exploration, development, utilization and conservation by the state of the mineral resources

DENR AO 40-96

December 20, 1996

Revised Implementing Rules and Regulations of Republic Act No. 7942, Otherwise Known as the "Philippine Mining Act of 1995"

Sets forth the rules and regulations to implement RA 7942

PD 463 May 17, 1974 Providing for a Modernized System of Mineral Resources Decree As amended by PD 1385,

Administration and Disposition of Mineral Lands and to Promote and Encourage the Development and Exploitation Thereof

of 1974 PD 1677

PD 512 July 19, 1974 Declaring Prospecting and Other Mining Operations of Public Use and Benefit and Establishing the Basis and Prescribing the Rules and Procedures Relative to Acquisition and Use of Surface Rights in Mineral Prospecting, Development and Exploitation, and Providing Protection and Compensation to Surface Owners

2. Laws Directly Related to Land Registration

LAW DATE TITLE SHORT TITLE STATUS/EFFECT

Act 496 November 6, 1902

An Act to Provide for the Adjudication and Registration of Titles to Lands

Land Registration Act of 1902

Introduced the Torrens System of Land Registration

Largely superseded by PD 1529

PD 1529 June 11, 1978 Amending and Codifying the Laws Relative to Registration of Property and for Other Purposes

Property Registration Decree

Updated the land registration act and codified laws on registration of property

As amended by RA 6732

Sec. 194 of the Admi-nistrative Code (Act 3344)

December 8, 1926

Recording of instruments or deeds relating to real estate not registered under Act Numbered Four hundred and ninety-six or under the Spanish Mortgage Law

System of Recording or Unregistered Real Estate

As amended by Act 2837 and later by PD 1529

RA 26 September 25, 1946

An Act Providing a Special Procedure for the Reconstitution of Torrens certificates of Title Lost or Destroyed

As amended by RA 6732

RA 6732 July 17, 1989 An Act Allowing Administrative Reconstitution of Original Copies of Certificates of Titles Lost or Destroyed due to Fire, Flood and Other Force Majeure, Amending for the Purpose Section One Hundred Ten of Presidential Decree Numbered Fifteen Twenty Nine and Section Five of Republic Act Numbered Twenty Six

PD 892 February 16, 1976

Discontinuance of the Spanish Mortgage System of Registration and of the Use of Spanish Titles as Evidence in Land Registration Proceedings

Act 2259 February 11, 1913

The Cadastral Act Largely amended by Act 2711

PD 266 August 4, 1973 Providing for the Mechanisms of Registration of Ownership and/or Title to Land under Presidential Decree No. 27

EO 407 March 16, 1973 Delegating to Certain District Land Officers the Power to Sign Patents and Certificates

EO 420 October 30, 1973

Delegating to Certain District Land Officers the Power to Sign Patents and Certificates

EO 430 May 17, 1974 Delegating to Certain District Land Officers the Power to Sign Patents and Certificates

PD 239 July 9, 1973 Withdrawing the Authority of the Land Registration Commission to Approve Original Survey Plans, Repealing for this Purpose, Paragraph 3, Section 34-A, of Republic Act No. 3844, as Inserted by Section 6, Republic Act No. 6389, Otherwise Known as the Agricultural Land Reform Code

Revoking the power of the Land Registration Commission to approve survey plans of lands intended for original registration purposes to centralize in one agency (Bureau of Lands) the function of verifying and approval of original surveying plans for all purposes in order to assure compliance with established standards and

minimize irregularities in the execution of land surveys

3. Laws Indirectly Related to Land Disposition and Land Administration

LAW DATE TITLE SHORT TITLE STATUS/EFFECT

Philippine Constitution

Feb. 2, 1987 The 1987 Philippine Constitution Provides overarching framework for the land tenure by defining the national territory

Classifies lands of the public domain into agricultural, forest or timber, mineral lands and national parks

Provides for the area and citizenship limitation to the acquisition of public lands

RA 386 June 18, 1949 An Act to Ordain and Institute the Civil Code of the Philippines

Civil Code of the Philippines

Regulates matters such as persons, property, ownership, obligations and contracts

Provides for the acquisition of ownership of private lands by laws on prescription and accession or accretion

PD 1067 December 31, 1976

A Decree Instituting a Water Code, Thereby Revising and Consolidating the Laws

Water Code of the Philippines

Prescribes minimum setbacks from riverbanks

Governing the Ownership, Appropriation, Utilization, Exploitation, Development, Conservation and Protection of Water Resources

RA 8435 December 22, 1997

An Act Prescribing Urgent Related Measures to Modernize the Agriculture and Fisheries Sectors of the Country in Order to Enhance their Profitability, and Prepare said Sectors for the Challenges of Globalization Through an Adequate, Focused and Rational Delivery of Necessary Support Services, Appropriating Funds Therefor and for Other Purposes

Agriculture and Fisheries Modernization Act of 1997

Provides for promotion of food security by modernizing the agriculture and fisheries sector through ensuring care and judicious use of the country’s natural resources

EO 292 July 25, 1987 Instituting the “Administrative Code of 1987” Administrative Code of 1987

Contains provisions on the powers of eminent domain, escheat, and land reservation

BP 129 August 14, 1981 An Act Reorganizing the Judiciary, Appropriating Funds Therefor, and for Other Purposes

The Judiciary Reorganization Act of 1980

Provides for court jurisdiction in cadastral and land registration cases

RA 7610 October 10, 1991

An Act Providing for a Local Government Code of 1991

Local Government Code of 1991

Provides LGUs the authority for the reclassification of agricultural lands and provide for their utilization or disposition.

Taxing powers over real properties thus power of assessment and valuation also exists.

RA 4726 June 18, 1966 An Act to Define Condominium, Establish Requirements for its Creation and Govern its Incidents

Condominium Act Provides for the registration and recording of Condominium Certificates of Titles with the Register of Deeds under either the Land

Registration or Cadastral Acts.

P.D. 957 July 12, 1976 Regulating the Site of Subdivision Lots and Condominiums, Providing Penalties for Violation Thereof

The Subdivision and Condominium Buyer’s Protective Decree

The National Housing Authority is given the exclusive jurisdiction to regulate the real estate trade and business

4. Pending Bills Directly Relating to Land Disposition and Registration

BILL NO. AUTHOR TITLE SHORT TITLE STATUS/EFFECT SB 1666 Sen. J.M.

Flavier An Act Allowing a Farmer-Beneficiary to Mortgage his Right to Farmland Awarded to Him, Without Losing His Security of Tenure and Providing that the Certificate of Land Ownership Award Issued to Him Under the Comprehensive Agrarian Reform Program Shall Be Accepted by Banks and Other Financial Institutions as Collateral for Loans Amending for the Purpose Sections Twenty-Seven and Seventy One of Republic Act Numbered Sixty-Six Hundred and Fifty Seven, Otherwise Known as the “Comprehensive Agrarian Reform Law of 1988,” and for Other Purposes

Seeks to allow farmer-beneficiary to use awarded land as collateral in availing both short term and long-term production and/or other types of loans from commercial banks or any other financial institution for the acquisition of farm equipment and machinery, seeds, fertilizers and other similar items, and to allow foreclosure of collateral in case of loan payment default by debtor and re-sale to the Land Bank in the amount equivalent to the unpaid portion of the loan plus interest by amending Secs. 27 and 71 of RA 6657

SB 167 Sen. S. Osmeña III

An Act Allowing the Sale, Transfer, Conveyance, Lease, Usufruct, Lease or

Mortgage of the Land Awarded Under the Comprehensive Agrarian Reform Law, Amending for the Purpose Section 27 of Republic Act Numbered 6657 and for Other Purposes

HB 341 Rep. N. M. Gonzales II

An Act Allowing a Farmer-Beneficiary to Mortgage his Right to the Land Awarded to Him, for a Period of Two Years without Losing his Security of Tenure, Amending for the Purpose Section Twenty-Seven of Republic Act Numbered Sixty-Six Hundred and Fifty-Seven, Otherwise known as the “Comprehensive Agrarian Reform Law of 1988,” and for Other Purposes

HB 2665 Rep. J. C. V. Lacson

An Act Allowing a Farmer-Beneficiary to Mortgage his Right to Farm Land Awarded to Hi, without Losing his Security of Tenure and Providing that the Certificate of Land Ownership Award Issued to Him Under the Comprehensive Agrarian Reform Program shall be Accepted by Banks and Other Financial Institutions as Collateral for Loans Amending for the Purpose Sections Twenty-Seven and Seventy One of Republic Act Numbered Sixty-Six Hundred and Fifty Seven, Otherwise Known as the “Comprehensive Agrarian Reform Law of 1988,” and for Other Purposes

SB 1597 Sen. R. Magsaysay, Jr.

An Act Allowing the Titling of Lands Covered by a Certificate of Land Ownership Award (CLOA) Granted Under the Agrarian Reform Program and Utilizing its use as Collateral for Purposes of Securing Agricultural Loans and Similar Other Financial Assistance, Amending the Pertinent Provisions of Republic Act Numbered Sixty-Six Hundred and Fifty Seven, Otherwise Known as the Comprehensive

Agrarian Reform Law, and for Other Purposes HB 3946 Rep. R. D.

Dadivas An Act Providing that the Certificate of Land Ownership Award Issued Under the Comprehensive Agrarian Reform Program shall be Accepted by Financial Institutions as Collateral for Loans, Amending for the Purposes the Comprehensive Agrarian Reform Law of 1988

SB 1329 Sen. R.G. Recto An Act Providing Ample Opportunity to Allow Landowners and Tenants to Enter into Voluntary Land Transfer and/or Direct Payment Scheme, Amending for the Purpose Republic Act Numbered Sixty-Six Hundred and Fifty-Seven, as Amended, Otherwise Known as the Comprehensive Agrarian Reform Law of Nineteen Hundred and Eighty-Eight

Allows the landowner and farmer-beneficiary to freely set the terms of land transfer, provided that those terms are not less favorable than those imposed by RA 6657

SB 169 Sen. S. Osmeña III

An Act Providing Ample Opportunity to Allow Landowners and Tenants to Enter into Voluntary Land Transfer and/or Direct Payment Scheme and Amending for the Purpose Republic Act Numbered Sixty-Six Hundred and Fifty-Seven Otherwise Known as the Comprehensive Agrarian Reform Law of Nineteen Hundred and Eighty-Eight, Amended

Allows the landowner and farmer-beneficiary to freely set the terms of land transfer, provided that those terms are not less favorable than those imposed by RA 6657

SB 1942 Sens. J.M. Flavier, S. Osmeña III, L. Legarda-Leviste, A. Q. Pimentel, Jr., M. Villar, Jr., B. Ople, R.S. Jaworski, G. Honasan, J. Osmeña, R.G. Recto, J. Arroyo,

An Act Providing for the Sustainable Management of Forest Resources and for Other Purposes

Sustainable Management of Forest Resources Act of 2001

N. De Castro, E. Angara, F. Pangilinan

SB 1691 Sen. R.S. Jaworski

Revised Public Land Act of the Philippines The Revised Public Land Act of the Philippines of 2001

Seeks to revise, update and supplant the existing law on the management and disposition of public lands

HB 4035 Rep. R. E. C. Lopez

Revised Public Land Act of the Philippines The Revised Public Land Act of the Philippines

Seeks to re-file House Bill 1253 (Land Code of the Philippines) which reached 3rd reading in the 9th Congress

SB 48 Sen. J.M. Flavier

An Act to Classify the Faking or Fabricating, Negotiating, Transacting, Conveying or Mortgaging of Fake or Illegally Fabricated Torrens Certificates of Title as Heinous Offense

SB 425 Sen. F.M. Drilon An Act to Impose Stiffer Penalty for the Falsification of Torrens Certificates of Title, Amending for the Purpose Articles 171 and 172 of Act No. 3815, as Amended, Otherwise Known as, The Revised Penal Code and for Other Purposes

SB 800 Sen. R. Biazon An Act Mandating that at Least Ten Percent (10%) of the Government-Owned Land to be Sold, Alienated or Otherwise Encumbered for Development Purposes, be Segregated for Socialized Housing Projects

HB 2138 Rep. E. D. Singson

An Act Declaring all Disposable Lands of the Government which have Remained Idle and Suitable for Residential Purposes shall be Developed into Socialized Housing Site for Low-Salaried Government and Private Employees and Squatters

HB 3984 Rep. E. R. Echiverri

An Act Amending Certain Sections of Republic Act 7999, Increasing by Fifty (50)

Hectares, the Total Alienable and Disposable Land Area and Converting the Same into Housing Sites and for Other Purposes

SB 715 Sen. L. Legarda-Leviste

An Act Amending Certain Sections of Republic Act Number Six Thousand Six Hundred Fifty Seven (R.A. 6657), as Amended, Otherwise Known as the “Comprehensive Agrarian Reform Law of 1988”, and for Other Purposes

SB 1695 Sen. R.S. Jaworski

An Act Granting a Period, Commencing on January 1, 2001 and Ending on December 31, 2010, for the Filing of Applications for Administrative Legalization (Free Patent) and Judicial Confirmation of Imperfect and Incomplete Titles to Alienable and Disposable Lands of the Public Domain Amending for This Purpose Chapter VII And Chapter VIII Of Commonwealth Act 141, as Amended

Provides a new period for filing of applications for free patent and judicial confirmation of imperfect and incomplete titles up to December 31, 2010

HB 4628 Reps. Bautista, Banaag, Veloso, Espina, A. Abaya, Solis, Libanan, Espino,Jr. Chatto, Gordon, Jr., Rodriguez, Moreno, Bueser, Wacnang, Jala, Baterina, Cajes Gozoz, Pilando, Cabilao, A. Defensor, Baculio, Ablan, Jr., Clarete, Floirendo, Villareal, Abayon,

An Act Granting a Ten-Year Period for Filing Applications for Administrative Legalization (Free Patent) and Judicial Confirmation of Imperfect and Incomplete Title to Alienable and Disposable Lands of the Public Lands of the Public Domain under Chapter VII and Chapter VIII of Commonwealth Act No. 141, as Amended, Otherwise Known as “The Public Land Act”

Badelles, Cagas, Nachura Fuentebella, Suarez, Chipeco, Jr. R. Zamora, Dilangalen, de Venecia, Jr., Salappudin, Gonzales II and Rosales

SB 1785 Sen. S. Osmeña III

An Act Amending Certain Sections of Republic Act No. 26, Entitled “An Act Providing a Special Procedure for the Reconstitution of Torrens Certificate of Title Lost or Destroyed”, and for Other Purposes

Authorizes the Register of Deeds to institute, with the approval of the LRA and the consent of the registered owner, to institute judicial action for the reconstitution of lost or destroyed original copy of certificate of title

SB 920 Sen. R.Z. Barbers

An Act Amending Section 10 of Republic Act No. 26 Entitled “An Act Providing a Special Procedure for the Reconstitution of Torrens Certificate of Titles Lost or Destroyed”, and Imposing Stiffer Penalties for the Falsification of Torrens Certificate of Title, or in any Manner Deal in Transactions Using Fake and Spurious Land Titles

SB 549 Sen. V. Sotto III An Act Amending Section 10 of Republic Act No. 26 Entitled “An Act Providing a Special Procedure for the Reconstitution of Torrens Certificates of Title Lost or Destroyed”

HB 400 Rep. J. J. M. Romualdo

An Act Amending Certain Sections of Republic Act No. 26, Entitled “An Act Providing a Special Procedure for the Reconstitution of Torrens Certificate Title Lost or Destroyed”, and for Other Purposes

Authorizes the Registrar of Deeds to institute judicial action or to be deemed a party-in-interest to a judicial action for

reconstitution of lost or destroyed original copy of a certificate of title being kept in his office

HB 2786 Rep. B. S. Aquino III

An Act Amending Section 23 of Republic Act No. 26, Otherwise Known as “An Act Providing a Special Procedure for the Reconstitution of Torrens Certificate of Title Lost or Destroyed”.

SB 1657 Sens. R. Magsaysay, Jr., F.M. Drilon

An Act Creating the Field of Land Title Insurance Amending for the Purpose Presidential Decree No. 612, Otherwise Known as The Insurance Code of 1978, as Amended by Presidential Decrees Nos. 1455 and 1460 and Batas Pambansa Blg. 874

Creating a land title insurance system to help maintain integrity of the Torrens system and protect owners of real estate against damages arising from defects in their land titles

SB 1568 Sen. A.Q. Pimentel, Jr.

An Act Creating the Field of Land Title Insurance Amending for the Purpose Presidential Decree No. 612, Otherwise Known as The Insurance Code of 1978, as Amended by Presidential Decrees Nos. 1455 and 1460 and Batas Pambansa Blg. 874

Creating a land title insurance system to protect owners of real estate against defects in their land titles and help maintain the integrity of the Torrens Title system

SB 168 Sen. S. Osmeña III

An Act Amending Certain Sections of Republic Act No. 6657, Otherwise Known as The Comprehensive Agrarian Reform Law of 1988, and for Other Purposes

Amends secs. 6 and 70

SB 1931 Sen. L.P. Ejercito-Estrada

An Act Amending Republic Act No. 6657, Also Known as the Comprehensive Agrarian Reform Law, Section 3(c)

PS 124 Sen. G. B. Honasan

Resolution Directing the Senate Committee on Environment and Natural Resources and Other Appropriate Committees to Conduct an Inquiry, in Aid of Legislation, on the Status of all Public Lands Subject for Disposition, Lease or Joint Venture in the Light of Reports of

Rampant Land Grabbing of Few Influential Groups to the Detriment of the Landless Thereby Defeating the Salutary Purposes of Land Redistribution

HB 341, 2665 & 3946

Reps. N. Gonzales II, Jaraula, Lacson, Amin, Dadivas, Monfort, Syjuco, Badelles, Espina, Espino, Cari, Zialcita, del Mar, Ipong and Banaag

An Act Providing Measures to Enhance the Acceptability of Agricultural Lands as Security for Loans Obtained from Banks and Other Financial Institutions Thereby Promoting Access to Rural Credit and Providing Mechanisms Therefor and for Other Purposes

HR 150 Rep. C. A. Dy Resolution Directing the Committee on Local Government to Conduct an Investigation, in Aid of Legislation, into Proclamation No. 135 of Former President Estrada Ceding Parcels of Lands, Covered by Transfer Certificate of Title (TCT) BO. 6735, under the Authority of the Manila International Airport Authority and Situated in Pasay City, to Parañaque City

HB 190 Rep. J. D. Venecia

An Act Creating a National Land Code, Providing Implementing Mechanisms Therefor and for Other Purposes

National Land Use Code of 2001

Provides for a National Land Use Framework to define the indicative priorities for land utilization and allocation and creates a Land Use Policy Administration to set national land use planning and zoning guidelines and standards

HB 3256 Rep. L. A. P. Rosales

An Act Instituting a National Land Use Policy, Providing the Implementing Mechanisms Therefor, and for Other Purposes

National Land Use Act of the Philippines

Seeks to harmonize the reasonable claims of all those who hold interest on land and safeguards and

promotes the general welfare of both existing and future generations through the proper management of land resources.

Provides guidelines and criteria for land use based on the assessment of the development needs of various sectors especially the basic sectors who are bound to be displaced as a result of inappropriate or destructive land uses

HB 1110 Rep. O. A. Fua An Act Providing for the National Land Use Policy and Planning Framework and the Implementing Mechanism Therefore, Otherwise Known as the National Land Use Act of the Philippines

National Land Use Act of the Philippines

HB 1779 Rep.. J.R.N. O. Acosta

An Act Instituting a National Land Use Policy, Providing the Implementing Mechanisms Therefor, and for Other Purposes

National Land Use Act of the Philippines

HB 327 Rep. N. M. Gonzales II

An Act Declaring the Faking or Fabricating, Knowingly Negotiating, Transacting, Conveying or Mortgaging of Fake or Fabricated Torrens Certificates of Title a Special Crime and Imposing Penalties Therefor

HB 2818 Rep. M. C. Libanan

An Act Declaring the Faking or Fabricating, Knowingly Negotiating, Transacting, Conveying or Mortgaging of Fake or Fabricated Torrens Certificates of Titles a Special Crime and Imposing Penalties

Therefor HB 823 Rep. M. T. T.

Defensor An Act Declaring Squatting Syndicate, Professional Squatting and Large-Scale Land Grabbing as Heinous Crimes, and Providing the Imposition of Death Penalty Therefor

HB 2863 Rep. M. C. Libanan

An Act Declaring Squatting Syndicate, Professional Squatting, and Large-Scale Land Grabbing as Heinous Crime and Providing the Imposition of the Death Penalty Therefor

HB 652 Rep, O. S. Rodriguez

An Act Further Amending Sections 10 and 65 of R.A. No. 6657, Otherwise Known as the Comprehensive Agrarian Reform Law (CARL), as Amended by Sections 2 and 5 of R.A. No. 7881 and the Decision of the Supreme Court in the Luz Farm Case Imposing Application Fees on the Exemption and Conversion of Agricultural Lands to Non-Agricultural Uses

Charges application fees for exemption and conversion of lands under the CARP

HB 1367 Rep. P. A. Pichay, Jr.

An Act Declaring All Irrigated and Irrigable Agricultural Lands as Protected Areas for Agriculture, Prohibiting its Conversion for Uses Other Than Agricultural Amending for the Purpose Section 20 of Republic Act 7160, Otherwise Known as the Local Government Code of 1991

National Protected Areas for Agriculture (NPAA) Law

Seeks to arrest the irresponsible and indiscriminate conversion of irrigated and irrigable agricultural lands into residential, commercial, industrial, and other zones by prohibiting its conversion and declaring such as national Protected Areas for Agriculture

HB 4193 Rep. J.M. Zubiri An Act Declaring all Irrigated Agricultural Lands as Protected Areas for Agriculture, Banning its Conversion for Uses Other Than Agriculture, and Amending for the Purpose Section 20 Republic Act 7160, Otherwise Known as the Local Government Code

National Protected Areas for Agriculture (NPAA) Law

HB 1921 Rep. J. C. V. Lacson

An Act Exempting All Agricultural Lands with not Less Than Ten Percent (10%) and Not

Exempts all agricultural lands with areas of not less

More Than Thirty Percent (30%) Planted to Trees for the Coverage RA 6657, Otherwise Known as the Comprehensive Agrarian Reform Law, and Appropriating Funds Therefore.

than 30% planted trees from the coverage of RA 6657

HB 3373 Rep. B. R. Ancheta

An Act Declaring as Alienable and Disposable Forest Lands with a Slope of Below Nineteen Degrees and Occupied and Tilled by Farmers for At Least Ten (10) Years

Seeks to declare as alienable and disposable forest lands with a slope of below 19 degrees which are occupied and tilled by farmers for at least 10 years

PHILIPPINES-AUSTRALIA LAND ADMINISTRATION AND MANAGEMENT PROJECT (LAMP) SURVEY OF SUPREME COURT DECISIONS ON LAND REGISTRATION (2000-2002) Topic No. of

cases Issue Cases

30-year period of possession

10 Has requisite 30-year period requirement been complied?

Is there proof of fee simple title in manner and length of time for confirmation of imperfect title?

Barcewell v. Court of Appeals, 323 SCRA 193 (2000)

Robles v. Court of Appeals, 328 SCRA 97 (2000)

Republic of the Philippines v. Court of Appeals, 335 SCRA 693 (2000)

De Ocampo v. Arlos, 343 SCRA 716 (2000)

Republic of the Philippines v. Court of Appeals, 345 SCRA 104 (2000)

Menguito v. Republic of the Philippines, 348 SCRA 128 (2000)

Republic of the Philippines v. Court of Appeals, 349 SCRA 451 (2000)

Seville v. National Development Co., G.R. No. 129401, February 2, 2001

Republic of the Philippines v. Court of Appeals, G.R. No. 196763 May 9, 2001

Director, Lands

Management Bureau v. Court of Appeals, 324 SCRA 757 (2000)

Friar lands 2 Sale of friar land valid without approval by Sec. of Agriculture and Natural Resources?

Does Act 1120 requires

actual occupation of land at time of full payment?

Liao v. Court of Appeals, 323 SCRA 430 (2000)

Dela Torre v. Court of Appeals, 325 SCRA 11 (2000)

Reconstitution of title

4 Jurisdiction over proceedings for reconstitution acquired

Heirs of Ragua v. Court of Appeals, 324 SCRA 7 (2000)

despite no publication and notice?

Notice mandatory when basis for reconstitution is owner’s duplicate of title?

Valid reconstitution when title is with another person?

Bernardo v. Court of Appeals, 333 SCRA 135 (2000)

Puzon v. Sta. Lucia Realty

and Development, G.R. No. 139518 March 6, 2001

Reyes, Jr. v. Court of

Appeals, 328 SCRA 865 (2000)

Action for

Reconveyance

6 May prescription be invoked when plaintiff is in possession of land to be reconveyed?

When does reconveyance based on constructive trust prescribe?

Is reconveyance available

to respondents?

Millena v. Court of Appeals, 324 SCRA 126 (2000)

DBP v. Court of Appeals, 331 SCRA 267 (2000)

Villanueva-Mijares v. Court

of Appeals, 330 SCRA 349 (2000)

De Ocampo v. Arlos, 343

SCRA 716 (2000) The Malayan Bank v.

Lagrama, G.R. No. 144884 April 27, 2001

City Government of Davao v. Monteverde-Consunji, G.R. No. 136825 May 21, 2001

Notice of lis pendens

1 May lis pendens be annotated if action is in personam?

AFP Mutual Benefit Association, Inc. v. Court of Appeals, 327 SCRA 203 (2000)

Fraud 2 Is omission of plaintiff’s name as adjacent owner fraud?

What does the Land Registration Act protect?

Divina v. Court of Appeals, G.R. No. 117734, February 22,2001

Bordalba v. Court of

Appeals, G.R. No. 112443 January 25, 2002

Writ of possession

1 Was issuance of writ of possession proper?

Turqueza v. Valera, 322 SCRA 573 (2000)

Decree of registration

5 What is the effect of a decree of registration?

Is the title by petitioner conclusive?

DBP v. Court of Appeals, 331 SCRA 267 (2000)

Cervantes v. Court of Appeals, G.R. No. 118982 February 19, 2001

Mateo v. Diaz, G.R. No. 137305 January 17, 2002

Dolfo v. Register of Deeds

for Province of Cavite, 341 SCRA 58 (2000)

Heirs of Durano v. Uy, 344

SCRA 238 (2000)

Is there a remedy for an

aggrieved party despite the indefeasibility of title?

Assurance Fund

1 Are petitioners entitled to the Assurance Fund?

De Guzman v. National Treasurer of the Republic of the Philippines, 337 SCRA 238 (2000)

Jurisdiction 1 What is the basis for the jurisdiction of Regional Trial Courts in land registration cases?

Rudolf Lietz Holdings, Inc. v. Registry of Deeds of Parañaque City, 344 SCRA 680 (2000)

Tax Declaration 2 What is the evidentiary value of tax declarations?

DBP v. Court of Appeals, 331 SCRA 267 (2000)

Republic v. Court of Appeals, 349 SCRA 451 (2000)

Ratio of the cited Supreme Court cases:

30-year period of possession Barcewell v. Court of Appeals, 323 SCRA 193 (2000) – the requirement is that the applicant must prove that the land is alienable public land. Bracewell was not able to meet the period as the Government conclusively showed that the parcels of land subject of application were only classified as alienable or disposable on March 27, 1972. Director, Lands Management Bureau v. Court of Appeals, 324 SCRA 757 (2000) – possession of public lands, however long, never confers title upon the possessor, unless the occupant can prove possession or occupation of the same under claim of ownership for the required period to constitute a grant from the State. Robles v. Court of Appeals, 328 SCRA 97 (2000) – in light of their open, continuous, exclusive and notorious possession and occupation of the land since 1916, petitioners are deemed to have acquired, by operation of law, a right to a grant, a government grant, without the necessity of a certificate of title being issued. The land was segregated from the public domain. Republic of the Philippines v. Court of Appeals, 335 SCRA 693 (2000) – an applicant seeking to establish ownership over land must conclusively show that he is the owner thereof in fee simple. The land is admittedly public. Applicant has failed to prove the fact of possession by itself and its predecessors in interest for at least 30 years before the filing of the application. De Ocampo v. Arlos, 343 SCRA 716 (2000) – the land was declared alienable only in 1971, respondents have not satisfied the 30-year requirement under CA 141. Republic of the Philippines v. Court of Appeals, 345 SCRA 104 (2000) – an applicant seeking to establish ownership of land must conclusively show that he is the owner in fee simple. The land is admittedly public. Menguito v. Republic of the Philippines, 348 SCRA 128 (2000) – unless a piece of public land is shown to have been classified as alienable and disposable, it remians a part of the inalienable public domain. Even assuming that such land has been classified as alienable, title thereto can be registered only upon presentation of incontrovertible proof of adverse, notorious and open possession in the concept of owner for a period of 30 years.

Republic of the Philippines v. Court of Appeals, 349 SCRA 451 (2000) – determination of whether claimants were in open, continuous, exclusive and notorious possession under a bona fide claim of ownership since 1945 as required by law, is a question of fact which was resolved affirmatively by the trial court and the Court of Appeals. Seville v. National Development Co., G.R. No. 129401, February 2, 2001 – unless a public land is shown to have been reclassified as alienable or actually alienated by the State to a private person, that piece of land remains part of the public domain. Hence, occupation thereof, however long, cannot ripen into ownership. Republic of the Philippines v. Court of Appeals, G.R. No. 196763 May 9, 2001 - the right of private respondents had already acquired the sanctity of "vested or acquired rights" which cannot be defeated or adversely affected by the passage of C.A. 141. The right was vested by the fact that their predecessors-in-interest have been occupying the said communal lands embraced by the law since 1907, as found by the registration court. Friar lands

Liao v. Court of Appeals, 323 SCRA 430 (2000) – there can be no issuance of title in this case as the approval by the Secretary of Agriculture and Natural Resources is indispensable for the validity of the sale of friar lands. Dela Torre v. Court of Appeals, 325 SCRA 11 (2000) – There is no provision in Act 1120 requiring purchaser to be an actual occupant of the land at the time of full payment. Non-payment of the full purchase price is the only recognized resolutory condition in the case of sale of friar lands. Reconstitution of title

Heirs of Ragua v. Court of Appeals, 324 SCRA 7 (2000) – failure to comply with the requirements of publication and notice prescribed in RA 26, secs. 12 and 13 is fatal to the jurisdiction of the court. Moreover, since petitioners filed the petition for reconstitution 19 years after title was lost or destroyed, they are guilty of laches. Reyes, Jr. v. Court of Appeals, 328 SCRA 865 (2000) – if the certificate of title has not been lost but is in fact in the possession of another person, the reconstituted title is void and the court rendering the decision has not acquired jurisdiction. Puzon v. Sta. Lucia Realty and Development, G.R. No. 139518 March 6, 2001 - in petitions for reconstitution falling under Sections 9 and 10 of RA 26 where, as in the present case, the source is the owner's duplicate copy, notices to adjoining owners and to actual occupants of the land are not required. Moreover, none of the circulars mentioned in Supreme Court Administrative Circular No. 7-96 ("Circular 7-96") requires any clearance from the Land Registration Authority for the judicial reconstitution of certificates of title under Section 10 of RA 26. Bernardo v. Court of Appeals, 333 SCRA 135 (2000) – in a petition for reconstitution, requirement of notice by publication is a jurisdictional requirement. There should moreover be actual notice to the occupants of the property. Action for Reconveyance

Millena v. Court of Appeals, 324 SCRA 126 (2000) – while an action for reconveyance may be barred by prescription, prescription may not be invoked when the plaintiff is in possession of the land to be reconveyed.

Villanueva-Mijares v. Court of Appeals, 330 SCRA 349 (2000) – There is no prescription in this case because an action for reconveyance of parcel of land based on constructive trust prescribes in 10 years from date of registration of deed. DBP v. Court of Appeals, 331 SCRA 267 (2000) – an action for reconveyance based on implied trust prescribes in 10 years except when plaintiff is in actual possession of the land. De Ocampo v. Arlos, 343 SCRA 716 (2000) – reconveyance is not available to respondents because they have not shown a title better than that of petitioners. The Malayan Bank v. Lagrama, G.R. No. 144884 April 27, 2001 - the bank may thus be properly ordered to execute the necessary deed of reconveyance in favor of private respondents since it is a transferee pendente lite of the property in litigation within the contemplation of Rule 39, §47(b). As such, it is bound by the decision against Demetrio Llego. City Government of Davao v. Monteverde-Consunji, G.R. No. 136825 May 21, 2001 - respondents' complaint, which was in the nature of a reconveyance, was filed only on March 1, 1994, or after 45 years. Even if Monteverde-Consunji discovered the alleged fraud in the transfer of ownership of the property to the City of Davao only in 1960, the fact is that respondents slept on their supposed rights over the property for 34 years before the filing of the complaint in 1994. Where it was shown that the action for reconveyance or quieting of title was instituted only after thirty years from the time a party was able to acquire a certificate of title covering a particular property, while the occupant had been in actual possession of the same, it was held that the action is barred by laches. Notice of lis pendens

AFP Mutual Benefit Association, Inc. v. Court of Appeals, 327 SCRA 203 (2000) – the annotation of a notice of lis pendens on the titles of the property is not proper in cases where the action is in personam, as in this case, an action for collection of unpaid installments on the purchase price of subject real property. Fraud Divina v. Court of Appeals, G.R. No. 117734, February 22,2001 - petitioner's name did not appear in the survey plan as an adjacent owner, nor claimant nor possessor. Such omission can not but be deliberate misrepresentation constituting fraud, a basis for allowing a petition for review of judgment under Section 38 of Act No. 496, The Land Registration Act. Bordalba v. Court of Appeals, G.R. No. 112443 January 25, 2002 - it is a settled rule that the Land Registration Act protects only holders of title in good faith, and does not permit its provision to be used as a shield for the commission of fraud, or as a means to enrich oneself at the expense of others. Writ of possession Turqueza v. Valera, 322 SCRA 573 (2000) – private respondent being the applicant for registration of land and one who relies on some documents enforcing her alleged title thereto, must prove not only genuineness of said title but also the identity of the land referred to. Decree of registration DBP v. Court of Appeals, 331 SCRA 267 (2000) – a decree of registration cuts off or extinguishes a right acquired by a person when such right refers to a lien or encumbrance on the land – not to the right of ownership thereof – which was not annotated on the Certificate of Title issued

thereon. Registration does not create title nor vests one but simply confirms a title already created and already vested, rendering it forever indefeasible. Dolfo v. Register of Deeds for Province of Cavite, 341 SCRA 58 (2000) – the rule that a title issued under Torrens is presumed valid and is best proof of ownership of a piece of land does not apply where certificate itself is faulty as to its purported origin. Heirs of Durano v. Uy, 344 SCRA 238 (2000) – the rule on indefeasibility of title, i.e., that Torrens title can be attacked for fraud only within 1 year from the date of issuance of the decree of registration, does not altogether deprive an aggrieved party of a remedy at law. An action for reconveyance will still prosper. Cervantes v. Court of Appeals, G.R. No. 118982 February 19, 2001 – it is a fundamental principle in land registration that the certificate of title serves as evidence of an indefeasible and incontrovertible title to the property in favor of the person whose name appears therein. A title once registered under the Torrens System cannot be defeated even by adverse, open and notorious possession. Ownership cannot be proved through tax declarations and corresponding tax receipts inasmuch as they are not conclusive evidence of ownership. Mateo v. Diaz, G.R. No. 137305 January 17, 2002 - there is a host of jurisprudence that hold that prescription and laches could not apply to registered land covered by the Torrens system. With more reason are these principles applicable to laches, which is an equitable principle. Laches may not prevail against a specific provision of law, since equity, which has been defined as 'justice outside legality' is applied in the absence of and not against statutory law or rules of procedures. Assurance Fund De Guzman v. National Treasurer of the Republic of the Philippines, 337 SCRA 238 (2000) – assurance fund is intended to relieve innocent persons from the harshness of the doctrine that a certificate is conclusive evidence of an indefeasible title to land. Petitioners did not suffer any prejudice because of the operation of this doctrine hence not entitled to the Fund. Jurisdiction Rudolf Lietz Holdings, Inc. v. Registry of Deeds of Parañaque City, 344 SCRA 680 (2000) – jurisdiction of Regional Trial Courts over matters involving the registration of lands and lands registered under the Torrens System is conferred by Section 2 of PD 1529, while jurisdiction over petitions for amendments of certificates of title is provided for by Section 108 of said Decree. Tax Declarations DBP v. Court of Appeals, 331 SCRA 267 (2000) – tax declarations are good indicia of possession in the concept of owner. Republic v. Court of Appeals, 349 SCRA 451 (2000) – belated declaration of property for tax purposes does not necessarily lead to conclusion that predecessors were not in possession of the land as required by law since 1945.

A REVISITATION OF THE PUBLIC LAND DISPOSITION IN THE PHILIPPINES By Atty. Hector Fabros

OVERVIEW Various laws govern public land disposition in the Philippines. Foremost of these is the Constitution of 1987. Article XII thereof, entitled “National Economy and Patrimony” enunciates the principles, policies and tenets on public land disposition. These are:

1. The Regalian Principle which provides that “all lands of the public domain and other natural resources are owned by the State.” Our Supreme Court in a case held: “all lands are presumably owned by the State and unless the same has been alienated or the ownership thereof transferred to private person by authority of law, the State retains its right over the same as dominus.”

2. Non-alienation of natural resources - “With the exception of agricultural lands, all other natural resources shall not be alienated. Alienable and disposable lands of the public domain shall be limited to agricultural lands.”

3. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State.

4. Lands of the public domain are classified into agricultural, timber or forest, mineral lands and natural parks.

5. The acquisition of alienable and disposable lands shall be limited to citizen Private Corporation are barred from holding public land except by lease up to 1,000 has. Citizen may lease up to 500 has. and acquire by purchase, homestead or free patent up to 12 hectares. By legislative policy enunciated under RA 6657, the area that can be acquired under these modes was reduced to 5 hectares.

6. In line with the requirements of conservation, ecology and development and subject to the requirement of agrarian reform, Congress shall determine by law the size of land of the public domain which may be acquired, developed, held or leased and the conditions therefor.

7. Congress shall determine by law the specific limits of forest lands and national parks marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased or diminished, except by law.

8. The rights of indigenous cultural communities to their ancestral lands shall be protected to ensure their well-being.

9. To emancipate tenants and share cropper from the bondage of the soil, the State has implemented an agrarian reform program.

10. To promote social justice, the State can regulate the use, acquisition and enjoyment of property.

Implementing said principles, tenets and policies, are numerous laws enacted by the

legislative body, the most basic of which is C.A.141 or the Public Land Act which became effective on December 1, 1936. Although the law was enacted during the effectivity of the 1935 Constitution, it is still being implemented up to this time as amendments have been made therein from time to time. During the American occupation, the Philippine Bill of 1902 was the governing

law on public land disposition. This became the foundation of all subsequent laws on public land. Act 926 was passed by the Philippine Commission in 1903, introducing homestead as a mode of acquiring public land. Under the law, juridical entities, regardless of the nationality of the person owning the capital stock were allowed to purchase or lease public land. Act 926 was the first Public Land Act.

In 1919, Act 2874 superseded Act 926. It is the second Public Land Act and it limited the

acquisition of public lands to Filipinos, Americans and citizen of countries extending same privileges to Filipinos.

Then came the present Public Land Act of C.A. 141. under which, the Bureau of Lands

was charged with the survey, classification, disposition and management of public land. When

Executive Order 192 was issued on June 10, 1987, a Land Management Bureau was created which absorbed the functions and powers of the Bureau of Lands except line functions and powers which were transferred to the regional offices of the DENR.

The other laws related to land disposition are the Land Registration Act (Act 496) and

Cadastral Act (Act 2259). Act 496 has been supplemented by P.D. 1529 known as the Real Property Registration Decree. These two laws provide for the registration of title to lands claimed as private property. Section 103 of the decree requires that all patents, certificates, deed and conveyance issued by the Bureau of lands shall be registered in the Registry of Deeds of the place where the land is situated. Registration is the operative act that binds and conveys the land. On the other hand, the Cadastral Act provides for the cadastral survey and institution of compulsory and mass judicial proceedings for the settlement and adjudication of claims to all kinds of land in a particular municipality, city or specific tract of land initiated by the Director of Lands upon order of the President whenever public interest requires it.

LIMITATIONS, INEFFICIENCIES AND WEAKNESSES OF THE PRESENT SYSTEM Disposition of public land started in 1902 under Philippine Bill of 1902 and has gone on continuously for almost a hundred years now. A century had already lapsed and still there are public lands being disposed of up to this day. Why is this so? The Philippines has only a land area of 30 million hectares. Of these, 16 million are forest areas and only 14 million are alienable and disposable. Of the 14 million A & D lands, about 5 million have been titled through the courts and 8 million through the Bureau of Lands(DENR) and DAR leaving only around a million hectares untitled. This remaining land is, however, already occupied and is spread throughout the country. ARCHAIC AND OUT MODED MODE OF DISPOSITION Why is it taking the Philippines this long to title the A & D public land? This is because of the old-fashioned, outdated and archaic modes of disposition provided by existing laws. Let us consider the homestead modes.

Under this, the applicant must be a citizen, 18 years of age or head of the family and not an owner of 12 hectares ( reduced to 5 hectares in line with RA 6657). The steps involved under this mode are:

1. Filing of application- To be accompanied by a certification of the Municipal Agrarian Reform Officer that applicant is a qualified CARP beneficiary.

2. Conduct of preliminary investigation and reporting on the findings therein.

Accomplishment of Land Data Record Sheet. 3. Entry of Order of Approval of application.

4. Filing of notice of intention to file final proof. Anytime after 1 year and before

5 years, which is the period to comply with cultivation of at least 1/5 of the land.

5. Final proof - proving through witnesses that applicant has resided for at least

1 year in the municipality/adjacent municipality where the land is situated; that he has cultivated 1/5 of the land continuously; that no part thereof has been alienated or encumbered; and, that he has complied with all legal requirements including payment of final fee.

6. Final report of investigation for purposes of ascertaining compliance with the

requirements regarding entry, occupation, improvement and cultivation. Applicant should not use or employ share tenants in whatever form (PD 152, March 13, 1973).

7. Entry of Order: Issuance of Patent. 8. Filing up of homestead patent in Judicial Form 67 and 67. 9. Transmittal by CENRO of patents and record of application to PENRO

(below 5 has); to RED (Below 10 has) or Secretary (above 10 has.) MODES OF DISPOSITION ARE TEDIOUS AND CUMBERSOME:

On paper alone, the processing of a homestead application already appears tedious. How much more when the application gets entangle or becomes the subject of an adverse claim. In that event, a land case arises and an investigation will have to be undertaken to ascertain and find out who between the parties has the better right to the land. Homestead is a very cumbersome mode of concession of public land because it is the law itself which made it so. For instance, the law sets the period of 5 years within which to cultivate 1/5 of the area applied for. This was necessary in the early days as 24 hectares was the maximum area that can be acquired under the law at that time. This 24 hectares was reduced to 12 has. under the 1987 Constitution. To conform to the legislative policy enunciated under RA 6657 or CARL (Comprehensive Agrarian Reform Law, the area that can be acquired under homestead was further reduced to 5 has. The period allowed by law for compliance with the cultivation and residence requirements under a homestead application has become obsolete. There are numerous advances in modern agriculture technology and it is now possible for a homestead applicant to till and cultivate 5 hectares in a shorter period of time. Likewise, the conduct of preliminary investigation can be dispensed with. This has been rendered passé and useless by the certification of the MARO that the applicant is a qualified CARP beneficiary. The implication of this certification is that the applicant is actually tilling and cultivating the land and even residing thereat.

The filing of final proof is also surplusage. The purpose of said requirement is to give

applicant the opportunity to prove to the Director of Lands that he has fulfilled all requirements of law as to occupancy, residence and cultivation within the period fixed by law; and, that he has not alienated or encumbered any part of homestead. This can be dispensed with as there will still be a final investigation where all matters intended to be proven in the final proof would be ascertained and verified . Clearly, there is a repetition of the task of verifying compliance with legal requirement. Thus, it is proposed that the steps in processing of homestead application be streamlined in this wise:

1. Approval of application - Application filed is accompanied by MARO certification that

applicant is a qualified CARP beneficiary and Land Data Record Sheet .

2. Final investigation to ascertain compliance with all legal requirements as to entry, residence, occupancy, cultivation personally and not by share tenants (PD 152, March 13, 1973).

3. Order of Issuance of Patent and Preparation of Judicial Form.

4. Submission of Patent for signature of PENRO, RED or SEC.

5. Transmittal to Register of Deeds for registration and issuance of title.

SEVERAL MODES OF DISPOSITION AVAILABLE:

Under CA 141, as amended, there are various modes of disposition provided for every class of alienable and disposable public land. For purposes of their administration and disposition, alienable and disposable public land are classified according to the use or purposes to which they are destined as follows:

1. Agricultural – These are disposable by homestead, sales, free patent, lease, judicial

confirmation of Imperfect Title. The qualifications of the applicant, the requirements for the grant and the conditions/prohibition/restriction of the grant differ for each mode or concession.

2. Residential, commercial, industrial or for similar productive purposes.

3. Educational, charitable or other similar purposes.

4. Reservation for townsite and for public and quasi-public purposes.

Classes 2 & 3 can be acquired through sale or lease while class 4 (townsite) lots

can be acquired by sale thru oral bidding or private sale.

Due to the various modes available, an applicant has the option to avail of whatever mode that will suit his needs. For instance, an applicant can file a free patent for a land which is not agricultural but residential in nature situated in cities and capital towns. Through collusion and connivance of the land inspector,

the application can be given due course and ultimately patented in violation of the Free Patent Law.

Although Batas Pambansa 223 allows the titling of residential lands through free patent, it

is, however a condition that said lands be situated in fifth or higher class municipalities. Thus, titling of residential lands in cities, 1st to 4th class municipalities through free patent is illegal and yet, there are hundred of cases of this nature.

THE LAW IS TOO RESTRICTIVE:

Some provisions of the Public Land Act are too restrictive. One of this is Section 118

which prohibits the alienation or encumbrance of lands acquired through free patent and homestead within 5 years from issuance of patent except to government or any of its branch, units or institution. Another is Section 119 gives the applicant or his heir the right to repurchase the land acquired through homestead, free patent and sale that had been validly sold to other person. The section is anti-development as it prevents the vendee from developing the land purchased during the period of repurchase.

LAW IS DISPOSITION-ORIENTED:

The Public Land Act is also disposition-oriented. Most of its provisions speak of disposition rather than management. There are only very few provisions therein which are concerned with land management. Among these are Section 91 which mandates the Director to ascertain from time to time, whether the purpose for which a piece of public land was applied for are maintained and preserved after the grant of patent; Section 92 which gives the Director the power to determine the maximum area of public land that may be acquired following the rule that it is the beneficial use of the land that will determine the real area to be granted; and, Section 95 which requires the Director to inform actual occupants of public land made available for disposition of their prior right to apply, giving them 120 days to do so.

ILLEGAL OCCUPATION OF PUBLIC LAND TOLERATED:

The situation prevailing in the country is that public land available for concession are immediately occupied without being first applied for. This is exactly the opposite of the ideal situation in the disposition of public land wherein lands available for disposition are yet unoccupied and are delivered to the applicant upon approval of their application. To cope up with this situation, the field offices of the Department are directed to undertake an inventory of undisposed, untitled, unapplied disposable public land within their territorial jurisdiction and proceed to act according to law. The titling of the remaining public land available for disposition could not be completed unless a determined effort to finish the same is taken.

LAND PATENT A MEANS OF RECOGNIZING OWNERSHIP

PRESENT SITUATION

Under the present set-up, the regional offices of the department are now the one disposing of public land and issuing patents. In this regard, the basic law that it implements is still the Public Land Act with its amendments. Other laws are not given the attention that they deserve as the field offices consisting of the Regional Office, Provincial Environment and Natural Resources Offices (PENROs) and Community Environment and Natural Resources Offices (CENROs), are saddled with too much work including forest management , environmental protection, parks management and wildlife conservation, mining operation-monitoring , etc… This being the situation, the field offices activities related to public land disposition are limited to investigation of applications over alienable and disposable public land, survey of public land declared available for disposition, processing of land application, issuance of patents, settlement of

land claims and conflicts and monitoring of leases.

Since the CENRO has to attend to the multifarious concerns of the Department within his territorial jurisdiction, he cannot be

expected to concentrate on public land disposition which leads to original titling and registration of public land. This is unlike the old set-up wherein the defunct Bureau of Lands had District Office in provinces/cities all over the country. On account of the fact that titling of public land is proceeding at snail’s pace, efficient land administration and management is impossible to achieve under that situation. A faster and more expeditious method or approach is necessary so that the remaining untitled and undisposed public land can be brought forthwith under the Land Registration Act.

LAW NOT SERVING VARIOUS SECTORS

There is little amount of public land left. Worse, this meager number of public land which is less than a million hectares is scattered all over the country. With this scenario, the various sectors of society comprising the masses, business, academe, professionals, religious and others, which need lands have nowhere to go but to look for cheap private lands which are however, very hard, if not impossible to find. Available private lands in cities and other areas are being sold at exorbitant and prohibitive prices. The cost of private land cannot be regulated as it is necessarily influenced by the law of supply and demand. Hence, the landed gentries in the country are making it good nowadays.

At present, the situation prevailing in most urban areas like cities and capital towns are

the high cost of the land, unregulated use and development of land and squatting on public/private properties like railway, parks, plaza, etc… The rising population in cities and other urban areas caused by the influx of people looking for employment therein is exerting tremendous pressure on land. Since there are few public lands available for concession in cities and urban areas, the only recourse for anybody needing land for his own use is to buy private lands at high cost.

On the other hand, in the rural areas, while there might be still some public land there available for acquisition, these are, however, being acquired by moneyed people. The landowner or actual occupant, possessor or applicant thereof, more often than

not, finds it difficult to make his land productive for lack of the necessary capital or credit with which to develop, improve or upgrade his land. In the end, he is left with no choice but to part with his land. There are always buyers who are around just waiting for this opportunity.

ABSENCE OF GOVERNMENT SUPPORT AFTER TITLING:

Public land applicants in the country-side almost always succeed in obtaining title over his land. However, the worsening economic situation prevailing throughout the country, constrain them to mortgage their land to eke out a living or have money with which to make their land productive. If they do not succeed in this and fail to pay up their loans, their land are foreclosed. This is the situation in rural area. While the law gives an applicant a piece of land, he is, however, left to fend for himself after that. There is no assistance extended to the applicant so, this is why most of the patented lands in far flung areas find their way in the hands of moneyed people or business. Although there are restrictions or prohibition on alienation and encumbrance of patented lands within 5 years from the issuance of patent, still, the acquisition of said lands are possible after expiration of that period. Related to this is the purchase by individuals and juridical entities of land originally patented under Free Patent, Homestead, and Sales, for commercial, industrial, charitable, educational, etc… purposes which have been allowed under PD 763. This is quite dangerous as accumulation of vast tracts of patented lands in the hand of corporations and juridical entities is legalized and likely to happen in the absence of limit on the acquisition of patented land by juridical entities.

LAND DISPOSITION IS NOT LIMITED TO PUBLIC LANDS

CA 141 or the Public Land Act limits the applicability of its provisions to lands of the public

domain available for disposition or concession. By virtue of Executive Order 192, dated June 10, 1987, however, the DENR was mandated to be the primary government agency responsible for the conservation, management, development

and proper use of the country’s natural resources. Land management, under this set-up, therefore, encompasses not only lands of the public domain but also lands that had passed into the

realm of the private domain. The latter are the so-called patrimonial lands or those owned by the government in its private capacity. Among these are friar lands, forfeited, confiscated and foreclosed land. Special laws govern their disposition, namely, Act 1120 and Act 3038. DENR likewise administers and manages lands that have not been placed under other agency of the government.

OVERLAPPING OF JURISDICTION

Aside from this, there are also the problems of overlapping of jurisdiction over the so-called untitled private land. As far as the DENR is concerned, any land which has not been placed under the Land Registration Act is unregistered and therefore, public land. Before it can be placed under the land reform through compulsory land acquisition, it should be titled either administratively(free patent) or judicially(land registration case).

INEFFECTIVE LAW ENFORCEMENT

The State’s policy of preserving to the grantee or his family the land that it has given is not being met because of the absence of effective enforcement of the law. Once an applicant acquires a title to his land, his tendency is to use his title as collateral for a loan from government financial institution. This is done despite the various restriction, prohibitions, safeguards, etc.. in the law.

This situation cannot be allowed to remain unchecked. Proper and judicious land administration dictates that the

safeguards, restrictions and prohibitions imposed by law on land rants issued by the State should be observed strictly. Violations of the same should be dealt with accordingly. It is imperative for the State to take the necessary action to revert to the public domain lands that have been disposed of by their grantees in violation of the law. It is incumbent upon our land officials to see to it that

compliance with the legal restrictions/prohibitions of every land grant is observed and they should never hesitate to perform their duty of seeing to it that the purpose or purposes for which a land has been granted are continued, maintained and preserved by the grantee. The problem, however, is that our land officials are more occupied and concerned with land disposition than managing the land already disposed of. Maybe, after everything is disposed of, they can shift their attention and concentrate on better land management.

POOR MANAGEMENT OF AREAS BY THE DENR

Take for instance leases of public land that has expired. By provision of law, the land subject of the lease as well as the improvements existing thereon become the property of the State. Upon expiration of the lease, the field official under whose jurisdiction the land subject of the lease is situated is duty bound to take over custody and administer the land and the improvements thereon. But more often than not, the lessee whose lease has expired is allowed or permitted to remain on the land or remove whatever he could therefrom to the great loss and detriment of government. Things like this should never be allowed.

Another case are leases of foreshore areas. As practiced, applicants of foreshore lands

fence their areas and put-up cottages, rest houses and huts thereat which they rent out to visitors or customers. After paying an entrance fee, and once inside the area, the visitor in the foreshore area finds himself renting a cottage, hut, or resthouse, where he can rest and put his belongings unless he wants to have a sun bath throughout his stay in addition to a regular bath in the sea

water. In some resorts, fees for the use of shower and toilet are also being collected. Clearly, this is a plain case of highway robbery.

Despite its unpalatable taste, our field people have tolerated this practice up to this time.

Inspite of the clear violation of the terms of the lease with respect to collection of entrance fee and fencing off of the area, the lessee has been allowed to go on with his

business. This is another practice that should be stopped.

Owing to the absence of guidelines, government lands subject of subsisting leases

are not being reappraised every 10 years as

provided in the contract, resulting in loss to the government of increased rental that would result from the new appraisal. Periodic inspection is called for in order that compliance with the terms and conditions of the contract could be ensured.

AMENDMENTS OF LAW BROUGHT ABOUT SERIOUS CONSEQUENCES

This observation is clearly shown by the amendment made by RA 293, approved June 16, 1948 to Sec. 61 of CA 141 which provides that:

“The lands comprised in classes (a), (b), and (c) of Section 59 shall be disposed of to private parties by lease only and not otherwise, as soon as the President, upon the recommendation by the Secretary of Natural Resources, shall declare that the same are not necessary for public use and are open to disposition under this chapter. The lands included in class (d) may be disposed of by sale or lease under the provision of this Act.”

Section 59 states:

“The lands disposable under this Title shall be classified as follows:

(a) Lands reclaimed by government by dredging, filling or other means;

(b) Foreshore;

(c) Marshy land or land covered with water bordering upon the shore or bank of navigable lakes;

(d) Lands not included in any of the foregoing classes.”

The amendment reads as follows:

“The provisions of Section Sixty-One of CA141 to the contrary notwithstanding, marshy land and lands under water bordering on

shores or banks of navigable lakes or rivers which are covered by subsisting leases or leases which may hereafter be duly granted

under the provisions of the Act and are already improved and have been utilized for farming, fishpond or similar purposes for at least 5 years from the date of the contract of lease, may be sold to the lessee thereof under the provision of Chapter V of said Act, as soon as the President, upon recommendation of the Secretary of Agriculture and Natural Resources , shall declare that the same are not necessary for the public service.”

This amendment opened the floodgate for conversion of subsisting leases of lands

bordering banks of rivers, lakes and streams into sales applications even if they are not fully

improved and have not been utilized for fishpond and similar purposes for 5 years from the time of the lease. This law enabled lessees of marshy and lands under water near lakes and river to title their areas to the detriment of public interest. This also led to the clogging and siltation of lakes and rivers and environmental degradation. As a rule, lakes and rivers are properties of public dominion. As such, they are outside the commerce of man and should be preserved for the people. With this amendment, the encroachment of the banks or shores of the lakes or rivers as well as despoliation of the ecology and environment became prevalent.

In the same note, P.D. 763 which amended Section 121 by allowing juridical

entities(corporations and associations) to acquire patented land for educational, religious or charitable purposes or for a right of way also brought about horrible consequences. By expanding the purposes for acquisition of patented lands to include commercial and industrial purposes, the accumulation of vast tracts of patented land in the hands of corporation, associations and other juridical entity is a sure thing to happen as there was no limit set on the extent of acquisition under the decree.

NEW LAWS RESULTED IN CONFUSION, DISORDER AND CHAOS IN PUBLIC LAND DISPOSITION

The classic example of this is the Comprehensive Agrarian Reform Law approved on June 10, 1988. RA 6657 provides in Section 4 thereof that the CARL OF 1988 shall cover, regardless of tenurial arrangement and commodity produced, all public and private agricultural lands as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture. More specifically, the following are covered by CARP:

(A) “Alienable and disposable lands of the public domain devoted to or suitable for

agriculture. No reclassification of forest or mineral lands to agricultural lands shall be undertaken after approval of this Act until Congress, taking into account ecological, developmental and equity considerations, shall have determined by law, the specific limits of the public domain.

(B) All lands of the public domain in excess of the specific limits as determined by Congress in the preceding paragraph;

(C) All other land owned by the government devoted to or suitable for agriculture.”

Since A & D land suitable for agriculture is within the coverage of CARL, some field people of DAR entertained the notion that they acquired jurisdiction over such kind of land. This notion or thinking was, however, dispelled by issuance of Executive Order 229 on July 17, 1987 which provided the mechanism for the implementation of the CARP. To coordinate the implementation of CARP and ensure timely delivery of support services, the Presidential Agrarian Reform Council (PARC) was created, chaired by the President and with the Secretaries of various departments as members.

The disposition of A and D lands of the public domain remained with DENR as

it was never the intention of Congress to

place the same under DAR jurisdiction but merely under the coverage of law. As such, the DENR is involved in the Comprehensive Agrarian Reform Program with the continuance of its land titling program more popularly known as HANDOG TITULO. The CARL also banned reclassification of forest and mineral land to agricultural

lands until Congress shall have determined by law the specific limits of the public domain. Hence, the function of DENR of classification of lands of the public domain was

diminished. With respect to untitled private lands, the dispute as to who has jurisdiction over them was threshed out with the issuance of a Joint Memorandum Circular No. 14, series of 1997, which delineated the responsibilities of DENR and DAR with regard to untitled privately claimed agricultural land.

DENR as a rule has jurisdiction over this type of land where its claimants do not

possess the qualifications provided under RA 6940 or the Free Patent Law, which are (1) continuous occupancy and cultivation of the land by oneself or predecessor in interest for 30 years prior to effectivity of the law on April 16, 1990; (2) the land must be alienable and disposable since April 16, 1960 or prior thereto; (3) the real estate taxes thereon must have been paid; and (4) there is no adverse claimant thereto. Also, agricultural A & D land declared as such after April 16, 1960 shall be under the DENR except those placed under DAR jurisdiction such as resettlement lands and areas for indigenous cultural communities. Further, agricultural land declared public land by courts in LRC and Cadastral Cases even if classified as such prior to April 16, 1960 shall also be under the exclusive authority of the DENR.

In connection with this, an updating of the inventory of untitled agricultural A & D

land shall be jointly undertaken by DAR and DENR and thereafter what respectively belongs to each shall be firmed up before any turnover is made by DENR to DAR. This agreement was made on March 31, 1997.

AGENCIES ON LANDS MULTIPLIED

The proliferation of several agencies involved with lands has resulted in

overlapping functions, disputes and controversies. Lately, a new office was created designed to promote the well-being of the indigenous cultural communities. This is the National Commission on Indigenous People(NCIP) with power to title ancestral lands and domains. This law has spawn a lot of controversy particularly with respect to the disposition of mineral as well as forest areas within the ancestral land or domain.

UPDATING OF LAND LAWS DELAYED

The existing law on public land disposition is archaic, outmoded and can no

longer meet the needs of present time, and realities. It being of the 1936 vintage, it is definitely behind the time. Attempts to update the same, starting in the early 70’s, continuing in the 80’s and 90’s proved unsuccessful. The farthest that the updated and revised version of the Public Land Act reached in Congress was the third reading in the lower house. During that session of Congress (10th), the proposed bill was not even touched by the Senate. The present realities in the rural areas could no longer be met by the law. Aside from scarcity of lands available for concession in the rural areas, the difficulties with the processes and mechanism for acquiring whatever is available public land had discouraged many people from availing of administrative titling. Because of long processing time entailed in titling of land under administrative processes and the many things that the applicant has to fulfill before he can be entitled to a grant from the State, he is constrained to avail of the juridical process whenever he has all the qualifications therefor. The judicial process of confirming an incomplete or imperfect title is more expeditious and easier to effect than administrative titling. The only problem here is that land registration cases are almost always given the last priority in the calendaring of cases by the court. This is, however, the court’s business and there is little that we can do about this.

LAND CLASSIFICATION ISSUES EXIST

There is uncertainty as to the authority which possesses the power to classify public lands. Is it the President or Congress? Before the 1987 Constitution , there was no such

question because it is explicitly provided in Section 6 of the Public Land Act that, “the President, upon the recommendation of the Secretary of Agriculture and natural Resources, shall from time to time classify lands of the public domain into: (a) Alienable and Disposable; (b) Timber, and (c) Mineral lands, and may at any time and in like manner, transfer such lands from one class to another for purposes of their administration and disposition.”

However, upon the effectivity of the 1987 Constitution, the question of who has the power to classify lands of the public domain arose in view of Section 4, Article XII thereof which provides that

“Congress shall, as soon as possible, determine by law the specific limits of forest lands and national parks, marking clearly their boundaries on the ground. Thereafter, such forest lands and national parks shall be conserved and may not be increased or diminished, except by law.” Moreover, with the enactment of RA 6657, the Comprehensive Agrarian Reform Law (CARL), it became more apparent that there was a necessity to put on hold classification of the lands of the public domain. CARL provides in Section 4 (a) thereof that “no reclassification of forest or mineral lands to agricultural lands shall be undertaken after approval of this Act until Congress, taking into account ecological, developmental, and equity considerations, shall have determined by law, the specific limits of the public domain.”

Under these circumstances, the Department has desisted from acting on requests from the public seeking classification of their areas into alienable and disposable lands. This is despite the provision in E.O. 192 which provides: “Exercise exclusive jurisdiction on the management and disposition of lands of the public domain and shall continue to be the sole agency responsible

for classification, sub-classification, surveying and titling of lands in consultation with appropriate agencies.” The probable reason why the Department takes its time to classify/reclassify lands pursuant to its mandate is perhaps, in order to give Congress time to determine the limits of forest, national parks, and alienable and disposable public lands of the public domain.

In reality and during the years before the present Constitution, it was a well-settled

practice that the classification or reclassification of lands of the public domain into alienable and disposable is a prerogative of the Executive Department. Once a parcel of public land has been officially classified as timber or mineral, the same is not agricultural until it is so reclassified. Its classification stands until it is released therefrom and rendered open to disposition or concession by the President upon the recommendation of the Secretary of Environment and Natural Resources. The power of the President to declare what lands are open to disposition or concession is, by delegation, exercised by the Secretary of Environment and Natural Resources through issuance of Forestry Administrative Orders. The Director of Forestry, however, makes the recommendation as to what land to declare as alienable and disposable based on the land classification made by his office.

In this regard, the other issue on classification that has persisted is which office under

the Department – FMB, NAMRIA, or Regional Offices makes the recommendation for the classification or reclassification of lands. FMB is now a staff bureau while NAMRIA is map-making as well as marketing arm of the Department insofar as resource information is concerned. On account of the regionalization, it is now the Regional Offices of the DENR that recommend to the Secretary as to what lands to classify/reclassify into various classes and uses.

Finally, it may be added that the Constitution has endowed Congress with authority to fix

the limits of forest, national parks and alienable and disposable lands of the public domain. Congress,

has not to date, been able to fix the required limits. It is relying on the DENR to do this. However, DENR has no funds for this as it is unprogrammed activity. Congress has not provided DENR the necessary funding for this. Despite this state of affair, the land disposition and land classification programs of the department are proceeding at their normal paces.

It may not be amiss to mention at this juncture that there was once a controversy

affecting a big portion of Quezon City caused by the absence of a formal land classification of the area. The FMB, and NAMRIA were of the stand that due to the absence of land classification, a tract of land of about 502 hectares is claimed to be still an unclassified public forest and therefore, under their jurisdiction and control. On that account, FMB issued “Residential Use Permits” or RUPs to people who have settled and squatted thereat as well as countless others who invaded the vacant portions to the dismay and chagrins of the registered owners thereof who acquired their rights from the government. The Lands Management Bureau, on the other hand, was of the stand that the land in question has long become private land, having been acquired from religious corporation thru purchase(expropriation) in 1903 and for which the government filed a land registration case which resulted in the issuance of OCT No. 614 in its favor. Subsequently, and after the subdivision of the Piedad Estate, of which said tract of land (502 has.) was a part, the subdivisional lots were disposed of under Act 1120 or the Friar lands Act. Even without classification, the land in question can hardly be considered public forest. Physically, it is flat, level and a slightly rolling. By location, it is now in the heart of a metropolis. Due to population pressure and rapid urbanization, its agricultural nature was transformed to urban. The land has no timber stand, below 18 % in slope and the issuance by FMB of RUP’s by itself negated its claim that the land is forest land. Why issue a residential use permit for forest land?

FAKE AND DOUBLE TITLES PROLIFERATING

The existence of various agencies dealing with land has made it conducive for unscrupulous people to make a mockery out of the Torrens System. Due to the weaknesses in the existing systems and procedures in land classification, survey, investigations and processing of application as well as the pervasive lack of morals on the part of some people, including government personnel, illegal titling of lands became rampant. Also, there is very little cooperation and coordination between the various agencies engaged in land administration. Further, the destruction and loss of vital records, such as original surveys, public land records like patents and deeds, as a result of the last world war has made it difficult for our existing agencies to stop this illegal practice.

The fight or campaign against illegal titling, which includes faking or manufacturing, double titling and fraudulent titling requires a sustained and concerted effort of all sectors of our society. Illegal titling is clearly economic sabotage. To allow it to go on unabated will stunt our growth as a nation. Therefore, it behooves upon us to do something about this malingering malady.

Among the measures that can be adopted to ferret out fake and illegal titles are the following:

(1) An extensive information drive should be launched advising the public to take care,

be cautious and exercise due diligence before entering into any transactions on land;

(2) Networking - a coordinative mechanism between titling agencies should be set-up. A system of verification is necessary so that these illegal (fake patents and titles) will not find its way in the registry.

(3) Integration of records – with a centralized record system, it will be very hard to manufacture these fake titles.

(4) Strict accounting of judicial forms – agencies using and issuing accountable forms should be extra careful with their stock of forms. They should be secured properly and kept in vault which are fireproof.

(5) Set-up a single agency to handle surveying, titling, and registration using simplified titling procedure. With this, it will hardly be possible for anyone to fake a title.

Data analyzed reveal that more than 90% of cases of illegal titling involved forest lands

and other inalienable areas like foreshores and reserved areas. This came about because land syndicates have been operating in our midst with the connivance of some field people. To avert and eradicate fake titling, measures should be adopted which should make it hard for these syndicates to operate near our workplace. At the same time, a re-orientation on moral value and culture should be given to our people in the field who are involved in land titling.

LAND DISPUTES ARE ON THE UPTREND

Similarly, there has also been an increase in the number of disputes and controversies involving public lands. This is primarily due to the gradually decreasing available public land and the rapid population growth. Land disputes can arise in the following situations: (1) A person without any color of title and without the consent of the owner, enters and settle on a piece of land. This is squatting. More than a vice, squatting on public land is a criminal offense punishable under RA 947; (2) two or more persons apply for the same parcel of land of the public domain – a case of conflict arise. A person asserts a better right or adverse claim against an applicant of a public land – this is a case of claim; (3) A person is aggrieved by the judgment in a land registration case. He can file an action for reconveyance; (4) A person applies for confirmation of his title with the court or the government institutes a cadastral proceeding. An opposition will be filed by the government or by an individual claiming superior right to the land. There are other kinds of disputes and controversies but for our purposes what has been mentioned is sufficient.

Cases of illegal, fraudulent and irregular titling necessitate the involvement of the Lands Department in the prosecution thereof. Although it is the Solicitor General who is tasked by law to represent the interest of the government in reversion or cancellation of title, it is, however, incumbent upon the Director of Lands to initiate such action thru the OSG specially when the land, whose title is sought to be cancelled, emanated from a patent issued by his office. The most common ground invoked in reversion cases are:

(1) The land covered by the title is not capable of registration. (2) The land subject of the suit has been alienated, encumbered, conveyed or

transferred in violation of the prohibition and restrictions provided by law. (3) The grantee failed to comply with the requirements of law on residence,

occupation and cultivation of the land.

An efficient land administration and management system will minimize, if not completely arrest the upsurge of land disputes.

JUDICIAL CONFIRMATION OF INCOMPLETE OR IMPERFECT TITLE

In reality, whenever the court is sitting as a land registration court such as in LRC and Cadastral Proceedings, it is not involved in titling, in the strict sense. In such cases, courts are merely involve in confirming the imperfect title claimed by the applicant in said proceedings by seeing to it that the evidence presented in support of the applicant’s claim are sufficient to warrant confirmation of the alleged title. These evidence are: (1) That the land is possessed and occupied by the applicant since April 16, 1960 or prior thereto or at least 30 years

immediately preceding the filing of the application and that the land is agricultural or alienable and disposable land of the public domain. The proof required for this are any of the following: Proclamation, executive order, forestry administrative order of the Secretary of DENR, Land Classification Map, or Certification of the Bureau of Forest Development or FMB; (2) That he has a registrable title thereto.

Aside from the evidence that the land is A & D, the applicant should also prove that he has been in open, continuous, notorious and exclusive possession thereof for at least 30 years immediately preceding the filing of his application in the concept of an owner; (3) Submission of the original tracing cloth plan, surveyor’s certificate, field notes, etc..; (4) Submission of tax declaration and receipts or certification of tax payment; (5) Other muniments of title such as deed of sale, donation, exchange, etc…

In cadastral case, it is the government itself that files a claim in court asserting that the titles of claimants, occupants and possessors of lands within a city or municipality are open to question and it is necessary to settle and adjudicate the validity of said titles.

The proceedings in land registration cases and cadastral cases are similar. The only difference is in their nature. The former is voluntary or at the instance of the landowner while the latter is compulsory or mandatory or at the government’s initiative. When in the President’s opinion, public interest requires that title to unregistered land be settled and adjudicated, he may direct the Director of Lands to cause the cadastral survey thereof and the place and technical description prepared in due form. Land registration procedure (under Act 492) was found to be too slow and so, a system was conceived to accelerate and hasten the titling of lands and do away with land controversies. This is the cadastral system of land registration whose purpose is to expedite the settlement and adjudication of titles to properties.

After the filing by government, thru the OSG, of the petition or claim, the holders, claimants, possessors of land subject of the petition, are obliged to file their answer. Each answer shall cover one lot. If two or more lots are being claimed and the evidence to be submitted are common to all the lots, the answers must be related to one another. The filing of an answer in a cadastral proceeding is equivalent to an application for registration of land under Act 496 or PD 1529.

In a cadastral case, parties are being heard and their evidence considered after which, judgment is rendered by the court. Upon finality of the judgment, a cadastral decree and certificate of title is issued. As provided in Section 11 of the Cadastral Act, all the rules in ordinary registration (Act 496 and PD 1529) are applicable in cadastral proceedings. The trial of a contested lot therein is conducted in the same manner as ordinary trials and proceedings in the RTC. There must be hearing with notice to the parties and adjudication. A final judgment in a cadastral case is binding and conclusive upon the whole world. This is so as it is necessary to provide stability to the Torrens System.

After cadastral proceeding, the possible outcome are as follows:

(1) Title of a claimant is settled and the land is adjudicated to him;

(2) A land is declared public land;

(3) The technical description of a land is ordered to be corrected;

(4) A new title (cadastral title) is ordered to be issued in place of title issued in ordinary land registration;

(5) Priority of overlapping titles is settled.

The power of cadastral court is confined to the determination as to whether the claimants are really entitled to the lots, as alleged in their answers, and after finding that they are, it will order the confirmation of their title and the registration of the lots in their names.

INADEQUACIES EXIST

Various policies contained in the present laws are not doing the country any good. One such policy is the limitation to citizens or corporations or associations whose capital stock is controlled by such citizen to the extent of 60%, of the right to explore, develop and utilize the natural resources. There is no way that foreigner, individual or corporation can acquire land in the country except through hereditary succession. Due to this policy, foreigners

desiring to settle here resort to marrying Filipinos in order that they can acquire land. This practice has become prevalent in the Visayas and Mindanao regions. Why not revert to the previous policy of allowing them to acquire land but under certain limitations and conditions.

The Constitution also enunciates the policy of “full control and supervision” of the development, exploration and utilization of the natural resources. This is too self-limiting and is not attractive to foreign corporations and associations interested in investing in the country and engaging in the exploration and utilization of our mineral resources. Our policy should be restudied and improved as it is not conducive to our economic growth. The present trend is globalization and such policy of not allowing foreigners to own land and explore our natural resources as well as the policy providing for full control and supervision by the State of the development, exploration and utilization of natural resources only reduces or minimizes our chances of becoming a key player in the global market.

Other countries in the Asia-Pacific regions do not have such policies and it is believed that it is time to debunk them or else the country will always be the “basket case” in Asia.

UNNECESSARY REQUIREMENTS EXIST

Take for instance, the requirement for the publication of notice of sale of public land or of the right to lease public land in the Official Gazette and two newspapers of general circulation, one published in Manila and the other, in the province where the land is situated, one, in English and the other, in Spanish or local dialect, once a week for 6 consecutive weeks. Aside from the fact that the cost of publication has become prohibitive and expensive, the publication in the Official Gazette of said notice has become merely a formality because the Official Gazette, the official organ of the government, is always behind by 4 to 5 months in its publication. For instance a notice setting the sale for August 15, 2002 sent to

the OG for publication on June 10, 2002 will find itself in print only in November or December of 2002. The publication, in this case, does not meet its intended purpose of giving the widest publicity to the sale to generate public interest. Further, the same notice is also required to be posted in the CENRO, provincial and municipal buildings where the land is situated and if practicable, on the land itself.

These requirements foster delay and cause undue hardship to the applicant. Publication in two(2) newspapers of general circulation once a week for two consecutive weeks should be sufficient.

Similarly, the requirement of securing the concurrence of the Department or agency head in the clearances issued by District Engineer and local port officials on sales and leases should be dispensed with as they foster red tape. After all, these officials are better situated and more knowledgeable of the conditions prevailing in any particular place.

RENTAL ON LEASES VARIES

In agricultural lease—the annual rental shall not be less than 3% of the appraised/reappraised value of the land while in miscellaneous leases of lands suitable for residential, commercial, industrial and similar productive purposes, educational, charitable, religious purposes, the annual rental is 3% of the value of the land plus 1% of the value of the improvements. In leases of reclaimed lands, the annual rental thereof is 4% plus 2% of the appraised/reappraised value of the land and improvement, respectively.

There is no plausible reason for the distinction or difference. Having a uniform basis for the determination of the annual rental appears to be desirable. Perhaps, 5% of the value of the land and improvement, regardless of its nature or classification, would be fair, reasonable and just considering that there has been no change in the law regarding this matter since its enactment. Likewise, there are also varying requirement in the different modes of acquisition. In homestead, the applicant is bound to cultivate 1/5 of his area not earlier than a year after approval of his application and not beyond 5 years therefrom. In sales, it is the same but the period within which to cultivate the land is reckoned from the date of award. In lease, the lessee is required to cultivate 1/3 of the land leased within 5 years from approval of the lease. In free patent and judicial confirmation of title, there is no mention of the extent of cultivation to be met by the applicant. This requirement have been overtaken and rendered obsolete by the legislative policy enunciated by Congress in RA 6657 or CARL. With only 5 hectares as the maximum area that can be acquired through homestead, sale or free patent, the present requirement on the period of cultivation has become unrealistic.

UNCLASSIFIED LANDS NOT AVAILABLE

Unclassified lands of the public domain or those which have never been the subject of the system of classification for the determination of what are forest land and what are not, cannot be availed for any purpose on account of Congress’ inaction or delay in fixing the limits of the public domain. By law, such unclassified land are considered public forest and part of the forest zone. In reality, however, because of their nature and actual use, they can hardly be treated as forest lands.

PRIVATE LANDS STILL UNTITLED

All over the country, there are lands which are not covered by titles but only by tax declarations in the name of private individuals. In this jurisdiction, tax declarations are not proof or evidence of ownership. They are treated only as proof of payment of taxes. But if the untitled land covered by tax declaration has been under the possession and control of the declarant for the required period for prescription(30 years), the same gives rise to the presumption of ownership by the possessor. This kind of land are sometimes offered to DAR for acquisition and distribution under CARP. But for lack of title, the Land Bank refuses to pay the landowner resulting in delay as well as controversy.

VITAL RECORDS LOST

Official record of original survey plans, patents, deeds and certificates of land disposed of before the Second World War were lost. Adding to this is the loss by their owners of copies of titles of their landholding. In order to have new evidence of ownership, these people are constrained to cause a resurvey of their land and thereafter, to file a petition or request for reconstitution of their titles based on the documents available to them. If the available documents are not sufficient to warrant reconstitution, the owner has no choice but to go to the process of titling his land all over again. Surely, this is very expensive and time-consuming.

URGENT NEED OF GOVERNMENT FOR LANDS

At present, the government itself has a pressing need for lands in order that it can effectively pursue its “shelter program”. The various areas that had been identified for socialized housing are in Doña Remedios Trinidad in Bulacan, Jala-jala and Pililia in Rizal and Manggahan Floodway in Pasig, Cainta, Taytay, also in Rizal. The on-going shelter program are the National Government Center Housing Project in Quezon City, Smokey Mountain Development and Reclamation Project in Tondo and Home along the Riles Project in Makati City. These are, however, not sufficient in the light of the big backlog in the number of housing units. The Government is not without recourse should the need for more area arise. It can utilize its idle and vacant properties as well as those unutilized portions of various government reservations.

PROPOSAL FOR CHANGE

In the light of these realities, it is imperative that changes in the laws, systems and procedures in land administration and management be at once effected. Inefficient and ineffective land management hamper our economic growth and development. It discourages investment and stunts progress. It is time for change – a drastic one at that – so that existing problems can be overcome.

ONE AGENCY ONE SYSTEM

This is hardly achievable unless there is cooperation, willingness and determination on the part of all concerned.

Simply, an agency will be set-up and vested with the function of administration and management of lands, which includes surveying, titling, registration, valuation and development. Functions of existing agencies related to said aspects such as the DENR (LMB, Regional Offices), LRA (DOJ), BLGF (DOF), and HLURB

(OP) shall be transferred to the new office, including all personnel, records, equipments, etc… The functions, powers. Authority, responsibilities of Land Administratin and Management Office (LAMO) shall be spelled out in detail in an Executive Order to be issued by the President.

Said agency shall pursue a single, unified and integrated approach to the titling of lands

still available for disposition. The procedure will be administrative in nature adopting, but improving, on the mechanics, procedures, and systems of titling under existing laws. The judicial process shall be suspended pending the piloting/testing of the new system. Subsequent transactions or dealing after titling of land shall be under the jurisdiction of said office.

Efficient, effective and rational administration and management of lands shall be effected

through:

(1) Recognition of eligible rights in land which shall be given priority;

(2) Rationalization and upgrading of the system of valuation of lands shall be made;

(3) The land market shall be made equitable, reasonable and fair;

(4) Sustainable management of land resources shall be pursued;

(5) Laws and policies on land titling, valuation, registration, and development shall be restudied and reviewed with the end of harmonizing and streamlining the same to achieve better land administration and management;

(6) Confidence in the new system should be promoted and instilled;

(7) New approaches, strategies, mechanisms should be adopted to effect and achieve the desired changes in the system of land administration and management;

(8) Nationwide implementation of the new system shall be effected to get the widest reaction and feedback. This will make it possible and easier to correct at once any inadequacy or deficiency in the system.

Since an executive order will first be issued fleshing out the powers, functions, duties and responsibilities of the new office, this will become the basis for various amendments or modifications of the affected laws. For this purpose, a review of existing laws like PD 1529, CA 141, ACT 2259, DAR Charter, RA 8371(IPRA LAW) is necessary for the purpose of finding out what provisions thereof will be retained, repealed, modified, amended as the case may be. As soon as all the necessary changes in the laws have been effected, steps toward codification shall be taken providing all the aspects, features, etc… of the new system of land management and administration.

Among the changes that may be considered are:

(1) Removal from the court of the authority to confirm title as vested to it by law (Act 496,

PD 1529, CA 141, Act 2259, etc…, Judiciary Act). Courts should be limited to justiciable cases that have nothing to do with titling, registration, valuation, and development of lands.

(2) Only the administrative system of titling shall remain and the modes of disposition thereunder shall be reduced to the barest minimum. Free patent, sales and lease.

(3) The condition, restriction and prohibition on grants shall be minimized to accelerate economic growth and progress.

(4) Titling of A & D lands shall be given priority.

(5) Disposition process shall be streamlined and made less burdensome to the applicant.

(6) Foreigners should be allowed to acquire lands under certain conditions.

(7) On-going programs like CARP and Handog Titulo shall be pursued vigorously toward their completion.

(8) Unnecessary and unrealistic, impractical requirements in laws should be eliminated.

(9) More efficient management of grants shall be fostered.

(10) Revenue-generation measures shall be formulated in relation to titling, registration and development of lands.

PROCEDURES AND REQUIREMENTS IN OBTAINING A LOAN USING LAND AS A

COLLATERAL (REAL ESTATE MORTGAGE)

Ms. Ma. Teresa B. Hernandez

Account Manager Loans Department Asia United Bank Ortigas Center, Pasig City Mr. Emmanuel R. Apilado 11th Floor, Equitable PCI Bank Tower I Makati Ave. cor. H.V. dela Costa St., Makati City Atty. Ramon Felipe, Jr. BPI Family Bank Makati City Mr. Oscar G. Gumabay Assistant Vice President Credit Appraisal and Investigation Department Loan Support and Services Division PROCEDURES: I – The applicant must submit all the requirements (please see attachments), and must

accomplish and sign the following:

a. Loan Application; b. Credit Information Authorization; c. Application for Mortgage Redemption Insurance

II - Appraisal of the Real Property or collateral by the Bank

• Title (judicial, free patent, sales patent, homestead, CLOA) • Location of the property • Total land area of the property • Existence of building and/or improvements • Physical characteristic of the Land (Frontage, Depth, Elevation, Terrain, Contour,

etc.) • Land Classification (agricultural, residential, commercial or industrial) • Actual Usage

Note: The applicant must first pay a processing/appraisal fee, which is non-refundable.

AUB – between P1,500 – P2,500 Equitable-PCI Bank – P3,000 for Metro Manila

- P4,000 outside Metro Manila

Note: Asia United Bank does not accept absolutely Free Patent Titles (even the five-year period had lapsed), Sales Patent, Homestead Patent and CLOA as collaterals for a loan application. Equitable-PCI Bank, UCPB and BPI Family Bank on the other hand accommodate the aforementioned land titles, provided that the restrictions and prohibitions for its transfer and encumbrance had already expired.

III – Evaluation of the application and other supporting documents by the Bank • Credit Ratio, cash flow analysis • 5 Cs of Banking

- character - capacity to pay - condition of the business - capital - collateral

Note: Except for special reasons, Asia United Bank does not grant/approved loans

secured by lands located in Malabon City, some parts of Quezon City and in the provinces of Rizal and Cavite due to the proliferation of spurious and fake titles in these areas.

IV – Credit Investigation (CI) by the Bank on the applicant and his/her collateral • Employer checking • Neighborhood checking • Referral to CMAP (Credit Management Association of the Philippines)

Note: CMAP – contains all the names of persons who had been convicted or have pending civil and/or criminal cases in court (ex. Estafa, bouncing checks cases, collection suits, etc)

• Ocular Inspection of the site • Certified True Copy of the OCT or TCT from the Registry of Deeds, to determine

if there is an existing - mortgage - lis pendens - adverse claim - certificate of sale/foreclosure

• Plotting of the technical descriptions appearing on the title • Checking previous owners of the land

AUB - at least 2 owners BPI Family – at least 2 owners UCPB - at least 2 owners Equitable-PCI Bank – at least 3 owners

V – Loan application is recommended by the Loan Operations Department for approval

VI – Approval of the Loan by the Board

• Payment of Annotation Fee • Mortgage fee • Mortgage Insurance • Issuance of post dated checks (PDCs)

Note: Amount of the loan or credit given by the Banks: Asia United Bank - 50% of the appraised value BPI Family Bank - 60% of the appraised value on lands covered

by judicially confirmed titles 50% of the appraised value on lands covered by free patent, homestead titles, etc. UCPB - maximum of 60% of the appraised value

Equitable-PCI Bank - 60% of the appraised value - if only land is used as a collateral

70% of the appraised value – if the land and the improvement are used as collateral

Transfer of Titles: Realities on the Ground

Carlos Isles INTRODUCTION

1. Background 1.1 This document reports the experiences of six persons in connection with the transfer of land titles to their names. It details how they have gone through the gauntlet of government bureaucracy that was often tedious, cumbersome, and frustratingly slow. 1.2 As agreed, except for one of the informants, who consented to use her real name, this report keeps the names of the other five informants confidential. It must be noted that when the writer requested the informants for interviews, each one displayed understandable reluctance to honor the request for fear of getting involved in complicated situations. Only the promise of confidentiality coupled with an appeal to their sense of patriotism convinced them to relent. But I had to show proof of good character. One informant even made three demands: One, I must show proof of my identity. This I easily hurdled by showing her my I.D. Second, I must prove that I am really a professional researcher. Luckily, I still have tucked in my wallet my old business card when I was working with the Institute of Philippine Culture of Ateneo de Manila University. Finally, she demanded that I mention names of “famous” people she also knew! After giving the names of 10 people in quick succession, I finally hit the jackpot when I mention Barry of PA LAMP, Bill Keyes of Freedom to Build and Denis Murphy of Urban Poor Associates (UPA). For a bonus, I also threw in the names of Alice Murphy, Denis’ wife.

1.3 When I asked later on during the conversation why she had required this kind of verification, she smiled and explained that there are many persons who go around their community talking and promising many good things to people. “I do not want to be victimized again by these shady characters in sheep’s clothing,” she said. 1.4 All six informants in this report are women. The choice is purely coincidental since they were the ones recommended by my source during the frantic period of identifying appropriate persons to be interviewed. I must also mention that identifying persons who had actually gone through the process of transfer of titles was quite difficult. I had, in fact, gotten the impression that there are not that many persons out there who are interested on having their individual lots titled. There are three possible reasons behind this. First, in the National Government Center (NGC), where five of the six informants reside, there are only a few who have already received the Certificate of Entitlement that would allow them to apply for individual land titles. Second, the ones who have obtained individual titles are reluctant to talk about the process of land titling lest they step on the toes of powerful persons; and third, a few of those who have already obtained individual titles were so traumatized by their experience and resentful of the government that they prefer not to relive that painful experience once again. 2. Objectives of the study 2.1 The main purpose of this study is to document the experiences of at least six persons who “have attempted to transfer the ownership of titled land through formal, legal procedures.” This objective would be achieved “through in-depth individual interviews that would probe through the “steps required in the title transfer process.” (Terms of Reference). 2.2 Corollary to this, the study would help identify the problems, challenges and lessons learned by people who have attempted to work on the transfer of titles.

2.3 And finally, the Philippine-Australia Land Administration and Management Project (PA LAMP) may pick up a lesson or two that may help in the efficient implementation of the project. 3. How the study was done 3.1 This study was laden with pressure. First, there was the difficulty of coming up with a thorough study given the short period of only two weeks for the research. Second, as already mentioned, people in the project area are generally reluctant to give information regarding their experiences related to land titling for fear of unnecessary personal aggravations. And third, often, the in-depth interviews had to be done late in the evening due to the busy schedules of the informants. This limited the time of the writer to probe deeper into some significant issues being articulated by the informants. 3.2 Moreover, the writer has tried to exercise care that the accounts of the informants and their recollection of the sequence of events that took place are faithfully reproduced in this report. This will demonstrate not only how much the informants remember what actually transpired but it will also allow a comparison of the procedures they have adopted and the “standard” legal process shown in Figure 1. 3.3 Finally, the writer conducted a second interview of the six informants after the first draft was presented to the officers and consultants of PA LAMP. The purpose of the second interview was to gather additional information and to firm up the amount of time each one of the informants had spent with each agency while working on their titles. 4. The formal, legal procedures for titling of land 4.1 According to Engineer Felino Cortez, Land Title Adviser of LAMP, the formal, legal process

for the titling of real estate properties goes through the following step-by-step procedures: 4.2 Owner and buyer agree on purchase of property and the selling price of the property. Then a

Deed of Absolute Sale is prepared and notarized, sometimes with the help of a lawyer. 4.3. The Assessor’s Office (AO) secures a copy of the land tax declaration. 4.4 Real estate tax is paid to the City Treasurer’s Office (CTO). 4.5 Owner pays capital gains tax to BIR- 6% of the amount under consideration. 4.6 Deed of Sale is registered with the Register of Deeds; ROD cancels the old titles and issues

a new one to the new owner. 4.7 New owner obtains a photo-copy of the new title and requests tax declaration from the

Assessor’s office.

Figure 1: Legal Procedures in transfer of land title

Owner and Buyer agree on sale of a piece of land.

Through a lawyer, an Absolute Deed of Sale is created and

notarized.

Assessor’s office secures copy of

Land Tax Declaration.

Capital Gains Tax is paid to Bureau of Internal Revenue (BIR),

6% of the amount under consideration.

Deed of sale is registered with the Registry of Deeds. RD cancels old

title and issues a new one in the name of the buyer.

City Treasurer’s Office: -Owner pays real estate tax

New owner obtains a photocopy of the new title and requests tax

declaration from the Assessors office.

4.8 In the face of what seems to be a fairly straightforward and clean process, the realities on the ground as experienced by our informants reveal complicated and sometimes gut-wrenching situations that have left some people feeling physically sick in the stomach and resentful of government.bureaucracies.

5. THE STORIES OF SIX WOMEN

5.1 The Story of Ave Lina 5.2 Ave Lina, (not her real name) lives in Barangay Holy Spirit, Quezon City. In 1996, she purchased a piece of real estate property from Trans Union Realty Corporation (TURC) based in Pasay City. The size of the property is 121 square meters. It is located in Sauyo, Novaliches, Quezon City. The price of the property is P400, 000. 5.3 Part of what attracted Ave’s attraction to buy the property from TURC was the agreement that the TURC would be responsible for transferring the title to her name. But TURC reneged on its promise and said that it would only work on the transfer of title if Lina paid a facilitation fee of P 20,000. Ave refused and decided to work on the transfer of the title herself. 5.4 Other reasons Ave cited why she bought the piece of property were the promise made by a couple of friends to build their houses near Ave’s property. But none of these plans materialized. Ave herself decided against building their house in Sauyo, Novaliches, Quezon City because it is not accessible to schools. Her other friends, also decided to live elsewhere in order to be close to their relatives and to other amenities like the SM Shoemart and churches. 5.5 When the writer asked Ave Lina if she ever thought of asking her husband to do the follow-up work, she said that her husband would certainly refuse to do so because he is busy with his job. And if ever he agreed to do be involved in the process of the transfer of title it would only be through a third person whom he would hire to do the work for him. Finally, Ave said: “ My husband has no patience with such things.” 6. Treasury’s office, Quezon City 6.1 Ave paid the real estate tax at the Treasurer’s office of Quezon City. This was accomplished within one hour. 7. The Assessor’s Office 7.1 Ave brought the copy of the receipt to the Assessor’s office for assessment of the market value of her land. She said that the Assessor’s office based the computation of the land value on existing market price in the area. The Assessor’s office did not actually inspect the property. Ave spent three days with the Assessor’s office. 8. City Treasurer’s Office 8.1 After the Assessor’s office had completed assessing her property, Ave went back to the Treasurer’s office to pay the P20.00 fee for the No Improvement Certificate. 8.2 When her turn at the counter came, she was told that her property had to be inspected and that it would take sometime before the inspection could be completed. 8.3 But then she noticed that there was a long line of people at the Treasurer’s office waiting to make payments. She also saw that, from time to time, those at the back would jump the queue of impatient people to talk to the office personnel. Then they would come out of the office wearing a smile as they waved their completed documents like some kind of a trophy!

8.4 Ave then decided that she would no longer stand for hours while others were allowed easy access to the people at the counter. A small amount of P 200.00 for “snacks” (pa konsuelo) handed to the right person ended her travails. In addition, her property was spared the usual ocular inspection that could have cost her a few more pesos to buy lunch and snacks for the inspectors. The Teasurer’s office finished her document in one day only. 9. Bureau of Internal Revenue 9.1 At the Bureau of Internal Revenue (BIR), she paid P 24,000 capital gains tax (CGT) representing 6% of the value of her property. But at the BIR, she waited for two weeks before she obtained her capital gains tax certificate. To this day, she had no idea as to the reason for the delay. For every time she would call up the BIR, she would invariably be advised to just wait. She also did not shell out any pa konsuelo for anyone at the BIR office. 10. Register of Deeds 10.1 Her last stop was at the Registry of Deeds (ROD) where she had to pay a “facilitation” fee of P 2,000. She tried to negotiate for a smaller amount but the ROD person refused because, “There are three of us who would share the amount,” he pointed out. 10.2 Ave said that the ubiquitous fixers there at the ROD where she encountered real difficulties brought it about. She said, “there were many fixers there.” And she was quite powerless to shake off those fixers because they are the very own personnel of ROD. 10.3 Finally, after 4 weeks and 4 days of much waiting and the payment of P 2,000 “facilitation fees,” Ave obtained the original copy of her land title. 11. What Ave Lina thinks of “Facilitation Fees” 11.1 Ave thinks that the practice of facilitation fees (lagay, padulas, pa-konsuelo, pang sigarilyo, etc.) is already a part of the Filipino culture. She said that there are many factors responsible for this pernicious practice of “lagay”, or bribery in Philippine society. One of these is the practice of the people themselves giving money to government employees in order to avoid delays in the processing of official documents. “There would be no takers if there are no givers, “ she declared. 11.2 Finally, she believes that a One-Stop-Shop is a step in the right direction as far as land administration and management in the Philippines are concerned.

Figure 2: Ave Lina’s Flow Chart (total time – 4 weeks & 4 days)

Fig. 3: List of Documents Ave Lina Had to Produce

Name of Office Types of Documents Treasury’s Office

1. Transfer tax certificate 2. Real property tax receipt (latest) 3. Tax clearance (updated) 4, Certificate authority registration (updated) 5. Documentary stamp

Assessor’s office

1. Tax declaration 2. Tax clearance certificate 3. Deed of absolute sale (xerox copy) 4. Sworn statement 5. Transfer tax name 6. Transfer certificate tax (TCT original copy)

Bureau of Internal Revenue

1. Deed of absolute sale (original + 2xerox copies) 2. CREBA registration (xerox latest) 3. Certificate of no improvement from Assessor’s office 4. Title (TCT/CCT/OCT- 2 copies) 5. Tax declaration (2 copies, xerox latest) 6. BIR Form 1743/1701 7. Doc. Stamp Tax BIR Form 2000 8. License to sell 9. Certificate of registration or Debit memo/credit memo 10. Contract to sell

Registry of Deeds

1. Transfer Certificate Tax (TCT) 2. DAS (original + 2 xerox copies) 3. Transfer tax 4. Real property tax certificate (updated) 5. Certificate Authority Registration from BIR

Assessor’s Office for Land Valuation. (3 days)

City Treasurer’s Office to pay Real Estate Tax and no improvement

certificate. (1 day)

Bureau of Internal Revenue (BIR)

to pay Capital Gain’s Tax (6% of

the value of the purchased lot. (3

Register of Deeds where copy of

original title is obtained (1 week)

12. The Story of Edith Lau

12.1 Edith Lau’s property is located in Novaliches, Quezon City. Its size is 300 square meters. She purchased this piece of real estate property from a friend after Edith’s husband started earning good money as a satellite communications engineer in Saudi Arabia. She paid P 950, 000 for the property. 13. Validation of documents 13.1 Edith considered her experience in the transfer of title complicated and extremely cumbersome. The main reason for this is because all documents involved in the process of transfer of titles must be validated for their authenticity. She emphasized that this task entailed tremendous work and a good amount of money – money to go back and forth from home to office, and money to “insert in between the pages of office secretaries’ ledgers,” she said. 13.2 Aside from this, Edith claims that the documentary stamp on the Deed of Sale document must be paid within 24 hours, otherwise a fine would have to be paid. 14.Capital Gains Tax

14.1 Edith also said that she paid a total of P 61,750 in capital gains tax including documentary stamp.

14.2 Edith added that according to law, the seller is the one who must pay the capital gains tax. This means that since she was the lot buyer, she has no obligation to pay the capital gains tax. Unfortunately, however, the seller flatly refused to shoulder this legal obligation so she had to shoulder this responsibility alone. In the beginning, she tried to convince the seller to share the capital gains tax equally. But the latter was very greedy (masyadong matakaw). Hence, rather than complicating the issue further, she decided to absorb all the obligations herself. Besides, her husband was very interested in the property because he had in mind building on the said lot a five-door apartment, which he would rent out in the future. 14.3 Finally, since Edith had to pay the capital gains tax herself, she was constrained to under-value the property in connivance with the Assessor. She “gifted” the Assessor with P 5,000 “padulas” (grease money). 15. Assessor’s office 15.1 At the Assessor’s office, Edith submitted two documents. These are the duly notarized copy of the Deed of Absolute Sale and a copy of the current tax declaration certificate. 16.Treasurer’s Office 16.1 At the Treasurer’s office, Edith paid the real estate tax more commonly known as Amillar. She also submitted an updated copy of tax clearance certificate and the owner’s duplicate copy of Certificate of Title. 16.2 Actually, one could easily breeze through all these activities but it still took Edith two days to accomplish the tasks even with pa merienda, or money for the functionary to have a snack. 17. Bureau of Internal Revenue 17.1The final output expected from the BIR is the so-called, Certificate Authorizing Registration with the Registry of Deeds. As required, Edith submitted, the following documents: -Deed of absolute sale

-No improvement certificate -Two copies of title (TCT/CCT/OCT) -Two xerox copies of tax declaration -Duly filled out BIR Form 1743/1701 -Documentary stamp tax BIR form 2000 -Original TCT -Original tax declaration -License to sell -Certificate of registration -Contract to sell

18. Good words for BIR 18.1 Edith is quite pleased with the BIR. She said that she did not get the feeling that it was deliberately delaying her papers in consideration of some “padulas.” However, on the issue of tax declaration, she is concerned that the document does not indicate whether the lot is located near or far from a major thoroughfare. She believes this has a bearing on the price of the property. 18.2 On the issue of corruption, Edith feels that the assessed value of the lot for sale often spawns corruption. She mentioned that if the assessed value of the property happens to be way beyond the paying capacity of the lot owner, there would be a tendency on the owner’s part to haggle with the Assessor for a lower amount. Most often the Assessor is only too willing to accommodate such a request “if the price is right.” 19. Government as the ultimate loser in any shady deals 19.1 Every time the Assessor allows his/her decision to be influenced by easy money, it is the

government that is the ultimate loser.

20. Register of Deeds

20.1 Edith rates the Registry of Deeds most bureaucratic and corrupt. It exacts “padulas” from people by deliberately delaying the release of the land title certificates. ROD people use several excuses or reasons to justify delayed releases. Here are some examples:

- naubusan ng tinta (the printers have run out of ink) - may depekto ang documento. (the document is defective) - maraming ginagawa ang mga typist kasi may tanggap na subdivision (our typists are

overloaded with work because we are busy working on the papers of a subdivision) - wala ang examiner ( the examiner is absent), etc.

21. What Edith thinks of “facilitation fees” 21.1 Edith thinks that the use of “facilitation fees” as an instrument to hasten things is not wrong per se. Rather, she believes that “facilitation fees” are just a way to express a person’s gratitude for helping him/her out of a tight situation. She asks: “What’s wrong if I express my gratitude to someone who completed my papers much earlier than I expected? Yes, indeed, they are already getting paid for doing what they ought to do in the first place. But, she argues, “Are they necessarily corrupt when they accept something that is freely given?”

Figure 4: Edith Lau’s Flow Chart (total time – 8 weeks & 2 days)

22. The Story of Margie Serion (Her real name)

22.1 In 1996, the People’s Housing Alternative and Social Empowerment/Land Acquisition Development (PHASELAD) of the National Government Housing Center issued the Certificate of Land Entitlement to the beneficiaries of the Doña Juana (St. Joseph Blk. 1) Home Owners Association of Barangay Holy Spirit, Quezon City. The size of the lot in question is 500 sq. meters. 22.2 Margie is a bona fide member of HOA and its incumbent president. In the year 2000, she received from DJHOA the Certificate of Lot Entitlement (CLE) to a 42 sq. m. lot. The CLE authorized her to apply for the transfer of title to her name. 22.3 Subsequently, Margie paid the amount of P2,940 representing 10% of the total price of the lot, which is P29, 400. 22.4 In principle, it is the DJHOA’s responsibility to follow up the application for the transfer of titles of its members. Most of the time, however, this unpleasant job falls on the shoulders of the DJHOA president with little help from others.

Assessor’s Office documents submitted:

-Deed of absolute sale -Current tax declaration (1 week)

City Treasurer’s Office: -Payment of real estate tax (amillar) -Submit updated copy of CC & certificate of Title (2 days).

Bureau of Internal Revenue (BIR)

-obtained copy of Certificate of Authority for Registration

(CAR) submitted:

-DOA’s

-No improvement certificate

-2 copies of Title

-2 photocopies of tax declaration

Register of Deeds: Obtained new title (1 week)

22.5 Since Margie is the incumbent president of the Doña Juana HOA and also the first recipient of the CLE from her association, this happy convergence of events gave her the unique “privilege” of following up her own application for the transfer of title of her 42 sq. m. lot. 22.6 Margie would have wanted to assign the task of following up the title of their small lot to her husband but she said, “my husband is a hot-headed fellow. He would not countenance shady deals.” “Besides,” she said half-jokingly,” I could not possibly imagine my husband going back and forth the different government agencies without going berserk and chopping a few heads in the process!” 23.Follow-up Activities 23.1 Margie began working for the issuance of Certificate of Registration from the Bureau of Internal Revenue (BIR) by getting ready with the following documents:

- Deed of Absolute Sale - Original copy and True Xerox copy of the title - Tax declaration - Certificate of clearance - Receipts of Real Property Tax - Location plan - Capital Gains Tax Form - Documentary Tax Stamp of Tax declaration - Application for registration

23.2 Then she obtained a true copy of the land title from the Home Guarantee Insurance Corporation (HGIC) and took it to the Tax Mapping Division of the Assessor’s Office. This was done in December 2000. After an unusually long wait, her papers finally emerged from the Assessor’s office in March 2002, exactly two years and three months since she had submitted the document. 23.3 But why did it take a relatively easy transaction so long to be completed? Margie replied, “Kung walang follow-up at wala ding friendly gestures, walang mangyayari sa papers mo. Hindi sapat ang being friendly, dapat may gestures din.” (“If there are no follow-up and no friendly gestures, nothing will happen to your papers. It isn’t enough to be friendly; one should also make some actual gestures.”) 24.Treasury office 24.1 After a few days, Margie paid P 400.00 amillar (Real Property Tax) to the City Treasurer’s office. She also paid an additional P20.00 for the Certificate of Clearance (COC) as proof that amillar has been paid. 24.2 In addition, Margie secured the following documents for submission to the Bureau of Internal Revenue: (1) the Deed of Absolute Sale (DOAS), (2) original owners copy of the title, (3) tax declaration (4) receipt of real property tax, and (5) a copy of the location plan. 25. Bureau of Internal Revenue 25.1 After submitting the above-mentioned documents to the BIR, Margie filled out the Capital Gains Tax Form and the Application Form for registration. It took the BIR two months to issue and release the Certificate of Authority for Registration (CAR).

26. Registry of Deeds 26.1 The Registry of Deeds is the last stop in the long process of transferring a title from the mother title to individual DJHOA members. Just when Margie thought that her ordeal was over at last, she was disheartened to learn from the ROD that she had to wait four more weeks. When she angrily asked why, a ROD clerk typist explained that they were busy registering a subdivision. 27. One-Stop-Shop 27.1 Margie likes the idea of a One-Stop-Shop, but she asks, “Will it fly?”

Figure 5: Margie Serion’s Flow Chart (115 weeks & 3 days)

Doña Juana (St. Joseph) Home Owners Association

HOAS grants Margie certificate of

entitlement

Margie pays 10% of total land

DENR -To obtain copy of subdivision plan from the office of Land Management Service (1 week)

Obtains title of land from Home Guarantee Insurance Corporation

(1 week)

Assessor’s office: Margie submits copy of land title to the tax mapping division of assessor’s office (108 weeks)

City Treasurer’s office:

-Payment of Amillar -Payment of Certificate of Clearance (2 days)

BIR, Margie submits: -Deed of absolute sale -Original copy of title -Tax declaration -Receipts of real property tax -Copy of location plan -Filled out capital gains form and application for registration forms (1 week)

Registry of Deeds:

-Releases title (4 weeks)

PHASELAD/ NGCHP

28. The story of Elsa Manimtim

28.1 “Our title is the fruit of two years of struggle with the Registry of Deeds,” Elsa had proudly declared. She was of course talking about the title of a 54 sq. m. lot located at Block 54, Lot 69, No. 302 San Isidro St. Barangay Holy Spirit, Quezon City. 28.2 In October 31, 1996, the Home Guarantee Insurance Corporation (HGIC), which was formerly known as Home Guarantee Corporation (HGC) granted a Certificate of Entitlement to the Oval Home Owners Association of Barangay Holy Spirit. 28.3 But it was not until July 27, 2000 or four years later that Elsa got her own individual certificate of entitlement. The reason behind this was because the National Government Center (NGC) office needed time to survey and re-block the almost 600 sq. meters lot before it could issue individual certificate of entitlement to the members of Oval HOA. 28.4 In that same year 2000, Elsa enthusiastically began the process of transfer of title of the said lot to her name. Little did she realized, however, that what she had envisioned to be a fairly, clean, smooth and short process lasting 2-3 months would take more than one year of frustration, humiliation, anger, hunger and then, eventual triumph. 28.5 Elsa stated that the total price of the 54 sq. meter lot was P37,260, an amount determined by the Assessor’s office. She paid this sum to the Home Guarantee Insurance Corporation as soon as she received the Deed of Absolute Sale. 29. City Treasurer’s Office 29.1 At the City Treasurer’s Office, Elsa paid the transfer tax of P1,093. Then she went back to the Assessor’s office to claim a copy of the Certificate of No Improvement. When all the pertinent documents were ready, she proceeded to the Bureau of Internal Revenue to pay the Capital Gains Tax amounting to P2, 235.60 (6% of P37, 260) 30. Bureau of Internal Revenue 30.1 It took the BIR two weeks to release the capital gains tax certificate. The BIR repeatedly told Elsa that her document was still undergoing verification together with the amount she paid to the City Treasurer’s Office. On other occasions, however, another BIR person would tell her that the agency had not yet conducted an ocular inspection of her lot and that she should be patient. She said that once a BIR person commented: “Mabuti ka pa, nakatayo ka lang diyan. Kami nga, puro trabaho,” (“Lucky you, you just stand there and wait while we keep doing our work.”) 31.Registry of Deeds 31.1 When Elsa told her family that the document she was following up for the titling of their small lot was nearing completion and that they could expect its release in a few days, everyone rejoiced. They promised themselves a small party when they finally got the title. But it was not to be. 31.2 Elsa filed the Certificate of Registration with the Registry of Deeds (ROD) on August 18, 2000. When nothing happened after four months of waiting, she withdrew the document for a few days “to cool her heels,” so to speak. Afterwards, she re-submitted it again thinking that the movement of her documents would be swifter this time around. But then apparently, the documents got stuck again in the same bureaucratic crack it had fallen before. 31.3 During the numerous visits (pabalik-balik, or back and forth) Elsa made to the ROD, office personnel who appeared to have grown tired of seeing her there almost every day would often

meet her with stony silence. At times, they would advise her “Just wait at home rather than loiter around the ROD office.” 31.3 One day, wracked with frustration, she decided to talk to the head of the division responsible for her predicament. She asked her why her papers were being held up so long. The official quietly took her aside and whispered that the document could be released anytime but the typists need money na pang kape (if only for coffee). Although Elsa does not believe in corrupting government officials, she asked the official anyway how much money was needed? Elsa reported that the ROD person said to her, “Two thousand pesos lang naman. Hindi naman pupunta sa bulsa ko ang lahat ng pera. Ipapamudmod ko ang iba nito sa mga tauhan ko.” (It’s only two thousand pesos after all. It won’t all go to me anyway; I’ll distribute some of it to my people.”) 31.4 Elsa indicated that she instantly rejected such overtures and left the ROD office in a huff while uttering expletives. When she reached home, she cried. 31.5 Many more months dragged on. But there was no news from the ROD. She kept going back and forth (pabalik-balik) to the ROD office. There were times when she would fall asleep on one of the chairs reserved for the public. She recalls that on three or four occasions, she missed lunch because her money was just enough for jeepney fare. 31.6 She remarked that many thoughts crossed her mind during those days. She often wondered if the ROD would deal with her that way if she were rich. She also asked herself the question whether the ROD boss knew what some of his people were doing, and what was he doing about it? 32. Report to Malacanang 32.1 It was now May 16, year 2001, nine months after she began following up the ROD’s Certificate of Authority for Registration. She is now convinced that as long as the concerned ROD person sits in the Division responsible for processing her papers, she will never get her papers released. 32.2 So she decided to write the office of the President of the Philippines about her problem. She didn’t have much faith that her letter would even reached the gates of Malacanang. She thought that being confronted daily with national issues of great importance, her letter, which was handwritten by someone who only finished Grade 1V would certainly disappear in the Palace’s shredding machine. 32.3 But after two months, she was pleasantly surprised to receive a telegram from one of Malacañang’s top officials informing her that she could already collect her papers from the Registry of Deeds. 32.3 On February 13, 2002, the Registry of Deeds finally released the original copy of the title to Elsa. The total time she had spent waiting for the ROD’s action was a total of 72 weeks! 32.4Then, greatly relieved, she said to herself: “Puede rin pala kahit walang lagay. Pero masyadong namang madugo. ” (“So things can be accomplished without bribes after all. But it is certainly a traumatic process”). 32.5 Elsa takes great pride in the title she now holds. Asked if she were willing to go through the same process again, she answered, “ Why not? As president of HOA I have the duty to help the other HOA members secure their own individual titles. But they must have the patience of Job.”

32.4 Would she credit Malacanang for the ultimate release of her title? She said, “Yes. But I credit my persistence and determination more than the intercession of people in the Palace for my accomplishment. “ 32.5 Given the chance, would she have given the responsibility of following up the transfer of title to her husband? She emphatically said, “ No way! The only skills my husband has is carpentry.” Figure 6: Elsa Manimtim’s Flow Chart (74 weeks & 3 days )

33. The Story of Belen Suarez

33.1 “Hindi puedeng hindi maglalagay kasi ibinibigay ang priority sa mga may lagay,” (“Its not possible to succeed without giving a bribe because they give priority to those who give bribes,”) says Belen Suarez of Barangay San Bartolome, Novaliches, Quezon City 33.2 In 1999, when Belen purchased the 850 sq. m. lot in what turned out to be a generous deal

from her uncle, she paid him only P 1.5 million. Her house now stands on that lot.

33.3 She had in addition planned to build a car repair shop on the unoccupied portion of the 800 sq. meter lot, but was forced to defer her plans because her garment business in Tanay, Rizal had collapsed in the meantime. This left her almost penniless. 33.4 When asked why it was not her husband who had followed up the matter of transfer of title, she said, “ My husband is not knowledgeable about titles. He also hates following up things. He wants to follow up things only once. If he is unsuccessful, he would just drop the thing.” Finally,

City Treasurer’s Office - paid transfer tax of P 1, 097 ( 2days)

Assessor’s Office -Claimed certificate of no improvement (1 day)

Bureau of Internal Revenue-paid capital gains tax of P 2, 235.60( 2 weeks)

Register of Deeds -Claimed original title of 54 sq. m. lot (72 weeks)

she said, “women are more patient than the men in hopping from one agency of the government to the next.” 34. The Assessor’s Office 34.1 Six months after the deal with her uncle had been consummated, Belen went to the Assessor’s office at Quezon City Hall in connection with the transfer of title from her uncle’s name to hers. She submitted to the Assessor’s office the following documents: (1) vicinity map, (2) copy of the original title, (3) Deed of Absolute Sale, and (4) Receipt of real property tax. 34.2 The Assessor’s office told her that the value of land around and near the center of Novaliches was P 7,000 per sq. m. This means that the actual price of the lot her dying uncle sold her was P 5, 595, 000. At 6%, the capital gains tax would be P335, 700.

34.3 Considering her poor finances, she balked at the amount and begged the Assessor to lower the capital gains tax. The Assessor, in turn, showed willingness to accede to her request but suggested that they talk about the matter not inside his office but at McDonald’s on Commonwealth Avenue, Quezon City. 34.4 The conversation at McDonald’s was friendly. The Assessor said that he understood the problem of Belen about money and that he was willing to do something about the matter of the capital gains tax. Hence, instead of paying the amount of P335, 700, the Assessor reduced it to P200, 000 only. She gave him P35, 000 “facilitation fees” as a gesture of gratitude. 34.5 The negotiation with the Assessor’s office was not smooth especially in the beginning. It took a lot of negotiation and haggling for the “right” price before a final agreement was hammered out. Belen recalls that she spent a total of five weeks wheeling and dealing with the Assessor and his “negotiators” who were all his subordinates in his office. 35. City Treasurer’s Office et al. 35.1 Once the issue of capaital gains tax was settled, Belen breezed through the other agencies, like the Treasurer’s office, BIR, and the Registry of Deeds, respectively. She said that it took her only three days to get the new title. “Only once,” she said, did she have to wait for more than one hour. That was when there were literally hundreds of people awaiting their turns at the Treasurer’s office. 36. What does she think of the One-Stop- Shop? 36.1 Belen thinks that the idea of a One-Stop-Shop is great. But she has grave doubts if it will work. She is convinced that the problem of graft and corruption in many government agencies is like a multi-headed hydra. It can always reinvent itself no matter the costs. Political will? She said that would be the key to make the One-Stop-Shop work. Whoever would be the boss of the new land-titling program must have lots of political will. But then again, she asked, “Would such a person last in his/her position?”

Figure 7: Belen Suarez’s Flow Chart (total time –5 weeks & 3 days)

37. The Story of Rowena Rosa 37.1 Rowena’s story is simple and straightforward. It involves the transfer of title of a 35 square meter lot she bought from her mother-in-law in 2001. 37.2 The lot is located at 69 Kaingin Street, Balintawak, Quezon City, and has an assessed value of P252, 000 or P7, 000 per sq.m. But her mother-in-law gave it to her for a relatively low price of P100, 000 that translated into only P2, 857 per sq. m. 37.3 Nonetheless, Rowena still paid P24, 000 to the treasurer’s office representing 6.5%/ (i.e. 6% CGT + 1.5% documentary stamp) capital gains tax based on the assessed value of the lot, which was P252, 000. 38. Bureau of Internal Revenue 38.1 Her experience with the BIR while waiting for the release of Certificate of Authorization to Register was uneventful. She obtained the document within an hour.

Assessor’s office submitted: -Vicinity map -Copy of original title -Deed of absolute sale -Receipt of real property tax -Negotiate to undervalue -Paid P35,000 lagay (5 weeks)

City Treasurer’s office

-Paid real estate tax

-Paid no improvement certificate (1

BIR: • Paid CGT • Paid certificate of

authorization for registration (1 day)

Register of Deeds: • Obtained new title (1 day)

39. Registry of Deeds 39.1 At the Registry of Deeds, Rowena did not wait long either. A “padulas” (facilitating amount) of P1, 000 did the trick for her. 39.2 In the end, the total time Rowena spent with concerned government agencies while following up her land title application was only two weeks. She credited three elements for this: (1) Complete documentation; (2) Knowledge of correct procedures, and (3) the relatively small amount under consideration. Figure 8: Rowena Rosa’s Flow Chart (total time – 2 weeks)

40.Some Observations 40.1 The Issue of Facilitation Fees 40.2 All six women informants believe that the practice of graft and corruption in land titling activities is already deeply rooted in the mind-sets of government officials. As Belen Suarez remarked, “Hardly anything moves in this country without lagay.” Edith Lau, on the other hand, thinks that in the Filipino culture, it is difficult to distinguish between what is illegal and what is just a part of “pakikisama,” or maintaining good relations with others. Ave Lina is convinced that the fawning attitudes of the clients themselves whenever they want something from the government serves as spawning grounds for crooks in government. 40.3 Even Elsa Manimtim, who is adamantly against bribing government people has expressed grave doubts whether the mess that surrounds government land reform and housing programs can ever be redressed. “Suhol, lagay, pang kape at pang merienda move government people to perform. Kapag nawala ‘yan, duda ako kong tatakbo pa ang pamahalaan.” (Facilitation fees, bribery, coffee money and merienda contributions move government people to perform. If these aren’t present, I doubt whether the government can run at all.”) 40.4 Rowena believes that the people especially the poor should be taught the procedures of land titling, otherwise, “They are vulnerable to manipulation by those in government because of their ignorance about procedures.”

Assessor’s office (3 days)

City Treasurer’s office:

• Paid P24,000 CGT(1 day)

BIR: • Obtained certificate of

authorization for registration (3 days)

Register of Deeds: • Obtained new title • Gave P1,000 lagay (1 week)

41. Nuances of the word “suhol” 41.1 Over the years the word “suhol” (facilitation fee) and “lagay” (bribe) have generated words or expressions that connote the same meaning but carry their own distinctive nuances. For instance, all six informants agree that the words, “suhol” or “lagay” indicate large or significant amounts of money. Hence, when a clerk typist in a government agency whispers to the person in need of help, “Humihingi siya ng suhol” (He/she is asking for some facilitation money, that expression indicates a large or relatively large amount. 41.2 However, words like pang kape, pangsigarilyo, pang gimik, padulas add further nuances. Pang merienda mean only a small or petty amount mostly for the lower level government employees. These are the words most frequently heard by those who are following up their land titles. Although the amounts involved may be small, for the poor they are not only difficult to produce; their surrender to greedy government functionaries may mean hunger and missed schooling for one or more days for the children of the poor. 41.3 Moreover, words or phrases like, “Sa labas na lang tayo magusap”;” Para naman masaya tayong lahat”; “Pang Hongkong”; “Pang Swiss banks”; “Kausapin mo na lang ang assistant ko,” (Let just talk outside.” “So that all of us will be happy,” “For Hong Kong,” For Swiss banks” “Just talk to my assistant” etc.) signal amounts that may go up to hundred thousands of pesos. 42. Major Findings of the Study

42.1 Transfer of title is costly, cumbersome and time-consuming. This greatly disadvantages the poor especially since they are the ones who are in great need of a secure dwelling. As shown in Figure 1 on the Legal Procedures in Transfer of Titles, Engineer Cortez, who has spent many productive years as the Director of Register of Deeds, estimates that the entire process of titling could be accomplished within five days. However, this study shows that two weeks was the shortest period within which transfer of title was completed and over two years weeks the longest. 42.2 The massive number of paper requirements and the accompanying steps required discourage individuals from working on their titles 42.3The absence of deadlines on the part of government agencies for processing official documents forces people to pay informal and illegal facilitation fees simply to avoid delays and repeated visits to the concerned agencies. 42.4 While respondents are glad to hear of plans and programs intended to improve the present land titling procedures, many are skeptical that these will succeed. They believe that the government is totally inept in sustaining good programs. 42.5. There is also considerable skepticism that the government will find officials with enough political will to clean up the horrendous mess in Philippine land administration. 42.6. There are also doubts that computerizing the land administration and management can effectively and permanently stop graft. As Belen pointed out, “Filipinos are so creative as a people that they will always find ways of beating even a computerized system.”

Table 1: Informants’ Perception of Agencies Re: Efficiency / Inefficiency Name of Informant AO CTO BIR ROD 1. Ave Lina 2. Edith Lau 3. Margie Monar 4. Elsa Manimtim 5. Belen Suarez 6. Rowena Rosa Legend:

Efficient: AO - Assessor’s Office 1. Does not demand facilitation fees CTO - Treasurer’s Office

2. Expeditious release of documents BIR - Bureau of Internal Revenue ROD - Register of Deeds

Inefficient: 1. Demands facilitation fees 2. Slow processing of documents Table 2: What Informants think about the One-Stop-Shop (OSS) Name of Informant Good Not Good In-doubt but

willing to try Reasons

1. Ave Lina Lessen corruption

2. Edith Lau Lessen corruption

3. Margie Monar Lessen corruption

4. Elsa Manimtim Lessen corruption

5. Belen Suarez Politicians will subvert the program

6. Rowena Rosa Lessen corruption

Table 3: Summary of Informants’ Experience Name of Informant Lot size

(sq. m.) Location Price (P) Length of

processing (in weeks)

1. Ave Lina 121 Sauyo, Novaliches, Q.C.

400,000 4 weeks & 4 days

2. Edith Lau 300 Caloocan, Q.C. 2,100,000 8 weeks & 2 days 3. Margie Monar 42 Holy Spirit, Q.C. 29,400 115weeks & 3 days

4. Elsa

Manimtim 54 Holy Spirit, Q.C. 37,260 74 weeks & 3 days

5. Belen Suarez 850 Novaliches, Q.C. 5,500,000 5 weeks & 3 days

6. Rowena Rosa

36 Balintawak, Q.C. 100,000 2 weeks

CONCLUSION 43. It is clear that the experiences of the six title-holders vary widely in terms of the length of time required to obtain a title and in their assessments of the entire title-acquisition process. The one feature they share in the recognition that the process moves forward fast or slow according to whether some form of bribe is given. Euphemistically referred to as facilitation fees, these forms of extortion range from small to very large, depending on the value of the land being transferred and the level and number of bureaucracy staff expected to gain from the transaction. While none of the four principal offices is free of corruption, respondents cite the Register of Deeds as meriting special attention in terms of the facilitation fee system. 44. Reactions among clients to implied or actual requests for under-the-table payments of facilitation fees likewise express a continuum – from outright condemnation and unwillingness to pay, to resentment coupled with resignation about having to pay, to acceptance of bribery as part of the government’s bureaucratic culture and, accordingly, initiating the corresponding payment at the beginning of a transaction. 45. There is no doubt that the poor are most adversely affected by the inefficiency and corruption endemic in some agencies, as even small payments diminish their ability to fund essential daily activities of the family. Moreover, the time required for their having to return frequently to the various offices to follow-up their papers undermines already precarious livelihood efforts. While the six respondents cannot be considered representative of all current or potential title-seekers in the area, their accounts offer important insights to situations almost certainly experienced by others, and reasons why many otherwise entitled clients conclude that it is fruitless even to initiate the process. 46. It is no coincidence that all of the respondents are women. Apparently, women are culturally expected to follow up land registration documents, perhaps because their time is more flexible that that of males in the community or because they are culturally trained to be more patient and persevering, or because they appear to be more interested in ensuring the security of their home, or a combination of these reasons. This suggests that even as advocacy, information and education programs should target the entire community, actual training programs on the titling process should focus heavily on women as the majority of actual title-seekers. 47. The accounts of the six women also indicate that corruption and inefficiency are not present everywhere in the bureaucracy. Many of the now titled respondents went through various parts of the process without having to bribe their way through. How to reinforce efficiency, honesty and

genuine service where it emerges in the bureaucracy, and punish or discourage anomalous practices where they occur constitute a major challenge to LAMP. Effective safeguards need to be established through both computerized systems for accountability as well as the moral force of organized and informed communities, supported by government leaders, to demand the services they deserve. Lamp Project List of People Interviewed 1. Barrie- PA Lamp 2. Dada- PA Lamp 3. Eng. Fel Cortez- PA Lamp 4. Denis Murphy- UPA 5. Jo Castillo- DAMPA 6. Alice Murphy- UPA 7. Henry- Lamp- UPA 8. William Keyes- Freedom to Build 9. Abelina Jose- Resident, Luzon Avenue, Old Balara, Q.C. 10. Lisa Sagum- SAMA-SAMA 11. Atty Bien 12. Mr. Pedrito Lavina- Geodetic engineer 13. Ave Lina (Informant) 14. Edith Lau (Informant) 15. Margie Serion (Informant) 16. Elsa Manimtim (Informant) 17. Belen Suarez (Informant) 18. Rowena Rosa (Informant 19. Mary Racelis- IPC 20. Tess- Freedom to Build 21. Rae Porter- PA Lamp