G.R. No.
167707 October 8, 2008 open, continuous, exclusive, and notorious possession and
THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, THE REGIONAL EXECUTIVE
DIRECTOR, DENR-REGION VI, REGIONAL TECHNICAL
DIRECTOR FOR LANDS, LANDS MANAGEMENT BUREAU,
REGION VI PROVINCIAL ENVIRONMENT AND NATURAL
RESOURCES OFFICER OF KALIBO, AKLAN, REGISTER OF
DEEDS, DIRECTOR OF LAND REGISTRATION AUTHORITY,
DEPARTMENT OF TOURISM SECRETARY, DIRECTOR OF
PHILIPPINE TOURISM AUTHORITY, petitioners,
vs.
MAYOR JOSE S. YAP, LIBERTAD TALAPIAN, MILA Y.
SUMNDAD, and ANICETO YAP, in their behalf and in behalf of
all those similarly situated, respondents.
x--------------------------------------------------x
G.R. No. G.R. No. 173775 October 8, 2008
DR. ORLANDO SACAY and WILFREDO GELITO, joined by THE
LANDOWNERS OF BORACAY SIMILARLY SITUATED
NAMED IN A LIST, ANNEX "A" OF THIS PETITION, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, THE REGIONAL TECHNICAL
DIRECTOR FOR LANDS, LANDS MANAGEMENT BUREAU,
REGION VI, PROVINCIAL ENVIRONMENT AND NATURAL
RESOURCES OFFICER, KALIBO, AKLAN, respondents.
DECISION
REYES, R.T., J.:
AT stake in these consolidated cases is the right of the present
occupants of Boracay Island to secure titles over their occupied
lands.
There are two consolidated petitions. The first is G.R. No. 167707, a
petition for review on certiorari of the Decision1 of the Court of
Appeals (CA) affirming that2 of the Regional Trial Court (RTC) in
Kalibo, Aklan, which granted the petition for declaratory relief filed
by respondents-claimants Mayor Jose Yap, et al. and ordered the
survey of Boracay for titling purposes. The second is G.R. No.
173775, a petition for prohibition, mandamus, and nullification of
Proclamation No. 10645">[3] issued by President Gloria Macapagal-
Arroyo classifying Boracay into reserved forest and agricultural
land.
The Antecedents
G.R. No. 167707
Boracay Island in the Municipality of Malay, Aklan, with its
powdery white sand beaches and warm crystalline waters, is
reputedly a premier Philippine tourist destination. The island is also
home to 12,003 inhabitants4 who live in the bone-shaped island’s
three barangays.5
On April 14, 1976, the Department of Environment and Natural
Resources (DENR) approved the National Reservation Survey of
Boracay
Island,6 which identified several lots as being occupied or claimed
by named persons.7
On November 10, 1978, then President Ferdinand Marcos issued
Proclamation No. 18018 declaring Boracay Island, among other
islands, caves and peninsulas in the Philippines, as tourist zones
and marine reserves under the administration of the Philippine
Tourism Authority (PTA). President Marcos later approved the
issuance of PTA Circular 3-829 dated September 3, 1982, to
implement Proclamation No. 1801.
Claiming that Proclamation No. 1801 and PTA Circular No 3-82
precluded them from filing an application for judicial confirmation
of imperfect title or survey of land for titling purposes, respondents-
claimants
Mayor Jose S. Yap, Jr., Libertad Talapian, Mila Y. Sumndad, and
Aniceto Yap filed a petition for declaratory relief with the RTC in
Kalibo, Aklan.
In their petition, respondents-claimants alleged that Proclamation
No. 1801 and PTA Circular No. 3-82 raised doubts on their right to
secure titles over their occupied lands. They declared that they
themselves, or through their predecessors-in-interest, had been in
occupation in Boracay since June 12, 1945, or earlier since time
immemorial. They declared their lands for tax purposes and paid
realty taxes on them.10
Respondents-claimants posited that Proclamation No. 1801 and its
implementing Circular did not place Boracay beyond the commerce
of man. Since the Island was classified as a tourist zone, it was
susceptible of private ownership. Under Section 48(b) of
Commonwealth Act (CA) No. 141, otherwise known as the Public
Land Act, they had the right to have the lots registered in their
names through judicial confirmation of imperfect titles.
The Republic, through the Office of the Solicitor General (OSG),
opposed the petition for declaratory relief. The OSG countered that
Boracay Island was an unclassified land of the public domain. It
formed part of the mass of lands classified as "public forest," which
was not available for disposition pursuant to Section 3(a) of
Presidential Decree (PD) No. 705 or the Revised Forestry Code, 11 as
amended.
The OSG maintained that respondents-claimants’ reliance on PD No.
1801 and PTA Circular No. 3-82 was misplaced. Their right to
judicial confirmation of title was governed by CA No. 141 and PD
No. 705. Since Boracay Island had not been classified as alienable
and disposable, whatever possession they had cannot ripen into
ownership.
During pre-trial, respondents-claimants and the OSG stipulated on
the following facts: (1) respondents-claimants were presently in
possession of parcels of land in Boracay Island; (2) these parcels of
land were planted with coconut trees and other natural growing
trees; (3) the coconut trees had heights of more or less twenty (20)
meters and were planted more or less fifty (50) years ago; and (4)
respondents-claimants declared the land they were occupying for
tax purposes.12
The parties also agreed that the principal issue for resolution was
purely legal: whether Proclamation No. 1801 posed any legal
hindrance or impediment to the titling of the lands in Boracay. They
decided to forego with the trial and to submit the case for resolution
upon submission of their respective memoranda.13
The RTC took judicial notice14 that certain parcels of land in Boracay
Island, more particularly Lots 1 and 30, Plan PSU-5344, were
covered by Original Certificate of Title No. 19502 (RO 2222) in the
name of the Heirs of Ciriaco S. Tirol. These lots were involved in
Civil Case Nos. 5222 and 5262 filed before the RTC of Kalibo,
Aklan.15 The titles were issued on
August 7, 1933.16
RTC and CA Dispositions
On July 14, 1999, the RTC rendered a decision in favor of
respondents-claimants, with a fallo reading:
WHEREFORE, in view of the foregoing, the Court declares that
Proclamation No. 1801 and PTA Circular No. 3-82 pose no legal
obstacle to the petitioners and those similarly situated to acquire title
to their lands in Boracay, in accordance with the applicable laws and
in the manner prescribed therein; and to have their lands surveyed
and approved by respondent Regional Technical Director of Lands
as the approved survey does not in itself constitute a title to the
land.
SO ORDERED.17
The RTC upheld respondents-claimants’ right to have their occupied
lands titled in their name. It ruled that neither Proclamation No.
1801 nor PTA Circular No. 3-82 mentioned that lands in Boracay
were inalienable or could not be the subject of disposition.18 The
Circular itself recognized private ownership of lands.19 The trial
court cited Sections 8720 and 5321 of the Public Land Act as basis for
acknowledging private ownership of lands in Boracay and that only
those forested areas in public lands were declared as part of the
forest reserve.22
The OSG moved for reconsideration but its motion was denied.23
The Republic then appealed to the CA.
On December 9, 2004, the appellate court affirmed in toto the RTC
decision, disposing as follows:
WHEREFORE, in view of the foregoing premises, judgment is
hereby rendered by us DENYING the appeal filed in this case and
AFFIRMING the decision of the lower court.24
The CA held that respondents-claimants could not be prejudiced by
a declaration that the lands they occupied since time immemorial
were part of a forest reserve.
Again, the OSG sought reconsideration but it was similarly denied.25
Hence, the present petition under Rule 45.
G.R. No. 173775
On May 22, 2006, during the pendency of G.R. No. 167707, President
Gloria Macapagal-Arroyo issued Proclamation No. 106426 classifying
Boracay Island into four hundred (400) hectares of reserved forest
land (protection purposes) and six hundred twenty-eight and 96/100
(628.96) hectares of agricultural land (alienable and disposable). The
Proclamation likewise provided for a fifteen-meter buffer zone on
each side of the centerline of roads and trails, reserved for right-of-
way and which shall form part of the area reserved for forest land
protection purposes.
On August 10, 2006, petitioners-claimants Dr. Orlando Sacay,27
Wilfredo Gelito,28 and other landowners29 in Boracay filed with this
Court an original petition for prohibition, mandamus, and
nullification of Proclamation No. 1064.30 They allege that the
Proclamation infringed on their "prior vested rights" over portions
of Boracay. They have been in continued possession of their
respective lots in Boracay since time immemorial. They have also
invested billions of pesos in developing their lands and building
internationally renowned first class resorts on their lots.31
Petitioners-claimants contended that there is no need for a
proclamation reclassifying Boracay into agricultural land. Being
classified as neither mineral nor timber land, the island is deemed
agricultural pursuant to the Philippine Bill of 1902 and Act No. 926,
known as the first Public Land Act.32 Thus, their possession in the
concept of owner for the required period entitled them to judicial
confirmation of imperfect title.
Opposing the petition, the OSG argued that petitioners-claimants do
not have a vested right over their occupied portions in the island.
Boracay is an unclassified public forest land pursuant to Section 3(a)
of PD No. 705. Being public forest, the claimed portions of the island
are inalienable and cannot be the subject of judicial confirmation of
imperfect title. It is only the executive department, not the courts,
which has authority to reclassify lands of the public domain into
alienable and disposable lands. There is a need for a positive
government act in order to release the lots for disposition.
On November 21, 2006, this Court ordered the consolidation of the
two petitions as they principally involve the same issues on the land
classification of Boracay Island.33
Issues
G.R. No. 167707
The OSG raises the lone issue of whether Proclamation No. 1801 and
PTA Circular No. 3-82 pose any legal obstacle for respondents, and
all those similarly situated, to acquire title to their occupied lands in
Boracay Island.34
G.R. No. 173775
Petitioners-claimants hoist five (5) issues, namely:
I.
AT THE TIME OF THE ESTABLISHED POSSESSION OF
PETITIONERS IN CONCEPT OF OWNER OVER THEIR
RESPECTIVE AREAS IN BORACAY, SINCE TIME IMMEMORIAL
OR AT THE LATEST SINCE 30 YRS. PRIOR TO THE FILING OF
THE PETITION FOR DECLARATORY RELIEF ON NOV. 19, 1997,
WERE THE AREAS OCCUPIED BY THEM PUBLIC
AGRICULTURAL LANDS AS DEFINED BY LAWS THEN ON
JUDICIAL CONFIRMATION OF IMPERFECT TITLES OR PUBLIC
FOREST AS DEFINED BY SEC. 3a, PD 705?
II.
HAVE PETITIONERS OCCUPANTS ACQUIRED PRIOR VESTED
RIGHT OF PRIVATE OWNERSHIP OVER THEIR OCCUPIED
PORTIONS OF BORACAY LAND, DESPITE THE FACT THAT
THEY HAVE NOT APPLIED YET FOR JUDICIAL
CONFIRMATION OF IMPERFECT TITLE?
III.
IS THE EXECUTIVE DECLARATION OF THEIR AREAS AS
ALIENABLE AND DISPOSABLE UNDER SEC 6, CA 141 [AN]
INDISPENSABLE PRE-REQUISITE FOR PETITIONERS TO
OBTAIN TITLE UNDER THE TORRENS SYSTEM?
IV.
IS THE ISSUANCE OF PROCLAMATION 1064 ON MAY 22, 2006,
VIOLATIVE OF THE PRIOR VESTED RIGHTS TO PRIVATE
OWNERSHIP OF PETITIONERS OVER THEIR LANDS IN
BORACAY, PROTECTED BY THE DUE PROCESS CLAUSE OF
THE CONSTITUTION OR IS PROCLAMATION 1064 CONTRARY
TO SEC. 8, CA 141, OR SEC. 4(a) OF RA 6657.
V.
CAN RESPONDENTS BE COMPELLED BY MANDAMUS TO
ALLOW THE SURVEY AND TO APPROVE THE SURVEY PLANS
FOR PURPOSES OF THE APPLICATION FOR TITLING OF THE
LANDS OF PETITIONERS IN BORACAY?35 (Underscoring
supplied)
In capsule, the main issue is whether private claimants
(respondents-claimants in G.R. No. 167707 and petitioners-claimants
in G.R. No. 173775) have a right to secure titles over their occupied
portions in Boracay. The twin petitions pertain to their right, if any,
to judicial confirmation of imperfect title under CA No. 141, as
amended. They do not involve their right to secure title under other
pertinent laws.
Our Ruling
Regalian Doctrine and power of the executive
to reclassify lands of the public domain
Private claimants rely on three (3) laws and executive acts in their
bid for judicial confirmation of imperfect title, namely: (a) Philippine
Bill of 190236 in relation to Act No. 926, later amended and/or
superseded by Act No. 2874 and CA No. 141;37 (b) Proclamation No.
180138 issued by then President Marcos; and (c) Proclamation No.
106439 issued by President Gloria Macapagal-Arroyo. We shall
proceed to determine their rights to apply for judicial confirmation
of imperfect title under these laws and executive acts.
But first, a peek at the Regalian principle and the power of the
executive to reclassify lands of the public domain.
The 1935 Constitution classified lands of the public domain into
agricultural, forest or timber.40 Meanwhile, the 1973 Constitution
provided the following divisions: agricultural, industrial or
commercial, residential, resettlement, mineral, timber or forest and
grazing lands, and such other classes as may be provided by law, 41
giving the government great leeway for classification.42 Then the
1987 Constitution reverted to the 1935 Constitution classification
with one addition: national parks.43 Of these, only agricultural lands
may be alienated.44 Prior to Proclamation No. 1064 of May 22, 2006,
Boracay Island had never been expressly and administratively
classified under any of these grand divisions. Boracay was an
unclassified land of the public domain.
The Regalian Doctrine dictates that all lands of the public domain
belong to the State, that the State is the source of any asserted right
to ownership of land and charged with the conservation of such
patrimony.45 The doctrine has been consistently adopted under the
1935, 1973, and 1987 Constitutions.46
All lands not otherwise appearing to be clearly within private
ownership are presumed to belong to the State.47 Thus, all lands that
have not been acquired from the government, either by purchase or
by grant, belong to the State as part of the inalienable public
domain.48 Necessarily, it is up to the State to determine if lands of
the public domain will be disposed of for private ownership. The
government, as the agent of the state, is possessed of the plenary
power as the persona in law to determine who shall be the favored
recipients of public lands, as well as under what terms they may be
granted such privilege, not excluding the placing of obstacles in the
way of their exercise of what otherwise would be ordinary acts of
ownership.49
Our present land law traces its roots to the Regalian Doctrine. Upon
the Spanish conquest of the Philippines, ownership of all lands,
territories and possessions in the Philippines passed to the Spanish
Crown.50 The Regalian doctrine was first introduced in the
Philippines through the Laws of the Indies and the Royal Cedulas,
which laid the foundation that "all lands that were not acquired
from the Government, either by purchase or by grant, belong to the
public domain."51
The Laws of the Indies was followed by the Ley Hipotecaria or the
Mortgage Law of 1893. The Spanish Mortgage Law provided for the
systematic registration of titles and deeds as well as possessory
claims.52
The Royal Decree of 1894 or the Maura Law53 partly amended the
Spanish Mortgage Law and the Laws of the Indies. It established
possessory information as the method of legalizing possession of
vacant Crown land, under certain conditions which were set forth in
said decree.54 Under Section 393 of the Maura Law, an informacion
posesoria or possessory information title,55 when duly inscribed in the
Registry of Property, is converted into a title of ownership only after
the lapse of twenty (20) years of uninterrupted possession which
must be actual, public, and adverse,56 from the date of its
inscription.57 However, possessory information title had to be
perfected one year after the promulgation of the Maura Law, or until
April 17, 1895. Otherwise, the lands would revert to the State.58
In sum, private ownership of land under the Spanish regime could
only be founded on royal concessions which took various forms,
namely: (1) titulo real or royal grant; (2) concesion especial or special
grant; (3) composicion con el estado or adjustment title; (4) titulo de
compra or title by purchase; and (5) informacion posesoria or
possessory information title.59>
The first law governing the disposition of public lands in the
Philippines under American rule was embodied in the Philippine
Bill of 1902.60 By this law, lands of the public domain in the
Philippine Islands were classified into three (3) grand divisions, to
wit: agricultural, mineral, and timber or forest lands.61 The act
provided for, among others, the disposal of mineral lands by means
of absolute grant (freehold system) and by lease (leasehold
system).62 It also provided the definition by exclusion of
"agricultural public lands."63 Interpreting the meaning of
"agricultural lands" under the Philippine Bill of 1902, the Court
declared in Mapa v. Insular Government:64
x x x In other words, that the phrase "agricultural land" as used in
Act No. 926 means those public lands acquired from Spain which
are not timber or mineral lands. x x x65 (Emphasis Ours)
On February 1, 1903, the Philippine Legislature passed Act No. 496,
otherwise known as the Land Registration Act. The act established a
system of registration by which recorded title becomes absolute,
indefeasible, and imprescriptible. This is known as the Torrens
system.66
Concurrently, on October 7, 1903, the Philippine Commission passed
Act No. 926, which was the first Public Land Act. The Act
introduced the homestead system and made provisions for judicial
and administrative confirmation of imperfect titles and for the sale
or lease of public lands. It permitted corporations regardless of the
nationality of persons owning the controlling stock to lease or
purchase lands of the public domain.67 Under the Act, open,
continuous, exclusive, and notorious possession and occupation of
agricultural lands for the next ten (10) years preceding July 26, 1904
was sufficient for judicial confirmation of imperfect title.68
On November 29, 1919, Act No. 926 was superseded by Act No.
2874, otherwise known as the second Public Land Act. This new,
more comprehensive law limited the exploitation of agricultural
lands to Filipinos and Americans and citizens of other countries
which gave Filipinos the same privileges. For judicial confirmation
of title, possession and occupation en concepto dueño since time
immemorial, or since July 26, 1894, was required.69
After the passage of the 1935 Constitution, CA No. 141 amended Act
No. 2874 on December 1, 1936. To this day, CA No. 141, as
amended, remains as the existing general law governing the
classification and disposition of lands of the public domain other
than timber and mineral lands,70 and privately owned lands which
reverted to the State.71
Section 48(b) of CA No. 141 retained the requirement under Act No.
2874 of possession and occupation of lands of the public domain
since time immemorial or since July 26, 1894. However, this
provision was superseded by Republic Act (RA) No. 1942,72 which
provided for a simple thirty-year prescriptive period for judicial
confirmation of imperfect title. The provision was last amended by
PD No. 1073,73 which now provides for possession and occupation
of the land applied for since June 12, 1945, or earlier.74
The issuance of PD No. 89275 on February 16, 1976 discontinued the
use of Spanish titles as evidence in land registration proceedings.76
Under the decree, all holders of Spanish titles or grants should apply
for registration of their lands under Act No. 496 within six (6)
months from the effectivity of the decree on February 16, 1976.
Thereafter, the recording of all unregistered lands77 shall be governed
by Section 194 of the Revised Administrative Code, as amended by
Act No. 3344.
On June 11, 1978, Act No. 496 was amended and updated by PD No.
1529, known as the Property Registration Decree. It was enacted to
codify the various laws relative to registration of property.78 It
governs registration of lands under the Torrens system as well as
unregistered lands, including chattel mortgages.79
A positive act declaring land as alienable and disposable is
required. In keeping with the presumption of State ownership, the
Court has time and again emphasized that there must be a positive
act of the government, such as an official proclamation,80
declassifying inalienable public land into disposable land for
agricultural or other purposes.81 In fact, Section 8 of CA No. 141
limits alienable or disposable lands only to those lands which have
been "officially delimited and classified."82
The burden of proof in overcoming the presumption of State
ownership of the lands of the public domain is on the person
applying for registration (or claiming ownership), who must prove
that the land subject of the application is alienable or disposable.83
To overcome this presumption, incontrovertible evidence must be
established that the land subject of the application (or claim) is
alienable or disposable.84 There must still be a positive act declaring
land of the public domain as alienable and disposable. To prove that
the land subject of an application for registration is alienable, the
applicant must establish the existence of a positive act of the
government such as a presidential proclamation or an executive
order; an administrative action; investigation reports of Bureau of
Lands investigators; and a legislative act or a statute.85 The applicant
may also secure a certification from the government that the land
claimed to have been possessed for the required number of years is
alienable and disposable.86
In the case at bar, no such proclamation, executive order,
administrative action, report, statute, or certification was presented
to the Court. The records are bereft of evidence showing that, prior
to 2006, the portions of Boracay occupied by private claimants were
subject of a government proclamation that the land is alienable and
disposable. Absent such well-nigh incontrovertible evidence, the
Court cannot accept the submission that lands occupied by private
claimants were already open to disposition before 2006. Matters of
land classification or reclassification cannot be assumed. They call
for proof.87
Ankron and De Aldecoa did not make the whole of Boracay Island,
or portions of it, agricultural lands. Private claimants posit that
Boracay was already an agricultural land pursuant to the old cases
Ankron v. Government of the Philippine Islands (1919)88 and De Aldecoa
v. The Insular Government (1909).89 These cases were decided under
the provisions of the Philippine Bill of 1902 and Act No. 926. There is
a statement in these old cases that "in the absence of evidence to the
contrary, that in each case the lands are agricultural lands until the
contrary is shown."90
Private claimants’ reliance on Ankron and De Aldecoa is misplaced.
These cases did not have the effect of converting the whole of
Boracay Island or portions of it into agricultural lands. It should be
stressed that the Philippine Bill of 1902 and Act No. 926 merely
provided the manner through which land registration courts would
classify lands of the public domain. Whether the land would be
classified as timber, mineral, or agricultural depended on proof
presented in each case.
Ankron and De Aldecoa were decided at a time when the President of
the Philippines had no power to classify lands of the public domain
into mineral, timber, and agricultural. At that time, the courts were
free to make corresponding classifications in justiciable cases, or
were vested with implicit power to do so, depending upon the
preponderance of the evidence.91 This was the Court’s ruling in Heirs
of the Late Spouses Pedro S. Palanca and Soterranea Rafols Vda. De
Palanca v. Republic,92 in which it stated, through Justice Adolfo
Azcuna, viz.:
x x x Petitioners furthermore insist that a particular land need not be
formally released by an act of the Executive before it can be deemed
open to private ownership, citing the cases of Ramos v. Director of
Lands and Ankron v. Government of the Philippine Islands.
xxxx
Petitioner’s reliance upon Ramos v. Director of Lands and Ankron v.
Government is misplaced. These cases were decided under the
Philippine Bill of 1902 and the first Public Land Act No. 926 enacted
by the Philippine Commission on October 7, 1926, under which
there was no legal provision vesting in the Chief Executive or
President of the Philippines the power to classify lands of the public
domain into mineral, timber and agricultural so that the courts then
were free to make corresponding classifications in justiciable cases,
or were vested with implicit power to do so, depending upon the
preponderance of the evidence.93
To aid the courts in resolving land registration cases under Act No.
926, it was then necessary to devise a presumption on land
classification. Thus evolved the dictum in Ankron that "the courts
have a right to presume, in the absence of evidence to the contrary,
that in each case the lands are agricultural lands until the contrary is
shown."94
But We cannot unduly expand the presumption in Ankron and De
Aldecoa to an argument that all lands of the public domain had been
automatically reclassified as disposable and alienable agricultural
lands. By no stretch of imagination did the presumption convert all
lands of the public domain into agricultural lands.
If We accept the position of private claimants, the Philippine Bill of
1902 and Act No. 926 would have automatically made all lands in
the Philippines, except those already classified as timber or mineral
land, alienable and disposable lands. That would take these lands
out of State ownership and worse, would be utterly inconsistent
with and totally repugnant to the long-entrenched Regalian
doctrine.
The presumption in Ankron and De Aldecoa attaches only to land
registration cases brought under the provisions of Act No. 926, or
more specifically those cases dealing with judicial and
administrative confirmation of imperfect titles. The presumption
applies to an applicant for judicial or administrative conformation of
imperfect title under Act No. 926. It certainly cannot apply to
landowners, such as private claimants or their predecessors-in-
interest, who failed to avail themselves of the benefits of Act No.
926. As to them, their land remained unclassified and, by virtue of
the Regalian doctrine, continued to be owned by the State.
In any case, the assumption in Ankron and De Aldecoa was not
absolute. Land classification was, in the end, dependent on proof. If
there was proof that the land was better suited for non-agricultural
uses, the courts could adjudge it as a mineral or timber land despite
the presumption. In Ankron, this Court stated:
In the case of Jocson vs. Director of Forestry (supra), the Attorney-
General admitted in effect that whether the particular land in
question belongs to one class or another is a question of fact. The
mere fact that a tract of land has trees upon it or has mineral within
it is not of itself sufficient to declare that one is forestry land and the
other, mineral land. There must be some proof of the extent and
present or future value of the forestry and of the minerals. While, as
we have just said, many definitions have been given for
"agriculture," "forestry," and "mineral" lands, and that in each case it
is a question of fact, we think it is safe to say that in order to be
forestry or mineral land the proof must show that it is more valuable
for the forestry or the mineral which it contains than it is for
agricultural purposes. (Sec. 7, Act No. 1148.) It is not sufficient to
show that there exists some trees upon the land or that it bears some
mineral. Land may be classified as forestry or mineral today, and, by
reason of the exhaustion of the timber or mineral, be classified as
agricultural land tomorrow. And vice-versa, by reason of the rapid
growth of timber or the discovery of valuable minerals, lands
classified as agricultural today may be differently classified
tomorrow. Each case must be decided upon the proof in that
particular case, having regard for its present or future value for
one or the other purposes. We believe, however, considering the
fact that it is a matter of public knowledge that a majority of the
lands in the Philippine Islands are agricultural lands that the courts
have a right to presume, in the absence of evidence to the contrary,
that in each case the lands are agricultural lands until the contrary is
shown. Whatever the land involved in a particular land
registration case is forestry or mineral land must, therefore, be a
matter of proof. Its superior value for one purpose or the other is a
question of fact to be settled by the proof in each particular case.
The fact that the land is a manglar [mangrove swamp] is not
sufficient for the courts to decide whether it is agricultural, forestry,
or mineral land. It may perchance belong to one or the other of said
classes of land. The Government, in the first instance, under the
provisions of Act No. 1148, may, by reservation, decide for itself
what portions of public land shall be considered forestry land,
unless private interests have intervened before such reservation is
made. In the latter case, whether the land is agricultural, forestry, or
mineral, is a question of proof. Until private interests have
intervened, the Government, by virtue of the terms of said Act (No.
1148), may decide for itself what portions of the "public domain"
shall be set aside and reserved as forestry or mineral land. (Ramos vs.
Director of Lands, 39 Phil. 175; Jocson vs. Director of Forestry, supra)95
(Emphasis ours)
Since 1919, courts were no longer free to determine the classification
of lands from the facts of each case, except those that have already
became private lands.96 Act No. 2874, promulgated in 1919 and
reproduced in Section 6 of CA No. 141, gave the Executive
Department, through the President, the exclusive prerogative to
classify or reclassify public lands into alienable or disposable,
mineral or forest.96-a Since then, courts no longer had the authority,
whether express or implied, to determine the classification of lands
of the public domain.97
Here, private claimants, unlike the Heirs of Ciriaco Tirol who were
issued their title in 1933,98 did not present a justiciable case for
determination by the land registration court of the property’s land
classification. Simply put, there was no opportunity for the courts
then to resolve if the land the Boracay occupants are now claiming
were agricultural lands. When Act No. 926 was supplanted by Act
No. 2874 in 1919, without an application for judicial confirmation
having been filed by private claimants or their predecessors-in-
interest, the courts were no longer authorized to determine the
property’s land classification. Hence, private claimants cannot bank
on Act No. 926.
We note that the RTC decision99 in G.R. No. 167707 mentioned
Krivenko v. Register of Deeds of Manila,100 which was decided in 1947
when CA No. 141, vesting the Executive with the sole power to
classify lands of the public domain was already in effect. Krivenko
cited the old cases Mapa v. Insular Government,101 De Aldecoa v. The
Insular Government,102 and Ankron v. Government of the Philippine
Islands.103
Krivenko, however, is not controlling here because it involved a
totally different issue. The pertinent issue in Krivenko was whether
residential lots were included in the general classification of
agricultural lands; and if so, whether an alien could acquire a
residential lot. This Court ruled that as an alien, Krivenko was
prohibited by the 1935 Constitution104 from acquiring agricultural
land, which included residential lots. Here, the issue is whether
unclassified lands of the public domain are automatically deemed
agricultural.
Notably, the definition of "agricultural public lands" mentioned in
Krivenko relied on the old cases decided prior to the enactment of
Act No. 2874, including Ankron and De Aldecoa.105 As We have
already stated, those cases cannot apply here, since they were
decided when the Executive did not have the authority to classify
lands as agricultural, timber, or mineral.
Private claimants’ continued possession under Act No. 926 does not
create a presumption that the land is alienable. Private claimants
also contend that their continued possession of portions of Boracay
Island for the requisite period of ten (10) years under Act No. 926106
ipso facto converted the island into private ownership. Hence, they
may apply for a title in their name.
A similar argument was squarely rejected by the Court in Collado v.
Court of Appeals.107 Collado, citing the separate opinion of now Chief
Justice Reynato S. Puno in Cruz v. Secretary of Environment and
Natural Resources,107-a ruled:
"Act No. 926, the first Public Land Act, was passed in pursuance of
the provisions of the Philippine Bill of 1902. The law governed the
disposition of lands of the public domain. It prescribed rules and
regulations for the homesteading, selling and leasing of portions of
the public domain of the Philippine Islands, and prescribed the
terms and conditions to enable persons to perfect their titles to
public lands in the Islands. It also provided for the "issuance of
patents to certain native settlers upon public lands," for the
establishment of town sites and sale of lots therein, for the
completion of imperfect titles, and for the cancellation or
confirmation of Spanish concessions and grants in the Islands." In
short, the Public Land Act operated on the assumption that title to public
lands in the Philippine Islands remained in the government; and that the
government’s title to public land sprung from the Treaty of Paris and other
subsequent treaties between Spain and the United States. The term
"public land" referred to all lands of the public domain whose title
still remained in the government and are thrown open to private
appropriation and settlement, and excluded the patrimonial
property of the government and the friar lands."
Thus, it is plain error for petitioners to argue that under the
Philippine Bill of 1902 and Public Land Act No. 926, mere
possession by private individuals of lands creates the legal
presumption that the lands are alienable and disposable.108
(Emphasis Ours)
Except for lands already covered by existing titles, Boracay was an
unclassified land of the public domain prior to Proclamation No.
1064. Such unclassified lands are considered public forest under PD
No. 705. The DENR109 and the National Mapping and Resource
Information Authority110 certify that Boracay Island is an
unclassified land of the public domain.
PD No. 705 issued by President Marcos categorized all unclassified
lands of the public domain as public forest. Section 3(a) of PD No.
705 defines a public forest as "a mass of lands of the public domain
which has not been the subject of the present system of classification for
the determination of which lands are needed for forest purpose and
which are not." Applying PD No. 705, all unclassified lands,
including those in Boracay Island, are ipso facto considered public
forests. PD No. 705, however, respects titles already existing prior to
its effectivity.
The Court notes that the classification of Boracay as a forest land
under PD No. 705 may seem to be out of touch with the present
realities in the island. Boracay, no doubt, has been partly stripped of
its forest cover to pave the way for commercial developments. As a
premier tourist destination for local and foreign tourists, Boracay
appears more of a commercial island resort, rather than a forest
land.
Nevertheless, that the occupants of Boracay have built multi-million
peso beach resorts on the island;111 that the island has already been
stripped of its forest cover; or that the implementation of
Proclamation No. 1064 will destroy the island’s tourism industry, do
not negate its character as public forest.
Forests, in the context of both the Public Land Act and the
Constitution112 classifying lands of the public domain into
"agricultural, forest or timber, mineral lands, and national parks," do not
necessarily refer to large tracts of wooded land or expanses covered
by dense growths of trees and underbrushes.113 The discussion in
Heirs of Amunategui v. Director of Forestry114 is particularly instructive:
A forested area classified as forest land of the public domain does
not lose such classification simply because loggers or settlers may
have stripped it of its forest cover. Parcels of land classified as forest
land may actually be covered with grass or planted to crops by
kaingin cultivators or other farmers. "Forest lands" do not have to be
on mountains or in out of the way places. Swampy areas covered by
mangrove trees, nipa palms, and other trees growing in brackish or
sea water may also be classified as forest land. The classification is
descriptive of its legal nature or status and does not have to be
descriptive of what the land actually looks like. Unless and until
the land classified as "forest" is released in an official proclamation
to that effect so that it may form part of the disposable agricultural
lands of the public domain, the rules on confirmation of imperfect
title do not apply.115 (Emphasis supplied)
There is a big difference between "forest" as defined in a dictionary
and "forest or timber land" as a classification of lands of the public
domain as appearing in our statutes. One is descriptive of what
appears on the land while the other is a legal status, a classification
for legal purposes.116 At any rate, the Court is tasked to determine
the legal status of Boracay Island, and not look into its physical
layout. Hence, even if its forest cover has been replaced by beach
resorts, restaurants and other commercial establishments, it has not
been automatically converted from public forest to alienable
agricultural land.
Private claimants cannot rely on Proclamation No. 1801 as basis
for judicial confirmation of imperfect title. The proclamation did
not convert Boracay into an agricultural land. However, private
claimants argue that Proclamation No. 1801 issued by then President
Marcos in 1978 entitles them to judicial confirmation of imperfect
title. The Proclamation classified Boracay, among other islands, as a
tourist zone. Private claimants assert that, as a tourist spot, the
island is susceptible of private ownership.
Proclamation No. 1801 or PTA Circular No. 3-82 did not convert the
whole of Boracay into an agricultural land. There is nothing in the
law or the Circular which made Boracay Island an agricultural land.
The reference in Circular No. 3-82 to "private lands"117 and "areas
declared as alienable and disposable"118 does not by itself classify the
entire island as agricultural. Notably, Circular No. 3-82 makes
reference not only to private lands and areas but also to public
forested lands. Rule VIII, Section 3 provides:
No trees in forested private lands may be cut without prior
authority from the PTA. All forested areas in public lands are
declared forest reserves. (Emphasis supplied)
Clearly, the reference in the Circular to both private and public
lands merely recognizes that the island can be classified by the
Executive department pursuant to its powers under CA No. 141. In
fact, Section 5 of the Circular recognizes the then Bureau of Forest
Development’s authority to declare areas in the island as alienable
and disposable when it provides:
Subsistence farming, in areas declared as alienable and disposable
by the Bureau of Forest Development.
Therefore, Proclamation No. 1801 cannot be deemed the positive act
needed to classify Boracay Island as alienable and disposable land. If
President Marcos intended to classify the island as alienable and
disposable or forest, or both, he would have identified the specific
limits of each, as President Arroyo did in Proclamation No. 1064.
This was not done in Proclamation No. 1801.
The Whereas clauses of Proclamation No. 1801 also explain the
rationale behind the declaration of Boracay Island, together with
other islands, caves and peninsulas in the Philippines, as a tourist
zone and marine reserve to be administered by the PTA – to ensure
the concentrated efforts of the public and private sectors in the
development of the areas’ tourism potential with due regard for
ecological balance in the marine environment. Simply put, the
proclamation is aimed at administering the islands for tourism and
ecological purposes. It does not address the areas’ alienability.119
More importantly, Proclamation No. 1801 covers not only Boracay
Island, but sixty-four (64) other islands, coves, and peninsulas in the
Philippines, such as Fortune and Verde Islands in Batangas, Port
Galera in Oriental Mindoro, Panglao and Balicasag Islands in Bohol,
Coron Island, Puerto Princesa and surrounding areas in Palawan,
Camiguin Island in Cagayan de Oro, and Misamis Oriental, to name
a few. If the designation of Boracay Island as tourist zone makes it
alienable and disposable by virtue of Proclamation No. 1801, all the
other areas mentioned would likewise be declared wide open for
private disposition. That could not have been, and is clearly beyond,
the intent of the proclamation.
It was Proclamation No. 1064 of 2006 which positively declared
part of Boracay as alienable and opened the same to private
ownership. Sections 6 and 7 of CA No. 141 120 provide that it is only
the President, upon the recommendation of the proper department
head, who has the authority to classify the lands of the public
domain into alienable or disposable, timber and mineral lands.121
In issuing Proclamation No. 1064, President Gloria Macapagal-
Arroyo merely exercised the authority granted to her to classify
lands of the public domain, presumably subject to existing vested
rights. Classification of public lands is the exclusive prerogative of
the Executive Department, through the Office of the President.
Courts have no authority to do so.122 Absent such classification, the
land remains unclassified until released and rendered open to
disposition.123
Proclamation No. 1064 classifies Boracay into 400 hectares of
reserved forest land and 628.96 hectares of agricultural land. The
Proclamation likewise provides for a 15-meter buffer zone on each
side of the center line of roads and trails, which are reserved for
right of way and which shall form part of the area reserved for forest
land protection purposes.
Contrary to private claimants’ argument, there was nothing invalid
or irregular, much less unconstitutional, about the classification of
Boracay Island made by the President through Proclamation No.
1064. It was within her authority to make such classification, subject
to existing vested rights.
Proclamation No. 1064 does not violate the Comprehensive
Agrarian Reform Law. Private claimants further assert that
Proclamation No. 1064 violates the provision of the Comprehensive
Agrarian Reform Law (CARL) or RA No. 6657 barring conversion of
public forests into agricultural lands. They claim that since Boracay
is a public forest under PD No. 705, President Arroyo can no longer
convert it into an agricultural land without running afoul of Section
4(a) of RA No. 6657, thus:
SEC. 4. Scope. – The Comprehensive Agrarian Reform Law 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 lands are covered by the
Comprehensive Agrarian Reform Program:
(a) All 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 the 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.
That Boracay Island was classified as a public forest under PD No.
705 did not bar the Executive from later converting it into
agricultural land. Boracay Island still remained an unclassified land
of the public domain despite PD No. 705.
In Heirs of the Late Spouses Pedro S. Palanca and Soterranea Rafols v.
Republic,124 the Court stated that unclassified lands are public forests.
While it is true that the land classification map does not
categorically state that the islands are public forests, the fact that
they were unclassified lands leads to the same result. In the
absence of the classification as mineral or timber land, the land
remains unclassified land until released and rendered open to
disposition.125 (Emphasis supplied)
Moreover, the prohibition under the CARL applies only to a
"reclassification" of land. If the land had never been previously
classified, as in the case of Boracay, there can be no prohibited
reclassification under the agrarian law. We agree with the opinion of
the Department of Justice126 on this point:
Indeed, the key word to the correct application of the prohibition in
Section 4(a) is the word "reclassification." Where there has been no
previous classification of public forest [referring, we repeat, to the mass of
the public domain which has not been the subject of the present system of
classification for purposes of determining which are needed for forest
purposes and which are not] into permanent forest or forest reserves or
some other forest uses under the Revised Forestry Code, there can be no
"reclassification of forest lands" to speak of within the meaning of Section
4(a).
Thus, obviously, the prohibition in Section 4(a) of the CARL against
the reclassification of forest lands to agricultural lands without a
prior law delimiting the limits of the public domain, does not, and
cannot, apply to those lands of the public domain, denominated as
"public forest" under the Revised Forestry Code, which have not
been previously determined, or classified, as needed for forest
purposes in accordance with the provisions of the Revised Forestry
Code.127
Private claimants are not entitled to apply for judicial confirmation
of imperfect title under CA No. 141. Neither do they have vested
rights over the occupied lands under the said law. There are two
requisites for judicial confirmation of imperfect or incomplete title
under CA No. 141, namely: (1) open, continuous, exclusive, and
notorious possession and occupation of the subject land by himself
or through his predecessors-in-interest under a bona fide claim of
ownership since time immemorial or from June 12, 1945; and (2) the
classification of the land as alienable and disposable land of the
public domain.128
As discussed, the Philippine Bill of 1902, Act No. 926, and
Proclamation No. 1801 did not convert portions of Boracay Island
into an agricultural land. The island remained an unclassified land
of the public domain and, applying the Regalian doctrine, is
considered State property.
Private claimants’ bid for judicial confirmation of imperfect title,
relying on the Philippine Bill of 1902, Act No. 926, and Proclamation
No. 1801, must fail because of the absence of the second element of
alienable and disposable land. Their entitlement to a government
grant under our present Public Land Act presupposes that the land
possessed and applied for is already alienable and disposable. This
is clear from the wording of the law itself.129 Where the land is not
alienable and disposable, possession of the land, no matter how
long, cannot confer ownership or possessory rights.130
Neither may private claimants apply for judicial confirmation of
imperfect title under Proclamation No. 1064, with respect to those
lands which were classified as agricultural lands. Private claimants
failed to prove the first element of open, continuous, exclusive, and
notorious possession of their lands in Boracay since June 12, 1945.
We cannot sustain the CA and RTC conclusion in the petition for
declaratory relief that private claimants complied with the requisite
period of possession.
The tax declarations in the name of private claimants are insufficient
to prove the first element of possession. We note that the earliest of
the tax declarations in the name of private claimants were issued in
1993. Being of recent dates, the tax declarations are not sufficient to
convince this Court that the period of possession and occupation
commenced on June 12, 1945.
Private claimants insist that they have a vested right in Boracay,
having been in possession of the island for a long time. They have
invested millions of pesos in developing the island into a tourist
spot. They say their continued possession and investments give
them a vested right which cannot be unilaterally rescinded by
Proclamation No. 1064.
The continued possession and considerable investment of private
claimants do not automatically give them a vested right in Boracay.
Nor do these give them a right to apply for a title to the land they
are presently occupying. This Court is constitutionally bound to
decide cases based on the evidence presented and the laws
applicable. As the law and jurisprudence stand, private claimants
are ineligible to apply for a judicial confirmation of title over their
occupied portions in Boracay even with their continued possession
and considerable investment in the island.
One Last Note
The Court is aware that millions of pesos have been invested for the
development of Boracay Island, making it a by-word in the local and
international tourism industry. The Court also notes that for a
number of years, thousands of people have called the island their
home. While the Court commiserates with private claimants’ plight,
We are bound to apply the law strictly and judiciously. This is the
law and it should prevail. Ito ang batas at ito ang dapat umiral.
All is not lost, however, for private claimants. While they may not be
eligible to apply for judicial confirmation of imperfect title under
Section 48(b) of CA No. 141, as amended, this does not denote their
automatic ouster from the residential, commercial, and other areas
they possess now classified as agricultural. Neither will this mean
the loss of their substantial investments on their occupied alienable
lands. Lack of title does not necessarily mean lack of right to possess.
For one thing, those with lawful possession may claim good faith as
builders of improvements. They can take steps to preserve or protect
their possession. For another, they may look into other modes of
applying for original registration of title, such as by homestead131 or
sales patent,132 subject to the conditions imposed by law.
More realistically, Congress may enact a law to entitle private
claimants to acquire title to their occupied lots or to exempt them
from certain requirements under the present land laws. There is one
such bill133 now pending in the House of Representatives. Whether
that bill or a similar bill will become a law is for Congress to decide.
In issuing Proclamation No. 1064, the government has taken the step
necessary to open up the island to private ownership. This gesture
may not be sufficient to appease some sectors which view the
classification of the island partially into a forest reserve as absurd.
That the island is no longer overrun by trees, however, does not
becloud the vision to protect its remaining forest cover and to strike
a healthy balance between progress and ecology. Ecological
conservation is as important as economic progress.
To be sure, forest lands are fundamental to our nation’s survival.
Their promotion and protection are not just fancy rhetoric for
politicians and activists. These are needs that become more urgent as
destruction of our environment gets prevalent and difficult to
control. As aptly observed by Justice Conrado Sanchez in 1968 in
Director of Forestry v. Munoz:134
The view this Court takes of the cases at bar is but in adherence to
public policy that should be followed with respect to forest lands.
Many have written much, and many more have spoken, and quite
often, about the pressing need for forest preservation, conservation,
protection, development and reforestation. Not without justification.
For, forests constitute a vital segment of any country's natural
resources. It is of common knowledge by now that absence of the
necessary green cover on our lands produces a number of adverse or
ill effects of serious proportions. Without the trees, watersheds dry
up; rivers and lakes which they supply are emptied of their contents.
The fish disappear. Denuded areas become dust bowls. As
waterfalls cease to function, so will hydroelectric plants. With the
rains, the fertile topsoil is washed away; geological erosion results.
With erosion come the dreaded floods that wreak havoc and
destruction to property – crops, livestock, houses, and highways –
not to mention precious human lives. Indeed, the foregoing
observations should be written down in a lumberman’s
decalogue.135
WHEREFORE, judgment is rendered as follows:
1. The petition for certiorari in G.R. No. 167707 is GRANTED and the
Court of Appeals Decision in CA-G.R. CV No. 71118 REVERSED
AND SET ASIDE.
2. The petition for certiorari in G.R. No. 173775 is DISMISSED for
lack of merit.
SO ORDERED.
RUBEN T. REYES
Associate Justice
G.R. No. 135385 December 6, 2000
ISAGANI CRUZ and CESAR EUROPA, petitioners,
vs.
SECRETARY OF ENVIRONMENT AND NATURAL
RESOURCES, SECRETARY OF BUDGET AND MANAGEMENT
and CHAIRMAN and COMMISSIONERS OF THE NATIONAL
COMMISSION ON INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN,
BAYANI ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO
WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO
CARPIANO, LIBERATO A. GABIN, MATERNIDAD M. COLAS,
NARCISA M. DALUPINES, BAI KIRAM-CONNIE SATURNO,
BAE MLOMO-BEATRIZ T. ABASALA, DATU
BALITUNGTUNG-ANTONIO D. LUMANDONG, DATU
MANTUMUKAW TEOFISTO SABASALES, DATU EDUAARDO
BANDA, DATU JOEL UNAD, DATU RAMON BAYAAN,
TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO,
TIMUAY EDWIN B. ENDING, DATU SAHAMPONG
MALANAW VI, DATU BEN PENDAO CABIGON, BAI
NANAPNAY-LIZA SAWAY, BAY INAY DAYA-MELINDA S.
REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN,
DATU MAKAPUKAW ADOLINO L. SAWAY, DATU
MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY, LOURDES D.
AMOS, GILBERT P. HOGGANG, TERESA GASPAR, MANUEL
S. ONALAN, MIA GRACE L. GIRON, ROSEMARIE G. PE,
BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE
CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S.
BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN,
LEOPOLDO ABUGAN, VIRGILIO CAYETANO, CONCHITA G.
DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO
C. AGUILAR, MAURO VALONES, PEPE H. ATONG, OFELIA T.
DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL,
MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN,
RAFFY MALINDA, ALFREDO ABILLANOS, JESSIE ANDILAB,
MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO
A. LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S.
LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY, JULIUS S.
SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR
TIONGSON, VENANCIO APANG, MADION MALID, SUKIM
MALID, NENENG MALID, MANGKATADONG AUGUSTO
DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO
MANGCAL, FELAY DIAMILING, SALOME P. SARZA, FELIPE P.
BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA,
NORMA MAPANSAGONOS, ROMEO SALIGA, SR., JERSON P.
GERADA, RENATO T. BAGON, JR., SARING MASALONG,
SOLEDAD M. GERARDA, ELIZABETH L. MENDI, MORANTE
S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL
MALID, represented by her father CORNELIO MALID,
MARCELINO M. LADRA, represented by her father MONICO D.
LADRA, JENNYLYN MALID, represented by her father TONY
MALID, ARIEL M. EVANGELISTA, represented by her mother
LINAY BALBUENA, EDWARD M. EMUY, SR., SUSAN
BOLANIO, OND, PULA BATO B'LAAN TRIBAL FARMER'S
ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and
GREEN FORUM-WESTERN VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON
FOUNDATION FOR THE CONSERVATION OF NATURAL
RESOURCES, INC., intervenor.
RESOLUTION
PER CURIAM:
Petitioners Isagani Cruz and Cesar Europa brought this suit for
prohibition and mandamus as citizens and taxpayers, assailing the
constitutionality of certain provisions of Republic Act No. 8371 (R.A.
8371), otherwise known as the Indigenous Peoples Rights Act of
1997 (IPRA), and its Implementing Rules and Regulations
(Implementing Rules).
In its resolution of September 29, 1998, the Court required
respondents to comment.1 In compliance, respondents Chairperson
and Commissioners of the National Commission on Indigenous
Peoples (NCIP), the government agency created under the IPRA to
implement its provisions, filed on October 13, 1998 their Comment
to the Petition, in which they defend the constitutionality of the
IPRA and pray that the petition be dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of
Environment and Natural Resources (DENR) and Secretary of the
Department of Budget and Management (DBM) filed through the
Solicitor General a consolidated Comment. The Solicitor General is
of the view that the IPRA is partly unconstitutional on the ground
that it grants ownership over natural resources to indigenous
peoples and prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen.
Juan Flavier, one of the authors of the IPRA, Mr. Ponciano
Bennagen, a member of the 1986 Constitutional Commission, and
the leaders and members of 112 groups of indigenous peoples
(Flavier, et. al), filed their Motion for Leave to Intervene. They join
the NCIP in defending the constitutionality of IPRA and praying for
the dismissal of the petition.
On March 22, 1999, the Commission on Human Rights (CHR)
likewise filed a Motion to Intervene and/or to Appear as Amicus
Curiae. The CHR asserts that IPRA is an expression of the principle
of parens patriae and that the State has the responsibility to protect
and guarantee the rights of those who are at a serious disadvantage
like indigenous peoples. For this reason it prays that the petition be
dismissed.
On March 23, 1999, another group, composed of the Ikalahan
Indigenous People and the Haribon Foundation for the
Conservation of Natural Resources, Inc. (Haribon, et al.), filed a
motion to Intervene with attached Comment-in-Intervention. They
agree with the NCIP and Flavier, et al. that IPRA is consistent with
the Constitution and pray that the petition for prohibition and
mandamus be dismissed.
The motions for intervention of the aforesaid groups and
organizations were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties
and intervenors filed their respective memoranda in which they
reiterate the arguments adduced in their earlier pleadings and
during the hearing.
Petitioners assail the constitutionality of the following provisions of
the IPRA and its Implementing Rules on the ground that they
amount to an unlawful deprivation of the State’s ownership over
lands of the public domain as well as minerals and other natural
resources therein, in violation of the regalian doctrine embodied in
Section 2, Article XII of the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral
domains, and Section 3(b) which, in turn, defines ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that
ancestral domains including inalienable public lands, bodies of
water, mineral and other resources found within ancestral domains
are private but community property of the indigenous peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the
composition of ancestral domains and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the
indigenous peoples over the ancestral domains;
(5) Section 8 which recognizes and enumerates the rights of the
indigenous peoples over the ancestral lands;
"(6) Section 57 which provides for priority rights of the indigenous
peoples in the harvesting, extraction, development or exploration of
minerals and other natural resources within the areas claimed to be
their ancestral domains, and the right to enter into agreements with
nonindigenous peoples for the development and utilization of
natural resources therein for a period not exceeding 25 years,
renewable for not more than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility
to maintain, develop, protect and conserve the ancestral domains
and portions thereof which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected
areas, forest cover or reforestation."2
Petitioners also content that, by providing for an all-encompassing
definition of "ancestral domains" and "ancestral lands" which might
even include private lands found within said areas, Sections 3(a) and
3(b) violate the rights of private landowners.3
In addition, petitioners question the provisions of the IPRA defining
the powers and jurisdiction of the NCIP and making customary law
applicable to the settlement of disputes involving ancestral domains
and ancestral lands on the ground that these provisions violate the
due process clause of the Constitution.4
These provisions are:
"(1) sections 51 to 53 and 59 which detail the
process of delineation and recognition of
ancestral domains and which vest on the NCIP
the sole authority to delineate ancestral domains
and ancestral lands;
"(2) Section 52[i] which provides that upon
certification by the NCIP that a particular area is
an ancestral domain and upon notification to
the following officials, namely, the Secretary of
Environment and Natural Resources, Secretary
of Interior and Local Governments, Secretary of
Justice and Commissioner of the National
Development Corporation, the jurisdiction of
said officials over said area terminates;
"(3) Section 63 which provides the customary
law, traditions and practices of indigenous
peoples shall be applied first with respect to
property rights, claims of ownership, hereditary
succession and settlement of land disputes, and
that any doubt or ambiguity in the
interpretation thereof shall be resolved in favor
of the indigenous peoples;
"(4) Section 65 which states that customary laws
and practices shall be used to resolve disputes
involving indigenous peoples; and
"(5) Section 66 which vests on the NCIP the
jurisdiction over all claims and disputes
involving rights of the indigenous peoples."5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of
the NCIP Administrative Order No. 1, series of 1998, which provides
that "the administrative relationship of the NCIP to the Office of the
President is characterized as a lateral but autonomous relationship
for purposes of policy and program coordination." They contend
that said Rule infringes upon the President’s power of control over
executive departments under Section 17, Article VII of the
Constitution.6
Petitioners pray for the following:
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I],
57, 58, 59, 63, 65 and 66 and other related
provisions of R.A. 8371 are unconstitutional and
invalid;
"(2) The issuance of a writ of prohibition
directing the Chairperson and Commissioners
of the NCIP to cease and desist from
implementing the assailed provisions of R.A.
8371 and its Implementing Rules;
"(3) The issuance of a writ of prohibition
directing the Secretary of the Department of
Environment and Natural Resources to cease
and desist from implementing Department of
Environment and Natural Resources Circular
No. 2, series of 1998;
"(4) The issuance of a writ of prohibition
directing the Secretary of Budget and
Management to cease and desist from
disbursing public funds for the implementation
of the assailed provisions of R.A. 8371; and
"(5) The issuance of a writ of mandamus
commanding the Secretary of Environment and
Natural Resources to comply with his duty of
carrying out the State’s constitutional mandate
to control and supervise the exploration,
development, utilization and conservation of
Philippine natural resources."7
After due deliberation on the petition, the members of the Court 'paradigm shifts,' and the energy and brashness of youth. These
voted as follows: ingrained attitudes are obstacles to anyone who wants to re-orient
Seven (7) voted to dismiss the petition. Justice Kapunan filed an law in a more pragmatic direction. But, by the same token,
opinion, which the Chief Justice and Justices Bellosillo, Quisumbing, pragmatic jurisprudence must come to terms with history."
and Santiago join, sustaining the validity of the challenged When Congress enacted the Indigenous Peoples Rights Act (IPRA),
provisions of R.A. 8371. Justice Puno also filed a separate opinion it introduced radical concepts into the Philippine legal system which
sustaining all challenged provisions of the law with the exception of appear to collide with settled constitutional and jural precepts on
Section 1, Part II, Rule III of NCIP Administrative Order No. 1, series state ownership of land and other natural resources. The sense and
of 1998, the Rules and Regulations Implementing the IPRA, and subtleties of this law cannot be appreciated without considering its
Section 57 of the IPRA which he contends should be interpreted as distinct sociology and the labyrinths of its history. This Opinion
dealing with the large-scale exploitation of natural resources and attempts to interpret IPRA by discovering its soul shrouded by the
should be read in conjunction with Section 2, Article XII of the 1987 mist of our history. After all, the IPRA was enacted by Congress not
Constitution. On the other hand, Justice Mendoza voted to dismiss only to fulfill the constitutional mandate of protecting the
the petition solely on the ground that it does not raise a justiciable indigenous cultural communities' right to their ancestral land but
controversy and petitioners do not have standing to question the more importantly, to correct a grave historical injustice to our
constitutionality of R.A. 8371. indigenous people.
Seven (7) other members of the Court voted to grant the petition. This Opinion discusses the following:
Justice Panganiban filed a separate opinion expressing the view that I. The Development of the Regalian Doctrine in the Philippine Legal
Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 System.
are unconstitutional. He reserves judgment on the constitutionality A. The Laws of the Indies
of Sections 58, 59, 65, and 66 of the law, which he believes must B. Valenton v. Murciano
await the filing of specific cases by those whose rights may have C. The Public Land Acts and the Torrens System
been violated by the IPRA. Justice Vitug also filed a separate opinion D. The Philippine Constitutions
expressing the view that Sections 3(a), 7, and 57 of R.A. 8371 are II. The Indigenous Peoples Rights Act (IPRA).
unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and A. Indigenous Peoples
De Leon join in the separate opinions of Justices Panganiban and 1. Indigenous Peoples: Their History
Vitug. 2. Their Concept of Land
As the votes were equally divided (7 to 7) and the necessary III. The IPRA is a Novel Piece of Legislation.
majority was not obtained, the case was redeliberated upon. A. Legislative History
However, after redeliberation, the voting remained the same. IV. The Provisions of the IPRA Do Not Contravene the Constitution.
Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil A. Ancestral domains and ancestral lands are
Procedure, the petition is DISMISSED. the private property of indigenous peoples and
Attached hereto and made integral parts thereof are the separate do not constitute part of the land of the public
opinions of Justices Puno, Vitug, Kapunan, Mendoza, and domain.
Panganiban. 1. The right to ancestral domains and
SO ORDERED. ancestral lands: how acquired
Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, 2. The concept of native title
Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. (a) Cariño v. Insular
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate Government
opinion (b) Indian Title to land
(c) Why the Cariño doctrine
Footnotes is unique
1 Rollo, p. 114. 3. The option of securing a torrens
2 Petition, Rollo, pp. 16-23. title to the ancestral land
3 Id. at 23-25. B. The right of ownership and possession by the
4 Section 1, Article III of the Constitution states: ICCs/IPs to their ancestral domains is a limited
"No person shall be deprived of life, liberty or form of ownership and does not include the
property without due process of law, nor shall right to alienate the same.
any person be denied the equal protection of the 1. The indigenous concept of
laws." ownership and customary law
5 Rollo, pp. 25-27. C. Sections 7 (a), 7 (b) and 57 of the IPRA do not
6 Id. at 27-28. violate the Regalian Doctrine enshrined in
7 Transcript of Stenographic Notes of the Section 2, Article XII of the 1987 Constitution.
hearing held on April 13, 1999, pp. 5-6. 1. The rights of ICCs/IPs over their
ancestral domains and lands
The Lawphil Project - Arellano Law Foundation 2. The right of ICCs/IPs to develop
lands and natural resources within
the ancestral domains does not
SEPARATE OPINION deprive the State of ownership over
PUNO, J.: the natural resources, control and
PRECIS supervision in their development and
A classic essay on the utility of history was written in 1874 by exploitation.
Friedrich Nietzsche entitled "On the Uses and Disadvantages of (a) Section 1, Part II, Rule III
History for Life." Expounding on Nietzsche's essay, Judge Richard of the Implementing Rules
Posner1 wrote:2 goes beyond the parameters
"Law is the most historically oriented, or if you like the most of Section 7(a) of the law on
backward-looking, the most 'past-dependent,' of the professions. It ownership of ancestral
venerates tradition, precedent, pedigree, ritual, custom, ancient domains and is ultra vires.
practices, ancient texts, archaic terminology, maturity, wisdom, (b) The small-scale
seniority, gerontocracy, and interpretation conceived of as a method utilization of natural
of recovering history. It is suspicious of innovation, discontinuities, resources in Section 7 (b) of
 the IPRA is allowed under
Paragraph 3, Section 2,
Article XII of the 1987
Consitution.
(c) The large-scale
utilization of natural
resources in Section 57 of
the IPRA may be
harmonized with
Paragraphs 1 and 4, Section
2, Article XII of the 1987
Constitution.
V. The IPRA is a Recognition of Our Active Participation in the
International Indigenous Movement.
DISCUSSION
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE
PHILIPPINE LEGAL SYSTEM.
A. The Laws of the Indies
The capacity of the State to own or acquire property is the state's
power of dominium.3 This was the foundation for the early Spanish
decrees embracing the feudal theory of jura regalia. The "Regalian
Doctrine" or jura regalia is a Western legal concept that was first
introduced by the Spaniards into the country through the Laws of
the Indies and the Royal Cedulas. The Laws of the Indies, i.e., more
specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de
Leyes de las Indias, set the policy of the Spanish Crown with respect
to the Philippine Islands in the following manner:
"We, having acquired full sovereignty over the Indies, and all lands,
territories, and possessions not heretofore ceded away by our royal
predecessors, or by us, or in our name, still pertaining to the royal
crown and patrimony, it is our will that all lands which are held
without proper and true deeds of grant be restored to us as they
belong to us, in order that after reserving before all what to us or to
our viceroys, audiencias, and governors may seem necessary for
public squares, ways, pastures, and commons in those places which
are peopled, taking into consideration not only their present
condition, but also their future and their probable increase, and after
distributing to the natives what may be necessary for tillage and
pasturage, confirming them in what they now have and giving them
more if necessary, all the rest of said lands may remain free and
unencumbered for us to dispose of as we may wish.
We therefore order and command that all viceroys and presidents of
pretorial courts designate at such time as shall to them seem most
expedient, a suitable period within which all possessors of tracts,
farms, plantations, and estates shall exhibit to them and to the court
officers appointed by them for this purpose, their title deeds thereto.
And those who are in possession by virtue of proper deeds and
receipts, or by virtue of just prescriptive right shall be protected, and
all the rest shall be restored to us to be disposed of at our will."4
The Philippines passed to Spain by virtue of "discovery" and
conquest. Consequently, all lands became the exclusive patrimony
and dominion of the Spanish Crown. The Spanish Government took
charge of distributing the lands by issuing royal grants and
concessions to Spaniards, both military and civilian.5 Private land
titles could only be acquired from the government either by
purchase or by the various modes of land grant from the Crown.6
The Laws of the Indies were followed by the Ley Hipotecaria, or the
Mortgage Law of 1893.7 The Spanish Mortgage Law provided for
the systematic registration of titles and deeds as well as possessory
claims. The law sought to register and tax lands pursuant to the
Royal Decree of 1880. The Royal Decree of 1894, or the "Maura Law,"
was partly an amendment of the Mortgage Law as well as the Laws
of the Indies, as already amended by previous orders and decrees. 8
This was the last Spanish land law promulgated in the Philippines.
It required the "adjustment" or registration of all agricultural lands,
otherwise the lands shall revert to the state.
Four years later, by the Treaty of Paris of December 10, 1898, Spain
ceded to the government of the United States all rights, interests and
claims over the national territory of the Philippine Islands. In 1903,
the United States colonial government, through the Philippine
Commission, passed Act No. 926, the first Public Land Act.
B. Valenton v. Murciano
In 1904, under the American regime, this Court decided the case of
Valenton v. Murciano.9
Valenton resolved the question of which is the better basis for
ownership of land: long-time occupation or paper title. Plaintiffs had
entered into peaceful occupation of the subject land in 1860.
Defendant's predecessor-in-interest, on the other hand, purchased
the land from the provincial treasurer of Tarlac in 1892. The lower
court ruled against the plaintiffs on the ground that they had lost all
rights to the land by not objecting to the administrative sale.
Plaintiffs appealed the judgment, asserting that their 30-year adverse
possession, as an extraordinary period of prescription in the
Partidas and the Civil Code, had given them title to the land as
against everyone, including the State; and that the State, not owning
the land, could not validly transmit it.
The Court, speaking through Justice Willard, decided the case on the
basis of "those special laws which from earliest time have regulated
the disposition of the public lands in the colonies."10 The question
posed by the Court was: "Did these special laws recognize any right
of prescription as against the State as to these lands; and if so, to
what extent was it recognized?"
Prior to 1880, the Court said, there were no laws specifically
providing for the disposition of land in the Philippines. However, it
was understood that in the absence of any special law to govern a
specific colony, the Laws of the Indies would be followed. Indeed, in
the Royal Order of July 5, 1862, it was decreed that until regulations
on the subject could be prepared, the authorities of the Philippine
Islands should follow strictly the Laws of the Indies, the Ordenanza
of the Intendentes of 1786, and the Royal Cedula of 1754.11
Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion
de Leyes de las Indias, the court interpreted it as follows:
"In the preamble of this law there is, as is seen, a distinct statement
that all those lands belong to the Crown which have not been
granted by Philip, or in his name, or by the kings who preceded him.
This statement excludes the idea that there might be lands not so
granted, that did not belong to the king. It excludes the idea that
the king was not still the owner of all ungranted lands, because
some private person had been in the adverse occupation of them. By
the mandatory part of the law all the occupants of the public lands
are required to produce before the authorities named, and within a
time to be fixed by them, their title papers. And those who had good
title or showed prescription were to be protected in their holdings. It
is apparent that it was not the intention of the law that mere
possession for a length of time should make the possessors the
owners of the land possessed by them without any action on the
part of the authorities."12
The preamble stated that all those lands which had not been granted
by Philip, or in his name, or by the kings who preceded him,
belonged to the Crown.13 For those lands granted by the king, the
decree provided for a system of assignment of such lands. It also
ordered that all possessors of agricultural land should exhibit their
title deed, otherwise, the land would be restored to the Crown.14
The Royal Cedula of October 15, 1754 reinforced the Recopilacion
when it ordered the Crown's principal subdelegate to issue a general
order directing the publication of the Crown's instructions:
"x x x to the end that any and all persons who, since the year 1700,
and up to the date of the promulgation and publication of said
order, shall have occupied royal lands, whether or not x x x
cultivated or tenanted, may x x x appear and exhibit to said
subdelegates the titles and patents by virtue of which said lands are
occupied. x x x. Said subdelegates will at the same time warn the
parties interested that in case of their failure to present their title
deeds within the term designated, without a just and valid reason
therefor, they will be deprived of and evicted from their lands, and
they will be granted to others."15
On June 25, 1880, the Crown adopted regulations for the adjustment
of lands "wrongfully occupied" by private individuals in the
Philippine Islands. Valenton construed these regulations together
with contemporaneous legislative and executive interpretations of
the law, and concluded that plaintiffs' case fared no better under the
1880 decree and other laws which followed it, than it did under the
earlier ones. Thus as a general doctrine, the Court stated:
"While the State has always recognized the right of the occupant to a
deed if he proves a possession for a sufficient length of time, yet it
has always insisted that he must make that proof before the
proper administrative officers, and obtain from them his deed,
and until he did that the State remained the absolute owner."16
In conclusion, the Court ruled: "We hold that from 1860 to 1892 there
was no law in force in these Islands by which the plaintiffs could
obtain the ownership of these lands by prescription, without any
action by the State."17 Valenton had no rights other than those which
accrued to mere possession. Murciano, on the other hand, was
deemed to be the owner of the land by virtue of the grant by the
provincial secretary. In effect, Valenton upheld the Spanish concept
of state ownership of public land.
As a fitting observation, the Court added that "[t]he policy pursued
by the Spanish Government from earliest times, requiring settlers
on the public lands to obtain title deeds therefor from the State,
has been continued by the American Government in Act No.
926."18
C. The Public Land Acts and the Torrens System
Act No. 926, the first Public Land Act, was passed in pursuance of
the provisions of the the Philippine Bill of 1902. The law governed
the disposition of lands of the public domain. It prescribed rules and
regulations for the homesteading, selling, and leasing of portions of
the public domain of the Philippine Islands, and prescribed the
terms and conditions to enable persons to perfect their titles to
public lands in the Islands. It also provided for the "issuance of
patents to certain native settlers upon public lands," for the
establishment of town sites and sale of lots therein, for the
completion of imperfect titles, and for the cancellation or
confirmation of Spanish concessions and grants in the Islands." In
short, the Public Land Act operated on the assumption that title to
public lands in the Philippine Islands remained in the government;19
and that the government's title to public land sprung from the
Treaty of Paris and other subsequent treaties between Spain and the
United States.20 The term "public land" referred to all lands of the
public domain whose title still remained in the government and are
thrown open to private appropriation and settlement,21 and
excluded the patrimonial property of the government and the friar
lands.22
Act No. 926 was superseded in 1919 by Act 2874, the second Public
Land Act. This new law was passed under the Jones Law. It was
more comprehensive in scope but limited the exploitation of
agricultural lands to Filipinos and Americans and citizens of other
countries which gave Filipinos the same privileges.23 After the
passage of the 1935 Constitution, Act 2874 was amended in 1936 by
Commonwealth Act No. 141. Commonwealth Act No. 141 remains
the present Public Land Law and it is essentially the same as Act
2874. The main difference between the two relates to the transitory
provisions on the rights of American citizens and corporations
during the Commonwealth period at par with Filipino citizens and
corporations.24
Grants of public land were brought under the operation of the
Torrens system under Act 496, or the Land Registration Law of
1903. Enacted by the Philippine Commission, Act 496 placed all
public and private lands in the Philippines under the Torrens
system. The law is said to be almost a verbatim copy of the
Massachussetts Land Registration Act of 1898,25 which, in turn,
followed the principles and procedure of the Torrens system of
registration formulated by Sir Robert Torrens who patterned it after
the Merchant Shipping Acts in South Australia. The Torrens system
requires that the government issue an official certificate of title
attesting to the fact that the person named is the owner of the
property described therein, subject to such liens and encumbrances
as thereon noted or the law warrants or reserves.26 The certificate of
title is indefeasible and imprescriptible and all claims to the parcel of
land are quieted upon issuance of said certificate. This system highly
facilitates land conveyance and negotiation.27
D. The Philippine Constitutions
The Regalian doctrine was enshrined in the 1935 Constitution. One
of the fixed and dominating objectives of the 1935 Constitutional
Convention was the nationalization and conservation of the natural
resources of the country.28 There was an overwhelming sentiment
in the Convention in favor of the principle of state ownership of
natural resources and the adoption of the Regalian doctrine.29 State
ownership of natural resources was seen as a necessary starting
point to secure recognition of the state's power to control their
disposition, exploitation, development, or utilization. 30 The
delegates to the Constitutional Convention very well knew that the
concept of State ownership of land and natural resources was
introduced by the Spaniards, however, they were not certain
whether it was continued and applied by the Americans. To remove
all doubts, the Convention approved the provision in the
Constitution affirming the Regalian doctrine.31
Thus, the 1935 Constitution, in Section 1 of Article XIII on
"Conservation and Utilization of Natural Resources," reads as
follows:
"Sec. 1. All agricultural, timber, and mineral lands of the public
domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the
Philippines, or to corporations or associations at least sixty per
centum of the capital of which is owned by such citizens, subject
to any existing right, grant, lease, or concession at the time of the
inauguration of the Government established under this
Constitution. Natural resources, with the exception of public
agricultural land, shall not be alienated, and no license, concession,
or lease for the exploitation, development, or utilization of any of the
natural resources shall be granted for a period exceeding twenty-five
years, except as to water rights for irrigation, water supply, fisheries,
or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and the limit of the
grant."
The 1973 Constitution reiterated the Regalian doctrine in Section 8,
Article XIV on the "National Economy and the Patrimony of the
Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, wildlife, and other natural resources of the Philippines
belong to the State. With the exception of agricultural, industrial
or commercial, residential, and resettlement lands of the public
domain, natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development, exploitation,
or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not more than
twenty-five years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of
water power, in which cases beneficial use may be the measure and
the limit of the grant."
The 1987 Constitution reaffirmed the Regalian doctrine in Section 2
of Article XII on "National Economy and Patrimony," to wit:
"Sec. 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.
x x x."
Simply stated, all lands of the public domain as well as all natural
resources enumerated therein, whether on public or private land,
belong to the State. It is this concept of State ownership that
petitioners claim is being violated by the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "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." It is simply known as
"The Indigenous Peoples Rights Act of 1997" or the IPRA.
The IPRA recognizes the existence of the indigenous cultural
communities or indigenous peoples (ICCs/IPs) as a distinct sector in
Philippine society. It grants these people the ownership and
possession of their ancestral domains and ancestral lands, and
defines the extent of these lands and domains. The ownership
given is the indigenous concept of ownership under customary
law which traces its origin to native title.
Other rights are also granted the ICCs/IPs, and these are:
- the right to develop lands and natural
resources;
- the right to stay in the territories;
- the right in case of displacement;
- the right to safe and clean air and water;
- the right to claim parts of reservations;
- the right to resolve conflict;32
- the right to ancestral lands which include
a. the right to transfer land/property
to/among members of the same
ICCs/IPs, subject to customary laws
and traditions of the community
concerned;
b. the right to redemption for a period
not exceeding 15 years from date of
transfer, if the transfer is to a non-
member of the ICC/IP and is tainted
by vitiated consent of the ICC/IP, or if
the transfer is for an unconscionable
consideration.33
Within their ancestral domains and ancestral lands, the ICCs/IPs are
given the right to self-governance and empowerment,34 social justice
and human rights,35 the right to preserve and protect their culture,
traditions, institutions and community intellectual rights, and the
right to develop their own sciences and technologies.36
To carry out the policies of the Act, the law created the National
Commission on Indigenous Peoples (NCIP). The NCIP is an
independent agency under the Office of the President and is
composed of seven (7) Commissioners belonging to ICCs/IPs from
each of the ethnographic areas- Region I and the Cordilleras; Region
II; the rest of Luzon; Island groups including Mindoro, Palawan,
Romblon, Panay and the rest of the Visayas; Northern and Western
Mindanao; Southern and Eastern Mindanao; and Central
Mindanao.37 The NCIP took over the functions of the Office for
Northern Cultural Communities and the Office for Southern
Cultural Communities created by former President Corazon Aquino
which were merged under a revitalized structure.38
Disputes involving ICCs/IPs are to be resolved under customary
laws and practices. When still unresolved, the matter may be
brought to the NCIP, which is granted quasi-judicial powers.39 The
NCIP's decisions may be appealed to the Court of Appeals by a
petition for review.
Any person who violates any of the provisions of the Act such as,
but not limited to, unauthorized and/or unlawful intrusion upon
ancestral lands and domains shall be punished in accordance with
customary laws or imprisoned from 9 months to 12 years and/or
fined from ₱100,000.00 to ₱500,000.00 and obliged to pay damages.40
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the
Indigenous Cultural Communities (ICCs) or the Indigenous Peoples
(IPs). The term "ICCs" is used in the 1987 Constitution while that of
"IPs" is the contemporary international language in the International
Labor Organization (ILO) Convention 16941 and the United Nations
(UN) Draft Declaration on the Rights of Indigenous Peoples.42
ICCs/IPs are defined by the IPRA as:
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer
to a group of people or homogeneous societies identified by self-
ascription and ascription by others, who have continuously lived as
organized community on communally bounded and defined
territory, and who have, under claims of ownership since time
immemorial, occupied, possessed and utilized such territories,
sharing common bonds of language, customs, traditions and other
distinctive cultural traits, or who have, through resistance to
political, social and cultural inroads of colonization, non-indigenous
religions and cultures, became historically differentiated from the
majority of Filipinos. ICCs/IPs shall likewise include peoples who
are regarded as indigenous on account of their descent from the
populations which inhabited the country, at the time of conquest or
colonization, or at the time of inroads of non-indigenous religions
and cultures, or the establishment of present state boundaries, who
retain some or all of their own social, economic, cultural and
political institutions, but who may have been displaced from their
traditional domains or who may have resettled outside their
ancestral domains."
Indigenous Cultural Communities or Indigenous Peoples refer to
a group of people or homogeneous societies who have
continuously lived as an organized community on communally
bounded and defined territory. These groups of people have
actually occupied, possessed and utilized their territories under
claim of ownership since time immemorial. They share common
bonds of language, customs, traditions and other distinctive cultural
traits, or, they, by their resistance to political, social and cultural
inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the Filipino majority.
ICCs/IPs also include descendants of ICCs/IPs who inhabited the
country at the time of conquest or colonization, who retain some or
all of their own social, economic, cultural and political institutions
but who may have been displaced from their traditional territories
or who may have resettled outside their ancestral domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and
mountains of Luzon, Mindanao, Mindoro, Negros, Samar, Leyte,
and the Palawan and Sulu group of islands. They are composed of
110 tribes and are as follows:
1. In the Cordillera Autonomous Region-
Kankaney, Ibaloi, Bontoc, Tinggian or Itneg,
Ifugao, Kalinga, Yapayao, Aeta or Agta or
Pugot, and Bago of Ilocos Norte and
Pangasinan; Ibanag of Isabela, Cagayan; Ilongot
of Quirino and Nueva Vizcaya; Gaddang of
Quirino, Nueva Vizcaya, Itawis of Cagayan;
Ivatan of Batanes, Aeta of Cagayan, Quirino and
Isabela.
2. In Region III- Aetas.
3. In Region IV- Dumagats of Aurora, Rizal;
Remontado of Aurora, Rizal, Quezon; Alangan
or Mangyan, Batangan, Buid or Buhid,
Hanunuo and Iraya of Oriental and Occidental
Mindoro; Tadyawan of Occidental Mindoro;
Cuyonon, Palawanon, Tagbanua and Tao't bato
of Palawan.
4. In Region V- Aeta of Camarines Norte and
Camarines Sur; Aeta-Abiyan, Isarog, and
Kabihug of Camarines Norte; Agta, and Mayon
of Camarines Sur; Itom of Albay, Cimaron of
Sorsogon; and the Pullon of Masbate and
Camarines Sur.
5. In Region VI- Ati of Negros Occidental, Iloilo
and Antique, Capiz; the Magahat of Negros
Occidental; the Corolano and Sulod.
6. In Region VII- Magahat of Negros Oriental
and Eskaya of Bohol.
 7. In Region IX- the Badjao numbering about
192,000 in Tawi-Tawi, Zamboanga del Sur; the
Kalibugan of Basilan, the Samal, Subanon and
Yakat.
8. Region X- Numbering 1.6 million in Region X
alone, the IPs are: the Banwaon, Bukidnon,
Matigsalog, Talaanding of Bukidnon; the
Camiguin of Camiguin Island; the Higa-unon of
Agusan del Norte, Agusan del Sur, Bukidnon
and Misamis Occidental; the Tigwahanon of
Agusan del Sur, Misamis Oriental and and
Misamis Occidental, the Manobo of the Agusan
provinces, and the Umayamnon of Agusan and
Bukidnon.
9. In Region XI- There are about 1,774,065 IPs in
Region XI. They are tribes of the Dibabaon,
Mansaka of Davao del Norte; B'laan, Kalagan,
Langilad, T'boli and Talaingod of Davao del
Sur; Mamamanua of Surigao del Sur; Mandaya
of the Surigao provinces and Davao Oriental;
Manobo Blit of South Cotabato; the
Mangguangon of Davao and South Cotabato;
Matigsalog of Davao del Norte and Del Sur;
Tagakaolo, Tasaday and Ubo of South Cotabato;
and Bagobo of Davao del sur and South
Cotabato.
10. In Region XII- Ilianen, Tiruray,
Maguindanao, Maranao, Tausug, Yakan/Samal,
and Iranon.43
How these indigenous peoples came to live in the Philippines
goes back to as early as 25,000 to 30,000 B.C.
Before the time of Western contact, the Philippine archipelago was
peopled largely by the Negritos, Indonesians and Malays.44 The
strains from these groups eventually gave rise to common cultural
features which became the dominant influence in ethnic
reformulation in the archipelago. Influences from the Chinese and
Indian civilizations in the third or fourth millenium B.C. augmented
these ethnic strains. Chinese economic and socio-cultural influences
came by way of Chinese porcelain, silk and traders. Indian influence
found their way into the religious-cultural aspect of pre-colonial
society.45
The ancient Filipinos settled beside bodies of water. Hunting and
food gathering became supplementary activities as reliance on them
was reduced by fishing and the cultivation of the soil.46 From the
hinterland, coastal, and riverine communities, our ancestors evolved
an essentially homogeneous culture, a basically common way of life
where nature was a primary factor. Community life throughout the
archipelago was influenced by, and responded to, common ecology.
The generally benign tropical climate and the largely uniform flora
and fauna favored similarities, not differences.47 Life was essentially
subsistence but not harsh.48
The early Filipinos had a culture that was basically Malayan in
structure and form. They had languages that traced their origin to
the Austronesian parent-stock and used them not only as media of
daily communication but also as vehicles for the expression of their
literary moods.49 They fashioned concepts and beliefs about the
world that they could not see, but which they sensed to be part of
their lives.50 They had their own religion and religious beliefs. They
believed in the immortality of the soul and life after death. Their
rituals were based on beliefs in a ranking deity whom they called
Bathalang Maykapal, and a host of other deities, in the
environmental spirits and in soul spirits. The early Filipinos adored
the sun, the moon, the animals and birds, for they seemed to
consider the objects of Nature as something to be respected. They
venerated almost any object that was close to their daily life,
indicating the importance of the relationship between man and the
object of nature.51
The unit of government was the "barangay," a term that derived its
meaning from the Malay word "balangay," meaning, a boat, which
transported them to these shores.52 The barangay was basically a
family-based community and consisted of thirty to one hundred
families. Each barangay was different and ruled by a chieftain called
a "dato." It was the chieftain's duty to rule and govern his subjects
and promote their welfare and interests. A chieftain had wide
powers for he exercised all the functions of government. He was the
executive, legislator and judge and was the supreme commander in
time of war.53
Laws were either customary or written. Customary laws were
handed down orally from generation to generation and constituted
the bulk of the laws of the barangay. They were preserved in songs
and chants and in the memory of the elder persons in the
community.54 The written laws were those that the chieftain and his
elders promulgated from time to time as the necessity arose.55 The
oldest known written body of laws was the Maragtas Code by Datu
Sumakwel at about 1250 A.D. Other old codes are the Muslim Code
of Luwaran and the Principal Code of Sulu.56 Whether customary or
written, the laws dealt with various subjects, such as inheritance,
divorce, usury, loans, partnership, crime and punishment, property
rights, family relations and adoption. Whenever disputes arose,
these were decided peacefully through a court composed by the
chieftain as "judge" and the barangay elders as "jury." Conflicts
arising between subjects of different barangays were resolved by
arbitration in which a board composed of elders from neutral
barangays acted as arbiters.57
Baranganic society had a distinguishing feature: the absence of
private property in land. The chiefs merely administered the lands
in the name of the barangay. The social order was an extension of
the family with chiefs embodying the higher unity of the
community. Each individual, therefore, participated in the
community ownership of the soil and the instruments of production
as a member of the barangay.58 This ancient communalism was
practiced in accordance with the concept of mutual sharing of
resources so that no individual, regardless of status, was without
sustenance. Ownership of land was non-existent or unimportant
and the right of usufruct was what regulated the development of
lands.59 Marine resources and fishing grounds were likewise free to
all. Coastal communities depended for their economic welfare on
the kind of fishing sharing concept similar to those in land
communities.60 Recognized leaders, such as the chieftains and elders,
by virtue of their positions of importance, enjoyed some economic
privileges and benefits. But their rights, related to either land and
sea, were subject to their responsibility to protect the communities
from danger and to provide them with the leadership and means of
survival.61
Sometime in the 13th century, Islam was introduced to the
archipelago in Maguindanao. The Sultanate of Sulu was established
and claimed jurisdiction over territorial areas represented today by
Tawi-tawi, Sulu, Palawan, Basilan and Zamboanga. Four ethnic
groups were within this jurisdiction: Sama, Tausug, Yakan and
Subanon.62 The Sultanate of Maguindanao spread out from Cotabato
toward Maranao territory, now Lanao del Norte and Lanao del
Sur.63
The Muslim societies evolved an Asiatic form of feudalism where
land was still held in common but was private in use. This is
clearly indicated in the Muslim Code of Luwaran. The Code
contains a provision on the lease of cultivated lands. It, however, has
no provision for the acquisition, transfer, cession or sale of land.64
The societies encountered by Magellan and Legaspi therefore were
primitive economies where most production was geared to the use
of the producers and to the fulfillment of kinship obligations. They
were not economies geared to exchange and profit.65 Moreover, the
family basis of barangay membership as well as of leadership and
governance worked to splinter the population of the islands into
numerous small and separate communities.66
When the Spaniards settled permanently in the Philippines in
1565, they found the Filipinos living in barangay settlements
scattered along water routes and river banks. One of the first tasks
imposed on the missionaries and the encomenderos was to collect all
scattered Filipinos together in a reduccion.67 As early as 1551, the
Spanish government assumed an unvarying solicitous attitude
towards the natives.68 The Spaniards regarded it a sacred "duty to
conscience and humanity to civilize these less fortunate people
living in the obscurity of ignorance" and to accord them the "moral
and material advantages" of community life and the "protection and
vigilance afforded them by the same laws."69
The Spanish missionaries were ordered to establish pueblos where
the church and convent would be constructed. All the new Christian
converts were required to construct their houses around the church
and the unbaptized were invited to do the same.70 With the
reduccion, the Spaniards attempted to "tame" the reluctant Filipinos
through Christian indoctrination using the convento/casa real/plaza
complex as focal point. The reduccion, to the Spaniards, was a
"civilizing" device to make the Filipinos law-abiding citizens of the
Spanish Crown, and in the long run, to make them ultimately adopt
Hispanic culture and civilization.71
All lands lost by the old barangays in the process of pueblo
organization as well as all lands not assigned to them and the
pueblos, were now declared to be crown lands or realengas,
belonging to the Spanish king. It was from the realengas that land
grants were made to non-Filipinos.72
The abrogation of the Filipinos' ancestral rights in land and the
introduction of the concept of public domain were the most
immediate fundamental results of Spanish colonial theory and
law.73 The concept that the Spanish king was the owner of
everything of value in the Indies or colonies was imposed on the
natives, and the natives were stripped of their ancestral rights to
land.74
Increasing their foothold in the Philippines, the Spanish colonialists,
civil and religious, classified the Filipinos according to their
religious practices and beliefs, and divided them into three types .
First were the Indios, the Christianized Filipinos, who generally
came from the lowland populations. Second, were the Moros or the
Muslim communities, and third, were the infieles or the indigenous
communities.75
The Indio was a product of the advent of Spanish culture. This class
was favored by the Spaniards and was allowed certain status
although below the Spaniards. The Moros and infieles were
regarded as the lowest classes.76
The Moros and infieles resisted Spanish rule and Christianity. The
Moros were driven from Manila and the Visayas to Mindanao;
while the infieles, to the hinterlands. The Spaniards did not pursue
them into the deep interior. The upland societies were naturally
outside the immediate concern of Spanish interest, and the cliffs and
forests of the hinterlands were difficult and inaccessible, allowing
the infieles, in effect, relative security.77 Thus, the infieles, which
were peripheral to colonial administration, were not only able to
preserve their own culture but also thwarted the Christianization
process, separating themselves from the newly evolved Christian
community.78 Their own political, economic and social systems were
kept constantly alive and vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about
a generally mutual feeling of suspicion, fear, and hostility between
the Christians on the one hand and the non-Christians on the other.
Colonialism tended to divide and rule an otherwise culturally and
historically related populace through a colonial system that
exploited both the virtues and vices of the Filipinos.79
President McKinley, in his instructions to the Philippine
Commission of April 7, 1900, addressed the existence of the
infieles:
"In dealing with the uncivilized tribes of the Islands, the
Commission should adopt the same course followed by Congress
in permitting the tribes of our North American Indians to
maintain their tribal organization and government, and under
which many of those tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or
unwilling to conform. Such tribal government should, however, be
subjected to wise and firm regulation; and, without undue or petty
interference, constant and active effort should be exercised to
prevent barbarous practices and introduce civilized customs."80
Placed in an alternative of either letting the natives alone or guiding
them in the path of civilization, the American government chose "to
adopt the latter measure as one more in accord with humanity and
with the national conscience."81
The Americans classified the Filipinos into two: the Christian
Filipinos and the non-Christian Filipinos. The term "non-Christian"
referred not to religious belief, but to a geographical area, and more
directly, "to natives of the Philippine Islands of a low grade of
civilization, usually living in tribal relationship apart from settled
communities."82
Like the Spaniards, the Americans pursued a policy of
assimilation. In 1903, they passed Act No. 253 creating the Bureau
of Non-Christian Tribes (BNCT). Under the Department of the
Interior, the BNCT's primary task was to conduct ethnographic
research among unhispanized Filipinos, including those in Muslim
Mindanao, with a "special view to determining the most practicable
means for bringing about their advancement in civilization and
prosperity." The BNCT was modeled after the bureau dealing with
American Indians. The agency took a keen anthropological interest
in Philippine cultural minorities and produced a wealth of valuable
materials about them.83
The 1935 Constitution did not carry any policy on the non-
Christian Filipinos. The raging issue then was the conservation of
the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to
effectuate in a more rapid and complete manner the economic,
social, moral and political advancement of the non-Christian
Filipinos or national cultural minorities and to render real, complete,
and permanent the integration of all said national cultural minorities
into the body politic, creating the Commission on National
Integration charged with said functions." The law called for a policy
of integration of indigenous peoples into the Philippine mainstream
and for this purpose created the Commission on National
Integration (CNI).84 The CNI was given, more or less, the same task
as the BNCT during the American regime. The post-independence
policy of integration was like the colonial policy of assimilation
understood in the context of a guardian-ward relationship.85
The policy of assimilation and integration did not yield the desired
result. Like the Spaniards and Americans, government attempts at
integration met with fierce resistance. Since World War II, a tidal
wave of Christian settlers from the lowlands of Luzon and the
Visayas swamped the highlands and wide open spaces in
Mindanao.86 Knowledge by the settlers of the Public Land Acts
and the Torrens system resulted in the titling of several ancestral
lands in the settlers' names. With government initiative and
participation, this titling displaced several indigenous peoples
from their lands. Worse, these peoples were also displaced by
projects undertaken by the national government in the name of
national development.87
It was in the 1973 Constitution that the State adopted the following
provision:
"The State shall consider the customs, traditions, beliefs, and
interests of national cultural communities in the formulation and
implementation of State policies."88
For the first time in Philippine history, the "non-Christian tribes"
or the "cultural minorities" were addressed by the highest law of
the Republic, and they were referred to as "cultural communities."
More importantly this time, their "uncivilized" culture was given
some recognition and their "customs, traditions, beliefs and
interests" were to be considered by the State in the formulation and
implementation of State policies. President Marcos abolished the
CNI and transferred its functions to the Presidential Adviser on
National Minorities (PANAMIN). The PANAMIN was tasked to
integrate the ethnic groups that sought full integration into the
larger community, and at the same time "protect the rights of those
who wish to preserve their original lifeways beside the larger
community."89 In short, while still adopting the integration policy,
the decree recognized the right of tribal Filipinos to preserve their
way of life.90
In 1974, President Marcos promulgated P.D. No. 410, otherwise
known as the Ancestral Lands Decree. The decree provided for the
issuance of land occupancy certificates to members of the national
cultural communities who were given up to 1984 to register their
claims.91 In 1979, the Commission on the Settlement of Land
Problems was created under E.O. No. 561 which provided a
mechanism for the expeditious resolution of land problems
involving small settlers, landowners, and tribal Filipinos.92
Despite the promulgation of these laws, from 1974 to the early
1980's, some 100,000 Kalingas and Bontoks of the Cordillera region
were displaced by the Chico River dam project of the National
Power Corporation (NPC). The Manobos of Bukidnon saw their land
bulldozed by the Bukidnon Sugar Industries Company (BUSCO). In
Agusan del Sur, the National Development Company was
authorized by law in 1979 to take approximately 40,550 hectares of
land that later became the NDC-Guthrie plantation in Agusan del
Sur. Most of the land was possessed by the Agusan natives.93 Timber
concessions, water projects, plantations, mining, and cattle ranching
and other projects of the national government led not only to the
eviction of the indigenous peoples from their land but also to the
reduction and destruction of their natural environment.94
The Aquino government signified a total shift from the policy of
integration to one of preservation. Invoking her powers under the
Freedom Constitution, President Aquino created the Office of
Muslim Affairs, Office for Northern Cultural Communities and
the Office for Southern Cultural Communities all under the Office
of the President.95
The 1987 Constitution carries at least six (6) provisions which
insure the right of tribal Filipinos to preserve their way of life. 96
This Constitution goes further than the 1973 Constitution by
expressly guaranteeing the rights of tribal Filipinos to their
ancestral domains and ancestral lands. By recognizing their right
to their ancestral lands and domains, the State has effectively
upheld their right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from
the Filipino mainstream. They are non-Christians. They live in less
accessible, marginal, mostly upland areas. They have a system of
self-government not dependent upon the laws of the central
administration of the Republic of the Philippines. They follow ways
of life and customs that are perceived as different from those of the
rest of the population.97 The kind of response the indigenous peoples
chose to deal with colonial threat worked well to their advantage by
making it difficult for Western concepts and religion to erode their
customs and traditions. The "infieles societies" which had become
peripheral to colonial administration, represented, from a cultural
perspective, a much older base of archipelagic culture. The political
systems were still structured on the patriarchal and kinship oriented
arrangement of power and authority. The economic activities were
governed by the concepts of an ancient communalism and mutual
help. The social structure which emphasized division of labor and
distinction of functions, not status, was maintained. The cultural
styles and forms of life portraying the varieties of social courtesies
and ecological adjustments were kept constantly vibrant.98
Land is the central element of the indigenous peoples' existence.
There is no traditional concept of permanent, individual, land
ownership. Among the Igorots, ownership of land more accurately
applies to the tribal right to use the land or to territorial control. The
people are the secondary owners or stewards of the land and that if
a member of the tribe ceases to work, he loses his claim of
ownership, and the land reverts to the beings of the spirit world
who are its true and primary owners. Under the concept of
"trusteeship," the right to possess the land does not only belong to
the present generation but the future ones as well.99
Customary law on land rests on the traditional belief that no one
owns the land except the gods and spirits, and that those who work
the land are its mere stewards.100 Customary law has a strong
preference for communal ownership, which could either be
ownership by a group of individuals or families who are related by
blood or by marriage,101 or ownership by residents of the same
locality who may not be related by blood or marriage. The system of
communal ownership under customary laws draws its meaning
from the subsistence and highly collectivized mode of economic
production. The Kalingas, for instance, who are engaged in team
occupation like hunting, foraging for forest products, and swidden
farming found it natural that forest areas, swidden farms, orchards,
pasture and burial grounds should be communally-owned.102 For
the Kalingas, everybody has a common right to a common economic
base. Thus, as a rule, rights and obligations to the land are shared in
common.
Although highly bent on communal ownership, customary law on
land also sanctions individual ownership. The residential lots and
terrace rice farms are governed by a limited system of individual
ownership. It is limited because while the individual owner has the
right to use and dispose of the property, he does not possess all the
rights of an exclusive and full owner as defined under our Civil
Code.103 Under Kalinga customary law, the alienation of
individually-owned land is strongly discouraged except in marriage
and succession and except to meet sudden financial needs due to
sickness, death in the family, or loss of crops.104 Moreover, and to be
alienated should first be offered to a clan-member before any
village-member can purchase it, and in no case may land be sold to a
non-member of the ili.105
Land titles do not exist in the indigenous peoples' economic and
social system. The concept of individual land ownership under the
civil law is alien to them. Inherently colonial in origin, our
national land laws and governmental policies frown upon
indigenous claims to ancestral lands. Communal ownership is
looked upon as inferior, if not inexistent.106
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine
indigenous peoples that the Tenth Congress of the Philippines, by
their joint efforts, passed and approved R.A. No. 8371, the
Indigenous Peoples Rights Act (IPRA) of 1997. The law was a
consolidation of two Bills- Senate Bill No. 1728 and House Bill No.
9125.
Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No.
1728 was a consolidation of four proposed measures referred to the
Committees on Cultural Communities, Environment and Natural
Resources, Ways and Means, as well as Finance. It adopted almost
en toto the comprehensive version of Senate Bill Nos. 1476 and 1486
which was a result of six regional consultations and one national
consultation with indigenous peoples nationwide.108 At the Second
Regular Session of the Tenth Congress, Senator Flavier, in his
sponsorship speech, gave a background on the situation of
indigenous peoples in the Philippines, to wit:
"The Indigenous Cultural Communities, including the Bangsa Moro,
have long suffered from the dominance and neglect of government
controlled by the majority. Massive migration of their Christian
brothers to their homeland shrunk their territory and many of the
tribal Filipinos were pushed to the hinterlands. Resisting the
intrusion, dispossessed of their ancestral land and with the massive
exploitation of their natural resources by the elite among the
migrant population, they became marginalized. And the
government has been an indispensable party to this insidious
conspiracy against the Indigenous Cultural Communities (ICCs). It
organized and supported the resettlement of people to their
ancestral land, which was massive during the Commonwealth and
early years of the Philippine Republic. Pursuant to the Regalian
Doctrine first introduced to our system by Spain through the Royal
Decree of 13 February 1894 or the Maura Law, the government
passed laws to legitimize the wholesale landgrabbing and provide
for easy titling or grant of lands to migrant homesteaders within the
traditional areas of the ICCs."109
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first
inhabited and cared for the land long before any central government
was established. Their ancestors had territories over which they
ruled themselves and related with other tribes. These territories- the
land- include people, their dwelling, the mountains, the water, the
air, plants, forest and the animals. This is their environment in its
totality. Their existence as indigenous peoples is manifested in their
own lives through political, economic, socio-cultural and spiritual
practices. The IPs culture is the living and irrefutable proof to this.
Their survival depends on securing or acquiring land rights;
asserting their rights to it; and depending on it. Otherwise, IPs shall
cease to exist as distinct peoples."110
To recognize the rights of the indigenous peoples effectively,
Senator Flavier proposed a bill based on two postulates: (1) the
concept of native title; and (2) the principle of parens patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes
to the Regalian Doctrine reinstated in Section 2, Article XII of the
1987 Constitution," our "decisional laws" and jurisprudence passed
by the State have "made exception to the doctrine." This exception
was first laid down in the case of Cariño v. Insular Government
where:
"x x x the court has recognized long occupancy of land by an
indigenous member of the cultural communities as one of private
ownership, which, in legal concept, is termed "native title." This
ruling has not been overturned. In fact, it was affirmed in
subsequent cases."111
Following Cariño, the State passed Act No. 926, Act No. 2874, C.A.
No. 141, P.D. 705, P.D. 410, P.D. 1529, R.A. 6734 (the Organic Act for
the Autonomous Region of Muslim Mindanao). These laws,
explicitly or implicitly, and liberally or restrictively, recognized
"native title" or "private right" and the existence of ancestral lands
and domains. Despite the passage of these laws, however, Senator
Flavier continued:
"x x x the executive department of government since the American
occupation has not implemented the policy. In fact, it was more
honored in its breach than in its observance, its wanton disregard
shown during the period unto the Commonwealth and the early
years of the Philippine Republic when government organized and
supported massive resettlement of the people to the land of the
ICCs."
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to
own and possess their ancestral land. The bill was prepared also
under the principle of parens patriae inherent in the supreme power
of the State and deeply embedded in Philippine legal tradition. This
principle mandates that persons suffering from serious
disadvantage or handicap, which places them in a position of actual
inequality in their relation or transaction with others, are entitled to
the protection of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one
(21) Senators voting in favor and none against, with no
abstention.112
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of
the Committee on Cultural Communities. It was originally authored
and subsequently presented and defended on the floor by Rep.
Gregorio Andolana of North Cotabato.113
Rep. Andolana's sponsorhip speech reads as follows:
"This Representation, as early as in the 8th Congress, filed a bill of
similar implications that would promote, recognize the rights of
indigenous cultural communities within the framework of national
unity and development.
Apart from this, Mr. Speaker, is our obligation, the government's
obligation to assure and ascertain that these rights shall be well-
preserved and the cultural traditions as well as the indigenous laws
that remained long before this Republic was established shall be
preserved and promoted. There is a need, Mr. Speaker, to look into
these matters seriously and early approval of the substitute bill shall
bring into reality the aspirations, the hope and the dreams of more
than 12 million Filipinos that they be considered in the mainstream
of the Philippine society as we fashion for the year 2000." 114
Rep. Andolana stressed that H.B. No. 9125 is based on the policy of
preservation as mandated in the Constitution. He also emphasized
that the rights of IPs to their land was enunciated in Cariño v.
Insular Government which recognized the fact that they had vested
rights prior to the establishment of the Spanish and American
regimes.115
After exhaustive interpellation, House Bill No. 9125, and its
corresponding amendments, was approved on Second Reading
with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE
THE CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private
Property of Indigenous Peoples and Do Not Constitute Part of the
Land of the Public Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over
ancestral domains and ancestral lands. Ancestral lands are not the
same as ancestral domains. These are defined in Section 3 [a] and [b]
of the Indigenous Peoples Right Act, viz:
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to
all areas generally belonging to ICCs/IPs comprising lands, inland
waters, coastal areas, and natural resources therein, held under a
claim of ownership, occupied or possessed by ICCs/IPs by
themselves or through their ancestors, communally or individually
since time immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force, deceit,
stealth or as a consequence of government projects or any other
voluntary dealings entered into by government and private
individuals/corporations, and which are necessary to ensure their
economic, social and cultural welfare. It shall include ancestral
lands, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable and disposable or otherwise,
hunting grounds, burial grounds, worship areas, bodies of water,
mineral and other natural resources, and lands which may no longer
be exclusively occupied by ICCs/IPs but from which they
traditionally had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators;
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land
occupied, possessed and utilized by individuals, families and clans
who are members of the ICCs/IPs since time immemorial, by
themselves or through their predecessors-in-interest, 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 tree lots."
Ancestral domains are all areas belonging to ICCs/IPs held under a
claim of ownership, occupied or possessed by ICCs/IPs by
themselves or through their ancestors, communally or individually
since time immemorial, continuously until the present, except when
interrupted by war, force majeure or displacement by force, deceit,
stealth or as a consequence of government projects or any other
voluntary dealings with government and/or private individuals or
corporations. Ancestral domains comprise lands, inland waters,
coastal areas, and natural resources therein and includes ancestral
lands, forests, pasture, residential, agricultural, and other lands
individually owned whether alienable or not, hunting grounds,
burial grounds, worship areas, bodies of water, mineral and other
natural resources. They also include lands which may no longer be
exclusively occupied by ICCs/IPs but from which they traditionally
had access to for their subsistence and traditional activities,
particularly the home ranges of ICCs/IPs who are still nomadic
and/or shifting cultivators.116
Ancestral lands are lands held by the ICCs/IPs under the same
conditions as ancestral domains except that these are limited to
lands and that these lands are not merely occupied and possessed
but are also utilized by the ICCs/IPs under claims of individual or
traditional group ownership. These lands include but are not limited
to residential lots, rice terraces or paddies, private forests, swidden
farms and tree lots.117
The procedures for claiming ancestral domains and lands are similar
to the procedures embodied in Department Administrative Order
(DAO) No. 2, series of 1993, signed by then Secretary of the
Department of Environment and Natural Resources (DENR) Angel
Alcala.118 DAO No. 2 allowed the delineation of ancestral domains
by special task forces and ensured the issuance of Certificates of
Ancestral Land Claims (CALC's) and Certificates of Ancestral
Domain Claims (CADC's) to IPs.
The identification and delineation of these ancestral domains and
lands is a power conferred by the IPRA on the National Commission
on Indigenous Peoples (NCIP).119 The guiding principle in
identification and delineation is self-delineation.120 This means that
the ICCs/IPs have a decisive role in determining the boundaries of
their domains and in all the activities pertinent thereto.121
The procedure for the delineation and recognition of ancestral
domains is set forth in Sections 51 and 52 of the IPRA. The
identification, delineation and certification of ancestral lands is in
Section 53 of said law.
Upon due application and compliance with the procedure provided
under the law and upon finding by the NCIP that the application is
meritorious, the NCIP shall issue a Certificate of Ancestral Domain
Title (CADT) in the name of the community concerned.122 The
allocation of lands within the ancestral domain to any individual or
indigenous corporate (family or clan) claimants is left to the
ICCs/IPs concerned to decide in accordance with customs and
traditions.123 With respect to ancestral lands outside the ancestral
domain, the NCIP issues a Certificate of Ancestral Land Title
(CALT).124
CADT's and CALT's issued under the IPRA shall be registered by
the NCIP before the Register of Deeds in the place where the
property is situated.125
(1) Right to Ancestral Domains and Ancestral Lands: How
Acquired
The rights of the ICCs/IPs to their ancestral domains and ancestral
lands may be acquired in two modes: (1) by native title over both
ancestral lands and domains; or (2) by torrens title under the
Public Land Act and the Land Registration Act with respect to
ancestral lands only.
(2) The Concept of Native Title
Native title is defined as:
"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and
domains which, as far back as memory reaches, have been held
under a claim of private ownership by ICCs/IPs, have never been
public lands and are thus indisputably presumed to have been held
that way since before the Spanish Conquest."126
Native title refers to ICCs/IPs' preconquest rights to lands and
domains held under a claim of private ownership as far back as
memory reaches. These lands are deemed never to have been public
lands and are indisputably presumed to have been held that way
since before the Spanish Conquest. The rights of ICCs/IPs to their
ancestral domains (which also include ancestral lands) by virtue of
native title shall be recognized and respected.127 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.128
Like a torrens title, a CADT is evidence of private ownership of land
by native title. Native title, however, is a right of private ownership
peculiarly granted to ICCs/IPs over their ancestral lands and
domains. The IPRA categorically declares ancestral lands and
domains held by native title as never to have been public land.
Domains and lands held under native title are, therefore,
indisputably presumed to have never been public lands and are
private.
(a) Cariño v. Insular Government129
The concept of native title in the IPRA was taken from the 1909 case
of Cariño v. Insular Government.130 Cariño firmly established a
concept of private land title that existed irrespective of any royal
grant from the State.
In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the
land registration court 146 hectares of land in Baguio Municipality,
Benguet Province. He claimed that this land had been possessed and
occupied by his ancestors since time immemorial; that his
grandfather built fences around the property for the holding of cattle
and that his father cultivated some parts of the land. Cariño
inherited the land in accordance with Igorot custom. He tried to
have the land adjusted under the Spanish land laws, but no
document issued from the Spanish Crown.131 In 1901, Cariño
obtained a possessory title to the land under the Spanish Mortgage
Law.132 The North American colonial government, however, ignored
his possessory title and built a public road on the land prompting
him to seek a Torrens title to his property in the land registration
court. While his petition was pending, a U.S. military reservation 133
was proclaimed over his land and, shortly thereafter, a military
detachment was detailed on the property with orders to keep cattle
and trespassers, including Cariño, off the land.134
In 1904, the land registration court granted Cariño's application for
absolute ownership to the land. Both the Government of the
Philippine Islands and the U.S. Government appealed to the C.F.I. of
Benguet which reversed the land registration court and dismissed
Cariño's application. The Philippine Supreme Court135 affirmed the
C.F.I. by applying the Valenton ruling. Cariño took the case to the
U.S. Supreme Court.136 On one hand, the Philippine government
invoked the Regalian doctrine and contended that Cariño failed to
comply with the provisions of the Royal Decree of June 25, 1880,
which required registration of land claims within a limited period of
time. Cariño, on the other, asserted that he was the absolute owner
of the land jure gentium, and that the land never formed part of the
public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes,
the U.S. Supreme Court held:
"It is true that Spain, in its earlier decrees, embodied the universal
feudal theory that all lands were held from the Crown, and perhaps
the general attitude of conquering nations toward people not
recognized as entitled to the treatment accorded to those in the same
zone of civilization with themselves. It is true, also, that in legal
theory, sovereignty is absolute, and that, as against foreign nations,
the United States may assert, as Spain asserted, absolute power. But
it does not follow that, as against the inhabitants of the Philippines,
the United States asserts that Spain had such power. When theory is
left on one side, sovereignty is a question of strength, and may vary
in degree. How far a new sovereign shall insist upon the theoretical
relation of the subjects to the head in the past, and how far it shall
recognize actual facts, are matters for it to decide."137
The U.S. Supreme Court noted that it need not accept Spanish
doctrines. The choice was with the new colonizer. Ultimately, the
matter had to be decided under U.S. law.
The Cariño decision largely rested on the North American
constitutionalist's concept of "due process" as well as the
pronounced policy "to do justice to the natives."138 It was based on
the strong mandate extended to the Islands via the Philippine Bill of
1902 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." The court declared:
"The acquisition of the Philippines was not like the settlement of the
white race in 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 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, chapter 1369, section 12 (32 Statutes at Large, 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. 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.' In the light of the declaration that we have quoted from
section 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,-
of the profoundest factors in human thought,- regarded as their
own."139
The Court went further:
"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."140
The court thus laid down the presumption of a certain title held (1)
as far back as testimony or memory went, and (2) under a claim of
private ownership. Land held by this title is presumed to "never
have been public land."
Against this presumption, the U.S. Supreme Court analyzed the
Spanish decrees upheld in the 1904 decision of Valenton v.
Murciano. The U.S. Supreme Court found no proof that the Spanish
decrees did not honor native title. On the contrary, the decrees
discussed in Valenton appeared to recognize that the natives owned
some land, irrespective of any royal grant. The Regalian doctrine
declared in the preamble of the Recopilacion was all "theory and
discourse" and it was observed that titles were admitted to exist
beyond the powers of the Crown, viz:
"If the applicant's case is to be tried by the law of Spain, we do not
discover such clear proof that it was bad by that law as to satisfy
us that he does not own the land. To begin with, the older decrees
and laws cited by the counsel for the plaintiff in error seem to
indicate pretty clearly that the natives were recognized as owning
some lands, irrespective of any royal grant. In other words, Spain
did not assume to convert all the native inhabitants of the
Philippines into trespassers or even into tenants at will. For instance,
Book 4, title 12, Law 14 of the the Recopilacion de Leyes de las Indias,
cited for a contrary conclusion in Valenton v. Murciano, 3 Philippine
537, while it commands viceroys and others, when it seems proper,
to call for the exhibition of grants, directs them to confirm those who
hold by good grants or justa prescripcion. It is true that it begins by
the characteristic assertion of feudal overlordship and the origin
of all titles in the King or his predecessors. That was theory and
discourse. The fact was that titles were admitted to exist that owed
nothing to the powers of Spain beyond this recognition in their
books." (Emphasis supplied).141
The court further stated that the Spanish "adjustment" proceedings
never held sway over unconquered territories. The wording of the
Spanish laws were not framed in a manner as to convey to the
natives that failure to register what to them has always been their
own would mean loss of such land. The registration requirement
was "not to confer title, but simply to establish it;" it was "not
calculated to convey to the mind of an Igorot chief the notion that
ancient family possessions were in danger, if he had read every
word of it."
By recognizing this kind of title, the court clearly repudiated the
doctrine of Valenton. It was frank enough, however, to admit the
possibility that the applicant might have been deprived of his land
under Spanish law because of the inherent ambiguity of the decrees
and concomitantly, the various interpretations which may be given
them. But precisely because of the ambiguity and of the strong
"due process mandate" of the Constitution, the court validated this
kind of title.142 This title was sufficient, even without government
administrative action, and entitled the holder to a Torrens certificate.
Justice Holmes explained:
"It will be perceived that the rights of the applicant under the
Spanish law present a problem not without difficulties for courts of
a legal tradition. We have deemed it proper on that account to notice
the possible effect of the change of sovereignty and the act of
Congress establishing the fundamental principles now to be
observed. Upon a consideration of the whole case we are of the
opinion that law and justice require that the applicant should be
granted what he seeks, and should not be deprived of what, by the
practice and belief of those among whom he lived, was his property,
through a refined interpretation of an almost forgotten law of
Spain."143
Thus, the court ruled in favor of Cariño and ordered the
registration of the 148 hectares in Baguio Municipality in his
name.144
Examining Cariño closer, the U.S. Supreme Court did not
categorically refer to the title it upheld as "native title." It simply
said:
"The Province of Benguet was inhabited by a tribe that the
Solicitor-General, in his argument, characterized as a savage tribe
that never was brought under the civil or military government of
the Spanish Crown. 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. 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. The argument to that effect
seems to amount to a denial of native titles through 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."145
This is the only instance when Justice Holmes used the term "native
title" in the entire length of the Cariño decision. It is observed that
the widespread use of the term "native title" may be traced to
Professor Owen James Lynch, Jr., a Visiting Professor at the
University of the Philippines College of Law from the Yale
University Law School. In 1982, Prof. Lynch published an article in
the Philippine Law Journal entitled Native Title, Private Right and
Tribal Land Law.146 This article was made after Professor Lynch
visited over thirty tribal communities throughout the country and
studied the origin and development of Philippine land laws.147 He
discussed Cariño extensively and used the term "native title" to refer
to Cariño's title as discussed and upheld by the U.S. Supreme Court
in said case.
(b) Indian Title
In a footnote in the same article, Professor Lynch stated that the
concept of "native title" as defined by Justice Holmes in Cariño "is
conceptually similar to "aboriginal title" of the American Indians.148
This is not surprising, according to Prof. Lynch, considering that
during the American regime, government policy towards ICCs/IPs
was consistently made in reference to native Americans.149 This was
clearly demonstrated in the case of Rubi v. Provincial Board of
Mindoro.150
In Rubi, the Provincial Board of Mindoro adopted a Resolution
authorizing the provincial governor to remove the Mangyans from
their domains and place them in a permanent reservation in Sitio
Tigbao, Lake Naujan. Any Mangyan who refused to comply was to
be imprisoned. Rubi and some Mangyans, including one who was
imprisoned for trying to escape from the reservation, filed for
habeas corpus claiming deprivation of liberty under the Board
Resolution. This Court denied the petition on the ground of police
power. It upheld government policy promoting the idea that a
permanent settlement was the only successful method for educating
the Mangyans, introducing civilized customs, improving their
health and morals, and protecting the public forests in which they
roamed.151 Speaking through Justice Malcolm, the court said:
"Reference was made in the President's instructions to the
Commission to the policy adopted by the United States for the
Indian Tribes. The methods followed by the Government of the
Philippine Islands in its dealings with the so-called non-Christian
people is said, on argument, to be practically identical with that
followed by the United States Government in its dealings with the
Indian tribes. Valuable lessons, it is insisted, can be derived by an
investigation of the American-Indian policy.
From the beginning of the United States, and even before, the
Indians have been treated as "in a state of pupilage." The recognized
relation between the Government of the United States and the
Indians may be described as that of guardian and ward. It is for the
Congress to determine when and how the guardianship shall be
terminated. The Indians are always subject to the plenary authority
of the United States.152
x x x.
As to the second point, the facts in the Standing Bear case and the
Rubi case are not exactly identical. But even admitting similarity of
facts, yet it is known to all that Indian reservations do exist in the
United States, that Indians have been taken from different parts of
the country and placed on these reservations, without any previous
consultation as to their own wishes, and that, when once so located,
they have been made to remain on the reservation for their own
good and for the general good of the country. If any lesson can be
drawn from the Indian policy of the United States, it is that the
determination of this policy is for the legislative and executive
branches of the government and that when once so decided upon,
the courts should not interfere to upset a carefully planned
governmental system. Perhaps, just as many forceful reasons exist
for the segregation of the Manguianes in Mindoro as existed for the
segregation of the different Indian tribes in the United States."153
Rubi applied the concept of Indian land grants or reservations in the
Philippines. An Indian reservation is a part of the public domain set
apart by proper authority for the use and occupation of a tribe or
tribes of Indians.154 It may be set apart by an act of Congress, by
treaty, or by executive order, but it cannot be established by custom
and prescription.155
Indian title to land, however, is not limited to land grants or
reservations. It also covers the "aboriginal right of possession or
occupancy."156 The aboriginal right of possession depends on the
actual occupancy of the lands in question by the tribe or nation as
their ancestral home, in the sense that such lands constitute
definable territory occupied exclusively by the particular tribe or
nation.157 It is a right which exists apart from any treaty, statute, or
other governmental action, although in numerous instances treaties
have been negotiated with Indian tribes, recognizing their aboriginal
possession and delimiting their occupancy rights or settling and
adjusting their boundaries.158
American jurisprudence recognizes the Indians' or native
Americans' rights to land they have held and occupied before the
"discovery" of the Americas by the Europeans. The earliest
definitive statement by the U.S. Supreme Court on the nature of
aboriginal title was made in 1823 in Johnson & Graham's Lessee v.
M'Intosh.159
In Johnson, the plaintiffs claimed the land in question under two (2)
grants made by the chiefs of two (2) Indian tribes. The U.S. Supreme
Court refused to recognize this conveyance, the plaintiffs being
private persons. The only conveyance that was recognized was that
made by the Indians to the government of the European discoverer.
Speaking for the court, Chief Justice Marshall pointed out that the
potentates of the old world believed that they had made ample
compensation to the inhabitants of the new world by bestowing
civilization and Christianity upon them; but in addition, said the
court, they found it necessary, in order to avoid conflicting
settlements and consequent war, to establish the principle that
discovery gives title to the government by whose subjects, or by
whose authority, the discovery was made, against all other
European governments, which title might be consummated by
possession.160 The exclusion of all other Europeans gave to the
nation making the discovery the sole right of acquiring the soil from
the natives and establishing settlements upon it. As regards the
natives, the court further stated that:
"Those relations which were to exist between the discoverer and the
natives were to be regulated by themselves. The rights thus acquired
being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original
inhabitants were, in no instance, entirely disregarded; but were
necessarily, to a considerable extent, impaired. They were admitted
to be the rightful occupants of the soil, with a legal as well as just
claim to retain possession of it, and to use it according to their own
discretion; but their rights to complete sovereignty, as independent
nations, were necessarily diminished, and their power to dispose of
the soil at their own will, to whomsoever they pleased, was denied
by the fundamental principle that discovery gave exclusive title to
those who made it.
While the different nations of Europe respected the right of the
natives as occupants, they asserted the ultimate dominion to be in
themselves; and claimed and exercised, as a consequence of this
ultimate dominion, a power to grant the soil, while yet in
possession of the natives. These grants have been understood by
all to convey a title to the grantees, subject only to the Indian right
of occupancy."161
Thus, the discoverer of new territory was deemed to have obtained
the exclusive right to acquire Indian land and extinguish Indian
titles. Only to the discoverer- whether to England, France, Spain or
Holland- did this right belong and not to any other nation or private
person. The mere acquisition of the right nonetheless did not
extinguish Indian claims to land. Rather, until the discoverer, by
purchase or conquest, exercised its right, the concerned Indians were
recognized as the "rightful occupants of the soil, with a legal as well
as just claim to retain possession of it." Grants made by the
discoverer to her subjects of lands occupied by the Indians were
held to convey a title to the grantees, subject only to the Indian right
of occupancy. Once the discoverer purchased the land from the
Indians or conquered them, it was only then that the discoverer
gained an absolute title unrestricted by Indian rights.
The court concluded, in essence, that a grant of Indian lands by
Indians could not convey a title paramount to the title of the United
States itself to other parties, saying:
"It has never been contended that the Indian title amounted to
nothing. Their right of possession has never been questioned. The
claim of government extends to the complete ultimate title,
charged with this right of possession, and to the exclusive power
of acquiring that right."162
It has been said that the history of America, from its discovery to the
present day, proves the universal recognition of this principle.163
The Johnson doctrine was a compromise. It protected Indian rights
and their native lands without having to invalidate conveyances
made by the government to many U.S. citizens.164
Johnson was reiterated in the case of Worcester v. Georgia.165 In this
case, the State of Georgia enacted a law requiring all white persons
residing within the Cherokee nation to obtain a license or permit
from the Governor of Georgia; and any violation of the law was
deemed a high misdemeanor. The plaintiffs, who were white
missionaries, did not obtain said license and were thus charged with
a violation of the Act.
The U.S. Supreme Court declared the Act as unconstitutional for
interfering with the treaties established between the United States
and the Cherokee nation as well as the Acts of Congress regulating
intercourse with them. It characterized the relationship between the
United States government and the Indians as:
"The Indian nations were, from their situation, necessarily
dependent on some foreign potentate for the supply of their
essential wants, and for their protection from lawless and injurious
intrusions into their country. That power was naturally termed their
protector. They had been arranged under the protection of Great
Britain; but the extinguishment of the British power in their
neighborhood, and the establishment of that of the United States in
its place, led naturally to the declaration, on the part of the
Cherokees, that they were under the protection of the United States,
and of no other power. They assumed the relation with the United
States which had before subsisted with Great Britain.
This relation was that of a nation claiming and receiving the
protection of one more powerful, not that of individuals abandoning
their national character, and submitting as subjects to the laws of a
master."166
It was the policy of the U.S. government to treat the Indians as
nations with distinct territorial boundaries and recognize their right
of occupancy over all the lands within their domains. Thus:
"From the commencement of our government Congress has passed
acts to regulate trade and intercourse with the Indians; which treat
them as nations, respect their rights, and manifest a firm purpose to
afford that protection which treaties stipulate. All these acts, and
especially that of 1802, which is still in force, manifestly consider the
several Indian nations as distinct political communities, having
territorial boundaries, within which their authority is exclusive,
and having a right to all the lands within those boundaries, which
is not only acknowledged, but guaranteed by the United States.
x x x.
"The Indian nations had always been considered as distinct,
independent political communities, retaining their original
natural rights, as the undisputed possessors of the soil from time
immemorial, with the single exception of that imposed by
irresistible power, which excluded them from intercourse with any
other European potentate than the first discoverer of the coast of the
particular region claimed: and this was a restriction which those
European potentates imposed on themselves, as well as on the
Indians. The very term "nation," so generally applied to them, means
"a people distinct from others." x x x.167
The Cherokee nation, then, is a distinct community, occupying its
own territory, with boundaries accurately described, in which the
laws of Georgia can have no force, and which the citizens of Georgia
have no right to enter but with the assent of the Cherokees
themselves or in conformity with treaties and with the acts of
Congress. The whole intercourse between the United States and this
nation is, by our Constitution and laws, vested in the government of
the United States."168
The discovery of the American continent gave title to the
government of the discoverer as against all other European
governments. Designated as the naked fee,169 this title was to be
consummated by possession and was subject to the Indian title of
occupancy. The discoverer acknowledged the Indians' legal and just
claim to retain possession of the land, the Indians being the original
inhabitants of the land. The discoverer nonetheless asserted the
exclusive right to acquire the Indians' land- either by purchase,
"defensive" conquest, or cession- and in so doing, extinguish the
Indian title. Only the discoverer could extinguish Indian title
because it alone asserted ultimate dominion in itself. Thus, while the
different nations of Europe respected the rights of the natives as
occupants, they all asserted the ultimate dominion and title to be in
themselves.170
As early as the 19th century, it became accepted doctrine that
although fee title to the lands occupied by the Indians when the
colonists arrived became vested in the sovereign- first the
discovering European nation and later the original 13 States and
the United States- a right of occupancy in the Indian tribes was
nevertheless recognized. The Federal Government continued the
policy of respecting the Indian right of occupancy, sometimes called
Indian title, which it accorded the protection of complete
ownership.171 But this aboriginal Indian interest simply constitutes
"permission" from the whites to occupy the land, and means mere
possession not specifically recognized as ownership by Congress.172
It is clear that this right of occupancy based upon aboriginal
possession is not a property right.173 It is vulnerable to affirmative
action by the federal government who, as sovereign, possessed
exclusive power to extinguish the right of occupancy at will.174 Thus,
aboriginal title is not the same as legal title. Aboriginal title rests
on actual, exclusive and continuous use and occupancy for a long
time.175 It entails that land owned by Indian title must be used
within the tribe, subject to its laws and customs, and cannot be sold
to another sovereign government nor to any citizen.176 Such title as
Indians have to possess and occupy land is in the tribe, and not in
the individual Indian; the right of individual Indians to share in the
tribal property usually depends upon tribal membership, the
property of the tribe generally being held in communal
ownership.177
As a rule, Indian lands are not included in the term "public lands,"
which is ordinarily used to designate such lands as are subject to
sale or other disposal under general laws.178 Indian land which has
been abandoned is deemed to fall into the public domain.179 On the
other hand, an Indian reservation is a part of the public domain set
apart for the use and occupation of a tribe of Indians. 180 Once set
apart by proper authority, the reservation ceases to be public land,
and until the Indian title is extinguished, no one but Congress can
initiate any preferential right on, or restrict the nation's power to
dispose of, them.181
The American judiciary struggled for more than 200 years with the
ancestral land claims of indigenous Americans. 182 And two things
are clear. First, aboriginal title is recognized. Second, indigenous
property systems are also recognized. From a legal point of view,
certain benefits can be drawn from a comparison of Philippine IPs to
native Americans.183 Despite the similarities between native title and
aboriginal title, however, there are at present some misgivings on
whether jurisprudence on American Indians may be cited
authoritatively in the Philippines. The U.S. recognizes the
possessory rights of the Indians over their land; title to the land,
however, is deemed to have passed to the U.S. as successor of the
discoverer. The aboriginal title of ownership is not specifically
recognized as ownership by action authorized by Congress.184 The
protection of aboriginal title merely guards against encroachment by
persons other than the Federal Government.185 Although there are
criticisms against the refusal to recognize the native Americans'
ownership of these lands,186 the power of the State to extinguish
these titles has remained firmly entrenched.187
Under the IPRA, the Philippine State is not barred form asserting
sovereignty over the ancestral domains and ancestral lands.188 The
IPRA, however, is still in its infancy and any similarities between its
application in the Philippines vis-à-vis American Jurisprudence on
aboriginal title will depend on the peculiar facts of each case.
(c) Why the Cariño doctrine is unique
In the Philippines, the concept of native title first upheld in Cariño
and enshrined in the IPRA grants ownership, albeit in limited form,
of the land to the ICCs/IPs. Native title presumes that the land is
private and was never public. Cariño is the only case that
specifically and categorically recognizes native title. The long line
of cases citing Cariño did not touch on native title and the private
character of ancestral domains and lands. Cariño was cited by the
succeeding cases to support the concept of acquisitive prescription
under the Public Land Act which is a different matter altogether.
Under the Public Land Act, land sought to be registered must be
public agricultural land. When the conditions specified in Section
48 [b] of the Public Land Act are complied with, the possessor of the
land is deemed to have acquired, by operation of law, a right to a
grant of the land.189 The land ceases to be part of the public
domain,190 ipso jure,191 and is converted to private property by the
mere lapse or completion of the prescribed statutory period.
It was only in the case of Oh Cho v. Director of Lands192 that the
court declared that the rule that all lands that were not acquired
from the government, either by purchase or grant, belong to the
public domain has an exception. This exception would be any land
that should have been in the possession of an occupant and of his
predecessors-in-interest since time immemorial. It is this kind of
possession that would justify the presumption that the land had
never been part of the public domain or that it had been private
property even before the Spanish conquest.193 Oh Cho, however, was
decided under the provisions of the Public Land Act and Cariño was
cited to support the applicant's claim of acquisitive prescription
under the said Act.
All these years, Cariño had been quoted out of context simply to
justify long, continuous, open and adverse possession in the concept
of owner of public agricultural land. It is this long, continuous, open
and adverse possession in the concept of owner of thirty years both
for ordinary citizens194 and members of the national cultural
minorities195 that converts the land from public into private and
entitles the registrant to a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land
Indicates that the Land is Private.
The private character of ancestral lands and domains as laid down
in the IPRA is further strengthened by the option given to
individual ICCs/IPs over their individually-owned ancestral lands.
For purposes of registration under the Public Land Act and the
Land Registration Act, the IPRA expressly converts ancestral land
into public agricultural land which may be disposed of by the
State. The necessary implication is that ancestral land is private. It,
however, has to be first converted to public agricultural land
simply for registration purposes. To wit:
"Sec. 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."196
ICCs/IPs are given the option to secure a torrens certificate of title
over their individually-owned ancestral lands. This option is limited
to ancestral lands only, not domains, and such lands must be
individually, not communally, owned.
Ancestral lands that are owned by individual members of ICCs/IPs
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 immemorial197 or for a period of not less
than 30 years, which claims are uncontested by the members of the
same ICCs/IPs, may be registered under C.A. 141, otherwise known
as the Public Land Act, or Act 496, the Land Registration Act. For
purposes of registration, the individually-owned ancestral lands are
classified as alienable and disposable agricultural lands of the public
domain, provided, they are agricultural in character and are actually
used for agricultural, residential, pasture and tree farming purposes.
These lands shall be classified as public agricultural lands regardless
of whether they have a slope of 18% or more.
The classification of ancestral land as public agricultural land is in
compliance with the requirements of the Public Land Act and the
Land Registration Act. C.A. 141, the Public Land Act, deals
specifically with lands of the public domain.198 Its provisions apply
to those lands "declared open to disposition or concession" x x x
"which have not been reserved for public or quasi-public purposes,
nor 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 x x x or which having
been reserved or appropriated, have ceased to be so."199 Act 496, the
Land Registration Act, allows registration only of private lands and
public agricultural lands. Since ancestral domains and lands are
private, if the ICC/IP wants to avail of the benefits of C.A. 141 and
Act 496, the IPRA itself converts his ancestral land, regardless of
whether the land has a slope of eighteen per cent (18%) or over, 200
from private to public agricultural land for proper disposition.
The option to register land under the Public Land Act and the Land
Registration Act has nonetheless a limited period. This option must
be exercised within twenty (20) years from October 29, 1997, the date
of approval of the IPRA.
Thus, ancestral lands and ancestral domains are not part of the
lands of the public domain. They are private and belong to the
ICCs/IPs. Section 3 of Article XII on National Economy and
Patrimony of the 1987 Constitution classifies lands of the public
domain into four categories: (a) agricultural, (b) forest or timber, (c)
mineral lands, and (d) national parks. Section 5 of the same Article
XII mentions ancestral lands and ancestral domains but it does not
classify them under any of the said four categories. To classify them
as public lands under any one of the four classes will render the
entire IPRA law a nullity. The spirit of the IPRA lies in the distinct
concept of ancestral domains and ancestral lands. The IPRA
addresses the major problem of the ICCs/IPs which is loss of land.
Land and space are of vital concern in terms of sheer survival of the
ICCs/IPs.201
The 1987 Constitution mandates the State to "protect the rights of
indigenous cultural communities to their ancestral lands" and that
"Congress provide for the applicability of customary laws x x x in
determining the ownership and extent of ancestral domain." 202 It is
the recognition of the ICCs/IPs distinct rights of ownership over
their ancestral domains and lands that breathes life into this
constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their
ancestral domains is a limited form of ownership and does not
include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act
recognizes the concept of ownership under the civil law. This
ownership is based on adverse possession for a specified period, and
harkens to Section 44 of the Public Land Act on administrative
legalization (free patent) of imperfect or incomplete titles and
Section 48 (b) and (c) of the same Act on the judicial confirmation of
imperfect or incomplete titles. Thus:
"Sec. 44. Any natural-born citizen of the Philippines who is not the
owner of more than twenty-four hectares and who since July fourth,
1926 or prior thereto, has continuously occupied and cultivated,
either by himself or through his predecessors-in-interest, a tract or
tracts of agricultural public lands subject to disposition, or who shall
have paid the real estate tax thereon while the same has not been
occupied by any person shall be entitled, under the provisions of
this chapter, to have a free patent issued to him for such tract or
tracts of such land not to exceed twenty-four hectares.
A member of the national cultural minorities who has
continuously occupied and cultivated, either by himself or
through his predecessors-in-interest, a tract or tracts of land,
whether disposable or not since July 4, 1955, shall be entitled to
the right granted in the preceding paragraph of this section:
Provided, That at the time he files his free patent application he is
not the owner of any real property secured or disposable under the
provision of the Public Land Law.203
x x x.
"Sec. 48. The following described citizens of the Philippines,
occupying lands of the public domain or cla
iming to own any such lands or an interest therein, but whose titles
have not been perfected or completed, may apply to the Court of
First Instance of the province where the land is located for
confirmation of their claims and the issuance of a certificate of title
therefor, under the Land Registration Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their
predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession
and occupation of agricultural lands of the
public domain, under a bona fide claim of
acquisition or ownership, for at least thirty
years immediately preceding the filing of the
application for confirmation of title except when
prevented by war or force majeure. These shall
be conclusively presumed to have performed all
the conditions essential to a Government grant
and shall be entitled to a certificate of title under
the provisions of this Chapter.
(c) Members of the national cultural minorities
who by themselves or through their
predecessors-in-interest have been in open,
continuous, exclusive and notorious
possession and occupation of lands of the
public domain suitable to agriculture, whether
disposable or not, under a bona fide claim of
ownership for at least 30 years shall be entitled
to the rights granted in sub-section (b)
hereof."204
Registration under the foregoing provisions presumes that the land
was originally public agricultural land but because of adverse
possession since July 4, 1955 (free patent) or at least thirty years
(judicial confirmation), the land has become private. Open, adverse,
public and continuous possession is sufficient, provided, the
possessor makes proper application therefor. The possession has to
be confirmed judicially or administratively after which a torrens title
is issued.
A torrens title recognizes the owner whose name appears in the
certificate as entitled to all the rights of ownership under the civil
law. The Civil Code of the Philippines defines ownership in Articles
427, 428 and 429. This concept is based on Roman Law which the
Spaniards introduced to the Philippines through the Civil Code of
1889. Ownership, under Roman Law, may be exercised over things
or rights. It primarily includes the right of the owner to enjoy and
dispose of the thing owned. And the right to enjoy and dispose of
the thing includes the right to receive from the thing what it
produces,205 the right to consume the thing by its use,206 the right to
alienate, encumber, transform or even destroy the thing owned,207
and the right to exclude from the possession of the thing owned by
any other person to whom the owner has not transmitted such
thing.208
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the
ICC/IP to a torrens title but to a Certificate of Ancestral Domain Title
(CADT). The CADT formally recognizes the indigenous concept of
ownership of the ICCs/IPs over their ancestral domain. Thus:
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of
ownership sustains the view that ancestral domains 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 ICCs/IPs private but
community property which belongs to all generations and therefore
cannot be sold, disposed or destroyed. It likewise covers sustainable
traditional resource rights."
The right of ownership and possession of the ICCs/IPs to their
ancestral domains is held under the indigenous concept of
ownership. This concept maintains the view that ancestral
domains are the ICCs/IPs private but community property. It is
private simply because it is not part of the public domain. But its
private character ends there. The ancestral domain is owned in
common by the ICCs/IPs and not by one particular person. The
IPRA itself provides that areas within the ancestral domains,
whether delineated or not, are presumed to be communally held.209
These communal rights, however, are not exactly the same as co-
ownership rights under the Civil Code.210 Co-ownership gives any
co-owner the right to demand partition of the property held in
common. The Civil Code expressly provides that "no co-owner shall
be obliged to remain in the co-ownership." Each co-owner may
demand at any time the partition of the thing in common, insofar as
his share is concerned.211 To allow such a right over ancestral
domains may be destructive not only of customary law of the
community but of the very community itself.212
Communal rights over land are not the same as corporate rights
over real property, much less corporate condominium rights. A
corporation can exist only for a maximum of fifty (50) years subject
to an extension of another fifty years in any single instance. 213 Every
stockholder has the right to disassociate himself from the
corporation.214 Moreover, the corporation itself may be dissolved
voluntarily or involuntarily.215
Communal rights to the land are held not only by the present
possessors of the land but extends to all generations of the
ICCs/IPs, past, present and future, to the domain. This is the reason
why the ancestral domain must be kept within the ICCs/IPs
themselves. The domain cannot be transferred, sold or conveyed to
other persons. It belongs to the ICCs/IPs as a community.
Ancestral lands are also held under the indigenous concept of
ownership. The lands are communal. These lands, however, may be
transferred subject to the following limitations: (a) only to the
members of the same ICCs/IPs; (b) in accord with customary laws
and traditions; and (c) subject to the right of redemption of the
ICCs/IPs for a period of 15 years if the land was transferred to a non-
member of the ICCs/IPs.
Following the constitutional mandate that "customary law govern
property rights or relations in determining the ownership and extent
of ancestral domains,"216 the IPRA, by legislative fiat, introduces a
new concept of ownership. This is a concept that has long existed
under customary law.217
Custom, from which customary law is derived, is also recognized
under the Civil Code as a source of law.218 Some articles of the Civil
Code expressly provide that custom should be applied in cases
where no codal provision is applicable.219 In other words, in the
absence of any applicable provision in the Civil Code, custom, when
duly proven, can define rights and liabilities.220
Customary law is a primary, not secondary, source of rights under
the IPRA and uniquely applies to ICCs/IPs. Its recognition does not
depend on the absence of a specific provision in the civil law. The
indigenous concept of ownership under customary law is
specifically acknowledged and recognized, and coexists with the
civil law concept and the laws on land titling and land
registration.221
To be sure, the indigenous concept of ownership exists even
without a paper title. The CADT is merely a "formal recognition" of
native title. This is clear from Section 11 of the IPRA, to wit:
"Sec. 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, which shall recognize the title of the concerned
ICCs/IPs over the territories identified and delineated."
The moral import of ancestral domain, native land or being native is
"belongingness" to the land, being people of the land- by sheer force
of having sprung from the land since time beyond recall, and the
faithful nurture of the land by the sweat of one's brow. This is
fidelity of usufructuary relation to the land- the possession of
stewardship through perduring, intimate tillage, and the mutuality
of blessings between man and land; from man, care for land; from
the land, sustenance for man.222
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the
Regalian Doctrine Enshrined in Section 2, Article XII of the 1987
Constitution.
1. The Rights of ICCs/IPs Over Their Ancestral Domains and
Lands
The IPRA grants the ICCs/IPs several rights over their ancestral
domains and ancestral lands. Section 7 provides for the rights over
ancestral domains:
"Sec. 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 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, the 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 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. x x x;
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: x
x x;
e) Right to Regulate the Entry of Migrants.- Right
to regulate the entry of migrant settlers and
organizations into their 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 and
public welfare and service;
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."
Section 8 provides for the rights over ancestral lands:
"Sec. 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 7 (a) defines the ICCs/IPs the right of ownership over their
ancestral domains which covers (a) lands, (b) bodies of water
traditionally and actually occupied by the ICCs/IPs, (c) sacred
places, (d) traditional hunting and fishing grounds, and (e) all
improvements made by them at any time within the domains. The
right of ownership includes the following rights: (1) the right to
develop lands and natural resources; (b) the right to stay in the
territories; (c) the right to resettlement in case of displacement; (d)
the right to regulate the entry of migrants; (e) the right to safe and
clean air and water; (f) the right to claim parts of the ancestral
domains as reservations; and (g) the right to resolve conflict in
accordance with customary laws.
Section 8 governs their rights to ancestral lands. Unlike ownership
over the ancestral domains, Section 8 gives the ICCs/IPs also the
right to transfer the land or property rights to members of the same
ICCs/IPs or non-members thereof. This is in keeping with the option
given to ICCs/IPs to secure a torrens title over the ancestral lands,
but not to domains.
2. The Right of ICCs/IPs to Develop Lands and Natural Resources
Within the Ancestral Domains Does Not Deprive the State of
Ownership Over the Natural Resources and Control and
Supervision in their Development and Exploitation.
The Regalian doctrine on the ownership, management and
utilization of natural resources is declared in Section 2, Article XII
of the 1987 Constitution, viz:
"Sec. 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, 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 or 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."223
All lands of the public domain and all natural resources- 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. The
Constitution provides that in the exploration, development and
utilization of these natural resources, the State exercises full control
and supervision, and may undertake the same in four (4) modes:
1. The State may directly undertake such
activities; or
2. The State may enter into co-production, joint
venture or production-sharing agreements with
Filipino citizens or qualified corporations;
3. Congress may, by law, allow small-scale
utilization of natural resources by Filipino
citizens;
4. For the large-scale exploration, development
and utilization of minerals, petroleum and other
mineral oils, the President may enter into
agreements with foreign-owned corporations
involving technical or financial assistance.
As owner of the natural resources, the State is accorded primary
power and responsibility in the exploration, development and
utilization of these natural resources. The State may directly
undertake the exploitation and development by itself, or, it may
allow participation by the private sector through co-production,224
joint venture,225 or production-sharing agreements.226 These
agreements may be for a period of 25 years, renewable for another
25 years. The State, through Congress, may allow the small-scale
utilization of natural resources by Filipino citizens. For the large-
scale exploration of these resources, specifically minerals, petroleum
and other mineral oils, the State, through the President, may enter
into technical and financial assistance agreements with foreign-
owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the
People's Small-Scale Mining Act of 1991 (R.A. 7076) the three types
of agreements, i.e., co-production, joint venture or production-
sharing, may apply to both large-scale227 and small-scale mining.228
"Small-scale mining" refers to "mining activities which rely heavily
on manual labor using simple implements and methods and do not
use explosives or heavy mining equipment."229
Examining the IPRA, there is nothing in the law that grants to the
ICCs/IPs ownership over the natural resources within their
ancestral domains. The right of ICCs/IPs in their ancestral domains
includes ownership, but this "ownership" is expressly defined and
limited in Section 7 (a) as:
"Sec. 7. 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;"
The ICCs/IPs are given 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." It
will be noted that this enumeration does not mention bodies of
water not occupied by the ICCs/IPs, minerals, coal, wildlife, flora
and fauna in the traditional hunting grounds, fish in the traditional
fishing grounds, forests or timber in the sacred places, etc. and all
other natural resources found within the ancestral domains. Indeed,
the right of ownership under Section 7 (a) does not cover "waters,
minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all other natural resources" enumerated in Section 2,
Article XII of the 1987 Constitution as belonging to the State.
The non-inclusion of ownership by the ICCs/IPs over the natural
resources in Section 7(a) complies with the Regalian doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes
Beyond the Parameters of Sec. 7 (a) of the IPRA And is
Unconstitutional.
The Rules Implementing the IPRA230 in Section 1, Part II, Rule III
reads:
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership
over lands, waters, and natural resources and all improvements
made by them at any time within the ancestral domains/ lands.
These rights shall include, but not limited to, the right over the
fruits, the right to possess, the right to use, right to consume, right to
exclude and right to recover ownership, and the rights or interests
over land and natural resources. The right to recover shall be
particularly applied to lands lost through fraud or any form or
vitiated consent or transferred for an unconscionable price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of
ownership over "lands, waters and natural resources." The term
"natural resources" is not one of those expressly mentioned in
Section 7 (a) of the law. Our Constitution and jurisprudence clearly
declare that the right to claim ownership over land does not
necessarily include the right to claim ownership over the natural
resources found on or under the land.231 The IPRA itself makes a
distinction between land and natural resources. Section 7 (a)
speaks of the right of ownership only over the land within the
ancestral domain. It is Sections 7 (b) and 57 of the law that speak
of natural resources, and these provisions, as shall be discussed
later, do not give the ICCs/IPs the right of ownership over these
resources.
The constitutionality of Section 1, Part II, Rule III of the
Implementing Rules was not specifically and categorically
challenged by petitioners. Petitioners actually assail the
constitutionality of the Implementing Rules in general.232
Nevertheless, to avoid any confusion in the implementation of the
law, it is necessary to declare that the inclusion of "natural
resources" in Section 1, Part II, Rule III of the Implementing Rules
goes beyond the parameters of Section 7 (b) of the law and is
contrary to Section 2, Article XII of the 1987 Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b)
of the IPRA Is Allowed Under Paragraph 3, Section 2 of Article XII
of the Constitution.
Ownership over natural resources remain with the State and the
IPRA in Section 7 (b) merely grants the ICCs/IPs the right to manage
them, viz:
"Sec. 7 (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 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;"
The right to develop lands and natural resources under Section 7
(b) of the IPRA enumerates the following rights:
a) the right to develop, control and use lands
and territories traditionally occupied;
b) the right to manage and conserve natural
resources within the territories and uphold the
responsibilities for future generations;
c) the right to benefit and share the profits from
the allocation and utilization of the natural
resources found therein;
d) the right to negotiate the terms and
conditions for the exploration of natural
resources for the purpose of ensuring ecological,
environmental protection and the conservation
measures, pursuant to national and customary
laws;
e) 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;
f) the right to effective measures by the
government to prevent any interference with,
alienation and encroachment upon these
rights.233
Ownership over the natural resources in the ancestral domains
remains with the State and the ICCs/IPs are merely granted the
right to "manage and conserve" them for future generations,
"benefit and share" the profits from their allocation and
utilization, and "negotiate the terms and conditions for their
exploration" for the purpose of "ensuring ecological and
environmental protection and conservation measures." It must be
noted that the right to negotiate the terms and conditions over the
natural resources covers only their exploration which must be for
the purpose of ensuring ecological and environmental protection of,
and conservation measures in the ancestral domain. It does not
extend to the exploitation and development of natural resources.
Simply stated, the ICCs/IPs' rights over the natural resources take
the form of management or stewardship. For the ICCs/IPs may use
these resources and share in the profits of their utilization or
negotiate the terms for their exploration. At the same time, however,
the ICCs/IPs must ensure that the natural resources within their
ancestral domains are conserved for future generations and that the
"utilization" of these resources must not harm the ecology and
environment pursuant to national and customary laws.234
The limited rights of "management and use" in Section 7 (b) must
be taken to contemplate small-scale utilization of natural
resources as distinguished from large-scale. Small-scale utilization
of natural resources is expressly allowed in the third paragraph of
Section 2, Article XII of the Constitution "in recognition of the
plight of forest dwellers, gold panners, marginal fishermen and
others similarly situated who exploit our natural resources for their
daily sustenance and survival."235 Section 7 (b) also expressly
mandates the ICCs/IPs to manage and conserve these resources and
ensure environmental and ecological protection within the domains,
which duties, by their very nature, necessarily reject utilization in a
large-scale.
(c) The Large-Scale Utilization of Natural Resources In Section 57
of the IPRA Is Allowed Under Paragraphs 1 and 4, Section 2,
Article XII of the 1987 Constitution.
Section 57 of the IPRA provides:
"Sec. 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 57 speaks of the "harvesting, extraction, development or
exploitation of natural resources within ancestral domains" and
"gives the ICCs/IPs 'priority rights' therein." The terms "harvesting,
extraction, development or exploitation" of any natural resources
within the ancestral domains obviously refer to large-scale
utilization. It is utilization not merely for subsistence but for
commercial or other extensive use that require technology other
than manual labor.236 The law recognizes the probability of requiring
a non-member of the ICCs/IPs to participate in the development and
utilization of the natural resources and thereby allows such
participation for a period of not more than 25 years, renewable for
another 25 years. This may be done on condition that a formal
written agreement be entered into by the non-member and members
of the ICCs/IPs.
Section 57 of the IPRA does not give the ICCs/IPs the right to
"manage and conserve" the natural resources. Instead, the law only
grants the ICCs/IPs "priority rights" in the development or
exploitation thereof. Priority means giving preference. Having
priority rights over the natural resources does not necessarily mean
ownership rights. The grant of priority rights implies that there is a
superior entity that owns these resources and this entity has the
power to grant preferential rights over the resources to whosoever
itself chooses.
Section 57 is not a repudiation of the Regalian doctrine. Rather, it is
an affirmation of the said doctrine that all natural resources found
within the ancestral domains belong to the State. It incorporates by
implication the Regalian doctrine, hence, requires that the provision
be read in the light of Section 2, Article XII of the 1987 Constitution.
Interpreting Section 2, Article XII of the 1987 Constitution 237 in
relation to Section 57 of IPRA, the State, as owner of these natural
resources, may directly undertake the development and
exploitation of the natural resources by itself, or in the alternative,
it may recognize the priority rights of the ICCs/IPs as owners of
the land on which the natural resources are found by entering into
a co-production, joint venture, or production-sharing agreement
with them. The State may likewise enter into any of said
agreements with a non-member of the ICCs/IPs, whether natural
or juridical, or enter into agreements with foreign-owned
corporations involving either technical or financial assistance for
the large-scale exploration, development and utilization of
minerals, petroleum, and other mineral oils, or allow such non-
member to participate in its agreement with the ICCs/IPs. If the
State decides to enter into an agreement with a non-ICC/IP member,
the National Commission on Indigenous Peoples (NCIP) shall
ensure that the rights of the ICCs/IPs under the agreement shall be
protected. The agreement shall be for a period of 25 years, renewable
for another 25 years.
To reiterate, in the large-scale utilization of natural resources within
the ancestral domains, the State, as owner of these resources, has
four (4) options: (1) it may, of and by itself, directly undertake the
development and exploitation of the natural resources; or (2) it may
recognize the priority rights of the ICCs/IPs by entering into an
agreement with them for such development and exploitation; or (3)
it may enter into an agreement with a non-member of the ICCs/IPs,
whether natural or juridical, local or foreign; or (4) it may allow such
non-member to participate in the agreement with the ICCs/IPs.
The rights granted by the IPRA to the ICCs/IPs over the natural
resources in their ancestral domains merely gives the ICCs/IPs, as
owners and occupants of the land on which the resources are
found, the right to the small-scale utilization of these resources,
and at the same time, a priority in their large-scale development
and exploitation. Section 57 does not mandate the State to
automatically give priority to the ICCs/IPs. The State has several
options and it is within its discretion to choose which option to
pursue. Moreover, there is nothing in the law that gives the ICCs/IPs
the right to solely undertake the large-scale development of the
natural resources within their domains. The ICCs/IPs must
undertake such endeavour always under State supervision or
control. This indicates that the State does not lose control and
ownership over the resources even in their exploitation. Sections 7
(b) and 57 of the law simply give due respect to the ICCs/IPs who, as
actual occupants of the land where the natural resources lie, have
traditionally utilized these resources for their subsistence and
survival.
Neither is the State stripped of ownership and control of the natural
resources by the following provision:
"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 the 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."
Concessions, licenses, lease or production-sharing agreements for
the exploitation of natural resources shall not be issued, renewed or
granted by all departments and government agencies without prior
certification from the NCIP that the area subject of the agreement
does not overlap with any ancestral domain. The NCIP certification
shall be issued only after a field-based investigation shall have been
conducted and the free and prior informed written consent of the
ICCs/IPs obtained. Non-compliance with the consultation
requirement gives the ICCs/IPs the right to stop or suspend any
project granted by any department or government agency.
As its subtitle suggests, this provision requires as a precondition for
the issuance of any concession, license or agreement over natural
resources, that a certification be issued by the NCIP that the area
subject of the agreement does not lie within any ancestral domain.
The provision does not vest the NCIP with power over the other
agencies of the State as to determine whether to grant or deny any
concession or license or agreement. It merely gives the NCIP the
authority to ensure that the ICCs/IPs have been informed of the
agreement and that their consent thereto has been obtained. Note
that the certification applies to agreements over natural resources
that do not necessarily lie within the ancestral domains. For those
that are found within the said domains, Sections 7(b) and 57 of the are relevant to the evolution of Philippine culture and are vital to the
IPRA apply. understanding of contemporary problems.252 It is through the IPRA
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE that an attempt was made by our legislators to understand Filipino
PARTICIPATION IN THE INDIGENOUS INTERNATIONAL society not in terms of myths and biases but through common
MOVEMENT. experiences in the course of history. The Philippines became a
The indigenous movement can be seen as the heir to a history of democracy a centennial ago and the decolonization process still
anti-imperialism stretching back to prehistoric times. The movement continues. If the evolution of the Filipino people into a democratic
received a massive impetus during the 1960's from two sources. society is to truly proceed democratically, i.e., if the Filipinos as a
First, the decolonization of Asia and Africa brought into the whole are to participate fully in the task of continuing
limelight the possibility of peoples controlling their own destinies. democratization,253 it is this Court's duty to acknowledge the
Second, the right of self-determination was enshrined in the UN presence of indigenous and customary laws in the country and
Declaration on Human Rights.238 The rise of the civil rights affirm their co-existence with the land laws in our national legal
movement and anti-racism brought to the attention of North system.
American Indians, Aborigines in Australia, and Maori in New With the foregoing disquisitions, I vote to uphold the
Zealand the possibility of fighting for fundamental rights and constitutionality of the Indigenous Peoples Rights Act of 1997.
freedoms.
In 1974 and 1975, international indigenous organizations were
founded,239 and during the 1980's, indigenous affairs were on the
international agenda. The people of the Philippine Cordillera were
the first Asians to take part in the international indigenous
movement. It was the Cordillera People's Alliance that carried out
successful campaigns against the building of the Chico River Dam in
1981-82 and they have since become one of the best-organized
indigenous bodies in the world.240
Presently, there is a growing concern for indigenous rights in the
international scene. This came as a result of the increased publicity
focused on the continuing disrespect for indigenous human rights
and the destruction of the indigenous peoples' environment,
together with the national governments' inability to deal with the
situation.241 Indigenous rights came as a result of both human rights
and environmental protection, and have become a part of today's
priorities for the international agenda.242
International institutions and bodies have realized the necessity of
applying policies, programs and specific rules concerning IPs in
some nations. The World Bank, for example, first adopted a policy
on IPs as a result of the dismal experience of projects in Latin
America.243 The World Bank now seeks to apply its current policy on
IPs to some of its projects in Asia. This policy has provided an
influential model for the projects of the Asian Development Bank.244
The 1987 Philippine Constitution formally recognizes the existence
of ICCs/IPs and declares as a State policy the promotion of their
rights within the framework of national unity and development.245
The IPRA amalgamates the Philippine category of ICCs with the
international category of IPs,246 and is heavily influenced by both the
International Labor Organization (ILO) Convention 169 and the
United Nations (UN) Draft Declaration on the Rights of Indigenous
Peoples.247
ILO Convention No. 169 is entitled the "Convention Concerning
Indigenous and Tribal Peoples in Independent Countries"248 and was
adopted on June 27, 1989. It is based on the Universal Declaration of
Human Rights, the International Covenant on Economic, Social and
Cultural Rights, the International Covenant on Civil and Political
Rights, and many other international instruments on the prevention
of discrimination.249 ILO Convention No. 169 revised the
"Convention Concerning the Protection and Integration of
Indigenous and Other Tribal and Semi-Tribal Populations in
Independent Countries" (ILO No. 107) passed on June 26, 1957.
Developments in international law made it appropriate to adopt
new international standards on indigenous peoples "with a view to
removing the assimilationist orientation of the earlier standards,"
and recognizing the aspirations of these peoples to exercise control
over their own institutions, ways of life and economic
development."250
CONCLUSION
The struggle of the Filipinos throughout colonial history had been
plagued by ethnic and religious differences. These differences were
carried over and magnified by the Philippine government through
the imposition of a national legal order that is mostly foreign in
origin or derivation.251 Largely unpopulist, the present legal system
has resulted in the alienation of a large sector of society, specifically,
the indigenous peoples. The histories and cultures of the indigenes

EN BANC
G.R. No. 133250 July 9, 2002
FRANCISCO I. CHAVEZ, petitioner,
vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY
DEVELOPMENT CORPORATION, respondents.
CARPIO, J.:
This is an original Petition for Mandamus with prayer for a writ of
preliminary injunction and a temporary restraining order. The
petition seeks to compel the Public Estates Authority ("PEA" for
brevity) to disclose all facts on PEA's then on-going renegotiations
with Amari Coastal Bay and Development Corporation ("AMARI"
for brevity) to reclaim portions of Manila Bay. The petition further
seeks to enjoin PEA from signing a new agreement with AMARI
involving such reclamation.
The Facts
On November 20, 1973, the government, through the Commissioner
of Public Highways, signed a contract with the Construction and
Development Corporation of the Philippines ("CDCP" for brevity) to
reclaim certain foreshore and offshore areas of Manila Bay. The
contract also included the construction of Phases I and II of the
Manila-Cavite Coastal Road. CDCP obligated itself to carry out all
the works in consideration of fifty percent of the total reclaimed
land.
On February 4, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1084 creating PEA. PD No. 1084 tasked PEA
"to reclaim land, including foreshore and submerged areas," and "to
develop, improve, acquire, x x x lease and sell any and all kinds of
lands."1 On the same date, then President Marcos issued Presidential
Decree No. 1085 transferring to PEA the "lands reclaimed in the
foreshore and offshore of the Manila Bay"2 under the Manila-Cavite
Coastal Road and Reclamation Project (MCCRRP).
On December 29, 1981, then President Marcos issued a
memorandum directing PEA to amend its contract with CDCP, so
that "[A]ll future works in MCCRRP x x x shall be funded and
owned by PEA." Accordingly, PEA and CDCP executed a
Memorandum of Agreement dated December 29, 1981, which stated:
"(i) CDCP shall undertake all reclamation, construction,
and such other works in the MCCRRP as may be agreed
upon by the parties, to be paid according to progress of
works on a unit price/lump sum basis for items of work to
be agreed upon, subject to price escalation, retention and
other terms and conditions provided for in Presidential
Decree No. 1594. All the financing required for such
works shall be provided by PEA.
xxx
(iii) x x x CDCP shall give up all its development rights
and hereby agrees to cede and transfer in favor of PEA, all
of the rights, title, interest and participation of CDCP in
and to all the areas of land reclaimed by CDCP in the
MCCRRP as of December 30, 1981 which have not yet
been sold, transferred or otherwise disposed of by CDCP
as of said date, which areas consist of approximately
Ninety-Nine Thousand Four Hundred Seventy Three
(99,473) square meters in the Financial Center Area
covered by land pledge No. 5 and approximately Three
Million Three Hundred Eighty Two Thousand Eight
Hundred Eighty Eight (3,382,888) square meters of
reclaimed areas at varying elevations above Mean Low
Water Level located outside the Financial Center Area and
the First Neighborhood Unit."3
On January 19, 1988, then President Corazon C. Aquino issued
Special Patent No. 3517, granting and transferring to PEA "the
parcels of land so reclaimed under the Manila-Cavite Coastal Road
and Reclamation Project (MCCRRP) containing a total area of one
million nine hundred fifteen thousand eight hundred ninety four
(1,915,894) square meters." Subsequently, on April 9, 1988, the
Register of Deeds of the Municipality of Parañaque issued Transfer
Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA,
covering the three reclaimed islands known as the "Freedom
Islands" located at the southern portion of the Manila-Cavite Coastal
Road, Parañaque City. The Freedom Islands have a total land area of
One Million Five Hundred Seventy Eight Thousand Four Hundred
and Forty One (1,578,441) square meters or 157.841 hectares.
On April 25, 1995, PEA entered into a Joint Venture Agreement
("JVA" for brevity) with AMARI, a private corporation, to develop
the Freedom Islands. The JVA also required the reclamation of an
additional 250 hectares of submerged areas surrounding these
islands to complete the configuration in the Master Development
Plan of the Southern Reclamation Project-MCCRRP. PEA and
AMARI entered into the JVA through negotiation without public
bidding.4 On April 28, 1995, the Board of Directors of PEA, in its
Resolution No. 1245, confirmed the JVA.5 On June 8, 1995, then
President Fidel V. Ramos, through then Executive Secretary Ruben
Torres, approved the JVA.6
On November 29, 1996, then Senate President Ernesto Maceda
delivered a privilege speech in the Senate and denounced the JVA as
the "grandmother of all scams." As a result, the Senate Committee on
Government Corporations and Public Enterprises, and the
Committee on Accountability of Public Officers and Investigations,
conducted a joint investigation. The Senate Committees reported the
results of their investigation in Senate Committee Report No. 560
dated September 16, 1997.7 Among the conclusions of their report
are: (1) the reclaimed lands PEA seeks to transfer to AMARI under
the JVA are lands of the public domain which the government has
not classified as alienable lands and therefore PEA cannot alienate
these lands; (2) the certificates of title covering the Freedom Islands
are thus void, and (3) the JVA itself is illegal.
On December 5, 1997, then President Fidel V. Ramos issued
Presidential Administrative Order No. 365 creating a Legal Task
Force to conduct a study on the legality of the JVA in view of Senate
Committee Report No. 560. The members of the Legal Task Force
were the Secretary of Justice,8 the Chief Presidential Legal Counsel,9
and the Government Corporate Counsel.10 The Legal Task Force
upheld the legality of the JVA, contrary to the conclusions reached
by the Senate Committees.11
On April 4 and 5, 1998, the Philippine Daily Inquirer and Today
published reports that there were on-going renegotiations between
PEA and AMARI under an order issued by then President Fidel V.
Ramos. According to these reports, PEA Director Nestor Kalaw,
PEA Chairman Arsenio Yulo and retired Navy Officer Sergio Cruz
composed the negotiating panel of PEA.
On April 13, 1998, Antonio M. Zulueta filed before the Court a
Petition for Prohibition with Application for the Issuance of a Temporary
Restraining Order and Preliminary Injunction docketed as G.R. No.
132994 seeking to nullify the JVA. The Court dismissed the petition
"for unwarranted disregard of judicial hierarchy, without prejudice
to the refiling of the case before the proper court."12
On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for
brevity) as a taxpayer, filed the instant Petition for Mandamus with
Prayer for the Issuance of a Writ of Preliminary Injunction and Temporary
Restraining Order. Petitioner contends the government stands to lose
billions of pesos in the sale by PEA of the reclaimed lands to
AMARI. Petitioner prays that PEA publicly disclose the terms of any
renegotiation of the JVA, invoking Section 28, Article II, and Section
7, Article III, of the 1987 Constitution on the right of the people to
information on matters of public concern. Petitioner assails the sale
to AMARI of lands of the public domain as a blatant violation of
Section 3, Article XII of the 1987 Constitution prohibiting the sale of
alienable lands of the public domain to private corporations. Finally,
petitioner asserts that he seeks to enjoin the loss of billions of pesos
in properties of the State that are of public dominion.
After several motions for extension of time,13 PEA and AMARI filed
their Comments on October 19, 1998 and June 25, 1998, respectively.
Meanwhile, on December 28, 1998, petitioner filed an Omnibus
Motion: (a) to require PEA to submit the terms of the renegotiated
PEA-AMARI contract; (b) for issuance of a temporary restraining
order; and (c) to set the case for hearing on oral argument. Petitioner
filed a Reiterative Motion for Issuance of a TRO dated May 26, 1999,
which the Court denied in a Resolution dated June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave due course to
the petition and required the parties to file their respective
memoranda.
On March 30, 1999, PEA and AMARI signed the Amended Joint
Venture Agreement ("Amended JVA," for brevity). On May 28, 1999,
the Office of the President under the administration of then
President Joseph E. Estrada approved the Amended JVA.
Due to the approval of the Amended JVA by the Office of the
President, petitioner now prays that on "constitutional and statutory
grounds the renegotiated contract be declared null and void."14
The Issues
The issues raised by petitioner, PEA15 and AMARI16 are as follows:
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR
IN THE PETITION ARE MOOT AND ACADEMIC
BECAUSE OF SUBSEQUENT EVENTS;
II. WHETHER THE PETITION MERITS DISMISSAL FOR
FAILING TO OBSERVE THE PRINCIPLE GOVERNING
THE HIERARCHY OF COURTS;
III. WHETHER THE PETITION MERITS DISMISSAL FOR
NON-EXHAUSTION OF ADMINISTRATIVE REMEDIES;
IV. WHETHER PETITIONER HAS LOCUS STANDI TO
BRING THIS SUIT;
V. WHETHER THE CONSTITUTIONAL RIGHT TO
INFORMATION INCLUDES OFFICIAL INFORMATION
ON ON-GOING NEGOTIATIONS BEFORE A FINAL
AGREEMENT;
VI. WHETHER THE STIPULATIONS IN THE AMENDED
JOINT VENTURE AGREEMENT FOR THE TRANSFER
TO AMARI OF CERTAIN LANDS, RECLAIMED AND
STILL TO BE RECLAIMED, VIOLATE THE 1987
CONSTITUTION; AND
VII. WHETHER THE COURT IS THE PROPER FORUM
FOR RAISING THE ISSUE OF WHETHER THE
AMENDED JOINT VENTURE AGREEMENT IS
GROSSLY DISADVANTAGEOUS TO THE
GOVERNMENT.
The Court's Ruling
First issue: whether the principal reliefs prayed for in the petition
are moot and academic because of subsequent events.
The petition prays that PEA publicly disclose the "terms and
conditions of the on-going negotiations for a new agreement." The
petition also prays that the Court enjoin PEA from "privately
entering into, perfecting and/or executing any new agreement with
AMARI."
PEA and AMARI claim the petition is now moot and academic
because AMARI furnished petitioner on June 21, 1999 a copy of the
signed Amended JVA containing the terms and conditions agreed
upon in the renegotiations. Thus, PEA has satisfied petitioner's
prayer for a public disclosure of the renegotiations. Likewise,
petitioner's prayer to enjoin the signing of the Amended JVA is now
moot because PEA and AMARI have already signed the Amended
JVA on March 30, 1999. Moreover, the Office of the President has
approved the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the
constitutional issue by simply fast-tracking the signing and approval
of the Amended JVA before the Court could act on the issue.
Presidential approval does not resolve the constitutional issue or
remove it from the ambit of judicial review.
We rule that the signing of the Amended JVA by PEA and AMARI
and its approval by the President cannot operate to moot the
petition and divest the Court of its jurisdiction. PEA and AMARI
have still to implement the Amended JVA. The prayer to enjoin the
signing of the Amended JVA on constitutional grounds necessarily
includes preventing its implementation if in the meantime PEA and
AMARI have signed one in violation of the Constitution. Petitioner's
principal basis in assailing the renegotiation of the JVA is its
violation of Section 3, Article XII of the Constitution, which prohibits
the government from alienating lands of the public domain to
private corporations. If the Amended JVA indeed violates the
Constitution, it is the duty of the Court to enjoin its implementation,
and if already implemented, to annul the effects of such
unconstitutional contract.
The Amended JVA is not an ordinary commercial contract but one
which seeks to transfer title and ownership to 367.5 hectares of
reclaimed lands and submerged areas of Manila Bay to a single
private corporation. It now becomes more compelling for the Court
to resolve the issue to insure the government itself does not violate a
provision of the Constitution intended to safeguard the national
patrimony. Supervening events, whether intended or accidental,
cannot prevent the Court from rendering a decision if there is a
grave violation of the Constitution. In the instant case, if the
Amended JVA runs counter to the Constitution, the Court can still
prevent the transfer of title and ownership of alienable lands of the
public domain in the name of AMARI. Even in cases where
supervening events had made the cases moot, the Court did not
hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar, and the
public.17
Also, the instant petition is a case of first impression. All previous
decisions of the Court involving Section 3, Article XII of the 1987
Constitution, or its counterpart provision in the 1973 Constitution,18
covered agricultural lands sold to private corporations which
acquired the lands from private parties. The transferors of the
private corporations claimed or could claim the right to judicial
confirmation of their imperfect titles19 under Title II of
Commonwealth Act. 141 ("CA No. 141" for brevity). In the instant
case, AMARI seeks to acquire from PEA, a public corporation,
reclaimed lands and submerged areas for non-agricultural purposes
by purchase under PD No. 1084 (charter of PEA) and Title III of CA
No. 141. Certain undertakings by AMARI under the Amended JVA
constitute the consideration for the purchase. Neither AMARI nor
PEA can claim judicial confirmation of their titles because the lands
covered by the Amended JVA are newly reclaimed or still to be
reclaimed. Judicial confirmation of imperfect title requires open,
continuous, exclusive and notorious occupation of agricultural lands
of the public domain for at least thirty years since June 12, 1945 or
earlier. Besides, the deadline for filing applications for judicial
confirmation of imperfect title expired on December 31, 1987.20
Lastly, there is a need to resolve immediately the constitutional issue
raised in this petition because of the possible transfer at any time by
PEA to AMARI of title and ownership to portions of the reclaimed
lands. Under the Amended JVA, PEA is obligated to transfer to
AMARI the latter's seventy percent proportionate share in the
reclaimed areas as the reclamation progresses. The Amended JVA
even allows AMARI to mortgage at any time the entire reclaimed
area to raise financing for the reclamation project.21
Second issue: whether the petition merits dismissal for failing to
observe the principle governing the hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial hierarchy by
seeking relief directly from the Court. The principle of hierarchy of
courts applies generally to cases involving factual questions. As it is
not a trier of facts, the Court cannot entertain cases involving factual
issues. The instant case, however, raises constitutional issues of
transcendental importance to the public.22 The Court can resolve this
case without determining any factual issue related to the case. Also,
the instant case is a petition for mandamus which falls under the
original jurisdiction of the Court under Section 5, Article VIII of the
Constitution. We resolve to exercise primary jurisdiction over the
instant case.
Third issue: whether the petition merits dismissal for non-
exhaustion of administrative remedies.
PEA faults petitioner for seeking judicial intervention in compelling
PEA to disclose publicly certain information without first asking
PEA the needed information. PEA claims petitioner's direct resort to
the Court violates the principle of exhaustion of administrative
remedies. It also violates the rule that mandamus may issue only if
there is no other plain, speedy and adequate remedy in the ordinary
course of law.
PEA distinguishes the instant case from Tañada v. Tuvera23 where
the Court granted the petition for mandamus even if the petitioners
there did not initially demand from the Office of the President the
publication of the presidential decrees. PEA points out that in
Tañada, the Executive Department had an affirmative statutory
duty under Article 2 of the Civil Code24 and Section 1 of
Commonwealth Act No. 63825 to publish the presidential decrees.
There was, therefore, no need for the petitioners in Tañada to make
an initial demand from the Office of the President. In the instant
case, PEA claims it has no affirmative statutory duty to disclose
publicly information about its renegotiation of the JVA. Thus, PEA
asserts that the Court must apply the principle of exhaustion of
administrative remedies to the instant case in view of the failure of
petitioner here to demand initially from PEA the needed
information.
The original JVA sought to dispose to AMARI public lands held by
PEA, a government corporation. Under Section 79 of the
Government Auditing Code,26 the disposition of government lands
to private parties requires public bidding. PEA was under a positive
legal duty to disclose to the public the terms and conditions for the
sale of its lands. The law obligated PEA to make this public
disclosure even without demand from petitioner or from anyone.
PEA failed to make this public disclosure because the original JVA,
like the Amended JVA, was the result of a negotiated contract, not
of a public bidding. Considering that PEA had an affirmative
statutory duty to make the public disclosure, and was even in breach
of this legal duty, petitioner had the right to seek direct judicial
intervention.
Moreover, and this alone is determinative of this issue, the principle
of exhaustion of administrative remedies does not apply when the
issue involved is a purely legal or constitutional question.27 The
principal issue in the instant case is the capacity of AMARI to
acquire lands held by PEA in view of the constitutional ban
prohibiting the alienation of lands of the public domain to private
corporations. We rule that the principle of exhaustion of
administrative remedies does not apply in the instant case.
Fourth issue: whether petitioner has locus standi to bring this suit
PEA argues that petitioner has no standing to institute mandamus
proceedings to enforce his constitutional right to information
without a showing that PEA refused to perform an affirmative duty
imposed on PEA by the Constitution. PEA also claims that petitioner
has not shown that he will suffer any concrete injury because of the
signing or implementation of the Amended JVA. Thus, there is no
actual controversy requiring the exercise of the power of judicial
review.
The petitioner has standing to bring this taxpayer's suit because the
petition seeks to compel PEA to comply with its constitutional
duties. There are two constitutional issues involved here. First is the
right of citizens to information on matters of public concern. Second
is the application of a constitutional provision intended to insure the
equitable distribution of alienable lands of the public domain among
Filipino citizens. The thrust of the first issue is to compel PEA to
disclose publicly information on the sale of government lands worth
billions of pesos, information which the Constitution and statutory
law mandate PEA to disclose. The thrust of the second issue is to
prevent PEA from alienating hundreds of hectares of alienable lands
of the public domain in violation of the Constitution, compelling
PEA to comply with a constitutional duty to the nation.
Moreover, the petition raises matters of transcendental importance
to the public. In Chavez v. PCGG,28 the Court upheld the right of a
citizen to bring a taxpayer's suit on matters of transcendental
importance to the public, thus -
"Besides, petitioner emphasizes, the matter of recovering
the ill-gotten wealth of the Marcoses is an issue of
'transcendental importance to the public.' He asserts that
ordinary taxpayers have a right to initiate and prosecute
actions questioning the validity of acts or orders of
government agencies or instrumentalities, if the issues
raised are of 'paramount public interest,' and if they
'immediately affect the social, economic and moral well
being of the people.'
Moreover, the mere fact that he is a citizen satisfies the
requirement of personal interest, when the proceeding
involves the assertion of a public right, such as in this
case. He invokes several decisions of this Court which
have set aside the procedural matter of locus standi, when
the subject of the case involved public interest.
xxx
In Tañada v. Tuvera, the Court asserted that when the issue
concerns a public right and the object of mandamus is to
obtain the enforcement of a public duty, the people are
regarded as the real parties in interest; and because it is
sufficient that petitioner is a citizen and as such is
interested in the execution of the laws, he need not show
that he has any legal or special interest in the result of the
action. In the aforesaid case, the petitioners sought to
enforce their right to be informed on matters of public
concern, a right then recognized in Section 6, Article IV of
the 1973 Constitution, in connection with the rule that
laws in order to be valid and enforceable must be
published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal standing,
the Court declared that the right they sought to be
enforced 'is a public right recognized by no less than the
fundamental law of the land.'
Legaspi v. Civil Service Commission, while reiterating
Tañada, further declared that 'when a mandamus
proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere
fact that petitioner is a citizen and, therefore, part of the
general 'public' which possesses the right.'
Further, in Albano v. Reyes, we said that while expenditure
of public funds may not have been involved under the
questioned contract for the development, management
and operation of the Manila International Container
Terminal, 'public interest [was] definitely involved
considering the important role [of the subject contract] . . .
in the economic development of the country and the
magnitude of the financial consideration involved.' We
concluded that, as a consequence, the disclosure provision
in the Constitution would constitute sufficient authority
for upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of
the people to information and access to official records,
documents and papers — a right guaranteed under
Section 7, Article III of the 1987 Constitution. Petitioner, a
former solicitor general, is a Filipino citizen. Because of
the satisfaction of the two basic requisites laid down by
decisional law to sustain petitioner's legal standing, i.e. (1)
the enforcement of a public right (2) espoused by a
Filipino citizen, we rule that the petition at bar should be
allowed."
We rule that since the instant petition, brought by a citizen, involves
the enforcement of constitutional rights - to information and to the
equitable diffusion of natural resources - matters of transcendental
public importance, the petitioner has the requisite locus standi.
Fifth issue: whether the constitutional right to information includes
official information on on-going negotiations before a final
agreement.
Section 7, Article III of the Constitution explains the people's right to
information on matters of public concern in this manner:
"Sec. 7. The right of the people to information on matters
of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law." (Emphasis
supplied)
The State policy of full transparency in all transactions involving
public interest reinforces the people's right to information on
matters of public concern. This State policy is expressed in Section
28, Article II of the Constitution, thus:
"Sec. 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." (Emphasis supplied)
These twin provisions of the Constitution seek to promote
transparency in policy-making and in the operations of the
government, as well as provide the people sufficient information to
exercise effectively other constitutional rights. These twin provisions
are essential to the exercise of freedom of expression. If the
government does not disclose its official acts, transactions and
decisions to citizens, whatever citizens say, even if expressed
without any restraint, will be speculative and amount to nothing.
These twin provisions are also essential to hold public officials "at all
times x x x accountable to the people,"29 for unless citizens have the
proper information, they cannot hold public officials accountable for
anything. Armed with the right information, citizens can participate
in public discussions leading to the formulation of government
policies and their effective implementation. An informed citizenry is
essential to the existence and proper functioning of any democracy.
As explained by the Court in Valmonte v. Belmonte, Jr.30 –
"An essential element of these freedoms is to keep open a
continuing dialogue or process of communication
between the government and the people. It is in the
interest of the State that the channels for free political
discussion be maintained to the end that the government
may perceive and be responsive to the people's will. Yet,
this open dialogue can be effective only to the extent that
the citizenry is informed and thus able to formulate its
will intelligently. Only when the participants in the
discussion are aware of the issues and have access to
information relating thereto can such bear fruit."
PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going
negotiations the right to information is limited to "definite
propositions of the government." PEA maintains the right does not
include access to "intra-agency or inter-agency recommendations or
communications during the stage when common assertions are still
in the process of being formulated or are in the 'exploratory stage'."
Also, AMARI contends that petitioner cannot invoke the right at the
pre-decisional stage or before the closing of the transaction. To
support its contention, AMARI cites the following discussion in the
1986 Constitutional Commission:
"Mr. Suarez. And when we say 'transactions' which
should be distinguished from contracts, agreements, or
treaties or whatever, does the Gentleman refer to the steps
leading to the consummation of the contract, or does he
refer to the contract itself?
Mr. Ople: The 'transactions' used here, I suppose is
generic and therefore, it can cover both steps leading to a
contract and already a consummated contract, Mr.
Presiding Officer.
Mr. Suarez: This contemplates inclusion of negotiations
leading to the consummation of the transaction.
Mr. Ople: Yes, subject only to reasonable safeguards on
the national interest.
Mr. Suarez: Thank you."32 (Emphasis supplied)
AMARI argues there must first be a consummated contract before
petitioner can invoke the right. Requiring government officials to
reveal their deliberations at the pre-decisional stage will degrade the
quality of decision-making in government agencies. Government
officials will hesitate to express their real sentiments during
deliberations if there is immediate public dissemination of their
discussions, putting them under all kinds of pressure before they
decide.
We must first distinguish between information the law on public
bidding requires PEA to disclose publicly, and information the
constitutional right to information requires PEA to release to the
public. Before the consummation of the contract, PEA must, on its
own and without demand from anyone, disclose to the public
matters relating to the disposition of its property. These include the
size, location, technical description and nature of the property being
disposed of, the terms and conditions of the disposition, the parties
qualified to bid, the minimum price and similar information. PEA
must prepare all these data and disclose them to the public at the
start of the disposition process, long before the consummation of the
contract, because the Government Auditing Code requires public
bidding. If PEA fails to make this disclosure, any citizen can demand
from PEA this information at any time during the bidding process.
Information, however, on on-going evaluation or review of bids or
proposals being undertaken by the bidding or review committee is
not immediately accessible under the right to information. While the
evaluation or review is still on-going, there are no "official acts,
transactions, or decisions" on the bids or proposals. However, once
the committee makes its official recommendation, there arises a
"definite proposition" on the part of the government. From this
moment, the public's right to information attaches, and any citizen
can access all the non-proprietary information leading to such
definite proposition. In Chavez v. PCGG,33 the Court ruled as
follows:
"Considering the intent of the framers of the Constitution,
we believe that it is incumbent upon the PCGG and its
officers, as well as other government representatives, to
disclose sufficient public information on any proposed
settlement they have decided to take up with the
ostensible owners and holders of ill-gotten wealth. Such
information, though, must pertain to definite propositions
of the government, not necessarily to intra-agency or inter-
agency recommendations or communications during the
stage when common assertions are still in the process of
being formulated or are in the "exploratory" stage. There is
need, of course, to observe the same restrictions on
disclosure of information in general, as discussed earlier –
such as on matters involving national security, diplomatic
or foreign relations, intelligence and other classified
information." (Emphasis supplied)
Contrary to AMARI's contention, the commissioners of the 1986
Constitutional Commission understood that the right to information
"contemplates inclusion of negotiations leading to the
consummation of the transaction." Certainly, a consummated
contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too
late for the public to expose its defects.1âwphi1.nêt
Requiring a consummated contract will keep the public in the dark
until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes a fait accompli. This negates the
State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest."
The right covers three categories of information which are "matters
of public concern," namely: (1) official records; (2) documents and
papers pertaining to official acts, transactions and decisions; and (3)
government research data used in formulating policies. The first
category refers to any document that is part of the public records in
the custody of government agencies or officials. The second category
refers to documents and papers recording, evidencing, establishing,
confirming, supporting, justifying or explaining official acts,
transactions or decisions of government agencies or officials. The
third category refers to research data, whether raw, collated or
processed, owned by the government and used in formulating
government policies.
The information that petitioner may access on the renegotiation of
the JVA includes evaluation reports, recommendations, legal and
expert opinions, minutes of meetings, terms of reference and other
documents attached to such reports or minutes, all relating to the
JVA. However, the right to information does not compel PEA to
prepare lists, abstracts, summaries and the like relating to the
renegotiation of the JVA.34 The right only affords access to records,
documents and papers, which means the opportunity to inspect and
copy them. One who exercises the right must copy the records,
documents and papers at his expense. The exercise of the right is
also subject to reasonable regulations to protect the integrity of the
public records and to minimize disruption to government
operations, like rules specifying when and how to conduct the
inspection and copying.35
The right to information, however, does not extend to matters
recognized as privileged information under the separation of
powers.36 The right does not also apply to information on military
and diplomatic secrets, information affecting national security, and
information on investigations of crimes by law enforcement agencies
before the prosecution of the accused, which courts have long
recognized as confidential.37 The right may also be subject to other
limitations that Congress may impose by law.
There is no claim by PEA that the information demanded by
petitioner is privileged information rooted in the separation of
powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet
meetings which, like internal deliberations of the Supreme Court
and other collegiate courts, or executive sessions of either house of
Congress,38 are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank
exchange of exploratory ideas and assessments, free from the glare
of publicity and pressure by interested parties, is essential to protect
the independence of decision-making of those tasked to exercise
Presidential, Legislative and Judicial power.39 This is not the
situation in the instant case.
We rule, therefore, that the constitutional right to information
includes official information on on-going negotiations before a final
contract. The information, however, must constitute definite
propositions by the government and should not cover recognized
exceptions like privileged information, military and diplomatic
secrets and similar matters affecting national security and public
order.40 Congress has also prescribed other limitations on the right
to information in several legislations.41
Sixth issue: whether stipulations in the Amended JVA for the
transfer to AMARI of lands, reclaimed or to be reclaimed, violate
the Constitution.
The Regalian Doctrine
The ownership of lands reclaimed from foreshore and submerged
areas is rooted in the Regalian doctrine which holds that the State
owns all lands and waters of the public domain. Upon the Spanish
conquest of the Philippines, ownership of all "lands, territories and
possessions" in the Philippines passed to the Spanish Crown.42 The
King, as the sovereign ruler and representative of the people,
acquired and owned all lands and territories in the Philippines
except those he disposed of by grant or sale to private individuals.
The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine
substituting, however, the State, in lieu of the King, as the owner of
all lands and waters of the public domain. The Regalian doctrine is
the foundation of the time-honored principle of land ownership that
"all lands that were not acquired from the Government, either by
purchase or by grant, belong to the public domain."43 Article 339 of
the Civil Code of 1889, which is now Article 420 of the Civil Code of
1950, incorporated the Regalian doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first statutory law
governing the ownership and disposition of reclaimed lands in the
Philippines. On May 18, 1907, the Philippine Commission enacted
Act No. 1654 which provided for the lease, but not the sale, of
reclaimed lands of the government to corporations and individuals.
Later, on November 29, 1919, the Philippine Legislature approved
Act No. 2874, the Public Land Act, which authorized the lease, but
not the sale, of reclaimed lands of the government to corporations
and individuals. On November 7, 1936, the National Assembly
passed Commonwealth Act No. 141, also known as the Public Land
Act, which authorized the lease, but not the sale, of reclaimed lands
of the government to corporations and individuals. CA No. 141
continues to this day as the general law governing the classification
and disposition of lands of the public domain.
The Spanish Law of Waters of 1866 and the Civil Code of 1889
Under the Spanish Law of Waters of 1866, the shores, bays, coves,
inlets and all waters within the maritime zone of the Spanish
territory belonged to the public domain for public use.44 The Spanish
Law of Waters of 1866 allowed the reclamation of the sea under
Article 5, which provided as follows:
"Article 5. Lands reclaimed from the sea in consequence of
works constructed by the State, or by the provinces,
pueblos or private persons, with proper permission, shall
become the property of the party constructing such works,
unless otherwise provided by the terms of the grant of
authority."
Under the Spanish Law of Waters, land reclaimed from the sea
belonged to the party undertaking the reclamation, provided the
government issued the necessary permit and did not reserve
ownership of the reclaimed land to the State.
Article 339 of the Civil Code of 1889 defined property of public
dominion as follows:
"Art. 339. Property of public dominion is –
1. That devoted to public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State,
riverbanks, shores, roadsteads, and that of a similar
character;
2. That belonging exclusively to the State which, without
being of general public use, is employed in some public
service, or in the development of the national wealth, such
as walls, fortresses, and other works for the defense of the
territory, and mines, until granted to private individuals."
Property devoted to public use referred to property open for use by
the public. In contrast, property devoted to public service referred to
property used for some specific public service and open only to
those authorized to use the property.
Property of public dominion referred not only to property devoted
to public use, but also to property not so used but employed to
develop the national wealth. This class of property constituted
property of public dominion although employed for some economic
or commercial activity to increase the national wealth.
Article 341 of the Civil Code of 1889 governed the re-classification of
property of public dominion into private property, to wit:
"Art. 341. Property of public dominion, when no longer
devoted to public use or to the defense of the territory,
shall become a part of the private property of the State."
This provision, however, was not self-executing. The legislature, or
the executive department pursuant to law, must declare the
property no longer needed for public use or territorial defense
before the government could lease or alienate the property to private
parties.45
Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act No. 1654
which regulated the lease of reclaimed and foreshore lands. The
salient provisions of this law were as follows:
"Section 1. The control and disposition of the foreshore as
defined in existing law, and the title to all Government or
public lands made or reclaimed by the Government by
dredging or filling or otherwise throughout the Philippine
Islands, shall be retained by the Government without
prejudice to vested rights and without prejudice to rights
conceded to the City of Manila in the Luneta Extension.
Section 2. (a) The Secretary of the Interior shall cause all
Government or public lands made or reclaimed by the
Government by dredging or filling or otherwise to be
divided into lots or blocks, with the necessary streets and
alleyways located thereon, and shall cause plats and plans
of such surveys to be prepared and filed with the Bureau
of Lands.
(b) Upon completion of such plats and plans the
Governor-General shall give notice to the public that such
parts of the lands so made or reclaimed as are not needed
for public purposes will be leased for commercial and
business purposes, x x x.
xxx
 (e) The leases above provided for shall be disposed of to
the highest and best bidder therefore, subject to such
regulations and safeguards as the Governor-General may
by executive order prescribe." (Emphasis supplied)
Act No. 1654 mandated that the government should retain title to
all lands reclaimed by the government. The Act also vested in the
government control and disposition of foreshore lands. Private
parties could lease lands reclaimed by the government only if these
lands were no longer needed for public purpose. Act No. 1654
mandated public bidding in the lease of government reclaimed
lands. Act No. 1654 made government reclaimed lands sui generis in
that unlike other public lands which the government could sell to
private parties, these reclaimed lands were available only for lease to
private parties.
Act No. 1654, however, did not repeal Section 5 of the Spanish Law
of Waters of 1866. Act No. 1654 did not prohibit private parties from
reclaiming parts of the sea under Section 5 of the Spanish Law of
Waters. Lands reclaimed from the sea by private parties with
government permission remained private lands.
Act No. 2874 of the Philippine Legislature
On November 29, 1919, the Philippine Legislature enacted Act No.
2874, the Public Land Act.46 The salient provisions of Act No. 2874,
on reclaimed lands, were as follows:
"Sec. 6. The Governor-General, upon the recommendation
of the Secretary of Agriculture and Natural Resources,
shall from time to time classify the lands of the public
domain into –
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the government and disposition
of alienable or disposable public lands, the Governor-
General, upon recommendation by the Secretary of
Agriculture and Natural Resources, shall from time to
time declare what lands are open to disposition or
concession under this Act."
Sec. 8. Only those lands shall be declared open to
disposition or concession which have been officially
delimited or classified x x x.
xxx
Sec. 55. Any tract of land of the public domain which,
being neither timber nor mineral land, shall be classified
as suitable for residential purposes or for commercial,
industrial, or other productive purposes other than
agricultural purposes, and shall be open to disposition or
concession, shall be disposed of under the provisions of
this chapter, and not otherwise.
Sec. 56. The lands disposable under this title shall be
classified as follows:
(a) Lands reclaimed by the Government by
dredging, filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water
bordering upon the shores or banks of
navigable lakes or rivers;
(d) Lands not included in any of the foregoing
classes.
x x x.
Sec. 58. The lands comprised in classes (a), (b), and (c) of
section fifty-six shall be disposed of to private parties by
lease only and not otherwise, as soon as the Governor-
General, upon recommendation by the Secretary of
Agriculture and Natural Resources, shall declare that the
same are not necessary for the public service and are open
to disposition under this chapter. The lands included in
class (d) may be disposed of by sale or lease under the
provisions of this Act." (Emphasis supplied)
Section 6 of Act No. 2874 authorized the Governor-General to
"classify lands of the public domain into x x x alienable or
disposable"47 lands. Section 7 of the Act empowered the Governor-
General to "declare what lands are open to disposition or
concession." Section 8 of the Act limited alienable or disposable
lands only to those lands which have been "officially delimited and
classified."
Section 56 of Act No. 2874 stated that lands "disposable under this
title48 shall be classified" as government reclaimed, foreshore and
marshy lands, as well as other lands. All these lands, however, must
be suitable for residential, commercial, industrial or other
productive non-agricultural purposes. These provisions vested
upon the Governor-General the power to classify inalienable lands
of the public domain into disposable lands of the public domain.
These provisions also empowered the Governor-General to classify
further such disposable lands of the public domain into government
reclaimed, foreshore or marshy lands of the public domain, as well
as other non-agricultural lands.
Section 58 of Act No. 2874 categorically mandated that disposable
lands of the public domain classified as government reclaimed,
foreshore and marshy lands "shall be disposed of to private parties
by lease only and not otherwise." The Governor-General, before
allowing the lease of these lands to private parties, must formally
declare that the lands were "not necessary for the public service."
Act No. 2874 reiterated the State policy to lease and not to sell
government reclaimed, foreshore and marshy lands of the public
domain, a policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands remained sui
generis, as the only alienable or disposable lands of the public
domain that the government could not sell to private parties.
The rationale behind this State policy is obvious. Government
reclaimed, foreshore and marshy public lands for non-agricultural
purposes retain their inherent potential as areas for public service.
This is the reason the government prohibited the sale, and only
allowed the lease, of these lands to private parties. The State always
reserved these lands for some future public service.
Act No. 2874 did not authorize the reclassification of government
reclaimed, foreshore and marshy lands into other non-agricultural
lands under Section 56 (d). Lands falling under Section 56 (d) were
the only lands for non-agricultural purposes the government could
sell to private parties. Thus, under Act No. 2874, the government
could not sell government reclaimed, foreshore and marshy lands to
private parties, unless the legislature passed a law allowing their
sale.49
Act No. 2874 did not prohibit private parties from reclaiming parts
of the sea pursuant to Section 5 of the Spanish Law of Waters of
1866. Lands reclaimed from the sea by private parties with
government permission remained private lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect upon its
ratification by the Filipino people. The 1935 Constitution, in
adopting the Regalian doctrine, declared in Section 1, Article XIII,
that –
"Section 1. All agricultural, timber, and mineral lands of
the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy and other
natural resources of the Philippines belong to the State,
and their disposition, exploitation, development, or
utilization shall be limited to citizens of the Philippines or
to corporations or associations at least sixty per centum of
the capital of which is owned by such citizens, subject to
any existing right, grant, lease, or concession at the time of
the inauguration of the Government established under
this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation,
development, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years,
renewable for another twenty-five years, except as to
water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water
power, in which cases beneficial use may be the measure
and limit of the grant." (Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources
except public agricultural lands, which were the only natural
resources the State could alienate. Thus, foreshore lands, considered
part of the State's natural resources, became inalienable by
constitutional fiat, available only for lease for 25 years, renewable for
another 25 years. The government could alienate foreshore lands
only after these lands were reclaimed and classified as alienable
agricultural lands of the public domain. Government reclaimed and
marshy lands of the public domain, being neither timber nor mineral
lands, fell under the classification of public agricultural lands.50
However, government reclaimed and marshy lands, although
subject to classification as disposable public agricultural lands, could
only be leased and not sold to private parties because of Act No.
2874.
The prohibition on private parties from acquiring ownership of
government reclaimed and marshy lands of the public domain was
only a statutory prohibition and the legislature could therefore
remove such prohibition. The 1935 Constitution did not prohibit
individuals and corporations from acquiring government reclaimed
and marshy lands of the public domain that were classified as
agricultural lands under existing public land laws. Section 2, Article
XIII of the 1935 Constitution provided as follows:
"Section 2. No private corporation or association may
acquire, lease, or hold public agricultural lands in excess
of one thousand and twenty four hectares, nor may any
individual acquire such lands by purchase in excess of one
hundred and forty hectares, or by lease in excess of one
thousand and twenty-four hectares, or by homestead in
excess of twenty-four hectares. Lands adapted to grazing,
not exceeding two thousand hectares, may be leased to an
individual, private corporation, or association." (Emphasis
supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did
not repeal Section 58 of Act No. 2874 to open for sale to private
parties government reclaimed and marshy lands of the public
domain. On the contrary, the legislature continued the long
established State policy of retaining for the government title and
ownership of government reclaimed and marshy lands of the public
domain.
Commonwealth Act No. 141 of the Philippine National Assembly
On November 7, 1936, the National Assembly approved
Commonwealth Act No. 141, also known as the Public Land Act,
which compiled the then existing laws on lands of the public
domain. CA No. 141, as amended, remains to this day the existing
general law governing the classification and disposition of lands of
the public domain other than timber and mineral lands.51
Section 6 of CA No. 141 empowers the President to classify lands of
the public domain into "alienable or disposable"52 lands of the public
domain, which prior to such classification are inalienable and
outside the commerce of man. Section 7 of CA No. 141 authorizes
the President to "declare what lands are open to disposition or
concession." Section 8 of CA No. 141 states that the government can
declare open for disposition or concession only lands that are
"officially delimited and classified." Sections 6, 7 and 8 of CA No.
141 read as follows:
"Sec. 6. The President, upon the recommendation of the
Secretary of Agriculture and Commerce, shall from time to
time classify the lands of the public domain into –
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands,
and may at any time and in like manner transfer such
lands from one class to another,53 for the purpose of their
administration and disposition.
Sec. 7. For the purposes of the administration and
disposition of alienable or disposable public lands, the
President, upon recommendation by the Secretary of
Agriculture and Commerce, shall from time to time
declare what lands are open to disposition or concession
under this Act.
Sec. 8. Only those lands shall be declared open to
disposition or concession which have been officially
delimited and classified and, when practicable, surveyed,
and which have not been reserved for public or quasi-
public uses, nor 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, have ceased to be so. x x
x."
Thus, before the government could alienate or dispose of lands of
the public domain, the President must first officially classify these
lands as alienable or disposable, and then declare them open to
disposition or concession. There must be no law reserving these
lands for public or quasi-public uses.
The salient provisions of CA No. 141, on government reclaimed,
foreshore and marshy lands of the public domain, are as follows:
"Sec. 58. Any tract of land of the public domain which,
being neither timber nor mineral land, is intended to be
used for residential purposes or for commercial,
industrial, or other productive purposes other than
agricultural, and is open to disposition or concession,
shall be disposed of under the provisions of this chapter
and not otherwise.
Sec. 59. The lands disposable under this title shall be
classified as follows:
(a) Lands reclaimed by the Government by
dredging, filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water
bordering upon the shores or banks of
navigable lakes or rivers;
(d) Lands not included in any of the foregoing
classes.
Sec. 60. Any tract of land comprised under this title may
be leased or sold, as the case may be, to any person,
corporation, or association authorized to purchase or lease
public lands for agricultural purposes. x x x.
Sec. 61. The lands comprised in classes (a), (b), and (c) of
section fifty-nine shall be disposed of to private parties
by lease only and not otherwise, as soon as the President,
upon recommendation by the Secretary of Agriculture,
shall declare that the same are not necessary for the
public service and are open to disposition under this
chapter. The lands included in class (d) may be disposed of
by sale or lease under the provisions of this Act."
(Emphasis supplied)
Section 61 of CA No. 141 readopted, after the effectivity of the 1935
Constitution, Section 58 of Act No. 2874 prohibiting the sale of
government reclaimed, foreshore and marshy disposable lands of
the public domain. All these lands are intended for residential,
commercial, industrial or other non-agricultural purposes. As
before, Section 61 allowed only the lease of such lands to private
parties. The government could sell to private parties only lands
falling under Section 59 (d) of CA No. 141, or those lands for non-
agricultural purposes not classified as government reclaimed,
foreshore and marshy disposable lands of the public domain.
Foreshore lands, however, became inalienable under the 1935
Constitution which only allowed the lease of these lands to qualified
private parties.
Section 58 of CA No. 141 expressly states that disposable lands of
the public domain intended for residential, commercial, industrial or
other productive purposes other than agricultural "shall be disposed
of under the provisions of this chapter and not otherwise." Under
Section 10 of CA No. 141, the term "disposition" includes lease of the
land. Any disposition of government reclaimed, foreshore and
marshy disposable lands for non-agricultural purposes must comply
with Chapter IX, Title III of CA No. 141,54 unless a subsequent law
amended or repealed these provisions.
In his concurring opinion in the landmark case of Republic Real
Estate Corporation v. Court of Appeals,55 Justice Reynato S. Puno
summarized succinctly the law on this matter, as follows:
"Foreshore lands are lands of public dominion intended
for public use. So too are lands reclaimed by the
 government by dredging, filling, or other means. Act 1654
mandated that the control and disposition of the foreshore
and lands under water remained in the national
government. Said law allowed only the 'leasing' of
reclaimed land. The Public Land Acts of 1919 and 1936
also declared that the foreshore and lands reclaimed by
the government were to be "disposed of to private parties
by lease only and not otherwise." Before leasing, however,
the Governor-General, upon recommendation of the
Secretary of Agriculture and Natural Resources, had first
to determine that the land reclaimed was not necessary for
the public service. This requisite must have been met
before the land could be disposed of. But even then, the
foreshore and lands under water were not to be alienated
and sold to private parties. The disposition of the
reclaimed land was only by lease. The land remained
property of the State." (Emphasis supplied)
As observed by Justice Puno in his concurring opinion,
"Commonwealth Act No. 141 has remained in effect at present."
The State policy prohibiting the sale to private parties of
government reclaimed, foreshore and marshy alienable lands of the
public domain, first implemented in 1907 was thus reaffirmed in CA
No. 141 after the 1935 Constitution took effect. The prohibition on
the sale of foreshore lands, however, became a constitutional edict
under the 1935 Constitution. Foreshore lands became inalienable as
natural resources of the State, unless reclaimed by the government
and classified as agricultural lands of the public domain, in which
case they would fall under the classification of government
reclaimed lands.
After the effectivity of the 1935 Constitution, government reclaimed
and marshy disposable lands of the public domain continued to be
only leased and not sold to private parties.56 These lands remained
sui generis, as the only alienable or disposable lands of the public
domain the government could not sell to private parties.
Since then and until now, the only way the government can sell to
private parties government reclaimed and marshy disposable lands
of the public domain is for the legislature to pass a law authorizing
such sale. CA No. 141 does not authorize the President to reclassify
government reclaimed and marshy lands into other non-agricultural
lands under Section 59 (d). Lands classified under Section 59 (d) are
the only alienable or disposable lands for non-agricultural purposes
that the government could sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires congressional
authority before lands under Section 59 that the government
previously transferred to government units or entities could be sold
to private parties. Section 60 of CA No. 141 declares that –
"Sec. 60. x x x The area so leased or sold shall be such as
shall, in the judgment of the Secretary of Agriculture and
Natural Resources, be reasonably necessary for the
purposes for which such sale or lease is requested, and
shall not exceed one hundred and forty-four hectares:
Provided, however, That this limitation shall not apply to
grants, donations, or transfers made to a province,
municipality or branch or subdivision of the Government
for the purposes deemed by said entities conducive to the
public interest; but the land so granted, donated, or
transferred to a province, municipality or branch or
subdivision of the Government shall not be alienated,
encumbered, or otherwise disposed of in a manner
affecting its title, except when authorized by Congress: x x
x." (Emphasis supplied)
The congressional authority required in Section 60 of CA No. 141
mirrors the legislative authority required in Section 56 of Act No.
2874.
One reason for the congressional authority is that Section 60 of CA
No. 141 exempted government units and entities from the maximum
area of public lands that could be acquired from the State. These
government units and entities should not just turn around and sell
these lands to private parties in violation of constitutional or
statutory limitations. Otherwise, the transfer of lands for non-
agricultural purposes to government units and entities could be
used to circumvent constitutional limitations on ownership of
alienable or disposable lands of the public domain. In the same
manner, such transfers could also be used to evade the statutory
prohibition in CA No. 141 on the sale of government reclaimed and
marshy lands of the public domain to private parties. Section 60 of
CA No. 141 constitutes by operation of law a lien on these lands.57
In case of sale or lease of disposable lands of the public domain
falling under Section 59 of CA No. 141, Sections 63 and 67 require a
public bidding. Sections 63 and 67 of CA No. 141 provide as follows:
"Sec. 63. Whenever it is decided that lands covered by this
chapter are not needed for public purposes, the Director of
Lands shall ask the Secretary of Agriculture and
Commerce (now the Secretary of Natural Resources) for
authority to dispose of the same. Upon receipt of such
authority, the Director of Lands shall give notice by public
advertisement in the same manner as in the case of leases
or sales of agricultural public land, x x x.
Sec. 67. The lease or sale shall be made by oral bidding;
and adjudication shall be made to the highest bidder. x x
x." (Emphasis supplied)
Thus, CA No. 141 mandates the Government to put to public
auction all leases or sales of alienable or disposable lands of the
public domain.58
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not
repeal Section 5 of the Spanish Law of Waters of 1866. Private
parties could still reclaim portions of the sea with government
permission. However, the reclaimed land could become private land
only if classified as alienable agricultural land of the public domain
open to disposition under CA No. 141. The 1935 Constitution
prohibited the alienation of all natural resources except public
agricultural lands.
The Civil Code of 1950
The Civil Code of 1950 readopted substantially the definition of
property of public dominion found in the Civil Code of 1889.
Articles 420 and 422 of the Civil Code of 1950 state that –
"Art. 420. The following things are property of public
dominion:
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the State,
banks, shores, roadsteads, and others of similar character;
(2) Those which belong to the State, without being for
public use, and are intended for some public service or for
the development of the national wealth.
x x x.
Art. 422. Property of public dominion, when no longer
intended for public use or for public service, shall form
part of the patrimonial property of the State."
Again, the government must formally declare that the property of
public dominion is no longer needed for public use or public service,
before the same could be classified as patrimonial property of the
State.59 In the case of government reclaimed and marshy lands of the
public domain, the declaration of their being disposable, as well as
the manner of their disposition, is governed by the applicable
provisions of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950 included as
property of public dominion those properties of the State which,
without being for public use, are intended for public service or the
"development of the national wealth." Thus, government reclaimed
and marshy lands of the State, even if not employed for public use
or public service, if developed to enhance the national wealth, are
classified as property of public dominion.
Dispositions under the 1973 Constitution
The 1973 Constitution, which took effect on January 17, 1973,
likewise adopted the Regalian doctrine. Section 8, Article XIV of the
1973 Constitution stated that –
"Sec. 8. All lands of the public domain, waters, minerals,
coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, wildlife, and other natural
resources of the Philippines belong to the State. With the
exception of agricultural, industrial or commercial,
residential, and resettlement lands of the public domain,
 natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development,
exploitation, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years,
renewable for not more than twenty-five years, except as
to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water
power, in which cases, beneficial use may be the measure
and the limit of the grant." (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural
resources with the exception of "agricultural, industrial or
commercial, residential, and resettlement lands of the public
domain." In contrast, the 1935 Constitution barred the alienation of
all natural resources except "public agricultural lands." However,
the term "public agricultural lands" in the 1935 Constitution
encompassed industrial, commercial, residential and resettlement
lands of the public domain.60 If the land of public domain were
neither timber nor mineral land, it would fall under the classification
of agricultural land of the public domain. Both the 1935 and 1973
Constitutions, therefore, prohibited the alienation of all natural
resources except agricultural lands of the public domain.
The 1973 Constitution, however, limited the alienation of lands of
the public domain to individuals who were citizens of the
Philippines. Private corporations, even if wholly owned by
Philippine citizens, were no longer allowed to acquire alienable
lands of the public domain unlike in the 1935 Constitution. Section
11, Article XIV of the 1973 Constitution declared that –
"Sec. 11. The Batasang Pambansa, taking into account
conservation, ecological, and development requirements
of the natural resources, shall determine by law the size of
land of the public domain which may be developed, held
or acquired by, or leased to, any qualified individual,
corporation, or association, and the conditions therefor.
No private corporation or association may hold alienable
lands of the public domain except by lease not to exceed
one thousand hectares in area nor may any citizen hold
such lands by lease in excess of five hundred hectares or
acquire by purchase, homestead or grant, in excess of
twenty-four hectares. No private corporation or
association may hold by lease, concession, license or
permit, timber or forest lands and other timber or forest
resources in excess of one hundred thousand hectares.
However, such area may be increased by the Batasang
Pambansa upon recommendation of the National
Economic and Development Authority." (Emphasis
supplied)
Thus, under the 1973 Constitution, private corporations could hold
alienable lands of the public domain only through lease. Only
individuals could now acquire alienable lands of the public domain,
and private corporations became absolutely barred from acquiring
any kind of alienable land of the public domain. The constitutional
ban extended to all kinds of alienable lands of the public domain,
while the statutory ban under CA No. 141 applied only to
government reclaimed, foreshore and marshy alienable lands of the
public domain.
PD No. 1084 Creating the Public Estates Authority
On February 4, 1977, then President Ferdinand Marcos issued
Presidential Decree No. 1084 creating PEA, a wholly government
owned and controlled corporation with a special charter. Sections 4
and 8 of PD No. 1084, vests PEA with the following purposes and
powers:
"Sec. 4. Purpose. The Authority is hereby created for the
following purposes:
(a) To reclaim land, including foreshore and submerged
areas, by dredging, filling or other means, or to acquire
reclaimed land;
(b) To develop, improve, acquire, administer, deal in,
subdivide, dispose, lease and sell any and all kinds of
lands, buildings, estates and other forms of real property,
owned, managed, controlled and/or operated by the
government;
(c) To provide for, operate or administer such service as
may be necessary for the efficient, economical and
beneficial utilization of the above properties.
Sec. 5. Powers and functions of the Authority. The
Authority shall, in carrying out the purposes for which it
is created, have the following powers and functions:
(a)To prescribe its by-laws.
xxx
(i) To hold lands of the public domain in excess of the area
permitted to private corporations by statute.
(j) To reclaim lands and to construct work across, or
otherwise, any stream, watercourse, canal, ditch, flume x x
x.
xxx
(o) To perform such acts and exercise such functions as
may be necessary for the attainment of the purposes and
objectives herein specified." (Emphasis supplied)
PD No. 1084 authorizes PEA to reclaim both foreshore and
submerged areas of the public domain. Foreshore areas are those
covered and uncovered by the ebb and flow of the tide.61 Submerged
areas are those permanently under water regardless of the ebb and
flow of the tide.62 Foreshore and submerged areas indisputably
belong to the public domain63 and are inalienable unless reclaimed,
classified as alienable lands open to disposition, and further
declared no longer needed for public service.
The ban in the 1973 Constitution on private corporations from
acquiring alienable lands of the public domain did not apply to PEA
since it was then, and until today, a fully owned government
corporation. The constitutional ban applied then, as it still applies
now, only to "private corporations and associations." PD No. 1084
expressly empowers PEA "to hold lands of the public domain" even
"in excess of the area permitted to private corporations by statute."
Thus, PEA can hold title to private lands, as well as title to lands of
the public domain.
In order for PEA to sell its reclaimed foreshore and submerged
alienable lands of the public domain, there must be legislative
authority empowering PEA to sell these lands. This legislative
authority is necessary in view of Section 60 of CA No.141, which
states –
"Sec. 60. x x x; but the land so granted, donated or
transferred to a province, municipality, or branch or
subdivision of the Government shall not be alienated,
encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress; x x
x." (Emphasis supplied)
Without such legislative authority, PEA could not sell but only lease
its reclaimed foreshore and submerged alienable lands of the public
domain. Nevertheless, any legislative authority granted to PEA to
sell its reclaimed alienable lands of the public domain would be
subject to the constitutional ban on private corporations from
acquiring alienable lands of the public domain. Hence, such
legislative authority could only benefit private individuals.
Dispositions under the 1987 Constitution
The 1987 Constitution, like the 1935 and 1973 Constitutions before it,
has adopted the Regalian doctrine. The 1987 Constitution declares
that all natural resources are "owned by the State," and except for
alienable agricultural lands of the public domain, natural resources
cannot be alienated. Sections 2 and 3, Article XII of the 1987
Constitution state that –
"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. x x x.
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." (Emphasis supplied)
The 1987 Constitution continues the State policy in the 1973
Constitution banning private corporations from acquiring any kind
of alienable land of the public domain. Like the 1973 Constitution,
the 1987 Constitution allows private corporations to hold alienable
lands of the public domain only through lease. As in the 1935 and
1973 Constitutions, the general law governing the lease to private
corporations of reclaimed, foreshore and marshy alienable lands of
the public domain is still CA No. 141.
The Rationale behind the Constitutional Ban
The rationale behind the constitutional ban on corporations from
acquiring, except through lease, alienable lands of the public domain
is not well understood. During the deliberations of the 1986
Constitutional Commission, the commissioners probed the rationale
behind this ban, thus:
"FR. BERNAS: Mr. Vice-President, my questions have
reference to page 3, line 5 which says:
`No private corporation or association may hold alienable
lands of the public domain except by lease, not to exceed
one thousand hectares in area.'
If we recall, this provision did not exist under the 1935
Constitution, but this was introduced in the 1973
Constitution. In effect, it prohibits private corporations
from acquiring alienable public lands. But it has not been
very clear in jurisprudence what the reason for this is. In
some of the cases decided in 1982 and 1983, it was
indicated that the purpose of this is to prevent large
landholdings. Is that the intent of this provision?
MR. VILLEGAS: I think that is the spirit of the provision.
FR. BERNAS: In existing decisions involving the Iglesia ni
Cristo, there were instances where the Iglesia ni Cristo
was not allowed to acquire a mere 313-square meter land
where a chapel stood because the Supreme Court said it
would be in violation of this." (Emphasis supplied)
In Ayog v. Cusi,64 the Court explained the rationale behind this
constitutional ban in this way:
"Indeed, one purpose of the constitutional prohibition
against purchases of public agricultural lands by private
corporations is to equitably diffuse land ownership or to
encourage 'owner-cultivatorship and the economic family-
size farm' and to prevent a recurrence of cases like the
instant case. Huge landholdings by corporations or
private persons had spawned social unrest."
However, if the constitutional intent is to prevent huge
landholdings, the Constitution could have simply limited the size of
alienable lands of the public domain that corporations could acquire.
The Constitution could have followed the limitations on individuals,
who could acquire not more than 24 hectares of alienable lands of
the public domain under the 1973 Constitution, and not more than
12 hectares under the 1987 Constitution.
If the constitutional intent is to encourage economic family-size
farms, placing the land in the name of a corporation would be more
effective in preventing the break-up of farmlands. If the farmland is
registered in the name of a corporation, upon the death of the
owner, his heirs would inherit shares in the corporation instead of
subdivided parcels of the farmland. This would prevent the
continuing break-up of farmlands into smaller and smaller plots
from one generation to the next.
In actual practice, the constitutional ban strengthens the
constitutional limitation on individuals from acquiring more than
the allowed area of alienable lands of the public domain. Without
the constitutional ban, individuals who already acquired the
maximum area of alienable lands of the public domain could easily
set up corporations to acquire more alienable public lands. An
individual could own as many corporations as his means would
allow him. An individual could even hide his ownership of a
corporation by putting his nominees as stockholders of the
corporation. The corporation is a convenient vehicle to circumvent
the constitutional limitation on acquisition by individuals of
alienable lands of the public domain.
The constitutional intent, under the 1973 and 1987 Constitutions, is
to transfer ownership of only a limited area of alienable land of the
public domain to a qualified individual. This constitutional intent is
safeguarded by the provision prohibiting corporations from
acquiring alienable lands of the public domain, since the vehicle to
circumvent the constitutional intent is removed. The available
alienable public lands are gradually decreasing in the face of an
ever-growing population. The most effective way to insure faithful
adherence to this constitutional intent is to grant or sell alienable
lands of the public domain only to individuals. This, it would seem,
is the practical benefit arising from the constitutional ban.
The Amended Joint Venture Agreement
The subject matter of the Amended JVA, as stated in its second
Whereas clause, consists of three properties, namely:
1. "[T]hree partially reclaimed and substantially eroded
islands along Emilio Aguinaldo Boulevard in Paranaque
and Las Pinas, Metro Manila, with a combined titled area
of 1,578,441 square meters;"
2. "[A]nother area of 2,421,559 square meters contiguous
to the three islands;" and
3. "[A]t AMARI's option as approved by PEA, an
additional 350 hectares more or less to regularize the
configuration of the reclaimed area."65
PEA confirms that the Amended JVA involves "the development of
the Freedom Islands and further reclamation of about 250 hectares x
x x," plus an option "granted to AMARI to subsequently reclaim
another 350 hectares x x x."66
In short, the Amended JVA covers a reclamation area of 750
hectares. Only 157.84 hectares of the 750-hectare reclamation
project have been reclaimed, and the rest of the 592.15 hectares are
still submerged areas forming part of Manila Bay.
Under the Amended JVA, AMARI will reimburse PEA the sum of
P1,894,129,200.00 for PEA's "actual cost" in partially reclaiming the
Freedom Islands. AMARI will also complete, at its own expense, the
reclamation of the Freedom Islands. AMARI will further shoulder
all the reclamation costs of all the other areas, totaling 592.15
hectares, still to be reclaimed. AMARI and PEA will share, in the
proportion of 70 percent and 30 percent, respectively, the total net
usable area which is defined in the Amended JVA as the total
reclaimed area less 30 percent earmarked for common areas. Title to
AMARI's share in the net usable area, totaling 367.5 hectares, will be
issued in the name of AMARI. Section 5.2 (c) of the Amended JVA
provides that –
"x x x, PEA shall have the duty to execute without delay
the necessary deed of transfer or conveyance of the title
pertaining to AMARI's Land share based on the Land
Allocation Plan. PEA, when requested in writing by
AMARI, shall then cause the issuance and delivery of the
proper certificates of title covering AMARI's Land Share
in the name of AMARI, x x x; provided, that if more than
seventy percent (70%) of the titled area at any given time
pertains to AMARI, PEA shall deliver to AMARI only
seventy percent (70%) of the titles pertaining to AMARI,
until such time when a corresponding proportionate area
of additional land pertaining to PEA has been titled."
(Emphasis supplied)
Indisputably, under the Amended JVA AMARI will acquire and own
a maximum of 367.5 hectares of reclaimed land which will be titled
in its name.
To implement the Amended JVA, PEA delegated to the
unincorporated PEA-AMARI joint venture PEA's statutory
authority, rights and privileges to reclaim foreshore and submerged
areas in Manila Bay. Section 3.2.a of the Amended JVA states that –
"PEA hereby contributes to the joint venture its rights and
privileges to perform Rawland Reclamation and
Horizontal Development as well as own the Reclamation
Area, thereby granting the Joint Venture the full and
exclusive right, authority and privilege to undertake the
Project in accordance with the Master Development Plan."
The Amended JVA is the product of a renegotiation of the original
JVA dated April 25, 1995 and its supplemental agreement dated
August 9, 1995.
The Threshold Issue
The threshold issue is whether AMARI, a private corporation, can
acquire and own under the Amended JVA 367.5 hectares of
reclaimed foreshore and submerged areas in Manila Bay in view of
Sections 2 and 3, Article XII of the 1987 Constitution which state
that:
"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. x x x.
xxx
Section 3. x x x 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, x x x."(Emphasis supplied)
Classification of Reclaimed Foreshore and Submerged Areas
PEA readily concedes that lands reclaimed from foreshore or
submerged areas of Manila Bay are alienable or disposable lands of
the public domain. In its Memorandum,67 PEA admits that –
"Under the Public Land Act (CA 141, as amended),
reclaimed lands are classified as alienable and disposable
lands of the public domain:
'Sec. 59. The lands disposable under this title
shall be classified as follows:
(a) Lands reclaimed by the government by
dredging, filling, or other means;
x x x.'" (Emphasis supplied)
Likewise, the Legal Task Force68 constituted under Presidential
Administrative Order No. 365 admitted in its Report and
Recommendation to then President Fidel V. Ramos, "[R]eclaimed
lands are classified as alienable and disposable lands of the public
domain."69 The Legal Task Force concluded that –
"D. Conclusion
Reclaimed lands are lands of the public domain. However,
by statutory authority, the rights of ownership and
disposition over reclaimed lands have been transferred to
PEA, by virtue of which PEA, as owner, may validly
convey the same to any qualified person without violating
the Constitution or any statute.
The constitutional provision prohibiting private
corporations from holding public land, except by lease
(Sec. 3, Art. XVII,70 1987 Constitution), does not apply to
reclaimed lands whose ownership has passed on to PEA
by statutory grant."
Under Section 2, Article XII of the 1987 Constitution, the foreshore
and submerged areas of Manila Bay are part of the "lands of the
public domain, waters x x x and other natural resources" and
consequently "owned by the State." As such, foreshore and
submerged areas "shall not be alienated," unless they are classified
as "agricultural lands" of the public domain. The mere reclamation
of these areas by PEA does not convert these inalienable natural
resources of the State into alienable or disposable lands of the public
domain. There must be a law or presidential proclamation officially
classifying these reclaimed lands as alienable or disposable and
open to disposition or concession. Moreover, these reclaimed lands
cannot be classified as alienable or disposable if the law has reserved
them for some public or quasi-public use.71
Section 8 of CA No. 141 provides that "only those lands shall be
declared open to disposition or concession which have been
officially delimited and classified."72 The President has the authority
to classify inalienable lands of the public domain into alienable or
disposable lands of the public domain, pursuant to Section 6 of CA
No. 141. In Laurel vs. Garcia,73 the Executive Department attempted
to sell the Roppongi property in Tokyo, Japan, which was acquired
by the Philippine Government for use as the Chancery of the
Philippine Embassy. Although the Chancery had transferred to
another location thirteen years earlier, the Court still ruled that,
under Article 42274 of the Civil Code, a property of public dominion
retains such character until formally declared otherwise. The Court
ruled that –
"The fact that the Roppongi site has not been used for a
long time for actual Embassy service does not
automatically convert it to patrimonial property. Any
such conversion happens only if the property is
withdrawn from public use (Cebu Oxygen and Acetylene
Co. v. Bercilles, 66 SCRA 481 [1975]. A property continues
to be part of the public domain, not available for private
appropriation or ownership 'until there is a formal
declaration on the part of the government to withdraw it
from being such' (Ignacio v. Director of Lands, 108 Phil.
335 [1960]." (Emphasis supplied)
PD No. 1085, issued on February 4, 1977, authorized the issuance of
special land patents for lands reclaimed by PEA from the foreshore
or submerged areas of Manila Bay. On January 19, 1988 then
President Corazon C. Aquino issued Special Patent No. 3517 in the
name of PEA for the 157.84 hectares comprising the partially
reclaimed Freedom Islands. Subsequently, on April 9, 1999 the
Register of Deeds of the Municipality of Paranaque issued TCT Nos.
7309, 7311 and 7312 in the name of PEA pursuant to Section 103 of
PD No. 1529 authorizing the issuance of certificates of title
corresponding to land patents. To this day, these certificates of title
are still in the name of PEA.
PD No. 1085, coupled with President Aquino's actual issuance of a
special patent covering the Freedom Islands, is equivalent to an
official proclamation classifying the Freedom Islands as alienable or
disposable lands of the public domain. PD No. 1085 and President
Aquino's issuance of a land patent also constitute a declaration that
the Freedom Islands are no longer needed for public service. The
Freedom Islands are thus alienable or disposable lands of the public
domain, open to disposition or concession to qualified parties.
At the time then President Aquino issued Special Patent No. 3517,
PEA had already reclaimed the Freedom Islands although
subsequently there were partial erosions on some areas. The
government had also completed the necessary surveys on these
islands. Thus, the Freedom Islands were no longer part of Manila
Bay but part of the land mass. Section 3, Article XII of the 1987
Constitution classifies lands of the public domain into "agricultural,
forest or timber, mineral lands, and national parks." Being neither
timber, mineral, nor national park lands, the reclaimed Freedom
Islands necessarily fall under the classification of agricultural lands
of the public domain. Under the 1987 Constitution, agricultural
lands of the public domain are the only natural resources that the
State may alienate to qualified private parties. All other natural
resources, such as the seas or bays, are "waters x x x owned by the
State" forming part of the public domain, and are inalienable
pursuant to Section 2, Article XII of the 1987 Constitution.
AMARI claims that the Freedom Islands are private lands because
CDCP, then a private corporation, reclaimed the islands under a
contract dated November 20, 1973 with the Commissioner of Public
Highways. AMARI, citing Article 5 of the Spanish Law of Waters of
1866, argues that "if the ownership of reclaimed lands may be given
to the party constructing the works, then it cannot be said that
reclaimed lands are lands of the public domain which the State may
not alienate."75 Article 5 of the Spanish Law of Waters reads as
follows:
"Article 5. Lands reclaimed from the sea in consequence of
works constructed by the State, or by the provinces,
pueblos or private persons, with proper permission, shall
become the property of the party constructing such works,
unless otherwise provided by the terms of the grant of
authority." (Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties
could reclaim from the sea only with "proper permission" from the
State. Private parties could own the reclaimed land only if not
"otherwise provided by the terms of the grant of authority." This
clearly meant that no one could reclaim from the sea without
permission from the State because the sea is property of public
dominion. It also meant that the State could grant or withhold
ownership of the reclaimed land because any reclaimed land, like
the sea from which it emerged, belonged to the State. Thus, a private
person reclaiming from the sea without permission from the State
could not acquire ownership of the reclaimed land which would
remain property of public dominion like the sea it replaced.76 Article
5 of the Spanish Law of Waters of 1866 adopted the time-honored
principle of land ownership that "all lands that were not acquired
from the government, either by purchase or by grant, belong to the
public domain."77
Article 5 of the Spanish Law of Waters must be read together with
laws subsequently enacted on the disposition of public lands. In
particular, CA No. 141 requires that lands of the public domain must
first be classified as alienable or disposable before the government
can alienate them. These lands must not be reserved for public or
quasi-public purposes.78 Moreover, the contract between CDCP and
the government was executed after the effectivity of the 1973
Constitution which barred private corporations from acquiring any
kind of alienable land of the public domain. This contract could not
have converted the Freedom Islands into private lands of a private
corporation.
Presidential Decree No. 3-A, issued on January 11, 1973, revoked all
laws authorizing the reclamation of areas under water and revested
solely in the National Government the power to reclaim lands.
Section 1 of PD No. 3-A declared that –
"The provisions of any law to the contrary
notwithstanding, the reclamation of areas under water,
whether foreshore or inland, shall be limited to the
National Government or any person authorized by it
under a proper contract. (Emphasis supplied)
x x x."
PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866
because reclamation of areas under water could now be undertaken
only by the National Government or by a person contracted by the
National Government. Private parties may reclaim from the sea only
under a contract with the National Government, and no longer by
grant or permission as provided in Section 5 of the Spanish Law of
Waters of 1866.
Executive Order No. 525, issued on February 14, 1979, designated
PEA as the National Government's implementing arm to undertake
"all reclamation projects of the government," which "shall be
undertaken by the PEA or through a proper contract executed by it
with any person or entity." Under such contract, a private party
receives compensation for reclamation services rendered to PEA.
Payment to the contractor may be in cash, or in kind consisting of
portions of the reclaimed land, subject to the constitutional ban on
private corporations from acquiring alienable lands of the public
domain. The reclaimed land can be used as payment in kind only if
the reclaimed land is first classified as alienable or disposable land
open to disposition, and then declared no longer needed for public
service.
The Amended JVA covers not only the Freedom Islands, but also an
additional 592.15 hectares which are still submerged and forming
part of Manila Bay. There is no legislative or Presidential act
classifying these submerged areas as alienable or disposable lands
of the public domain open to disposition. These submerged areas
are not covered by any patent or certificate of title. There can be no
dispute that these submerged areas form part of the public domain,
and in their present state are inalienable and outside the commerce
of man. Until reclaimed from the sea, these submerged areas are,
under the Constitution, "waters x x x owned by the State," forming
part of the public domain and consequently inalienable. Only when
actually reclaimed from the sea can these submerged areas be
classified as public agricultural lands, which under the Constitution
are the only natural resources that the State may alienate. Once
reclaimed and transformed into public agricultural lands, the
government may then officially classify these lands as alienable or
disposable lands open to disposition. Thereafter, the government
may declare these lands no longer needed for public service. Only
then can these reclaimed lands be considered alienable or disposable
lands of the public domain and within the commerce of man.
The classification of PEA's reclaimed foreshore and submerged
lands into alienable or disposable lands open to disposition is
necessary because PEA is tasked under its charter to undertake
public services that require the use of lands of the public domain.
Under Section 5 of PD No. 1084, the functions of PEA include the
following: "[T]o own or operate railroads, tramways and other kinds
of land transportation, x x x; [T]o construct, maintain and operate
such systems of sanitary sewers as may be necessary; [T]o construct,
maintain and operate such storm drains as may be necessary." PEA
is empowered to issue "rules and regulations as may be necessary
for the proper use by private parties of any or all of the highways,
roads, utilities, buildings and/or any of its properties and to impose
or collect fees or tolls for their use." Thus, part of the reclaimed
foreshore and submerged lands held by the PEA would actually be
needed for public use or service since many of the functions
imposed on PEA by its charter constitute essential public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA
"shall be primarily responsible for integrating, directing, and
coordinating all reclamation projects for and on behalf of the
National Government." The same section also states that "[A]ll
reclamation projects shall be approved by the President upon
recommendation of the PEA, and shall be undertaken by the PEA or
through a proper contract executed by it with any person or entity; x
x x." Thus, under EO No. 525, in relation to PD No. 3-A and PD
No.1084, PEA became the primary implementing agency of the
National Government to reclaim foreshore and submerged lands of
the public domain. EO No. 525 recognized PEA as the government
entity "to undertake the reclamation of lands and ensure their
maximum utilization in promoting public welfare and interests."79
Since large portions of these reclaimed lands would obviously be
needed for public service, there must be a formal declaration
segregating reclaimed lands no longer needed for public service
from those still needed for public service.1âwphi1.nêt
Section 3 of EO No. 525, by declaring that all lands reclaimed by
PEA "shall belong to or be owned by the PEA," could not
automatically operate to classify inalienable lands into alienable or
disposable lands of the public domain. Otherwise, reclaimed
foreshore and submerged lands of the public domain would
automatically become alienable once reclaimed by PEA, whether or
not classified as alienable or disposable.
The Revised Administrative Code of 1987, a later law than either PD
No. 1084 or EO No. 525, vests in the Department of Environment
and Natural Resources ("DENR" for brevity) the following powers
and functions:
"Sec. 4. Powers and Functions. The Department shall:
(1) x x x
xxx
(4) Exercise supervision and control over forest lands,
alienable and disposable public lands, mineral resources
and, in the process of exercising such control, impose
appropriate taxes, fees, charges, rentals and any such form
of levy and collect such revenues for the exploration,
development, utilization or gathering of such resources;
xxx
(14) Promulgate rules, regulations and guidelines on the
issuance of licenses, permits, concessions, lease
agreements and such other privileges concerning the
 development, exploration and utilization of the country's
marine, freshwater, and brackish water and over all
aquatic resources of the country and shall continue to
oversee, supervise and police our natural resources; cancel
or cause to cancel such privileges upon failure, non-
compliance or violations of any regulation, order, and for
all other causes which are in furtherance of the
conservation of natural resources and supportive of the
national interest;
(15) Exercise exclusive jurisdiction on the management
and disposition of all lands of the public domain and
serve as the sole agency responsible for classification,
sub-classification, surveying and titling of lands in
consultation with appropriate agencies."80 (Emphasis
supplied)
As manager, conservator and overseer of the natural resources of the
State, DENR exercises "supervision and control over alienable and
disposable public lands." DENR also exercises "exclusive jurisdiction
on the management and disposition of all lands of the public
domain." Thus, DENR decides whether areas under water, like
foreshore or submerged areas of Manila Bay, should be reclaimed or
not. This means that PEA needs authorization from DENR before
PEA can undertake reclamation projects in Manila Bay, or in any
part of the country.
DENR also exercises exclusive jurisdiction over the disposition of all
lands of the public domain. Hence, DENR decides whether
reclaimed lands of PEA should be classified as alienable under
Sections 681 and 782 of CA No. 141. Once DENR decides that the
reclaimed lands should be so classified, it then recommends to the
President the issuance of a proclamation classifying the lands as
alienable or disposable lands of the public domain open to
disposition. We note that then DENR Secretary Fulgencio S.
Factoran, Jr. countersigned Special Patent No. 3517 in compliance
with the Revised Administrative Code and Sections 6 and 7 of CA
No. 141.
In short, DENR is vested with the power to authorize the
reclamation of areas under water, while PEA is vested with the
power to undertake the physical reclamation of areas under water,
whether directly or through private contractors. DENR is also
empowered to classify lands of the public domain into alienable or
disposable lands subject to the approval of the President. On the
other hand, PEA is tasked to develop, sell or lease the reclaimed
alienable lands of the public domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or
submerged areas does not make the reclaimed lands alienable or
disposable lands of the public domain, much less patrimonial lands
of PEA. Likewise, the mere transfer by the National Government of
lands of the public domain to PEA does not make the lands alienable
or disposable lands of the public domain, much less patrimonial
lands of PEA.
Absent two official acts – a classification that these lands are
alienable or disposable and open to disposition and a declaration
that these lands are not needed for public service, lands reclaimed
by PEA remain inalienable lands of the public domain. Only such an
official classification and formal declaration can convert reclaimed
lands into alienable or disposable lands of the public domain, open
to disposition under the Constitution, Title I and Title III83 of CA No.
141 and other applicable laws.84
PEA's Authority to Sell Reclaimed Lands
PEA, like the Legal Task Force, argues that as alienable or disposable
lands of the public domain, the reclaimed lands shall be disposed of
in accordance with CA No. 141, the Public Land Act. PEA, citing
Section 60 of CA No. 141, admits that reclaimed lands transferred to
a branch or subdivision of the government "shall not be alienated,
encumbered, or otherwise disposed of in a manner affecting its title,
except when authorized by Congress: x x x."85 (Emphasis by PEA)
In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised
Administrative Code of 1987, which states that –
"Sec. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is authorized
by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following: x x
x."
Thus, the Court concluded that a law is needed to convey any real
property belonging to the Government. The Court declared that -
"It is not for the President to convey real property of the
government on his or her own sole will. Any such
conveyance must be authorized and approved by a law
enacted by the Congress. It requires executive and
legislative concurrence." (Emphasis supplied)
PEA contends that PD No. 1085 and EO No. 525 constitute the
legislative authority allowing PEA to sell its reclaimed lands. PD No.
1085, issued on February 4, 1977, provides that –
"The land reclaimed in the foreshore and offshore area of
Manila Bay pursuant to the contract for the reclamation
and construction of the Manila-Cavite Coastal Road
Project between the Republic of the Philippines and the
Construction and Development Corporation of the
Philippines dated November 20, 1973 and/or any other
contract or reclamation covering the same area is hereby
transferred, conveyed and assigned to the ownership and
administration of the Public Estates Authority
established pursuant to PD No. 1084; Provided, however,
That the rights and interests of the Construction and
Development Corporation of the Philippines pursuant to
the aforesaid contract shall be recognized and respected.
Henceforth, the Public Estates Authority shall exercise the
rights and assume the obligations of the Republic of the
Philippines (Department of Public Highways) arising
from, or incident to, the aforesaid contract between the
Republic of the Philippines and the Construction and
Development Corporation of the Philippines.
In consideration of the foregoing transfer and assignment,
the Public Estates Authority shall issue in favor of the
Republic of the Philippines the corresponding shares of
stock in said entity with an issued value of said shares of
stock (which) shall be deemed fully paid and non-
assessable.
The Secretary of Public Highways and the General
Manager of the Public Estates Authority shall execute
such contracts or agreements, including appropriate
agreements with the Construction and Development
Corporation of the Philippines, as may be necessary to
implement the above.
Special land patent/patents shall be issued by the
Secretary of Natural Resources in favor of the Public
Estates Authority without prejudice to the subsequent
transfer to the contractor or his assignees of such portion
or portions of the land reclaimed or to be reclaimed as
provided for in the above-mentioned contract. On the
basis of such patents, the Land Registration Commission
shall issue the corresponding certificate of title."
(Emphasis supplied)
On the other hand, Section 3 of EO No. 525, issued on February 14,
1979, provides that -
"Sec. 3. All lands reclaimed by PEA shall belong to or be
owned by the PEA which shall be responsible for its
administration, development, utilization or disposition in
accordance with the provisions of Presidential Decree No.
1084. Any and all income that the PEA may derive from
the sale, lease or use of reclaimed lands shall be used in
accordance with the provisions of Presidential Decree No.
1084."
There is no express authority under either PD No. 1085 or EO No.
525 for PEA to sell its reclaimed lands. PD No. 1085 merely
transferred "ownership and administration" of lands reclaimed from
Manila Bay to PEA, while EO No. 525 declared that lands reclaimed
by PEA "shall belong to or be owned by PEA." EO No. 525 expressly
states that PEA should dispose of its reclaimed lands "in accordance
with the provisions of Presidential Decree No. 1084," the charter of
PEA.
PEA's charter, however, expressly tasks PEA "to develop, improve,
acquire, administer, deal in, subdivide, dispose, lease and sell any
and all kinds of lands x x x owned, managed, controlled and/or
operated by the government."87 (Emphasis supplied) There is,
therefore, legislative authority granted to PEA to sell its lands,
whether patrimonial or alienable lands of the public domain. PEA
may sell to private parties its patrimonial properties in accordance
with the PEA charter free from constitutional limitations. The
constitutional ban on private corporations from acquiring alienable
lands of the public domain does not apply to the sale of PEA's
patrimonial lands.
PEA may also sell its alienable or disposable lands of the public
domain to private individuals since, with the legislative authority,
there is no longer any statutory prohibition against such sales and
the constitutional ban does not apply to individuals. PEA, however,
cannot sell any of its alienable or disposable lands of the public
domain to private corporations since Section 3, Article XII of the
1987 Constitution expressly prohibits such sales. The legislative
authority benefits only individuals. Private corporations remain
barred from acquiring any kind of alienable land of the public
domain, including government reclaimed lands.
The provision in PD No. 1085 stating that portions of the reclaimed
lands could be transferred by PEA to the "contractor or his
assignees" (Emphasis supplied) would not apply to private
corporations but only to individuals because of the constitutional
ban. Otherwise, the provisions of PD No. 1085 would violate both
the 1973 and 1987 Constitutions.
The requirement of public auction in the sale of reclaimed lands
Assuming the reclaimed lands of PEA are classified as alienable or
disposable lands open to disposition, and further declared no longer
needed for public service, PEA would have to conduct a public
bidding in selling or leasing these lands. PEA must observe the
provisions of Sections 63 and 67 of CA No. 141 requiring public
auction, in the absence of a law exempting PEA from holding a
public auction.88 Special Patent No. 3517 expressly states that the
patent is issued by authority of the Constitution and PD No. 1084,
"supplemented by Commonwealth Act No. 141, as amended." This
is an acknowledgment that the provisions of CA No. 141 apply to
the disposition of reclaimed alienable lands of the public domain
unless otherwise provided by law. Executive Order No. 654,89 which
authorizes PEA "to determine the kind and manner of payment for
the transfer" of its assets and properties, does not exempt PEA from
the requirement of public auction. EO No. 654 merely authorizes
PEA to decide the mode of payment, whether in kind and in
installment, but does not authorize PEA to dispense with public
auction.
Moreover, under Section 79 of PD No. 1445, otherwise known as the
Government Auditing Code, the government is required to sell
valuable government property through public bidding. Section 79 of
PD No. 1445 mandates that –
"Section 79. When government property has become
unserviceable for any cause, or is no longer needed, it
shall, upon application of the officer accountable therefor,
be inspected by the head of the agency or his duly
authorized representative in the presence of the auditor
concerned and, if found to be valueless or unsaleable, it
may be destroyed in their presence. If found to be
valuable, it may be sold at public auction to the highest
bidder under the supervision of the proper committee on
award or similar body in the presence of the auditor
concerned or other authorized representative of the
Commission, after advertising by printed notice in the
Official Gazette, or for not less than three consecutive
days in any newspaper of general circulation, or where
the value of the property does not warrant the expense of
publication, by notices posted for a like period in at least
three public places in the locality where the property is to
be sold. In the event that the public auction fails, the
property may be sold at a private sale at such price as
may be fixed by the same committee or body concerned
and approved by the Commission."
It is only when the public auction fails that a negotiated sale is
allowed, in which case the Commission on Audit must approve the
selling price.90 The Commission on Audit implements Section 79 of
the Government Auditing Code through Circular No. 89-29691 dated
January 27, 1989. This circular emphasizes that government assets
must be disposed of only through public auction, and a negotiated
sale can be resorted to only in case of "failure of public auction."
At the public auction sale, only Philippine citizens are qualified to
bid for PEA's reclaimed foreshore and submerged alienable lands of
the public domain. Private corporations are barred from bidding at
the auction sale of any kind of alienable land of the public domain.
PEA originally scheduled a public bidding for the Freedom Islands
on December 10, 1991. PEA imposed a condition that the winning
bidder should reclaim another 250 hectares of submerged areas to
regularize the shape of the Freedom Islands, under a 60-40 sharing
of the additional reclaimed areas in favor of the winning bidder.92
No one, however, submitted a bid. On December 23, 1994, the
Government Corporate Counsel advised PEA it could sell the
Freedom Islands through negotiation, without need of another
public bidding, because of the failure of the public bidding on
December 10, 1991.93
However, the original JVA dated April 25, 1995 covered not only the
Freedom Islands and the additional 250 hectares still to be
reclaimed, it also granted an option to AMARI to reclaim another
350 hectares. The original JVA, a negotiated contract, enlarged the
reclamation area to 750 hectares.94 The failure of public bidding on
December 10, 1991, involving only 407.84 hectares,95 is not a valid
justification for a negotiated sale of 750 hectares, almost double the
area publicly auctioned. Besides, the failure of public bidding
happened on December 10, 1991, more than three years before the
signing of the original JVA on April 25, 1995. The economic situation
in the country had greatly improved during the intervening period.
Reclamation under the BOT Law and the Local Government Code
The constitutional prohibition in Section 3, Article XII of the 1987
Constitution is absolute and clear: "Private corporations or
associations may not hold such alienable lands of the public domain
except by lease, x x x." Even Republic Act No. 6957 ("BOT Law," for
brevity), cited by PEA and AMARI as legislative authority to sell
reclaimed lands to private parties, recognizes the constitutional ban.
Section 6 of RA No. 6957 states –
"Sec. 6. Repayment Scheme. - For the financing,
construction, operation and maintenance of any
infrastructure projects undertaken through the build-
operate-and-transfer arrangement or any of its variations
pursuant to the provisions of this Act, the project
proponent x x x may likewise be repaid in the form of a
share in the revenue of the project or other non-monetary
payments, such as, but not limited to, the grant of a
portion or percentage of the reclaimed land, subject to the
constitutional requirements with respect to the ownership
of the land: x x x." (Emphasis supplied)
A private corporation, even one that undertakes the physical
reclamation of a government BOT project, cannot acquire reclaimed
alienable lands of the public domain in view of the constitutional
ban.
Section 302 of the Local Government Code, also mentioned by PEA
and AMARI, authorizes local governments in land reclamation
projects to pay the contractor or developer in kind consisting of a
percentage of the reclaimed land, to wit:
"Section 302. Financing, Construction, Maintenance,
Operation, and Management of Infrastructure Projects by
the Private Sector. x x x
xxx
In case of land reclamation or construction of industrial
estates, the repayment plan may consist of the grant of a
portion or percentage of the reclaimed land or the
industrial estate constructed."
Although Section 302 of the Local Government Code does not
contain a proviso similar to that of the BOT Law, the constitutional
restrictions on land ownership automatically apply even though not
expressly mentioned in the Local Government Code.
Thus, under either the BOT Law or the Local Government Code, the
contractor or developer, if a corporate entity, can only be paid with
leaseholds on portions of the reclaimed land. If the contractor or
developer is an individual, portions of the reclaimed land, not
exceeding 12 hectares96 of non-agricultural lands, may be conveyed
to him in ownership in view of the legislative authority allowing
such conveyance. This is the only way these provisions of the BOT
Law and the Local Government Code can avoid a direct collision
with Section 3, Article XII of the 1987 Constitution.
Registration of lands of the public domain
Finally, PEA theorizes that the "act of conveying the ownership of
the reclaimed lands to public respondent PEA transformed such
lands of the public domain to private lands." This theory is echoed
by AMARI which maintains that the "issuance of the special patent
leading to the eventual issuance of title takes the subject land away
from the land of public domain and converts the property into
patrimonial or private property." In short, PEA and AMARI contend
that with the issuance of Special Patent No. 3517 and the
corresponding certificates of titles, the 157.84 hectares comprising
the Freedom Islands have become private lands of PEA. In support
of their theory, PEA and AMARI cite the following rulings of the
Court:
1. Sumail v. Judge of CFI of Cotabato,97 where the Court held
– Registration of land under Act No. 496 or PD No. 1529 does not vest
"Once the patent was granted and the corresponding
certificate of title was issued, the land ceased to be part of
the public domain and became private property over
which the Director of Lands has neither control nor
jurisdiction."
2. Lee Hong Hok v. David,98 where the Court declared -
"After the registration and issuance of the certificate and
duplicate certificate of title based on a public land patent,
the land covered thereby automatically comes under the
operation of Republic Act 496 subject to all the safeguards
provided therein."3. Heirs of Gregorio Tengco v. Heirs of Jose
Aliwalas,99 where the Court ruled -
"While the Director of Lands has the power to review
homestead patents, he may do so only so long as the land
remains part of the public domain and continues to be
under his exclusive control; but once the patent is
registered and a certificate of title is issued, the land ceases
to be part of the public domain and becomes private
property over which the Director of Lands has neither
control nor jurisdiction."
4. Manalo v. Intermediate Appellate Court,100 where the Court
held –
"When the lots in dispute were certified as disposable on
May 19, 1971, and free patents were issued covering the
same in favor of the private respondents, the said lots
ceased to be part of the public domain and, therefore, the
Director of Lands lost jurisdiction over the same."
5.Republic v. Court of Appeals,101 where the Court stated
– alienable lands of the public domain that are transferred to
"Proclamation No. 350, dated October 9, 1956, of President
Magsaysay legally effected a land grant to the Mindanao
Medical Center, Bureau of Medical Services, Department
of Health, of the whole lot, validly sufficient for initial
registration under the Land Registration Act. Such land
grant is constitutive of a 'fee simple' title or absolute title
in favor of petitioner Mindanao Medical Center. Thus,
Section 122 of the Act, which governs the registration of
grants or patents involving public lands, provides that
'Whenever public lands in the Philippine Islands
belonging to the Government of the United States or to the
Government of the Philippines are alienated, granted or
conveyed to persons or to public or private corporations,
the same shall be brought forthwith under the operation
of this Act (Land Registration Act, Act 496) and shall
become registered lands.'"
The first four cases cited involve petitions to cancel the land patents
and the corresponding certificates of titles issued to private parties.
These four cases uniformly hold that the Director of Lands has no
jurisdiction over private lands or that upon issuance of the certificate
of title the land automatically comes under the Torrens System. The
fifth case cited involves the registration under the Torrens System of
a 12.8-hectare public land granted by the National Government to
Mindanao Medical Center, a government unit under the Department
of Health. The National Government transferred the 12.8-hectare
public land to serve as the site for the hospital buildings and other
facilities of Mindanao Medical Center, which performed a public
service. The Court affirmed the registration of the 12.8-hectare
public land in the name of Mindanao Medical Center under Section
122 of Act No. 496. This fifth case is an example of a public land
being registered under Act No. 496 without the land losing its
character as a property of public dominion.
In the instant case, the only patent and certificates of title issued are
those in the name of PEA, a wholly government owned corporation
performing public as well as proprietary functions. No patent or
certificate of title has been issued to any private party. No one is
asking the Director of Lands to cancel PEA's patent or certificates of
title. In fact, the thrust of the instant petition is that PEA's certificates
of title should remain with PEA, and the land covered by these
certificates, being alienable lands of the public domain, should not
be sold to a private corporation.
in the registrant private or public ownership of the land.
Registration is not a mode of acquiring ownership but is merely
evidence of ownership previously conferred by any of the
recognized modes of acquiring ownership. Registration does not
give the registrant a better right than what the registrant had prior to
the registration.102 The registration of lands of the public domain
under the Torrens system, by itself, cannot convert public lands into
private lands.103
Jurisprudence holding that upon the grant of the patent or issuance
of the certificate of title the alienable land of the public domain
automatically becomes private land cannot apply to government
units and entities like PEA. The transfer of the Freedom Islands to
PEA was made subject to the provisions of CA No. 141 as expressly
stated in Special Patent No. 3517 issued by then President Aquino, to
wit:
"NOW, THEREFORE, KNOW YE, that by authority of the
Constitution of the Philippines and in conformity with the
provisions of Presidential Decree No. 1084, supplemented
by Commonwealth Act No. 141, as amended, there are
hereby granted and conveyed unto the Public Estates
Authority the aforesaid tracts of land containing a total
area of one million nine hundred fifteen thousand eight
hundred ninety four (1,915,894) square meters; the
technical description of which are hereto attached and
made an integral part hereof." (Emphasis supplied)
Thus, the provisions of CA No. 141 apply to the Freedom Islands on
matters not covered by PD No. 1084. Section 60 of CA No. 141
prohibits, "except when authorized by Congress," the sale of
government units or entities. Section 60 of CA No. 141 constitutes,
under Section 44 of PD No. 1529, a "statutory lien affecting title" of
the registered land even if not annotated on the certificate of title.104
Alienable lands of the public domain held by government entities
under Section 60 of CA No. 141 remain public lands because they
cannot be alienated or encumbered unless Congress passes a law
authorizing their disposition. Congress, however, cannot authorize
the sale to private corporations of reclaimed alienable lands of the
public domain because of the constitutional ban. Only individuals
can benefit from such law.
The grant of legislative authority to sell public lands in accordance
with Section 60 of CA No. 141 does not automatically convert
alienable lands of the public domain into private or patrimonial
lands. The alienable lands of the public domain must be transferred
to qualified private parties, or to government entities not tasked to
dispose of public lands, before these lands can become private or
patrimonial lands. Otherwise, the constitutional ban will become
illusory if Congress can declare lands of the public domain as
private or patrimonial lands in the hands of a government agency
tasked to dispose of public lands. This will allow private
corporations to acquire directly from government agencies limitless
areas of lands which, prior to such law, are concededly public lands.
Under EO No. 525, PEA became the central implementing agency of
the National Government to reclaim foreshore and submerged areas
of the public domain. Thus, EO No. 525 declares that –
"EXECUTIVE ORDER NO. 525
Designating the Public Estates Authority as the Agency
Primarily Responsible for all Reclamation Projects
Whereas, there are several reclamation projects which are
ongoing or being proposed to be undertaken in various
parts of the country which need to be evaluated for
consistency with national programs;
Whereas, there is a need to give further institutional
support to the Government's declared policy to provide
for a coordinated, economical and efficient reclamation of
lands;
Whereas, Presidential Decree No. 3-A requires that all
reclamation of areas shall be limited to the National
Government or any person authorized by it under proper
contract;
Whereas, a central authority is needed to act on behalf of
the National Government which shall ensure a
coordinated and integrated approach in the reclamation
of lands;
Whereas, Presidential Decree No. 1084 creates the Public
Estates Authority as a government corporation to
undertake reclamation of lands and ensure their
maximum utilization in promoting public welfare and
interests; and
Whereas, Presidential Decree No. 1416 provides the
President with continuing authority to reorganize the
national government including the transfer, abolition, or
merger of functions and offices.
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers
vested in me by the Constitution and pursuant to
Presidential Decree No. 1416, do hereby order and direct
the following:
Section 1. The Public Estates Authority (PEA) shall be
primarily responsible for integrating, directing, and
coordinating all reclamation projects for and on behalf of
the National Government. All reclamation projects shall
be approved by the President upon recommendation of
the PEA, and shall be undertaken by the PEA or through a
proper contract executed by it with any person or entity;
Provided, that, reclamation projects of any national
government agency or entity authorized under its charter
shall be undertaken in consultation with the PEA upon
approval of the President.
x x x ."
As the central implementing agency tasked to undertake
reclamation projects nationwide, with authority to sell reclaimed
lands, PEA took the place of DENR as the government agency
charged with leasing or selling reclaimed lands of the public
domain. The reclaimed lands being leased or sold by PEA are not
private lands, in the same manner that DENR, when it disposes of
other alienable lands, does not dispose of private lands but alienable
lands of the public domain. Only when qualified private parties
acquire these lands will the lands become private lands. In the hands
of the government agency tasked and authorized to dispose of
alienable of disposable lands of the public domain, these lands are
still public, not private lands.
Furthermore, PEA's charter expressly states that PEA "shall hold
lands of the public domain" as well as "any and all kinds of lands."
PEA can hold both lands of the public domain and private lands.
Thus, the mere fact that alienable lands of the public domain like the
Freedom Islands are transferred to PEA and issued land patents or
certificates of title in PEA's name does not automatically make such
lands private.
To allow vast areas of reclaimed lands of the public domain to be
transferred to PEA as private lands will sanction a gross violation of
the constitutional ban on private corporations from acquiring any
kind of alienable land of the public domain. PEA will simply turn
around, as PEA has now done under the Amended JVA, and transfer
several hundreds of hectares of these reclaimed and still to be
reclaimed lands to a single private corporation in only one
transaction. This scheme will effectively nullify the constitutional
ban in Section 3, Article XII of the 1987 Constitution which was
intended to diffuse equitably the ownership of alienable lands of the
public domain among Filipinos, now numbering over 80 million
strong.
This scheme, if allowed, can even be applied to alienable agricultural
lands of the public domain since PEA can "acquire x x x any and all
kinds of lands." This will open the floodgates to corporations and
even individuals acquiring hundreds of hectares of alienable lands
of the public domain under the guise that in the hands of PEA these
lands are private lands. This will result in corporations amassing
huge landholdings never before seen in this country - creating the
very evil that the constitutional ban was designed to prevent. This
will completely reverse the clear direction of constitutional
development in this country. The 1935 Constitution allowed private
corporations to acquire not more than 1,024 hectares of public
lands.105 The 1973 Constitution prohibited private corporations from
acquiring any kind of public land, and the 1987 Constitution has
unequivocally reiterated this prohibition.
The contention of PEA and AMARI that public lands, once
registered under Act No. 496 or PD No. 1529, automatically become
private lands is contrary to existing laws. Several laws authorize
lands of the public domain to be registered under the Torrens
System or Act No. 496, now PD No. 1529, without losing their
character as public lands. Section 122 of Act No. 496, and Section 103
of PD No. 1529, respectively, provide as follows:
Act No. 496
"Sec. 122. Whenever public lands in the Philippine Islands
belonging to the x x x Government of the Philippine
Islands are alienated, granted, or conveyed to persons or
the public or private corporations, the same shall be
brought forthwith under the operation of this Act and
shall become registered lands."
PD No. 1529
"Sec. 103. Certificate of Title 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." (Emphasis supplied)
Based on its legislative history, the phrase "conveyed to any person"
in Section 103 of PD No. 1529 includes conveyances of public lands
to public corporations.
Alienable lands of the public domain "granted, donated, or
transferred to a province, municipality, or branch or subdivision of
the Government," as provided in Section 60 of CA No. 141, may be
registered under the Torrens System pursuant to Section 103 of PD
No. 1529. Such registration, however, is expressly subject to the
condition in Section 60 of CA No. 141 that the land "shall not be
alienated, encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress." This
provision refers to government reclaimed, foreshore and marshy
lands of the public domain that have been titled but still cannot be
alienated or encumbered unless expressly authorized by Congress.
The need for legislative authority prevents the registered land of the
public domain from becoming private land that can be disposed of
to qualified private parties.
The Revised Administrative Code of 1987 also recognizes that lands
of the public domain may be registered under the Torrens System.
Section 48, Chapter 12, Book I of the Code states –
"Sec. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is authorized
by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) x x x
 (2) For property belonging to the Republic of the
Philippines, but titled in the name of any political
subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or
instrumentality." (Emphasis supplied)
Thus, private property purchased by the National Government for
expansion of a public wharf may be titled in the name of a
government corporation regulating port operations in the country.
Private property purchased by the National Government for
expansion of an airport may also be titled in the name of the
government agency tasked to administer the airport. Private
property donated to a municipality for use as a town plaza or public
school site may likewise be titled in the name of the municipality. 106
All these properties become properties of the public domain, and if
already registered under Act No. 496 or PD No. 1529, remain
registered land. There is no requirement or provision in any existing
law for the de-registration of land from the Torrens System.
Private lands taken by the Government for public use under its
power of eminent domain become unquestionably part of the public
domain. Nevertheless, Section 85 of PD No. 1529 authorizes the
Register of Deeds to issue in the name of the National Government
new certificates of title covering such expropriated lands. Section 85
of PD No. 1529 states –
"Sec. 85. Land taken by eminent domain. Whenever any
registered land, or interest therein, is expropriated or
taken by eminent domain, the National Government,
province, city or municipality, or any other agency or
instrumentality exercising such right shall file for
registration in the proper Registry a certified copy of the
judgment which shall state definitely by an adequate
description, the particular property or interest
expropriated, the number of the certificate of title, and the
nature of the public use. A memorandum of the right or
interest taken shall be made on each certificate of title by
the Register of Deeds, and where the fee simple is taken, a
new certificate shall be issued in favor of the National
Government, province, city, municipality, or any other
agency or instrumentality exercising such right for the
land so taken. The legal expenses incident to the
memorandum of registration or issuance of a new
certificate of title shall be for the account of the authority
taking the land or interest therein." (Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD No. 1529
are not exclusively private or patrimonial lands. Lands of the public
domain may also be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to
AMARI of the Freedom Islands or of the lands to be reclaimed from
submerged areas of Manila Bay. In the words of AMARI, the
Amended JVA "is not a sale but a joint venture with a stipulation for
reimbursement of the original cost incurred by PEA for the earlier
reclamation and construction works performed by the CDCP under
its 1973 contract with the Republic." Whether the Amended JVA is a
sale or a joint venture, the fact remains that the Amended JVA
requires PEA to "cause the issuance and delivery of the certificates of
title conveying AMARI's Land Share in the name of AMARI."107
This stipulation still contravenes Section 3, Article XII of the 1987
Constitution which provides that private corporations "shall not
hold such alienable lands of the public domain except by lease." The
transfer of title and ownership to AMARI clearly means that AMARI
will "hold" the reclaimed lands other than by lease. The transfer of
title and ownership is a "disposition" of the reclaimed lands, a
transaction considered a sale or alienation under CA No. 141, 108 the
Government Auditing Code,109 and Section 3, Article XII of the 1987
Constitution.
The Regalian doctrine is deeply implanted in our legal system.
Foreshore and submerged areas form part of the public domain and
are inalienable. Lands reclaimed from foreshore and submerged
areas also form part of the public domain and are also inalienable,
unless converted pursuant to law into alienable or disposable lands
of the public domain. Historically, lands reclaimed by the
government are sui generis, not available for sale to private parties
unlike other alienable public lands. Reclaimed lands retain their
inherent potential as areas for public use or public service. Alienable
lands of the public domain, increasingly becoming scarce natural
resources, are to be distributed equitably among our ever-growing
population. To insure such equitable distribution, the 1973 and 1987
Constitutions have barred private corporations from acquiring any
kind of alienable land of the public domain. Those who attempt to
dispose of inalienable natural resources of the State, or seek to
circumvent the constitutional ban on alienation of lands of the
public domain to private corporations, do so at their own risk.
We can now summarize our conclusions as follows:
1. The 157.84 hectares of reclaimed lands comprising the
Freedom Islands, now covered by certificates of title in the
name of PEA, are alienable lands of the public domain.
PEA may lease these lands to private corporations but
may not sell or transfer ownership of these lands to
private corporations. PEA may only sell these lands to
Philippine citizens, subject to the ownership limitations in
the 1987 Constitution and existing laws.
2. The 592.15 hectares of submerged areas of Manila Bay
remain inalienable natural resources of the public domain
until classified as alienable or disposable lands open to
disposition and declared no longer needed for public
service. The government can make such classification and
declaration only after PEA has reclaimed these submerged
areas. Only then can these lands qualify as agricultural
lands of the public domain, which are the only natural
resources the government can alienate. In their present
state, the 592.15 hectares of submerged areas are
inalienable and outside the commerce of man.
3. Since the Amended JVA seeks to transfer to AMARI, a
private corporation, ownership of 77.34 hectares110 of the
Freedom Islands, such transfer is void for being contrary
to Section 3, Article XII of the 1987 Constitution which
prohibits private corporations from acquiring any kind of
alienable land of the public domain.
4. Since the Amended JVA also seeks to transfer to
AMARI ownership of 290.156 hectares111 of still
submerged areas of Manila Bay, such transfer is void for
being contrary to Section 2, Article XII of the 1987
Constitution which prohibits the alienation of natural
resources other than agricultural lands of the public
domain. PEA may reclaim these submerged areas.
Thereafter, the government can classify the reclaimed
lands as alienable or disposable, and further declare them
no longer needed for public service. Still, the transfer of
such reclaimed alienable lands of the public domain to
AMARI will be void in view of Section 3, Article XII of the
1987 Constitution which prohibits private corporations
from acquiring any kind of alienable land of the public
domain.
Clearly, the Amended JVA violates glaringly Sections 2 and 3,
Article XII of the 1987 Constitution. Under Article 1409112 of the Civil
Code, contracts whose "object or purpose is contrary to law," or
whose "object is outside the commerce of men," are "inexistent and
void from the beginning." The Court must perform its duty to
defend and uphold the Constitution, and therefore declares the
Amended JVA null and void ab initio.
Seventh issue: whether the Court is the proper forum to raise the
issue of whether the Amended JVA is grossly disadvantageous to the
government.
Considering that the Amended JVA is null and void ab initio, there
is no necessity to rule on this last issue. Besides, the Court is not a
trier of facts, and this last issue involves a determination of factual
matters.
WHEREFORE, the petition is GRANTED. The Public Estates
Authority and Amari Coastal Bay Development Corporation are
PERMANENTLY ENJOINED from implementing the Amended
Joint Venture Agreement which is hereby declared NULL and
VOID ab initio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,
and Corona, JJ., concur.