CARP Exemptions and Exclusions -- From Agrarian Reform Law and Jurisprudence DAR-UNDP SARDIC Publication

Exemptions and Exclusions

Sec. 10 of RA 6657, as amended by RA 7881 (1995), specifically

enumerates the exemptions and exclusions from CARP, as follows:

a) Lands actually, directly or exclusively used for parks and wild-

life, forest reserves, reforestation, fish sanctuaries and breeding

grounds, watersheds and mangroves (Rep. Act No. 6657 [1988], sec. 10

[a], as amended by Rep. Act No. 7881 [1995]).

b) Private lands actually, directly and exclusively used for prawn

farms and fishponds: Provided, That said prawn farms and fishponds

have not been distributed and Certificate of Land Ownership Award

(CLOA) issued to agrarian reform beneficiaries (ARBs) under CARP

(Sec. 10 [b]).

c) Lands actually, directly and exclusively used and found to be

necessary for national defense, school sites and campuses, including

experimental farm stations operated by public or private schools for

educational purposes, seeds and seedling research and pilot production

center, church sites and convents appurtenant thereto, mosque sites and

Islamic centers appurtenant thereto, communal burial grounds and

cemeteries, penal colonies and penal farms actually worked by the

inmates, government and private research and quarantine centers and all

lands with eighteen percent (18%) slope and over, except those already

developed (Sec. 10 [c]).

Lands devoted to raising of livestock, swine and poultry.

The Luz Farms Case.

Before its amendment by RA 7881, Sec. 3(b) of RA 6657 included in its

definition of agricultural activity the "raising of livestock, poultry or fish".

Likewise, the original Sec. 11 of RA 6657 on commercial farming provided

that "lands devoted to commercial livestock, poultry and swine raising shall be

subject to compulsory acquisition within ten (10) years from the effectivity of

the Act." However, the Supreme Court in Luz Farms vs. Secretary of Agrarian

Reform, supra, held that Sec. 3 (b) and Sec. 11 of RA 6657 (along with Sec. 13

and 32) are unconstitutional in far as they include the raising of livestock and

swine in the coverage of CARP.

Luz Farms vs. Secretary of the Department of Agrarian

Reform

192 SCRA 51 (1990)

Facts:

Petitioner Luz Farms is a corporation engaged in livestock and

poultry business. It seeks to nullify Sec. 3 (b) and Sec. 11 of RA

6657 in so far as they apply to livestock and poultry business.

Held:

Sec. 3 (b) and Sec. 11 of RA 6657 are unconstitutional in so far as

they include lands devoted to raising livestock, swine and poultry

within its coverage. The use of land is incidental to but not the

principal factor or consideration of productivity in this industry. The

Supreme Court held that:

The transcripts of deliberations of the Constitutional Commission of

1986 on the meaning of the word "agricultural," clearly show that it

was never the intention of the framers of the Constitution to include

livestock and poultry industry in the coverage of the constitutionally-

mandated agrarian reform program of the government.

The Committee adopted the definition of "agricultural land" as

defined under Section 166 of RA 3844, as land devoted to any

growth, including but not limited to crop lands, saltbeds, fishponds,

idle and abandoned land (Record, CONCOM, August 7, 1986, Vol.

III, p. 11).

The Supreme Court noted that the intention of the Committee to limit

the application of the word "agriculture" is further shown by the

proposal of Commissioner Jamir to insert the word "arable" to

distinguish this kind of agricultural land from such lands as

commercial and industrial lands and residential properties. The

proposal, however, was not considered because the Committee

contemplated that agricultural lands are limited to arable and suitable

agricultural lands and therefore, do not include commercial,

industrial and residential lands (Record, CONCOM, 7 August 1986,

Vol. III, p. 30).

Moreover, in his answer to Commissioner Regalado's interpellation,

Commissioner Tadeo clarified that the term "farmworker" was used

instead of "agricultural worker" in order to exclude therein piggery,

poultry and livestock workers (Record, CONCOM, August 2, 1986,

Vol. II, p. 621).

DAR AO 9 (1993) imposes two (2) conditions in order that these lands may

be exempted: (a) that the land or portion thereof is exclusively, directly, or

actually used for livestock, poultry and swine raising as of 15 June 1988; and

(b) the farm must satisfy the ratios of land, livestock, poultry and swine, as

follows:

cattle, carabao and horse raising maximum of 1 head to 1

hectare; 21 heads for every

1.7815 hectares of infrastructure

sheep and goat raising 7 heads to 1 hectare; 147

heads for every 0.7205 hectare

of infrastructure

swine raising 21 heads of hogs for every

0.5126 hectare of infrastructure

poultry raising 500 layers for every 0.53

hectare of infrastructure or 1000

boilers for every 1.428 hectares

of infrastructure

Fishponds and prawn ponds

With the amendment of Sec. 3 (c), 10 and 11 of RA 6657 by RA 7881,

fishponds and prawnponds are also exempted from the coverage of CARP,

provided that said lands have not been distributed to ARBs and no CLOAs

have been issued.

To be exempted, the agricultural land must have been actually, directly and

exclusively used for prawn farms and fishponds as of 12 March 1995, the date

of effectivity of RA 7881. To avail of the exemption, a landowner or his

authorized representative still has to file a written application for land

exemption/exclusion with the DAR Provincial Office (DAR Adm. O. No. 3

[1995]).

In cases were the fishponds or prawn farms have been subjected to CARP,

by voluntary offer to sell, commercial farms deferment or notice of compulsory

acquisition, they can be exempt from CARP if a simple and absolute majority

of the actual regular workers or tenants consent to the exemption within one (1)

year from the effectivity of RA 7881 or on 12 March 1995. In cases where the

fishponds or prawnponds have not been subjected to CARP, the consent of the

farm workers shall no longer be necessary (Rep. Act No. 6657 [1988], sec.

10[b], as amended).

Sec. 4 of RA 7881 also amended RA 6657 by introducing a new provision

mandating the introduction of an incentive plan for employees of all fishponds

and prawn farms. Operators and entities owning or operating fishponds and

prawn farms are directed to execute within six (6) months from its effectivity

an incentive plan with their regular fishpond or prawn farm worker's

organization, if any, whereby seven point five percent (7.5%) of net profits

before tax from the operation of the fishpond or prawn farms are distributed

within sixty (60) days at the end of the fiscal year as compensation to regular

and other pond workers over and above their current compensation. This

incentive plan requirement, however, does not apply to agricultural lands

subsequently converted to fishponds or prawn farms provided that the size of

the land converted does not exceed the retention limit of the landowner.

Lands used for academic or educational use. The CMU case.

In Central Mindanao University vs. DARAB, 215 SCRA 85 (1992), the

Supreme Court passed upon the exemption of lands directly, actually and

exclusively used and found to be necessary for school sites and campuses,

including experimental farm stations operated by public or private schools for

educational purposes provided for under Sec. 10 of RA 6657, as amended.

Central Mindanao University vs. Department of Agrarian

Reform Adjudication Board

215 SCRA 86 (1992)

Facts:

On 16 January 1958, President Carlos Garcia issued Proclamation

No. 467 reserving for the Mindanao Agricultural College, now the

CMU, a piece of land to be used as its future campus. In 1984, CMU

embarked on a project titled "Kilusang Sariling Sikap" wherein

parcels of land were leased to its faculty members and employees.

Under the terms of the program, CMU will assist faculty members

and employee groups through the extension of technical know-how,

training and other kinds of assistance. In turn, they paid the CMU a

service fee for use of the land. The agreement explicitly provided that

there will be no tenancy relationship between the lessees and the

CMU.

When the program was terminated, a case was filed by the

participants of the "Kilusang Sariling Sikap" for declaration of status

as tenants under the CARP. In its resolution, DARAB, ordered,

among others, the segregation of 400 hectares of the land for

distribution under CARP. The land was subjected to coverage on the

basis of DAR's determination that the lands do not meet the condition

for exemption, that is, it is not "actually, directly, and exclusively

used" for educational purposes.

Issue:

Is the CMU land covered by CARP? Who determines whether lands

reserved for public use by presidential proclamation is no longer

actually, directly and exclusively used and necessary for the purpose

for which they are reserved?

Held:

The land is exempted from CARP. CMU is in the best position to

resolve and answer the question of when and what lands are found

necessary for its use. The Court also chided the DARAB for

resolving this issue of exemption on the basis of "CMU's present

needs." The Court stated that the DARAB decision stating that for

the land to be exempt it must be "presently, actively exploited and

utilized by the university in carrying out its present educational

program with its present student population and academic faculty"

overlooked the very significant factor of growth of the university in

the years to come. SHECcT

The CMU case is unique as it involves land transferred by the state to CMU

through PD 467 which provided for its commitment to a specific use and

purpose. Thus, the said land was already set aside for a specific purpose and, in

effect, was taken outside the coverage of agrarian reform by law. It is

submitted that a more accurate basis for the exemption should have been that

the exclusive use of the land — both present and future — has been determined

by law, and not because of the determination of the CMU of what it needs and

how it intends to use it.

In ruling that the CMU is in the best position to determine the use of the

land and not DAR, the Supreme Court seems to have overlooked EO 407

(1990), as amended by EO 448 (1991), which provides that DAR is vested with

the power to determine whether lands reserved for public uses by presidential

proclamation is no longer actually, directly and exclusively used and necessary

for the purpose for which they are reserved. Said EO provides that:

Sec. 1-A. All lands or portions thereof reserved by virtue of

Presidential proclamations for specific public uses by the

government, its agencies and instrumentalities, including

government-owned or controlled corporations suitable for agriculture

and no longer actually, directly and exclusively used or necessary for

the purposes for which they have been reserved, as determined by the

Department of Agrarian Reform in coordination with the government

agency or instrumentality concerned in whose favor the reservation

was established, shall be segregated from the reservation and

transferred to the Department of Agrarian Reform for distribution to

qualified beneficiaries under the Comprehensive Agrarian Reform

Program.

Thus, DAR in coordination with the agency or department involved, can

determine whether the purpose or use for which the lands reserved continues to

exist and therefore establish if they continue to be exempt from CARP

coverage.

The Supreme Court's statement that lands of universities and academic

institutions need not be actually, directly and exclusively used for educational

or research purposes at the time of the effectivity of the RA 6657 to be exempt

from CARP also fails to consider Sec. 10 of RA 6657. Sec. 10 is explicit that

only those lands that are "actually, directly, and exclusively" used and found

necessary for the uses enumerated therein are exempt from CARP coverage. A

literal interpretation of the provision implies that the exemption applies only to

those lands already committed for the enumerated purposes at the date of the

effectivity of law on 15 June 1988. Thus, agricultural land acquired by

academic institutions for academic, educational, or research purposes after 15

June 1988, or those owned by them but not committed exclusively, actually,

and directly to the abovementioned uses before or on such date, are covered by

CARP. For its exclusion from acquisition and distribution, and for its

commitment to said purposes, the institution may file before DAR for clearance

to convert these lands into non-agricultural use.

Lands with 18% slope

Lands with 18% slope or over are exempt from CARP coverage unless these

are found to be agriculturally developed as of 15 June 1988.

This rule on exemption is based on PD 705 (1975), or the "Revised Forestry

Code of the Philippines," which provides that lands with a slope of 18% or over

are generally reserved as forest lands. Sec. 15 thereof states that "no land of the

public domain eighteen per cent (18%) in slope or over shall be classified as

alienable and disposable" and that "lands eighteen per cent (18%) in slope or

over which have already been declared as alienable and disposable shall be

reverted to the classification of forest lands by the Department Head, to form

part of the forest reserves, unless they are already covered by existing titles or

approved public land application, or actually occupied openly, continuously,

adversely and publicly for a period of not less than thirty (30) years as of the

effectivity of this Code, where the occupant is qualified for a free patent under

the Public Land Act.

If the land has 18% slope or over and is agriculturally developed as of 15

June 1988, the same shall be allocated to the qualified applicants in the

following manner:

a) If land is classified as forest land, and therefore is inalienable and

indisposable, this shall be allocated by the DENR under its Integrated

Social Forestry Program;

b) If classified as alienable and disposable, this shall be allocated by

the Land Management Bureau-DENR and DAR pursuant to the

provisions of CA 141 and the Joint DAR-DENR AO 2 (1988); and

c) If private agricultural land, this shall be acquired in accordance

with the provisions of RA 6657 (DAR Adm. O. No. 13 [1990], item E,

part II).

Effects of exemption

Sec. 10 of RA 6657 provides that exempted or excluded lands are removed

from the coverage of CARP. However, there are two (2) contending views on

whether these exempted or excluded lands are perpetually taken out from

coverage of the CARP.

The first view is that lands exempted or excluded from the law are

permanently taken out from coverage of the CARP. The basis of this

interpretation is the phraseology of Sec. 10 which states that exempted lands

are "exempt from the coverage of the law." The legal effect of this

interpretation is that the owner can use and dispose the land as he deems fit

without the need for any clearance from DAR.

The second view is that excluded and exempted lands can be covered by

CARP when the reason for their exemption ceases to exist. Thus, when the

reason for exemption ceases to exist for lands exempt under the Luz Farms

ruling or Sec. 10, as amended by RA 7881 (except lands with 18% slope), they

are removed from the exemption and are treated like any other agricultural

land.

It must be remembered that the lands subject of exemption under Sec. 10 of

RA 6657 and the Luz Farms ruling are considered agricultural lands as defined

by Sec. 3 (c) of RA 6657, that is, they are in fact suitable to agriculture and not

classified as mineral, forest, residential, commercial or industrial lands, but are

exempt or excluded from CARP by reason of their actual use and their

necessity for other purposes. Thus, in the event that these lands cease to be

used or necessary for the purposes for which they are exempted, they are

removed from the application of Sec. 10 and are then subject to CARP

coverage.

The second view is anchored on the spirit and intent of the law to cover all

agricultural lands suitable to agriculture. Moreover, as RA 6657 is a social

welfare legislation the rules of exemptions and exclusions must be interpreted

restrictively and any doubts as to the applicability of the law should be resolved

in favor of inclusion.

In either case, the security of tenure of tenants enjoyed prior to 15 June 1988

shall be respected even when the lands are exempted. As to farmworkers, the

exemption of the land shall not cause the loss of the benefits to which they are

entitled under other laws. In addition, they are granted preference in the award

of other lands covered by CARP (DAR Adm. O. No. 13 [1990], part II).

Homesteads

In Alita vs. CA, the Supreme Court stated that homesteads are exempt from

agrarian reform.

Alita vs. Court of Appeals

170 SCRA 706 (1989)

Facts:

Subject matter of the case consists of two (2) parcels of land acquired

by respondents' predecessors-in-interest through homestead patent

under the provisions of CA 141. Respondents wanted to personally

cultivate these lands, but the petitioners refused to vacate, relying on

the provisions of PD 27 and PD 316 and appurtenant regulations

issued by the then Ministry of Agrarian Reform.

Issue:

Are lands obtained through homestead patent covered under PD 27?

Held:

No. While PD 27 decreed the emancipation of tenants from the bondage of

the soil and transferring to them ownership of the land they till, the same

cannot be invoked to defeat the very purpose of the enactment of the Public

Land Act or CA 141. In Patricio v. Bayog, 112 SCRA 45, it was held that:

The Homestead Act has been enacted for the welfare and

protection of the poor. The law gives a needy citizen a piece of land

where he may build a modest house for himself and family and

plant what is necessary for subsistence and for the satisfaction of

life's other needs. The right of the citizens to their homes and to the

things necessary for their subsistence is as vital as the right to life

itself. They have a right to live with a certain degree of comfort as

become human beings, and the State which looks after the welfare

of the people's happiness is under a duty to safeguard the

satisfaction of this vital right.

In this regard, Sec. 6 of Article XIII of the 1987 Constitution provides:

Section 6. The State shall apply the principles of agrarian

reform or stewardship, whenever applicable in accordance with law,

in the disposition or utilization of other natural resources, including

lands of public domain under lease or concession suitable to

agriculture, subject to prior rights, homestead rights of small

settlers, and the rights of indigenous communities to their ancestral

lands.

Moreover, Sec. 6 of RA 6657 contains a proviso supporting the

inapplicability of PD 27 to lands covered by homestead patents like those of

the property in question, reading:

Section 6. Retention Limits. . . . Provided further, That

original homestead grantees or their direct compulsory heirs who

still own the original homestead at the time of the approval of this

Act shall retain the same areas as long as they continue to cultivate

said homestead.

xxx xxx xxx

While homestead lots are declared exempt under PD 27, they are not

expressly declared as such under RA 6657. However, Sec. 6 of RA 6657

provides that homesteaders are allowed to retain the total homestead lot subject

to the conditions provided in the same section and as set DAR MC 4 (1991), to

wit:

a) That the original homestead grantee or his/her direct compulsory

heirs still own the land on 15 June 1988;

b) The original homestead grantee or his or her compulsory heirs

cultivate the land as of 15 June 1988 and continue to cultivate the same.

It also provides that the tenants of lands covered by homestead patents

exempted from PD 27 or retained under RA 6657 shall not be ejected

therefrom but shall remain as leaseholders therein.

Schedule of Implementation

Sec. 7 of RA 6657 lays out the schedule of acquisition and distribution of all

agricultural lands through a period of ten (10) years from the effectivity of the

Act:

Phase Lands Covered

Schedule

I • Rice and corn lands under Presidential 1988-

1992 Decree No. 27; • all idle or abandoned lands;

• all private lands voluntarily offered by the owners for agrarian reform; • all lands foreclosed by the government financial institutions; • all lands acquired by the Presidential Commission on Good Government (PCGG); and • all other lands owned by the government devoted to or suitable for agriculture

II • All alienable and disposable public agricultural 1992-

1995 lands; • all arable public agricultural lands under agro- forest, pasture and agricultural leases already cultivated and planted to crops in accordance; • all public agricultural lands which are to be opened for new development and resettlement; • and all private agricultural lands in excess of fifty (50) hectares,

III-A • Landholdings above twenty-four (24) 1998-

1992 hectares up to fifty hectares; and

III-B • Private agricultural lands with areas above the 1994-

1998 retention limit up to 24 hectares

Though Sec. 7 of RA 6657 provides a fixed time table for the

implementation of the CARP law, this provision should be interpreted as

merely directory, rather than mandatory in character. This is the gist of DOJ

Opinion No. 9 (1997). It has been held that the difference between a

mandatory and a directory provision is often determined on grounds of

expediency. Where a provision embodies a rule of procedure rather than

one of substance, the provision as to time will be regarded as directory only

notwithstanding the mandatory nature of the language used. Sec. 5 of RA

6657 is more procedural in nature than substantive. The ten (10)-year

period is merely a time frame given to DAR for the acquisition and

distribution of public and private agricultural lands covered by RA 6657. It

is merely a guide to DAR in setting its priorities, and it is not, by any

means, a limitation of its authority. Hence, Sec. 5 of RA 6657 should not be

construed as a prescriptive period, the lapse of which bars the DAR from

covering the land under CARP.

Thus, DAR need not wait for the full coverage of those lands in the first

phase before those in the succeeding phases could be covered. DAR may also

proceed with the coverage of lands in different phases simultaneously.

In view of the passing of the ten (10)-year period in 1998, Congress passed RA

8532 (1998) providing for the funding for land acquisitions for another ten (10)

years.

Idle or abandoned lands

Sec. 22 of Art. XVIII of the 1987 Constitution and Sec. 18 (h) of EO 229

prioritizes the immediate expropriation or acquisition of idle or abandoned

lands.

Sec 3 (e) of RA 6657 defines idle or abandoned land as "any agricultural

land not cultivated, tilled or developed to produce any crop nor devoted to any

specific economic purpose continuously for a period of three (3) years

immediately prior to the receipt of notice of acquisition by the government as

provided under RA 6657. However land that has become permanently or

regularly devoted to non-agricultural purposes is not to be considered as idle or

abandoned. Neither can it be considered as abandoned or idle any land which

has become unproductive by reason of force majeure or any other fortuitous

event, provided that prior to such event, such land was previously used for

agricultural or other economic purpose."

Lands owned by government

To expedite the disposition of lands owned by the government, President

Corazon C. Aquino issued EO 407 (1990) directing all government

instrumentalities, government agencies, government owned and controlled

corporations or financial institutions to transfer to the Republic of the

Philippines, through the DAR, all landholdings suitable for agriculture. Sec. 3

of EO 407 (1990) likewise provides for the redistribution and award of

fishponds, pasturelands and other lands of public domain suitable for

agriculture subject of cancelled or amended lease agreement to the agrarian

reform beneficiaries. EO 448 (1991) and EO 506 (1992) amended EO 407 by

including all lands or portions thereof reserved by virtue of presidential

proclamations for specific public uses by the government, its agencies and

instrumentalities, and no longer actually, directly and exclusively used or

necessary for the purposes for which they have been reserved. These also

excluded national parks and other protected areas, proposed national parks,

game refuge, bird sanctuaries, wild-life reserves, wilderness areas and other

protected areas, including old growth or virgin forests and all forests above

1,000 meters elevation or above 50 percent slope until such time that they are

segregated for agricultural purposes or retained under the National Integrated

Protected Areas System.

Commercial farms

Sec. 11 of RA 6657 allowed the deferment of the coverage of commercial

farms. Deferred commercial farms shall be subject to immediate compulsory

acquisition and distribution after ten (10) years from the effectivity of RA 6657

on 15 June 1988. For new farms, the ten (10)-year deferment will begin from

the first year of commercial production and operation.

For a commercial farm to be qualified for deferment, it must have been

planted to commercial crop or devoted to commercial farming operations

before 15 June 1988. DAR AO 16 (1988) provided a 60-day period for the

filing of applications of deferment which lapsed on 2 May 1989.

DAR AO 16 (1988) explicitly allows the DAR to automatically subject the

lands to redistribution when it determines that the purpose for which deferment

is granted no longer exists as when the particular farm areas ceases to be

commercially productive. During the deferment period, the DAR shall initiate

steps to acquire the lands. Final land transfer to the beneficiaries shall be

effected at the end of the deferment period. The acquisition and distribution of

these deferred commercial farms are governed by DAR AO 9 (1998).

Retention

Sec. 4, Art. XIII of the 1987 Constitution subjects the distribution of

agricultural lands for agrarian reform to "reasonable retention limits as

Congress may prescribe. Sec. 6 of RA 6657 operationalizes this mandate and

observes the right of persons to own, or retain, directly or indirectly public or

private agricultural land, the size of which shall vary according to factors

governing a viable family-size farm in such as commodity produced terrain,

infrastructure, and soil fertility, but in no case shall exceed five (5) hectares.

The retention limits under Sec. 6 of RA 6657 covers all persons whether

natural or juridical. Juridical persons like corporations and partnerships are

therefore subject to the five (5)-hectare limit.

With respect to married couples, their maximum retention limit is

determined by the nature of their property relations. For marriages covered by

the New Civil Code, in the absence of an agreement for the judicial separation

of property, spouses who own only conjugal properties may retain a total of not

more than five (5) hectares of such properties. However, if either or both of

them are landowners in their own respective rights (capital and/or paraphernal),

they may retain not more than five (5) hectares of their respective landholdings.

In no case, however, shall the total retention of such couple exceed ten (10)

hectares. (DAR Adm. O. No. 5 [2000], sec. 9 [g]).

For marriages covered by the Family Code, which took effect on 3 August

1988, a husband owning capital property and/or a wife owning paraphernal

property may retain not more than five (5) hectares each provided they

executed a judicial separation of properties prior to entering into the marriage.

In the absence of such an agreement, all properties (capital, paraphernal and

conjugal) shall be considered to be held in absolute community, i.e., the

ownership relation is one, and, therefore, only a total of five (5) hectares may

be retained. (DAR Adm. O. No. 5 [2000], sec. 9 [h]).

The five (5)-hectare retention limit applies to all lands regardless of how

acquired (i.e., by purchase, award, succession, donation) as the law does not

distinguish. Thus, a child who was awarded three (3) hectares as a preferred

beneficiary under Sec. 6 of RA 6657 and subsequently acquires a five (5)-

hectare landholding of his parent by succession can retain only five (5) hectares

of the total landholding.

Landowners have the obligation to cultivate directly or through labor

administration, and thereby make productive the area he retains. He is also

prohibited from making any constructions therein or commit it to purposes

incompatible with its agricultural nature. Before a landowner can commit the

retained land to non-agricultural purposes, he must first secure a conversion

order from DAR, otherwise he can be held liable for premature conversion (see

DAR Adm. O. No. 1 [1999]).

Award to children

If a landowner has children, three (3) hectares may be awarded to each

subject to the following qualifications:

a) that he is at least fifteen (15) years old as of 15 June 1988; and

b) that he is actually tilling the land or directly managing it (Rep.

Act No. 6657 [1988], sec. 6).

DAR MC 4 (1994) defined the term "directly managing" as the cultivation

of the land through personal supervision under the system of labor

administration. DHcESI

The award to the child is not to be taken from the retained land of the

landowner and is awarded to the child in his own right as a beneficiary. Thus,

the award is not automatic. The child is merely given a preference over other

beneficiaries.

As the right of the child is derived from his being a beneficiary, he must not

only meet the requirements of preference laid out in Sec. 6 of RA 6657, but

also all the other qualifications of a beneficiary enumerated under Sec. 22 of

RA 6657. Thus, he must also be landless, a resident of the barangay or

municipality where the land is located, and must have the willingness, aptitude

and ability to cultivate and make the land as productive as possible. Moreover,

he is subject to the same liabilities, responsibilities and limitations imposed on

all agrarian reform beneficiaries.

Exceptions to the 5-hectare retention limit

The five (5)-hectare retention limit under RA 6657 does not apply to

original homestead grantees or their direct compulsory heirs at the time of the

approval of RA 6657 who continue to cultivate the same, and to those entitled

to retain seven (7) hectares under PD 27.

In the Association cases, the Supreme Court held that landowners who

failed to exercise their rights to retain under PD 27 can avail of their rights of

retention under Sec. 6 of RA 6657 and retain only five (5) hectares. However,

in the resolution of the Supreme Court on the motion for consideration in the

said case, the Court qualified that those who, prior to the promulgation of RA

6657, complied with the requirements under Letter of Instruction (LOI) Nos.

41, 45 and 52 regarding the registration of the landholdings, shall be allowed to

enjoy the seven (7) hectare retention limit. All those who refused to comply

with the requirements cannot, in view of the passage of CARL, demand that

their retention limit be determined under PD 27.

Thus, the following OLT owners are still entitled to retain seven (7) hectares

even if they exercised their right of retention under PD 27 after 15 June 1988:

a) Those landowners who complied with the requirement of either LOI 41,

45 or 52;

b) Those who filed their applications before the deadline set (27 August

1985 as provided by AO. 1 [1985]) whether or not they have complied with

LOI Nos. 41, 45 or 52;

c) Those who filed their applications after the deadline but complied with

the requirements of LOI 41, 45 or 52; and

d) Heirs of a deceased landowner who manifested, while still alive, the

intention to exercise the right of retention prior to 23 August 1990 (the finality

of the Supreme Court decision in Association of Small Landowners vs. Hon.

Secretary of DAR; supra) (DAR Adm. O. No. 4 [1991]).

Exercise of right of retention

While Sec. 6 of RA 6657 acknowledges the right of the landowners to

choose the area to be retained, it requires that the area be compact and

contiguous, and shall be least prejudicial to the entire landholding and the

majority of the farmers therein (DAR Adm. O. No. 5 [2000], sec 2 [b]).

Sec. 4 of DAR AO 5 (2000) provides that under the Compulsory

Acquisition (CA) scheme, the landowner shall exercise his right of retention

within sixty (60) days from receipt of the Notice of Coverage from DAR.

Failure to exercise this right within the prescribed period means that the

landowner waives his right to choose which area to retain. Thereafter, the

Municipal Agrarian Reform Officer (MARO) shall designate the retained area

for the landowner.

Under the Voluntary Offer to Sell (VOS) scheme, the right of retention shall

be exercised at the time the land is offered for sale. The offer should specify

and segregate the portion covered by VOS and the portion applied for

retention; otherwise, the landowner shall be deemed to have waived his right of

retention over the subject property (DAR Adm. O. No. 5 [2000], sec. 4).

As a matter of policy, all rights acquired by the tenant-farmers under PD 27

and the security of tenure of the farmers or farmworkers on the land prior to the

approval of RA 6657 shall be respected (DAR Adm. O. No. 5 [2000], sec. 2

[c]).

In case the area selected by the landowner or awarded for retention by the

DAR is tenanted, the tenant has two (2) options:

a) To remain as a lessee. If he chooses to remain in the area

retained, he shall be considered a lease holder and shall lose his right to

be a beneficiary; or

b) Be a beneficiary in the same or another agricultural land with

similar or comparable features.

The tenant must exercise either option within one (1) year after the

landowner manifests his choice of the area for retention, or from the time the

MARO has chosen the area to be retained by the landowner, or from the time

an order is issued granting the retention (DAR Adm. O. No. 5 [2000], sec. 10).

Sec. 10 of DAR AO 5 (2000) further provides that in case the tenant

declines to enter into leasehold and there is no available land to transfer, or if

there is, the tenant refuses the same, he may choose to be paid disturbance

compensation by the landowner.

Where Certificates of Land Transfer (CLTs), Emancipation Patents (EPs) or

Certificates of Land Ownership Award (CLOAs) have already been issued on

the land chosen by the landowner as retention area, the DAR shall immediately

inform the agrarian reform beneficiaries (ARBs) concerned and provide them

the opportunity to contest the landowner's claim. Moreover, the DAR shall

ensure that the affected ARBs, should they so desire, be given priority in the

distribution of other lands of the landowner or other lands identified by the

DAR for redistribution, subject to the rights of those already in the area (DAR

Adm. O. No. 5 [2000], sec. 11)

Waiver of right of retention

Sec. 7 of DAR AO 5 (2000) provides that the following acts constitute

waiver on the landowner's right of retention:

a) Executing an affidavit, letter or any other document duly attested

by the MARO, Provincial Agrarian Reform Officer (PARO) or

Regional Director (RD) indicating that he is expressly waiving his

retention right over subject landholding;

b) Signing of the Landowner-Tenant Production Agreement and

Farmer's Undertaking (LTPA-FU) or Application to Purchase and

Farmer's Undertaking (APFU) covering subject property;

c) Entering into a Voluntary Land Transfer/Direct Payment Scheme

(VLT-DPS) agreement as evidenced by a Deed of Transfer over the

subject property;

d) Offering the subject landholding under VOS scheme and failure

to indicate his retained area;

e) Signing/submission of other documents indicating consent to

have the entire property covered, such as the form letter of the LBP on

the disposition of the cash and bond portions of a land transfer claim for

payment, and the Deed of Assignment, warranties and undertaking

executed in favor of the LBP;

f) Performing acts which constitute estoppel by laches; and

g) Doing such act or acts as would amount to a valid waiver in

accordance with applicable laws and jurisprudence.

Public Lands

Public lands pertain to all lands that were not acquired by private persons or

corporations either by grant or purchase. These lands are either (a) disposable

(alienable) public lands or (b) non-disposable public lands.

CA 141 (1936), otherwise known as the "Public Land Act", governs the

administration and disposition of lands of the public domain. Sec. 9 thereof

classifies alienable or disposable lands of the public domain as (a) agricultural;

(b) residential, commercial, industrial or for similar productive purposes; (c)

educational, charitable, or other similar purposes; or (d) reservations for town

sites and for public and quasi-public uses.

Non-disposable public lands or those not susceptible of private

appropriation and include the following: (a) timber lands which are governed

by PD 705 (1975) or the Revised Forestry Code; and (b) mineral lands which

are governed by RA 7942 (1995) or the Philippine Mining Act of 1995 and

other related laws.

All lands of the public domain are under the exclusive jurisdiction of the

DENR except those placed by law and/or by executive issuances under the

jurisdiction of other government agencies. Under Sec. 3 and 5 of CA 141, the

Secretary of Agriculture and Natural Resources (now the Secretary of DENR)

is the executive officer charged with carrying out the provisions of the Public

Land Act. It is empowered to prepare and issue such forms, instructions, rules

and regulations consistent with the Public Land Act. Sec. 6 of CA 141 (see also

EO 192 [1987]) reserves the power to classify lands in the public domain into

either agricultural (disposable), timber or mineral lands to the President, with

the recommendation of the Secretary of DENR.

Under Sec. 4 of RA 6657, public and private agricultural lands and lands of

the public domain suitable for agriculture are covered by CARP. It provides,

among others, that all alienable and disposable lands of the public domain

devoted or suitable or devoted to agriculture (Sec 4 [a]) and all lands of the

public domain in excess of the specific limits of the public domain as

determined by Congress (Sec. 4 [b]) shall be covered by CARP. It has also

been determined that public agricultural lands that are untitled and privately

claimed are covered by CARP. In response to a query by DAR, the Department

of Justice issued Opinion No. 176 (1992) which stated:

. . . Thus, it has been held that there should be no distinction in the

application of the law where non is indicated therein (SSS vs. City of

Bacolod, 115 SCRA 412) . . . By said rule, the term "private agricultural

lands" in the aforementioned section should be interpreted as including all

private lands, whether titled or untitled. . . .

RA 6657 has created an overlapping of jurisdictions between the DENR and

the DAR over the disposition of these lands. RA 6657 mandates DAR to

acquire and distribute these public lands to agrarian beneficiaries while CA 141

vests upon the DENR the power to control, survey, classification, lease, sale or

any other form of concession or disposition and management of the lands of the

public domain.

To resolve the overlapping mandates of the DENR and DAR in the

disposition and distribution of public lands for CARP purposes, the two

agencies issued Joint DAR-DENR MC 9 (1995) which recognizes that lands of

the public domain are under the jurisdiction of the DENR unless placed by law

and/or by executive issuances under the jurisdiction of other government

departments or entities. Under the said circular, the disposition of non-

registrable lands of the public domain is the exclusive responsibility of the

DENR under its various programs (i.e., the Integrated Social Forestry). In this

instance, the role of the DAR is to assist the DENR in identifying and

screening of farmer beneficiaries. The responsibility and authority of DAR to

distribute public lands shall be limited to the following:

a) Lands proclaimed by the President as DAR Resettlement Projects

and placed under the administration of the DAR for distribution to

qualified farmer beneficiaries under CARP;

b) Lands which are placed by law under the jurisdiction of DAR;

and

c) Lands previously proclaimed for the various government

departments, agencies and instrumentalities and subsequently turned

over to the DAR pursuant to EO 407 (1990), as amended by EO 448

and 506.

Untitled public alienable and disposable lands are still within the exclusive

jurisdiction of DENR pursuant to CA 141. However, in accordance with DOJ

Opinion No. 176 (1992), Joint DAR-DENR MC 14 (1997) provides that all

untitled public alienable and disposable lands are deemed "private" if the

criteria specified in RA 6940 for the determination of whether or not a person

has already acquired a recognizable private right over a landholding is met,

namely:

a) Continuous occupancy and cultivation by oneself or through

one's predecessors-in-interest for at least thirty (30) years prior to the

effectivity of RA 6940 on 16 April 1990;

b) The land must have been classified as alienable and disposable

for at least thirty (30) years prior to the effectivity on 16 April 1990;

c) One must have paid the real estate tax thereon; and

d) There are no adverse claims on the land.

For these privately claimed public alienable and disposable lands, the

DENR first issues a Free Patent to qualified applicants for the retained area of

not more than five (5) hectares. The DAR shall then cover the excess area and

issue a CLOA or EP and distribute these to qualified beneficiaries. TcCDIS

For untitled public alienable and disposable lands which are tenanted and

with claimants not qualified under the criteria specified in RA 6940, the

disposition shall be under the jurisdiction of the DENR. The role of the DAR in

this case is limited to the documentation and protection of the leasehold

arrangement between the public land claimant and the tenants.

If the alienable and disposable land is not tenanted but has actual farm

occupants, and the public land claimant lacks the requisite thirty (30)-year

possession, these shall be under the jurisdiction of the DENR and the

appropriate tenurial instrument shall be applied.

It is submitted, however, that these alienable and disposable lands that are

privately claimed by claimants who are not qualified under the criteria set

under RA 6940 (1990) should be turned over to DAR for distribution under

CARP. As these claimants/tenants are mere occupants and can not be granted

Free Patents by the DENR, these land should instead be committed for agrarian

purposes.

A recently issued DENR MC 22 (1999) entitled "DENR Jurisdiction over

all Alienable ad Disposable Lands of the Public Domain," seems to abrogate or

set aside Joint DAR-DENR MC 14 (1997). It directs all Regional Executive

Directors to strictly exercise DENR's jurisdiction over all alienable and

disposable lands of the public domain, including those lands not specifically

placed under the jurisdiction of other government agencies, and prepare the

same for disposition to qualified and legitimate recipients under the People's

Alliance for the Rehabilitation of Environment of the Office of the Secretary of

the DENR.

This recent issuance impliedly prohibits the turnover of alienable and

disposable lands to CARP, and thus, effectively removes remaining public

alienable and disposable lands out of the scope of CARP. While merely an

administrative order that can not overturn legislation on the matter, DENR MC

22 (1999) poses another roadblock which if not corrected or legally challenged

in court can derail the already delayed coverage of public agricultural lands.

Sec. 7 of RA 6657 explicitly provides that alienable and disposable public

agricultural lands are among the priority lands for distribution. Needless to say,

the political implications of government's reluctance to commit public

agricultural lands for agrarian ends in the face of its relentless expropriation of

private landholdings is serious.

Ancestral Lands

Sec. 9 of RA 6657 defines ancestral lands as those lands that include, but

not limited to, lands in actual, continuous and open possession of an indigenous

cultural community and its members. Sec. 3 (b) of RA 8371 (1997) or the

"Indigenous Peoples Rights Act of 1997," has a more encompassing definition,

to wit:

Sec. 3. Definition of Terms. — . . .

b). Ancestral Lands — Subject to Section 56 hereof, refers to lands

occupied, possessed and utilized by individuals, families, and clans

who are members of the ICCs/IPs (indigenous cultural

communities/indigenous peoples) since time immemorial, by

themselves or through their predecessors-in-interests, under claims of

individual or traditional group ownership continuously, to the

present, except when interrupted by war, force majeure or

displacement by force, deceit, stealth or as a consequence of

government projects and other voluntary dealings entered into by

government and private individuals/corporations, including, but not

limited to, residential lots, rice terraces or paddies, private forests,

swidden farms and treelots;

Policy for ancestral lands under CARP

CARP ensures the protection of the right of ICCs/IPs to their ancestral lands

to ensure their economic, social and cultural well being. Systems of land

ownership, land use, and modes of settling land disputes of the ICCs/IPs shall

be recognized and respected in line with principles of self-determination and

autonomy.

The Presidential Agrarian Reform Committee (PARC), notwithstanding any

law to the contrary, has the power to suspend the implementation of the CARP

with respect to ancestral lands for the purpose of identifying and delineating

such lands. It shall also respect laws on ancestral domain enacted by the

respective legislators of autonomous regions, subject to the provisions of the

Constitution and the principles enunciated in RA 6657 and other national laws.

However, the full protection of the rights of the ICCs/IPs to their ancestral

lands under CARP is hampered by various legal constraints. For one, while

Sec. 9 respects or protects the rights of the ICCs/IPs to their ancestral lands as

means to protect their economic, social and cultural well-being, its definition of

ancestral lands is circumscribed by the limitation that the Torrens System shall

be respected. This is a fundamental legal setback to the rights of ICCs/IPs. It

should be noted that the vested rights of these communities to ancestral lands

have been recognized to have pre-existed the Regalian Doctrine which underlie

the government's perspective to full ownership and control over natural

resources as well as the current legal system that regulates private property

rights.

CARP involves alienable and disposable lands only while ancestral lands of

ICCs/IPs encompass forest and mineral lands and other lands of the public

domain which are by definition inalienable and indisposable. Thus, the benefit

of being awarded CLOAs over ancestral lands to these ICCs/IPs are limited to

private agricultural lands and public agricultural lands transferred to DAR.

In any case, to promote and protect the rights of the ICCs/IPs over ancestral

lands situated in inalienable and indisposable public lands, DAR issues

member/s of the ICCs who are engaged in agricultural activities over the said

lands CARP Beneficiary Certificate (CBC). Though these do not vest title, it

likewise recognizes the claim of the ICC over these lands and allows them to

access support services from DAR.

RA 8371 (1997) has a more expansive definition of ancestral domains and

ancestral lands which includes lands that are legally determined as indisposable

and inalienable public lands. RA 8371 is a clear departure from earlier law and

regulation for not only does it expand the definition of ancestral lands but

recognizes the right of the ICCs/IPs to own these lands. National Commission

on Indigenous Peoples (NCIP), a body created by RA 8371, is vested, among

others with the power and issue Certificates of Ancestral Domain/Land Titles

over ancestral lands.