CONSTITUTIONAL BASIS & HISTORICAL Lands of the public domain are classified into agricultural, forest or timber,
mineral lands and national parks. Agricultural lands of the public domain
BACKGROUND
ARTICLE II, SECTION 21, 1987 CONSTITUTION
The State shall promote comprehensive rural development and agrarian
reform.
ARTICLE XII, SECTION 1, 1987 CONSTITUTION
The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of
goods and services produced by the nation for the benefit of the people;
and an expanding productivity as the key to raising the quality of life for all,
especially the underprivileged.
The State shall promote industrialization and full employment based on
sound agricultural development and agrarian reform, through industries
that make full and efficient use of human and natural resources, and which
are competitive in both domestic and foreign markets. However, the State
shall protect Filipino enterprises against unfair foreign competition and
trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of
the country shall be given optimum opportunity to develop. Private
enterprises, including corporations, cooperatives, and similar collective
organizations, shall be encouraged to broaden the base of their ownership.
ARTICLE XII, SECTION 3, 1987 CONSTITUTION
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may be further classified by law according to the uses to 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.
ARTICLE III, SECTION 4, 1987 CONSTITUTION
The State shall, by law, undertake an agrarian reform program founded on
the right of farmers and regular farmworkers who are landless, to own
directly or collectively the lands they till or, in the case of other
farmworkers, to receive a just share of the fruits thereof. To this end, the
State shall encourage and undertake the just distribution of all agricultural
lands, subject to such priorities and reasonable retention limits as the
Congress may prescribe, taking into account ecological, developmental, or
equity considerations, and subject to the payment of just compensation. In
determining retention limits, the State shall respect the right of small
landowners. The State shall further provide incentives for voluntary land-
sharing.
ARTICLE XIII, SECTION 5, 1987 CONSTITUTION
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The State shall recognize the right of farmers, farmworkers, and
landowners, as well as cooperatives, and other independent farmers’
organizations to participate in the planning, organization, and management
of the program, and shall provide support to agriculture through
appropriate technology and research, and adequate financial, production,
marketing, and other support services.
ARTICLE XIII, SECTION 6, 1987 CONSTITUTION
The State shall apply the principles of agrarian reform or stewardship,
whenever applicable in accordance with law, in the disposition or utilization
of other natural resources, including lands of the public domain under lease
or concession suitable to agriculture, subject to prior rights, homestead
rights of small settlers, and the rights of indigenous communities to their
ancestral lands.
The State may resettle landless farmers and farmworkers in its own
agricultural estates which shall be distributed to them in the manner
provided by law.
ARTICLE XIII, SECTION 7, 1987 CONSTITUTION
The State shall protect the rights of subsistence fishermen, especially of
local communities, to the preferential use of the communal marine and
fishing resources, both inland and offshore. It shall provide support to such
fishermen through appropriate technology and research, adequate
financial, production, and marketing assistance, and other services. The
State shall also protect, develop, and conserve such resources. The
protection shall extend to offshore fishing grounds of subsistence fishermen
against foreign intrusion. Fishworkers shall receive a just share from their
labor in the utilization of marine and fishing resources.
ARTICLE XIII, SECTION 8, 1987 CONSTITUTION
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The State shall provide incentives to landowners to invest the proceeds of
the agrarian reform program to promote industrialization, employment
creation, and privatization of public sector enterprises. Financial
instruments used as payment for their lands shall be honored as equity in
enterprises of their choice.
The Social and Constitutional Context of Agrarian Reform
by Atty. Christian S. Monsod
The Constitution as the fundamental law is always invoked as a source of
absolute rights especially against the state. Indeed, that is what the Bill of
Rights is all about.
The problem, however, in constitutional law is when there is an apparent
conflict between two or several provisions, when those provisions involve
conflicting rights of private parties and when the State is the one called
upon to resolve the conflict by legitimate means at its disposal.
I would like to give you the perspective of a participant in the drafting of the
Constitution, particularly on those provisions on social justice and, in
particular, agrarian reform.
Every law student is familiar with the definition of social justice by Justice
Jose P. Laurel in the case of Calalang v. Williams:
Social justice is neither communism, nor despotism nor atomism nor
anarchy, but the humanization of laws and the equalization of social
and economic forces by the state so that justice in its rational and
objectively secular conception may at least be approximated. Social
justice means the promotion of the welfare of all the people, the
adoption by the government of measures calculated to insure economic
stability of all the component elements of society through the
maintenance of proper economic and social equilibrium in the
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 interrelations of the members of the community, constitutionally,
through the adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers underlying the existence
of all governments, on the time-honored principle of salus populi est
suprema lex.
That is the legal definition. The scope and operative guidelines of that
definition are found in the 1987 Constitution where social justice, unlike in
the 1935 and 1973 Constitutions, is treated as a separate subject. If I were
asked to cite the one principal difference between the 1987 and other
Constitutions, I would say that it is in its social justice provisions.
The President of the Constitutional Commission, Justice Cecilia Muñoz-
Palma, said as much when she said that social justice is the heart of the new
Constitution. Ultimately, regardless of its imperfections that reflect the
imperfectability of those who tried to write it, the 1987 Constitution would
be judged by the efficacy and effectiveness of its provision on social justice.
Article XIII, Section 1 says that:
The Congress shall give the highest priority to the enactment of measures
that:
1. Protect and enhance the right of all the people to human dignity;
2. Reduce social, economic, and political inequalities;
3. Remove cultural inequities;
4. By equitably diffusing wealth and political power for the common
good.
Given the scope and reach of that mother provision in Article XIII, other
articles of the Constitution contain social justice provisions. It is interesting
to say that social justice provision is found all over the Constitution and not
just in Article XIII.
To mention a few:
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1. Article XII, Section 1, On National Economy:
The goals of the economy are a more equitable distribution of
opportunities, income and wealth x x x.
2. Article XII, Section 6:
The use of property bears a social function and all economic agents
shall contribute to the common good x x x subject to the duty of the
State to promote distributive justice x x x (distributive justice is
agrarian reform).
3. Article XIV, Section 1:
The State shall protect and promote the right of all citizens to
quality education at all levels x x x.
4. The provisions in the Legislative and Executive Articles on term
limits, party list and sectoral representation in local government
unit;
5. Article II, Section 26:
The State shall guarantee equal access to opportunities for public
service and prohibit political dynasties as may be defined by law
The historical and social context of these social justice provisions as
discussed extensively in the deliberations of the Commission, were:
1. The long history of social injustice that started when the Spaniards
destroyed the traditional system of land ownership – common
ownership of land by village clusters known as barangays, similar to
existing systems among several indigenous communities – and
distributed the lands (haciendas) to Spanish military and clergy or
established encomiendas (administrative districts).
2. The take-over by the U.S. did not address this problem, it only
established a new class, although certain changes were introduced,
i.e., land titling, homestead and limitations on size of ownership.
3. The 1935 Constitution – addressed the issue of foreign access to
land, i.e., corporations must have at least 60 percent Filipino
ownership and use-rights were limited in time. Other reforms
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 included limitations on interest rates on loans and an increase in the
sharecroppings share from 50 percent to 70 percent. Very little of
these laws were really followed in practice and the Huk rebellion
was born.
4. Independence years – Under Magsaysay (Mindanao resettlement
program) and Macapagal, land reform was again tackled but no
significant results were achieved in terms of scope and magnitude
of land transfer
5. Marcos years – With Martial Law, the whole of the Philippines was
declared a land reform area under Presidential Decree (P.D.) No. 27.
Significant progress was made, but the continued practice of the
share tenancy system, the exemptions allowed and shortcoming in
support system (although it was Marcos who set up the new
Agrarian Reform Department as a focal point in its implementation)
did much to limit the effectivity of the reforms on addressing rural
poverty 50 percent of rural population).
6. The Comprehensive Agrarian Reform Law (CARL) years since 1988 –
land distribution increased substantially but lack of support system
is still prevalent, and many big landed estates have not yet been
included in the program.
The Human Development Report for the Philippines for 2005, which
concentrates on Peace, Human Security and Human Development, just
released last week, acknowledges (quoting studies):
By 2002, Comprehensive Agrarian Reform Program (CARP) officially
claimed to have redistributed six million hectares of land to more than
two million peasant households, accounting for nearly half of the
country’s agricultural lands and two-fifths of the total rural households,
respectively x x x.
(Even if there may be an overestimate, it is still a formidable
accomplishment).
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The Report also says:
Not surprisingly, the rate of accomplishments of land reform turns out
to be a good predictor of the frequency of armed conflict: the higher the
proportion of land redistributed under the agrarian reform program
relative to the potential land reform area, the lower the likelihood of
conflict.
However, the social dimension of agrarian reform appears to be less critical
than before, with other social indicators, for example adult education,
having a greater impact on lessening the occurrence of armed conflict.
Despite the successes, rural poverty continues to be the main problem of
our country today.
In the deliberations of the Constitutional Commission, there was consensus
on the following:
1. There is a significant difference between equality and equity
Inequality a condition that can exist without necessarily any
connotation of a moral wrong. Inequality by itself is not evil, unless
it is gross. Equality is a standard to aspire for but a realistic
approximation of it, as Laurel suggests, is reasonable enough. Thus,
the Constitution speaks of merely reducing inequalities because the
objective is not to levelize all the people in all aspects of social,
economic and political life.
Equity is something else. It is a normative or ethical concept and
what is inequitable is “wrong” or “evil” or “unjust.” Hence, the
reference to cultural inequity in Section 1 and the retention of the
prescription of “equitably diffusing wealth and political power for
the common good.” The context of social reform with unjust
structures built up through the years which cannot be dismantled
except through asset reform such as redistribution of land.
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 2. However, the Commission was mindful of the fact that it is difficult
to implement asset reform or land redistribution in a democratic
setting such as ours. The successful ones (Korea, Japan, Taiwan,
China) were undertaken under authoritarian rule. Hence, the
compromise in our Constitution was to give “just compensation”
despite the clear empirical evidence in the experience of the other
countries that:
a. Redistribution does not result in an equitable society if assets
such as land are priced at market values to determine just
compensation; and
b. Just compensation will only work if the government is willing
and has the resources to subsidize the farmers with supporting
services and pay the difference between just compensation to
the landowner and affordable cost to the farmer, with the cost
of such subsidies being borne by taxpayers.
3. Agrarian reform should admit of other conditions, such as
ecological, developmental and equity considerations, such as rights
of small landowners and indigenous communities. But we must
beware of creeping exception not originally contemplated that take
land out of the scope of agrarian reform. Example of this was the
recent decision of the Supreme Court to declare the Calatagan area
as mineralized land. Some of the farmers have been there for more
than 20 years, with Certificate of Land Ownership Award (CLOA).
Some have already paid for the land. Now, that is a problem.
4. It was clear in the deliberation that the civil rights of the landowners
with respect to the land such as the right to enjoy, dispose and
recover,1 right to exclude others from the property, the right to
enclose or fence property, the right to compensation in case of
eminent domain,2 accession,3 right to quiet title,4 are subordinated
to and cannot take precedence over the constitutional mandates on
social justice, such as agrarian reform.
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5. The pursuit of social justice is always subject to the requirements of
due process in the exercise by the State of powers delegated to it by
the people themselves. The three most important of these powers
are – taxation, expropriation, and police power. And when taxation
and expropriation are inadequate to the task of attaining an
equitable diffusion of wealth and political power, the State can
validly use its police powers.
6. There may be exemptions, or the need for incentives authorized by
the Constitution and implementing legislation. There may be
procedural requirements. There may even be a timeline for
accomplishing it, in the interest of faster justice. But with all due
respect, it does not appear from the deliberation of the Commission
that all these conditions can be used to dilute, circumvent or
frustrate the objective of the constitutional provision – that the
process must result in the farmer being given the land and the
landowner being given just compensation.
What is the point of my citing this background to the problem of agrarian
reform today when I do not believe there is any disagreement that landed
interest and gross inequalities of wealth and income have existed for more
than a hundred years and need to be changed? The point is that it is difficult
enough to navigate through the legal and economic constraints of the
Philippine version of agrarian reform without the government itself being
part of the problem
Examples:
1. Interpreting the 2008 deadline for the program as a cutoff date such
that those who have successfully resisted acquisition “get away with
it.” The deadline was meant to push for the acceleration of the
program not to reward those who resisted it. Be that as it may, to
avoid the onerous interpretation, the Department of Agrarian
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 Reform (DAR) should issue notices of acquisition for all the land
before the date.
2. The problem of installing the farmers because judges allow
themselves to be used to block it, to the extent of raising issues
even on the constitutionality of an agrarian reform program that is
prescribed in unprecedented detail in the Constitution itself and
which the Supreme Court has upheld.
3. Fortunately, after about two years of litigation, the farmer won a
signal victory in the Supreme Court in the Cuenca case which settled
once and all the jurisdictional issue on agrarian reform issues. We
are pleased to hear that the Department of Agrarian Reform is
acting pro-actively in implementing the installation of farmers since
the injunction issued by courts are deemed to have been lifted by
the decision.
Chief Justice Roberto R. Concepcion, in the deliberations on social justice,
asked the indulgence of the Commission for the literal and narrow
jurisprudential view of lawyers about the vision of social justice that non-
lawyers in the Commission seemed to see with clearer eyes.
If indeed the Executive is the sword, the Legislative is the purse and the
Judiciary is the conscience of a nation, it should be easy enough for our
judges to uphold the equity object of agrarian reform. As the record of the
Commission shows, the objective of agrarian reform is not efficiency or
productivity or even faster economic growth, no matter how important and
laudable these objectives might be, but equity.
The empirical evidence shows that there need not be a contradiction
between agrarian reform and efficiency and productivity of farms, as long as
the appropriate support services and infrastructure (especially farm to
market roads) is provided by the State. Thailand is a good model of how
agrarian reform, productivity in agriculture and economic growth go
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together – the average landholding is about 1.5 hectares and no farm is
more than one kilometer away from a road.
The Constitution recognizes the strong linkage between industrialization
and economic progress (full employment) and agricultural and agrarian
reform in the second paragraph of Article XII, Section 1, on the National
Economy:
The State shall promote industrialization and full employment based on
sound agricultural development and agrarian reform x x x.
That is the link. You cannot even have industrialization unless you have
sound agricultural development and agrarian reform. This sentence in the
Constitution which is in the economic provisions and not in the social
provisions provides the link. The economic provision seeks to lift us as a
nation and the social justice provision seeks to distribute the fruits of
economic progress.
In summary, if we go back to the original question posed in the beginning of
this session about the apparent conflicting rights of farmers and
farmworkers and those of landowners in the implementation of agrarian
reform, the answer is provided by the Constitution itself – the landowner
gets just compensation (which is a huge concession, given the resources of
the government which has to subsidize it) and the farmer gets the land (that
is why I was critical of the way CARP allowed the “corporatization” window
that Hacienda Luisita availed of because the farmers never get to control
the land). The power of the State can be used to make sure that happens –
taxation, expropriation, and if necessary, the exercise of police power, and
by providing the resources for the farmers to own the land and to succeed
in farming it.
In closing, may I say that I do not envy the agrarian reform officials who are
at the frontlines of the legal and moral dilemmas that abound in concrete
situations in the field. It is easy enough for many of us to know what to do
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when observing situations from a distance. But as a commentator said
about former President Clinton and his newly published book, “His integrity
is at its highest when the situation is at its most hypothetical.”

I wish them all the best in the difficult task of addressing the problems at
the ground level, which are certainly far from being hypothetical.

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