34 THE PHILJA JUDICIAL JOURNAL [VOL.

8:24

T he Social and Constitutional Conte xt

Context
of Ag rarian R
Agrarian ef or
efor
Ref ormm∗

Hon. 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.
∗
Delivered at the First Multi-Sectoral Seminar-Workshop on
Agrarian Justice on November 9, 2005 at the Development
Academy of the Philippines, Tagaytay City.
∗∗
Honorable Christian S. Monsod was a former Member of the
the 1986 Constitutional Commission and former Chairperson
of the Commission on Elections. He earned his Bachelor of
Laws from the University of the Philippines, and Master of
Arts in Economics from the University of Pennsylvania in 1963
where he was a University Scholar. He also earned his Doctor
of Laws and Doctor of Humanities (honoris causa) from Ateneo
de Manila University in 1995 and 1993, respectively. He was
an awardee of the 1975 Ten Outstanding Young Men (TOYM)
and was awarded Man of the Year in 1992 by the Catholic
Educators Association of the Philippines. He was given a special
citation for leadership and invaluable contribution to democracy,
development and peace by the Aurora Aragon Quezon
(Concerned Women of the Philippines) and another special
citation for exemplary performance in government service by
the Joaquin “Chino” Roces Foundation.
2006] THE SOCIAL AND CONSTITUTIONAL 35
CONTEXT OF AGRARIAN REFORM

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 vv.. Williams
illiams:
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 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.
36 THE PHILJA JUDICIAL JOURNAL [VOL. 8:26

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:
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.
2006] THE SOCIAL AND CONSTITUTIONAL 37
CONTEXT OF AGRARIAN REFORM

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 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.
38 THE PHILJA JUDICIAL JOURNAL [VOL. 8:26

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).
2006] THE SOCIAL AND CONSTITUTIONAL 39
CONTEXT OF AGRARIAN REFORM
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 is 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
40 THE PHILJA JUDICIAL JOURNAL [VOL. 8:26

structures built up through the years which cannot be

dismantled except through asset reform such as
redistribution of land.
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.
2006] THE SOCIAL AND CONSTITUTIONAL 41
CONTEXT OF AGRARIAN REFORM

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.
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.
1. NEW CIVIL CODE, Art. 428.
2. Id. Art. 429.
3. Id. Art. 440.
4. Id. Art. 478-481.
42 THE PHILJA JUDICIAL JOURNAL [VOL. 8:26

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 cut-
off 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 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.
2006] THE SOCIAL AND CONSTITUTIONAL 43
CONTEXT OF AGRARIAN REFORM

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 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
44 THE PHILJA JUDICIAL JOURNAL [VOL. 8:26

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 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.