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Home » Post Item » PAKISAMA: CARPER is better CARP

PAKISAMA: CARPER is better CARP


MONDAY, AUGUST 10, 2009
Some say that CARPER is a worse CARP, other say it is just the same while
those who fought for say it is better. You be the judge. Considering the
context where Congress castrated CARP last December 2008, CARPER has
restored Compulsory Acquisition with 150 Billion budget and 26 reform
provisions.
Congress approved the Comprehensive Agrarian Reform Program extension
with reform (CARPER) bill separately. The House of Representative’s version
is HB 4077 and the Senate’s version is SB 2666. The Senate passed its
version earlier which gave some pressure to the House to pass a better
version. Although each version has its strengths and weaknesses, the
Bicameral Committee Conference (BICAM) came out to be the best of both
versions. Generally, the BICAM version of CARPER is better than the Senate
or the House version and closely approximates the Civil Society CARPER
proposal. Definitely, the BICAM version comes as a strengthened CARP to
face to the challenge of fierce landlord resistance and bureaucratic
inefficiencies. The passage of the CARPER law was fought by able Champions
in the House through Rep. Risa and Rep. Lagman and in the Senate by Sen.
Pimentel and Sen. Honasan and the countless farmers’ march, hunger
strikes, fora and dialogues with the Church, Academe and Agrarian Reform
Advocates.

The RA 9700 or the CARPER law which was signed by GMA on August 7, 2009
contains an extension of the budget for CARP especially the Land Acquisition
and Distribution (LAD) program for five years starting July 1, 2009 and the
necessary reforms to complete the acquisition and distribution of the
remaining One Million Hectares of private agricultural lands to landless
farmers[1]. Moreover, CARPER law provides for clarification of policies and its
interpretation by CARP implementation agencies including the decision of
judicial courts.
RA 6657, the original CARP law (CARL) has not been superseded by the
CARPER law but strengthens or improves the CARL. Some provisions of the
CARL were amended like the provision on the award to beneficiaries and the
schedule of acquisition and distribution, new provisions were introduced like
the Gender provisions and the Congressional Oversight Committee and a
number of Supreme Court decisions legislated like the indefeasibility of titles
given under agrarian reform and exclusive jurisdiction of DAR in agrarian
dispute criminal cases.
The most challenging part in the crafting of the CARPER law was how to
balance the landowners’ interest, the farmer’s interest and the Department
of Agrarian Reform’s (DAR) interest. One can see the tension in the
provisions of the CARPER law. For instance, the landowners’ interest is
dominant in the provision on Just compensation, the 90% trigger completion
for acquisition of small land (below 10 hectares), the consideration of 70% of
zonal valuation, attestation requirement to ensure that loyal farmers will get
the land, priority of tenants and regular farmworkers in distribution to ensure
easy consolidation and the support services for land owners; while the
farmer’s interest is evident in the provisions on the rights and obligation will
begin from the receipt of CLOAs and EPs, distribution of CLOAs and EPs and
actual possession, installation of ARBs within 180 days from date of
registration in the title of Republic of Philippines, usufructuary rights of
identified ARBs pending award and subsidies for initial capital of new ARBs;
and the DAR’s interest is apparent in the budget provision and phasing of
land acquisition. Although the majority of the provisions in the CARPER law
are pro-farmers, many reforms are still pending and continuously advocated
at the executive, legislative and judiciary. The succeeding parts will discuss
the salient provisions of the CARPER law.

I. New and Bold Provisions

CARP is a Continuing Program


With the CARPER law the debate whether CARP will end and DAR will close
shop after five years from the extension has been clarified.. Under the
Constitution, the State is mandated to undertake an agrarian reform which
supports the opinion that CARP is a continuing program. It will only end when
ALL agricultural lands have been distributed to landless farmers and that
tenancy system has been converted to ownership. What ends in RA 6657
and RA 8532 is the funding for CARP and this is clarified in section 21 [2] of the
CARPER law. The fund allocated for CARPER is “to further implement the
CARP” which means that the CARPER law provides funding needed to
implement CARP. The same section emphasizes that the CARP will not end
after five (5) years and even after 5 years when the LAD is completed, DAR
will continue with the delivery of support services and agrarian justice[3].
Section 30 of the CARPER law provides a way to legally continue the
implementation of pending CARP cases after the 5-year extension[4] by filing
the initiatory process of CARP.

Creation of a Joint Congressional Oversight Committee


The Oversight Committee[5] is composed of members of Congress equally
distributed between the House of Representatives and the Senate who will
closely monitor the implementation of the CARP. Many cases involving
implementation of CARP have reached Congress and Congress calls for a
legislative investigation. The problems are mostly rooted in the
implementing agencies, budget and gaps in the CARL. It has been
anticipated that for the next 5 year extension, Congress wants to closely
monitor the implementation of CARP in order to achieve its target and
complete the distribution of more than 1 Million hectares of agricultural
lands. The oversight committee will report periodically to Congress for
possible adjustments of the law and executive polices in order to strengthen
the implementation of the CARP[6].

Clear Policy against Conversion of Agricultural Lands


One of the sharpened policies in the CARPER law is the relationship of
conversion of agricultural land to non-agricultural uses and food security. At
present, only the DAR has the mechanism to regulate the conversion of
agricultural lands to non-agricultural uses because all agricultural lands are
covered under CARP. Many landowners convert their land to non-agricultural
uses to evade CARP coverage. When the country experienced rice crisis last
year, government realized that many of the food producing lands have been
converted to non-agricultural uses. Studies show that small farms are food
producing farms compared to big plantation. This can be seen in the
distributed lands in Negros where the ARBs awarded with less than a hectare
of land plant vegetables, raise chicken and other food products which
contributed to their food needs as well as the community.
The CARPER law strengthens the ban on any conversion of irrigated and
irrigable lands and mandates the National Irrigation Administration to
identify these[7]. Moreover, it also legislates the resolution of the “Sumilao
farmers case” that the non-implementation or violation of the conversion
plan will result toautomatic coverage of the subject by CARP.
Under the CARPER law, any conversion to avoid CARP coverage is a
prohibited act. The word “any” makes the defense of good faith or ignorance
of the law untenable[8]. Moreover the penalty for conversion is heavier. It will
merit imprisonment of 6 to 12 years and/ or a penalty of 200,000 pesos to 1
million pesos[9].
Gender-Sensitive Agrarian Reform
The CARPER law institutionalizes reforms recognizing the rights of rural
women to be beneficiaries of the CARP and to have meaningful
participation in its planning[10] and implementation. Aside from making
the language of all the provisions of the law gender-neutral, the policy
statement declares the right of rural women–
“the State shall recognize and enforce, consistent
with existing laws, the rights of rural women to own and
control land, taking into consideration the substantive
equality between men and women as qualified
beneficiaries, to receive a just share of the fruits thereof,
and to be represented in advisory or appropriate
decision-making bodies. These rights shall be
independent of their male relatives and of their civil
status”[11].
Such policy pronouncement on rural women is a great improvement of
the CARL. The CARPER law defines the identity to the countless of rural
in agrarian reform communities and recognizes their productive and
reproductive labor[12]. The design of the support services[13] of the ARBs
takes into account the specific needs of rural women through the
creation of a women’s desk. Moreover, rural women will have a
representative in the highest policy make body of DAR which is the
Presidential Agrarian Reform Council (PARC) ensuring also that the
composition of the PARC will have 20% women members[14].

II.LAND ACQUISITION AND DISTRIBUTION

150-B Budget For CARPER Implementation


The budget allocated for the 5-year extension is 150 Billion pesos[15] which
will be sourced from three funds namely: 1.) Agrarian Reform Fund, 2.) other
sources of funding like privatization of government asset, foreign donors,
etc. and 3.) General Appropriations Acts (GAA). So far, this budget is the
largest per year in the history of CARP.
In the 2009 GAA, only 13 Billion pesos was allocated for the DAR because of
the absence of the law that extends the funding of CARP. Sen. Arroyo
specifically inserted a provision in the GAA that disallows any use of this
budget for LAD. This has been foreseen in the deliberation of CARPER and
the intention of the lawmakers was to allocate the budget to be used for
CARPER immediately available when the law takes effect on July 1, 2009.
Another improvement in the CARP budget is the continuing appropriation
during the 5-year period and the clarification that interest payments of the
bonds and just compensation used to acquire private lands will be part of the
debt servicing in the GAA or any unprogrammed items in the GAA. This will
ensure that the landowners will be paid. The usual complaint of landowners
in the implementation of the program is that they are not paid for their land
taken under CARP.
Phasing Schedule of LAD To Ensure Completion by June 14,
2014
Under the CARPER law, Congress updated the phasing of the LAD
implementation[16] in the CARP for the next five (5) years. The intention was
to provide a time table for DAR to manage the acquisition and distribution of
the remaining backlog. The target period for each phase mandates DAR to
work hard in order to be on schedule. The BICAM clarified that the target
period does not stop the coverage of agricultural land after the deadline.
At first glance, the phasing schedule seems complicated but a careful
reading of provision will show straight forward schedule. The first phase will
cover the landholdings 24 hectares and above which have been issued
notice of coverage by December 10, 2008, government lands and those
offered under Voluntary Land Transfer (VLT) and Voluntary Offer to Sell
(VOS). This phase will start on July 1, 2009 and should be completed on June
30, 2012. The second phase will cover the landholdings 24 hectares and
above which have not been issued notice of coverage by December 10, 2008
and all landholdings below 24 but above 10 hectares which have been issued
notice of coverage by December 10, 2008. This phase will start on July 1,
2012 to June 30, 2013. The last phase covers below 10 hectares. However,
this last phase will only begin if all the previous phase has been 90%
completed in a particular province. The last phase will start on July 1, 2013
and end on June 30, 2014. Public Agricultural lands will not be covered by the
phasing and can be covered anytime.
Another important improvement for this provision is the deletion of the
phrase “insofar as the excess hectarage” in the CARL. The phrase was
interpreted to limit the coverage to the excess area of a piece of landholding
for that phase. Then cover the next excess for the next phase and so on. To
illustrate the interpretation before, given 51 hectares; for the first phase, 1
hectare will be covered being the excess of 50 hectares, the next phase will
cover the 26 hectares the excess from 24 hectare and the next phase the
entire 24 hectares. Such interpretation was absurd, expensive and would
definitely prolong the LAD. In the CARPER law, a particular landholding above
10 hectares can be acquired and distributed only once.
There is a mandate in the CARPER law to resolve by June 30, 2012 all the
valuation cases pending in the DAR.
No More Voluntary Land Transfer (VLT) After June 30, 2009
Compulsory Acquisition and Voluntary Offer To Sell will be the main mode of
land acquisition when the law takes effect. Many studies have shown that
VLT has been abused by the landowners to put people who are not qualified
or people who are loyal to them as beneficiaries. A cut-off date for VLT
applications has been set on June 30, 2009. No VLT applications will be
allowed after July 1, 2009.

Retention Limit Exemption Of Local Government Units (LGUs)


LGUs except the Barangays can own agricultural lands beyond the five
(5)-hectare limit set by CARL. This privilege is only applicable to lands
that will be used for public purposes such as roads, bridges, public
markets, school, resettlement, LGU facilities, public parks and
barangay plazas. There are two limitations to this exemption: 1.) the
use of the land must be actual, direct and exclusive; and 2.) the
use must be consistent with the approved comprehensive land use
plan[17]. Moreover, if the land is covered under CARP and the LGU wants
to use it for one of the public purpose mentioned earlier then it must
be expropriated first and the farmers therein must be justly
compensated.
The law on conversion will still apply to the LGUs because the public
purpose projects will entail conversion of agricultural lands to non-
agricultural uses. The LGUs are not exempted from the application of
the Conversion Order from DAR.
Review of Land Size Limits For Each Type of Crop
For the next six (6) months, DAR will submit a study to Congress for the
appropriate land size of each crop[18]. The purpose is for a possible review on
the limit of land sizes. For instance, for coconut what is the most productive
land size to maximize yield and minimize cost. However, before the 3
hectare award be adopted, a new law is needed.

Tenants and Regular Farmworkers Are First Priority Beneficiaries


This provision[19] was formulated and strongly advocated by Rep. Pablo
Garcia (hence this was known as the Garcia Amendment). The provision
provides that in a certain landholding the qualified beneficiaries who are
tenants and regular farmworkers will receive 3 hectares each before
distributing the remaining land to the other qualified beneficiaries like
seasonal farmworkers and other farmworkers under Section 22 of CARL. The
practice now is that any qualified beneficiary in the area will receive a piece
of land however small through collective ownership. Such is beneficial to
farmers because no matter how small the land, they can always make it
productive. If this provision will be implemented strictly, a number of
seasonal farmworkers in Negros and many other places that will not receive
land because they can only benefit if there is extra land or if there are no
tenants or regular farmworkers. Most of the time, the Tenants and Regular
Farmworkers are the most loyal workers to the landowners and it will be
easier for the landowner to get back, lease back or consolidate the lands
distributed under CARP.
Attestation Requirement of Farmer Beneficiary
Another Garcia Amendment[20], under the CARPER law a new procedure for
the identification of agrarian reform beneficiaries requires the Barangay
Agrarian Reform Council (BARC) to first certify that the potential
beneficiaries are Farmers or Regular Farmworkers actually tilling the lands
and the list should by attested under oath by the Landowner and lastly will
state under oath before a judge that he/she is willing to work on the land and
make it productive and assume the obligation of paying the amortization.
The problem will arise because landowners are not the most available
persons to make an attestation. The attestation requirement can be used as
leverage against the farmers. Secondly, with this requirement the Landowner
can choose the beneficiaries and only those favorable to him/her will be on
the list. Another problem is the proximity of the Judge from the place of the
farmer beneficiaries which are far from the farms. This requirement will
actually pose a serious problem to the farmer beneficiaries and hamper the
selection process of beneficiaries.
A provision to check the correctness of the attestation and the undue delay
in giving out the attestation might cause in the implementation is in place.
Section 25 provides penalties to the landowner who will cause undue delay
in complying with the obligation of attestation and/or falsification of the
certification or attestation required is prohibited and is punishable with 6 to
12 years imprisonment or up to 1 million pesos penalty.
Encourage Empowerment and Organizing of Farmer Beneficiaries
The CARPER law has a bias for organized farmers to be beneficiaries.
Congress believes that the success rate of organized farmers is high and can
make their awarded lands productive. The DAR is mandated to conduct
seminars and trainings for the farmers to organize. The DAR shall also assist
the farmers form or join cooperatives.
Individual Titles of Award
The CARPER law adopted the recommendation from the economists that
individualized Certificate of Land Ownership Award (CLOA) and Emancipation
Patent (EP) is beneficial for the farmer beneficiaries. This will encourage
farmers to invest in the awarded land and will have a sense of ownership. As
a matter of policy in the CARPER law, land awarded should be in the form of
individual title. The DAR will do the parcelization of the existing collective
CLOAs and must be completed within three (3) years from the effectivity of
the law. However, this is without prejudiced to collective CLOAs that are
effective and need not be parcelized. A group of farmer beneficiaries can
also decide to have a collective CLOA subject to the conditions[21] in section
10 of CARPER. Their collective CLOA must indicate the names of the
beneficiaries.
Shortened Period For Installation of Farmer Beneficiaries
The CARPER law mandates that the award of the land must be completed
within 180 days from the date of registration of title in the name of the
Republic of the Philippines. Such period is shorter than that of CARL. Another
reform that can help shorten the period for installation is the inclusion of the
standing crop in the computation of the just compensation for the land[22].
This is the learning from the Hacienda Malaga Case were the only reason for
the delay in installation is the standing crop. From experience, delay in
installation causes violence and insecurity to the farmers.
The CARPER law emphasize that farmer beneficiaries will only start payment
of amortization if they have been physically installed on the awarded land for
one (1) year.
Ministerial Duty for the Registry of Deeds To Register Land in the
Name Republic of the Philippines and CLOA
The unfortunate experience in Negros (especially the Arroyo Lands in Bacan,
Negros) where Registry of Deeds refuse to register the title in the name of
the Republic of the Philippines bring about the provision under the CARPER
law which states–
“it is the ministerial duty of the registry of deeds to register
the title of the land in the name of the republic of the
Philippines, after the Landbank of the Philippines (LBP) has
certified that the necessary deposit in the name of the
landowner constituting full payment in cash or in bond with
due notice to the landowner and the registration of
thecertificate of land ownership award issued to the
beneficiaries, and to cancel previous titles pertaining
thereto[23].
Upon certifying the payment of Land Bank, the Registry of Deeds cannot
refuse to cancel the title of the landowner, register the same title under RP
title and to register the CLOA to be awarded to beneficiaries. This will lessen
the stumbling blocks in the process of CLOA generation.
Actual and Physical Distribution
The CARPER law specifies that award of land must be actual and physical
possession[24] of the land which is in contrast to non-distributed schemes like
Stock-Distribution Option and Leaseback arrangements. This can be the
basis for the farmers to demand from the DAR for an actual and physical
award of the land to them and they can legally reject any non-distributive
schemes similar to the Hacienda Luisita experience.

Indefeasibility of EP and CLOA


The CARPER law legislates the Supreme Court decision in Estribillo vs. DAR
(G.R. No. 159674, June 30, 2006) declaring titles of land awarded under any
agrarian reform program are indefeasible and imprescriptible. The titles (i.e.
EP and CLOA) will be afforded the same protection as Torrens title under the
Torrens system[25]. This provision provides protection to the CLOA’s or EP’s of
farmers being cancelled after it has been registered already for a long time.

Usufructuary Rights Over Awarded Land Pending Award of EP


or CLOA
Under the CARPER law, “identified and qualified agrarian reform
beneficiaries, shall have usufructuary rights over the awarded landas soon as
the DAR takes possession of such land, and such right shall not be
diminished even pending the awarding of theemancipation patent or the
certificate of land ownership award”. This is will be useful to secure the
rights of farmers in cases when the title of the landholding is in the name of
the Republic but there is a delay in installing them as farmer beneficiaries.
Instead of waiting for the awarding of the CLOAs, the farmers can already
occupy the land and cultivate it to prevent the land from being idle or
abandoned.

Cancellation of CLOA or EP is under the Exclusive and Original


Jurisdiction of the DAR Secretary
Congress intended to change the current rules on cancellation of CLOAs or
EPs. The cancellation of registered CLOA goes to the DARAB while
unregistered CLOAs to the DAR Secretary. The transfer of all cases on
cancellation of CLOA to the DAR secretary will make it easier to the
petitioner because of the simpler rules. The appeal to the Office of the
President (OP) is available and is strategic for dialogue. Again this provision
is double edge because the landowners can also go to the OP and will have
chances of getting a favorable decision. This is the case of Banasi farmers in
Camarines Sur where the favorable decision of the DAR secretary was
reversed after seven (7) years at the OP. Moreover, the decision of the DAR
Secretary under the CARPER law is immediately executory even pending
appeal to judicial courts.

Affordability Clause Made Mandatory


The CARPER law explicitly mandates that farmers will pay reduced
amortizations established by PARC for the first 3 years. For the next years,
the law put a ceiling on the annual amortization to not more than 5% to 10%
of the value of the annual gross production[26]. The Land Bank of the
Philippines (LBP) is mandated to reduce the interest or the principal to make
repayment affordable. The amortization depends on the annual gross
production determined by the DAR which will effectively make the
amortization of farmer beneficiaries affordable. This is a great improvement
from the CARL because the affordability clause here is made mandatory for
LBP and DAR to implement.
Tags: Reform CARP Movement
Posted by landwatch at 11:43 am | permalink

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