Exemptions and Exclusions

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

enumerates the exemptions and exclusions from CARP, as follows:

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

life, forest reserves, reforestation, fish sanctuaries and breeding
grounds, watersheds and mangroves (Rep. Act No. 6657 [1988], sec. 10
[a], as amended by Rep. Act No. 7881 [1995]).

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

farms and fishponds: Provided, That said prawn farms and fishponds
have not been distributed and Certificate of Land Ownership Award
(CLOA) issued to agrarian reform beneficiaries (ARBs) under CARP
(Sec. 10 [b]).

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

necessary for national defense, school sites and campuses, including
experimental farm stations operated by public or private schools for
educational purposes, seeds and seedling research and pilot production
center, church sites and convents appurtenant thereto, mosque sites and
Islamic centers appurtenant thereto, communal burial grounds and
cemeteries, penal colonies and penal farms actually worked by the
inmates, government and private research and quarantine centers and all
lands with eighteen percent (18%) slope and over, except those already
developed (Sec. 10 [c]).

Lands devoted to raising of livestock, swine and poultry.

The Luz Farms Case.

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

definition of agricultural activity the "raising of livestock, poultry or fish".
Likewise, the original Sec. 11 of RA 6657 on commercial farming provided
that "lands devoted to commercial livestock, poultry and swine raising shall be
subject to compulsory acquisition within ten (10) years from the effectivity of
the Act." However, the Supreme Court in Luz Farms vs. Secretary of Agrarian
Reform, supra, held that Sec. 3 (b) and Sec. 11 of RA 6657 (along with Sec. 13
and 32) are unconstitutional in far as they include the raising of livestock and
swine in the coverage of CARP.

Luz Farms vs. Secretary of the Department of Agrarian

Reform
192 SCRA 51 (1990)
 Facts:

Petitioner Luz Farms is a corporation engaged in livestock and

poultry business. It seeks to nullify Sec. 3 (b) and Sec. 11 of RA
6657 in so far as they apply to livestock and poultry business.

Held:

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

they include lands devoted to raising livestock, swine and poultry
within its coverage. The use of land is incidental to but not the
principal factor or consideration of productivity in this industry. The
Supreme Court held that:

The transcripts of deliberations of the Constitutional Commission of

1986 on the meaning of the word "agricultural," clearly show that it
was never the intention of the framers of the Constitution to include
livestock and poultry industry in the coverage of the constitutionally-
mandated agrarian reform program of the government.

The Committee adopted the definition of "agricultural land" as

defined under Section 166 of RA 3844, as land devoted to any
growth, including but not limited to crop lands, saltbeds, fishponds,
idle and abandoned land (Record, CONCOM, August 7, 1986, Vol.
III, p. 11).

The Supreme Court noted that the intention of the Committee to limit
the application of the word "agriculture" is further shown by the
proposal of Commissioner Jamir to insert the word "arable" to
distinguish this kind of agricultural land from such lands as
commercial and industrial lands and residential properties. The
proposal, however, was not considered because the Committee
contemplated that agricultural lands are limited to arable and suitable
agricultural lands and therefore, do not include commercial,
industrial and residential lands (Record, CONCOM, 7 August 1986,
Vol. III, p. 30).

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

Commissioner Tadeo clarified that the term "farmworker" was used
instead of "agricultural worker" in order to exclude therein piggery,
poultry and livestock workers (Record, CONCOM, August 2, 1986,
Vol. II, p. 621).

DAR AO 9 (1993) imposes two (2) conditions in order that these lands may
be exempted: (a) that the land or portion thereof is exclusively, directly, or
actually used for livestock, poultry and swine raising as of 15 June 1988; and
(b) the farm must satisfy the ratios of land, livestock, poultry and swine, as
follows:

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

hectare; 21 heads for every
1.7815 hectares of infrastructure
sheep and goat raising 7 heads to 1 hectare; 147
heads for every 0.7205 hectare
of infrastructure
swine raising 21 heads of hogs for every
0.5126 hectare of infrastructure
poultry raising 500 layers for every 0.53
hectare of infrastructure or 1000
boilers for every 1.428 hectares
of infrastructure

Fishponds and prawn ponds

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

fishponds and prawnponds are also exempted from the coverage of CARP,
provided that said lands have not been distributed to ARBs and no CLOAs
have been issued.

To be exempted, the agricultural land must have been actually, directly and
exclusively used for prawn farms and fishponds as of 12 March 1995, the date
of effectivity of RA 7881. To avail of the exemption, a landowner or his
authorized representative still has to file a written application for land
exemption/exclusion with the DAR Provincial Office (DAR Adm. O. No. 3
[1995]).

In cases were the fishponds or prawn farms have been subjected to CARP,
by voluntary offer to sell, commercial farms deferment or notice of compulsory
acquisition, they can be exempt from CARP if a simple and absolute majority
of the actual regular workers or tenants consent to the exemption within one (1)
year from the effectivity of RA 7881 or on 12 March 1995. In cases where the
fishponds or prawnponds have not been subjected to CARP, the consent of the
farm workers shall no longer be necessary (Rep. Act No. 6657 [1988], sec.
10[b], as amended).

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

mandating the introduction of an incentive plan for employees of all fishponds
and prawn farms. Operators and entities owning or operating fishponds and
prawn farms are directed to execute within six (6) months from its effectivity
an incentive plan with their regular fishpond or prawn farm worker's
organization, if any, whereby seven point five percent (7.5%) of net profits
before tax from the operation of the fishpond or prawn farms are distributed
within sixty (60) days at the end of the fiscal year as compensation to regular
and other pond workers over and above their current compensation. This
incentive plan requirement, however, does not apply to agricultural lands
subsequently converted to fishponds or prawn farms provided that the size of
the land converted does not exceed the retention limit of the landowner.

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

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

Supreme Court passed upon the exemption of lands directly, actually and
exclusively used and found to be necessary for school sites and campuses,
including experimental farm stations operated by public or private schools for
educational purposes provided for under Sec. 10 of RA 6657, as amended.

Central Mindanao University vs. Department of Agrarian

Reform Adjudication Board
215 SCRA 86 (1992)

Facts:

On 16 January 1958, President Carlos Garcia issued Proclamation

No. 467 reserving for the Mindanao Agricultural College, now the
CMU, a piece of land to be used as its future campus. In 1984, CMU
embarked on a project titled "Kilusang Sariling Sikap" wherein
parcels of land were leased to its faculty members and employees.
Under the terms of the program, CMU will assist faculty members
and employee groups through the extension of technical know-how,
training and other kinds of assistance. In turn, they paid the CMU a
service fee for use of the land. The agreement explicitly provided that
there will be no tenancy relationship between the lessees and the
CMU.

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

participants of the "Kilusang Sariling Sikap" for declaration of status
as tenants under the CARP. In its resolution, DARAB, ordered,
among others, the segregation of 400 hectares of the land for
distribution under CARP. The land was subjected to coverage on the
basis of DAR's determination that the lands do not meet the condition
for exemption, that is, it is not "actually, directly, and exclusively
used" for educational purposes.

Issue:
 Is the CMU land covered by CARP? Who determines whether lands
reserved for public use by presidential proclamation is no longer
actually, directly and exclusively used and necessary for the purpose
for which they are reserved?

Held:

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

resolve and answer the question of when and what lands are found
necessary for its use. The Court also chided the DARAB for
resolving this issue of exemption on the basis of "CMU's present
needs." The Court stated that the DARAB decision stating that for
the land to be exempt it must be "presently, actively exploited and
utilized by the university in carrying out its present educational
program with its present student population and academic faculty"
overlooked the very significant factor of growth of the university in
the years to come. SHECcT

The CMU case is unique as it involves land transferred by the state to CMU
through PD 467 which provided for its commitment to a specific use and
purpose. Thus, the said land was already set aside for a specific purpose and, in
effect, was taken outside the coverage of agrarian reform by law. It is
submitted that a more accurate basis for the exemption should have been that
the exclusive use of the land both present and future has been determined
by law, and not because of the determination of the CMU of what it needs and
how it intends to use it.

In ruling that the CMU is in the best position to determine the use of the
land and not DAR, the Supreme Court seems to have overlooked EO 407
(1990), as amended by EO 448 (1991), which provides that DAR is vested with
the power to determine whether lands reserved for public uses by presidential
proclamation is no longer actually, directly and exclusively used and necessary
for the purpose for which they are reserved. Said EO provides that:

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

Presidential proclamations for specific public uses by the
government, its agencies and instrumentalities, including
government-owned or controlled corporations suitable for agriculture
and no longer actually, directly and exclusively used or necessary for
the purposes for which they have been reserved, as determined by the
Department of Agrarian Reform in coordination with the government
agency or instrumentality concerned in whose favor the reservation
was established, shall be segregated from the reservation and
transferred to the Department of Agrarian Reform for distribution to
 qualified beneficiaries under the Comprehensive Agrarian Reform
Program.

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

determine whether the purpose or use for which the lands reserved continues to
exist and therefore establish if they continue to be exempt from CARP
coverage.

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

institutions need not be actually, directly and exclusively used for educational
or research purposes at the time of the effectivity of the RA 6657 to be exempt
from CARP also fails to consider Sec. 10 of RA 6657. Sec. 10 is explicit that
only those lands that are "actually, directly, and exclusively" used and found
necessary for the uses enumerated therein are exempt from CARP coverage. A
literal interpretation of the provision implies that the exemption applies only to
those lands already committed for the enumerated purposes at the date of the
effectivity of law on 15 June 1988. Thus, agricultural land acquired by
academic institutions for academic, educational, or research purposes after 15
June 1988, or those owned by them but not committed exclusively, actually,
and directly to the abovementioned uses before or on such date, are covered by
CARP. For its exclusion from acquisition and distribution, and for its
commitment to said purposes, the institution may file before DAR for clearance
to convert these lands into non-agricultural use.

Lands with 18% slope

Lands with 18% slope or over are exempt from CARP coverage unless these
are found to be agriculturally developed as of 15 June 1988.

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

Code of the Philippines," which provides that lands with a slope of 18% or over
are generally reserved as forest lands. Sec. 15 thereof states that "no land of the
public domain eighteen per cent (18%) in slope or over shall be classified as
alienable and disposable" and that "lands eighteen per cent (18%) in slope or
over which have already been declared as alienable and disposable shall be
reverted to the classification of forest lands by the Department Head, to form
part of the forest reserves, unless they are already covered by existing titles or
approved public land application, or actually occupied openly, continuously,
adversely and publicly for a period of not less than thirty (30) years as of the
effectivity of this Code, where the occupant is qualified for a free patent under
the Public Land Act.

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

June 1988, the same shall be allocated to the qualified applicants in the
following manner:
 a) If land is classified as forest land, and therefore is inalienable and
indisposable, this shall be allocated by the DENR under its Integrated
Social Forestry Program;

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

the Land Management Bureau-DENR and DAR pursuant to the
provisions of CA 141 and the Joint DAR-DENR AO 2 (1988); and

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

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

Effects of exemption

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

from the coverage of CARP. However, there are two (2) contending views on
whether these exempted or excluded lands are perpetually taken out from
coverage of the CARP.

The first view is that lands exempted or excluded from the law are
permanently taken out from coverage of the CARP. The basis of this
interpretation is the phraseology of Sec. 10 which states that exempted lands
are "exempt from the coverage of the law." The legal effect of this
interpretation is that the owner can use and dispose the land as he deems fit
without the need for any clearance from DAR.

The second view is that excluded and exempted lands can be covered by
CARP when the reason for their exemption ceases to exist. Thus, when the
reason for exemption ceases to exist for lands exempt under the Luz Farms
ruling or Sec. 10, as amended by RA 7881 (except lands with 18% slope), they
are removed from the exemption and are treated like any other agricultural
land.

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

RA 6657 and the Luz Farms ruling are considered agricultural lands as defined
by Sec. 3 (c) of RA 6657, that is, they are in fact suitable to agriculture and not
classified as mineral, forest, residential, commercial or industrial lands, but are
exempt or excluded from CARP by reason of their actual use and their
necessity for other purposes. Thus, in the event that these lands cease to be
used or necessary for the purposes for which they are exempted, they are
removed from the application of Sec. 10 and are then subject to CARP
coverage.

The second view is anchored on the spirit and intent of the law to cover all
agricultural lands suitable to agriculture. Moreover, as RA 6657 is a social
welfare legislation the rules of exemptions and exclusions must be interpreted
restrictively and any doubts as to the applicability of the law should be resolved
in favor of inclusion.

In either case, the security of tenure of tenants enjoyed prior to 15 June 1988
shall be respected even when the lands are exempted. As to farmworkers, the
exemption of the land shall not cause the loss of the benefits to which they are
entitled under other laws. In addition, they are granted preference in the award
of other lands covered by CARP (DAR Adm. O. No. 13 [1990], part II).

Homesteads

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

Alita vs. Court of Appeals

170 SCRA 706 (1989)

Facts:

Subject matter of the case consists of two (2) parcels of land acquired
by respondents' predecessors-in-interest through homestead patent
under the provisions of CA 141. Respondents wanted to personally
cultivate these lands, but the petitioners refused to vacate, relying on
the provisions of PD 27 and PD 316 and appurtenant regulations
issued by the then Ministry of Agrarian Reform.

Issue:

Are lands obtained through homestead patent covered under PD 27?

Held:

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

the soil and transferring to them ownership of the land they till, the same
cannot be invoked to defeat the very purpose of the enactment of the Public
Land Act or CA 141. In Patricio v. Bayog, 112 SCRA 45, it was held that:

The Homestead Act has been enacted for the welfare and
protection of the poor. The law gives a needy citizen a piece of land
where he may build a modest house for himself and family and
plant what is necessary for subsistence and for the satisfaction of
life's other needs. The right of the citizens to their homes and to the
things necessary for their subsistence is as vital as the right to life
itself. They have a right to live with a certain degree of comfort as
become human beings, and the State which looks after the welfare
of the people's happiness is under a duty to safeguard the
satisfaction of this vital right.

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

Section 6. The State shall apply the principles of agrarian

reform or stewardship, whenever applicable in accordance with law,
in the disposition or utilization of other natural resources, including
lands of public domain under lease or concession suitable to
agriculture, subject to prior rights, homestead rights of small
settlers, and the rights of indigenous communities to their ancestral
lands.

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

inapplicability of PD 27 to lands covered by homestead patents like those of
the property in question, reading:

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

original homestead grantees or their direct compulsory heirs who
still own the original homestead at the time of the approval of this
Act shall retain the same areas as long as they continue to cultivate
said homestead.

xxx xxx xxx

While homestead lots are declared exempt under PD 27, they are not
expressly declared as such under RA 6657. However, Sec. 6 of RA 6657
provides that homesteaders are allowed to retain the total homestead lot subject
to the conditions provided in the same section and as set DAR MC 4 (1991), to
wit:

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

heirs still own the land on 15 June 1988;

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

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

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

exempted from PD 27 or retained under RA 6657 shall not be ejected
therefrom but shall remain as leaseholders therein.

Schedule of Implementation
 Sec. 7 of RA 6657 lays out the schedule of acquisition and distribution of all
agricultural lands through a period of ten (10) years from the effectivity of the
Act:

Phase Lands Covered

Schedule
I Rice and corn lands under Presidential 1988-
1992
Decree No. 27;
all idle or abandoned lands;
all private lands voluntarily offered by the owners
for agrarian reform;
all lands foreclosed by the government financial
institutions;
all lands acquired by the Presidential Commission
on Good Government (PCGG); and
all other lands owned by the government devoted
to or suitable for agriculture

II All alienable and disposable public agricultural 1992-

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

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

1992
hectares up to fifty hectares; and

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

1998
retention limit up to 24 hectares

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

implementation of the CARP law, this provision should be interpreted as
merely directory, rather than mandatory in character. This is the gist of DOJ
Opinion No. 9 (1997). It has been held that the difference between a
mandatory and a directory provision is often determined on grounds of
expediency. Where a provision embodies a rule of procedure rather than
one of substance, the provision as to time will be regarded as directory only
notwithstanding the mandatory nature of the language used. Sec. 5 of RA
6657 is more procedural in nature than substantive. The ten (10)-year
period is merely a time frame given to DAR for the acquisition and
distribution of public and private agricultural lands covered by RA 6657. It
is merely a guide to DAR in setting its priorities, and it is not, by any
 means, a limitation of its authority. Hence, Sec. 5 of RA 6657 should not be
construed as a prescriptive period, the lapse of which bars the DAR from
covering the land under CARP.

Thus, DAR need not wait for the full coverage of those lands in the first
phase before those in the succeeding phases could be covered. DAR may also
proceed with the coverage of lands in different phases simultaneously.

In view of the passing of the ten (10)-year period in 1998, Congress passed RA
8532 (1998) providing for the funding for land acquisitions for another ten (10)
years.

Idle or abandoned lands

Sec. 22 of Art. XVIII of the 1987 Constitution and Sec. 18 (h) of EO 229
prioritizes the immediate expropriation or acquisition of idle or abandoned
lands.

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

land not cultivated, tilled or developed to produce any crop nor devoted to any
specific economic purpose continuously for a period of three (3) years
immediately prior to the receipt of notice of acquisition by the government as
provided under RA 6657. However land that has become permanently or
regularly devoted to non-agricultural purposes is not to be considered as idle or
abandoned. Neither can it be considered as abandoned or idle any land which
has become unproductive by reason of force majeure or any other fortuitous
event, provided that prior to such event, such land was previously used for
agricultural or other economic purpose."

Lands owned by government

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

Corazon C. Aquino issued EO 407 (1990) directing all government
instrumentalities, government agencies, government owned and controlled
corporations or financial institutions to transfer to the Republic of the
Philippines, through the DAR, all landholdings suitable for agriculture. Sec. 3
of EO 407 (1990) likewise provides for the redistribution and award of
fishponds, pasturelands and other lands of public domain suitable for
agriculture subject of cancelled or amended lease agreement to the agrarian
reform beneficiaries. EO 448 (1991) and EO 506 (1992) amended EO 407 by
including all lands or portions thereof reserved by virtue of presidential
proclamations for specific public uses by the government, its agencies and
instrumentalities, and no longer actually, directly and exclusively used or
necessary for the purposes for which they have been reserved. These also
excluded national parks and other protected areas, proposed national parks,
game refuge, bird sanctuaries, wild-life reserves, wilderness areas and other
protected areas, including old growth or virgin forests and all forests above
1,000 meters elevation or above 50 percent slope until such time that they are
segregated for agricultural purposes or retained under the National Integrated
Protected Areas System.

Commercial farms

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

farms. Deferred commercial farms shall be subject to immediate compulsory
acquisition and distribution after ten (10) years from the effectivity of RA 6657
on 15 June 1988. For new farms, the ten (10)-year deferment will begin from
the first year of commercial production and operation.

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

planted to commercial crop or devoted to commercial farming operations
before 15 June 1988. DAR AO 16 (1988) provided a 60-day period for the
filing of applications of deferment which lapsed on 2 May 1989.

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

lands to redistribution when it determines that the purpose for which deferment
is granted no longer exists as when the particular farm areas ceases to be
commercially productive. During the deferment period, the DAR shall initiate
steps to acquire the lands. Final land transfer to the beneficiaries shall be
effected at the end of the deferment period. The acquisition and distribution of
these deferred commercial farms are governed by DAR AO 9 (1998).

Retention

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

agricultural lands for agrarian reform to "reasonable retention limits as
Congress may prescribe. Sec. 6 of RA 6657 operationalizes this mandate and
observes the right of persons to own, or retain, directly or indirectly public or
private agricultural land, the size of which shall vary according to factors
governing a viable family-size farm in such as commodity produced terrain,
infrastructure, and soil fertility, but in no case shall exceed five (5) hectares.

The retention limits under Sec. 6 of RA 6657 covers all persons whether
natural or juridical. Juridical persons like corporations and partnerships are
therefore subject to the five (5)-hectare limit.

With respect to married couples, their maximum retention limit is

determined by the nature of their property relations. For marriages covered by
the New Civil Code, in the absence of an agreement for the judicial separation
of property, spouses who own only conjugal properties may retain a total of not
more than five (5) hectares of such properties. However, if either or both of
them are landowners in their own respective rights (capital and/or paraphernal),
they may retain not more than five (5) hectares of their respective landholdings.
In no case, however, shall the total retention of such couple exceed ten (10)
hectares. (DAR Adm. O. No. 5 [2000], sec. 9 [g]).

For marriages covered by the Family Code, which took effect on 3 August
1988, a husband owning capital property and/or a wife owning paraphernal
property may retain not more than five (5) hectares each provided they
executed a judicial separation of properties prior to entering into the marriage.
In the absence of such an agreement, all properties (capital, paraphernal and
conjugal) shall be considered to be held in absolute community, i.e., the
ownership relation is one, and, therefore, only a total of five (5) hectares may
be retained. (DAR Adm. O. No. 5 [2000], sec. 9 [h]).

The five (5)-hectare retention limit applies to all lands regardless of how
acquired (i.e., by purchase, award, succession, donation) as the law does not
distinguish. Thus, a child who was awarded three (3) hectares as a preferred
beneficiary under Sec. 6 of RA 6657 and subsequently acquires a five (5)-
hectare landholding of his parent by succession can retain only five (5) hectares
of the total landholding.

Landowners have the obligation to cultivate directly or through labor

administration, and thereby make productive the area he retains. He is also
prohibited from making any constructions therein or commit it to purposes
incompatible with its agricultural nature. Before a landowner can commit the
retained land to non-agricultural purposes, he must first secure a conversion
order from DAR, otherwise he can be held liable for premature conversion (see
DAR Adm. O. No. 1 [1999]).

Award to children

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

subject to the following qualifications:

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

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

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

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

of the land through personal supervision under the system of labor
administration. DHcESI

The award to the child is not to be taken from the retained land of the
landowner and is awarded to the child in his own right as a beneficiary. Thus,
the award is not automatic. The child is merely given a preference over other
beneficiaries.
 As the right of the child is derived from his being a beneficiary, he must not
only meet the requirements of preference laid out in Sec. 6 of RA 6657, but
also all the other qualifications of a beneficiary enumerated under Sec. 22 of
RA 6657. Thus, he must also be landless, a resident of the barangay or
municipality where the land is located, and must have the willingness, aptitude
and ability to cultivate and make the land as productive as possible. Moreover,
he is subject to the same liabilities, responsibilities and limitations imposed on
all agrarian reform beneficiaries.

Exceptions to the 5-hectare retention limit

The five (5)-hectare retention limit under RA 6657 does not apply to
original homestead grantees or their direct compulsory heirs at the time of the
approval of RA 6657 who continue to cultivate the same, and to those entitled
to retain seven (7) hectares under PD 27.

In the Association cases, the Supreme Court held that landowners who
failed to exercise their rights to retain under PD 27 can avail of their rights of
retention under Sec. 6 of RA 6657 and retain only five (5) hectares. However,
in the resolution of the Supreme Court on the motion for consideration in the
said case, the Court qualified that those who, prior to the promulgation of RA
6657, complied with the requirements under Letter of Instruction (LOI) Nos.
41, 45 and 52 regarding the registration of the landholdings, shall be allowed to
enjoy the seven (7) hectare retention limit. All those who refused to comply
with the requirements cannot, in view of the passage of CARL, demand that
their retention limit be determined under PD 27.

Thus, the following OLT owners are still entitled to retain seven (7) hectares
even if they exercised their right of retention under PD 27 after 15 June 1988:

a) Those landowners who complied with the requirement of either LOI 41,
45 or 52;

b) Those who filed their applications before the deadline set (27 August
1985 as provided by AO. 1 [1985]) whether or not they have complied with
LOI Nos. 41, 45 or 52;

c) Those who filed their applications after the deadline but complied with
the requirements of LOI 41, 45 or 52; and

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

intention to exercise the right of retention prior to 23 August 1990 (the finality
of the Supreme Court decision in Association of Small Landowners vs. Hon.
Secretary of DAR; supra) (DAR Adm. O. No. 4 [1991]).

Exercise of right of retention

 While Sec. 6 of RA 6657 acknowledges the right of the landowners to
choose the area to be retained, it requires that the area be compact and
contiguous, and shall be least prejudicial to the entire landholding and the
majority of the farmers therein (DAR Adm. O. No. 5 [2000], sec 2 [b]).

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

Acquisition (CA) scheme, the landowner shall exercise his right of retention
within sixty (60) days from receipt of the Notice of Coverage from DAR.
Failure to exercise this right within the prescribed period means that the
landowner waives his right to choose which area to retain. Thereafter, the
Municipal Agrarian Reform Officer (MARO) shall designate the retained area
for the landowner.

Under the Voluntary Offer to Sell (VOS) scheme, the right of retention shall
be exercised at the time the land is offered for sale. The offer should specify
and segregate the portion covered by VOS and the portion applied for
retention; otherwise, the landowner shall be deemed to have waived his right of
retention over the subject property (DAR Adm. O. No. 5 [2000], sec. 4).

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

and the security of tenure of the farmers or farmworkers on the land prior to the
approval of RA 6657 shall be respected (DAR Adm. O. No. 5 [2000], sec. 2
[c]).

In case the area selected by the landowner or awarded for retention by the
DAR is tenanted, the tenant has two (2) options:

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

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

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

similar or comparable features.

The tenant must exercise either option within one (1) year after the
landowner manifests his choice of the area for retention, or from the time the
MARO has chosen the area to be retained by the landowner, or from the time
an order is issued granting the retention (DAR Adm. O. No. 5 [2000], sec. 10).

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

declines to enter into leasehold and there is no available land to transfer, or if
there is, the tenant refuses the same, he may choose to be paid disturbance
compensation by the landowner.

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

Certificates of Land Ownership Award (CLOAs) have already been issued on
the land chosen by the landowner as retention area, the DAR shall immediately
inform the agrarian reform beneficiaries (ARBs) concerned and provide them
the opportunity to contest the landowner's claim. Moreover, the DAR shall
ensure that the affected ARBs, should they so desire, be given priority in the
distribution of other lands of the landowner or other lands identified by the
DAR for redistribution, subject to the rights of those already in the area (DAR
Adm. O. No. 5 [2000], sec. 11)

Waiver of right of retention

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

waiver on the landowner's right of retention:

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

by the MARO, Provincial Agrarian Reform Officer (PARO) or
Regional Director (RD) indicating that he is expressly waiving his
retention right over subject landholding;

b) Signing of the Landowner-Tenant Production Agreement and

Farmer's Undertaking (LTPA-FU) or Application to Purchase and
Farmer's Undertaking (APFU) covering subject property;

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

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

d) Offering the subject landholding under VOS scheme and failure

to indicate his retained area;

e) Signing/submission of other documents indicating consent to

have the entire property covered, such as the form letter of the LBP on
the disposition of the cash and bond portions of a land transfer claim for
payment, and the Deed of Assignment, warranties and undertaking
executed in favor of the LBP;

f) Performing acts which constitute estoppel by laches; and

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

accordance with applicable laws and jurisprudence.

Public Lands

Public lands pertain to all lands that were not acquired by private persons or
corporations either by grant or purchase. These lands are either (a) disposable
(alienable) public lands or (b) non-disposable public lands.

CA 141 (1936), otherwise known as the "Public Land Act", governs the
administration and disposition of lands of the public domain. Sec. 9 thereof
classifies alienable or disposable lands of the public domain as (a) agricultural;
(b) residential, commercial, industrial or for similar productive purposes; (c)
educational, charitable, or other similar purposes; or (d) reservations for town
sites and for public and quasi-public uses.

Non-disposable public lands or those not susceptible of private

appropriation and include the following: (a) timber lands which are governed
by PD 705 (1975) or the Revised Forestry Code; and (b) mineral lands which
are governed by RA 7942 (1995) or the Philippine Mining Act of 1995 and
other related laws.

All lands of the public domain are under the exclusive jurisdiction of the
DENR except those placed by law and/or by executive issuances under the
jurisdiction of other government agencies. Under Sec. 3 and 5 of CA 141, the
Secretary of Agriculture and Natural Resources (now the Secretary of DENR)
is the executive officer charged with carrying out the provisions of the Public
Land Act. It is empowered to prepare and issue such forms, instructions, rules
and regulations consistent with the Public Land Act. Sec. 6 of CA 141 (see also
EO 192 [1987]) reserves the power to classify lands in the public domain into
either agricultural (disposable), timber or mineral lands to the President, with
the recommendation of the Secretary of DENR.

Under Sec. 4 of RA 6657, public and private agricultural lands and lands of
the public domain suitable for agriculture are covered by CARP. It provides,
among others, that all alienable and disposable lands of the public domain
devoted or suitable or devoted to agriculture (Sec 4 [a]) and all lands of the
public domain in excess of the specific limits of the public domain as
determined by Congress (Sec. 4 [b]) shall be covered by CARP. It has also
been determined that public agricultural lands that are untitled and privately
claimed are covered by CARP. In response to a query by DAR, the Department
of Justice issued Opinion No. 176 (1992) which stated:

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

application of the law where non is indicated therein (SSS vs. City of
Bacolod, 115 SCRA 412) . . . By said rule, the term "private agricultural
lands" in the aforementioned section should be interpreted as including all
private lands, whether titled or untitled. . . .

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

the DAR over the disposition of these lands. RA 6657 mandates DAR to
acquire and distribute these public lands to agrarian beneficiaries while CA 141
vests upon the DENR the power to control, survey, classification, lease, sale or
any other form of concession or disposition and management of the lands of the
public domain.
 To resolve the overlapping mandates of the DENR and DAR in the
disposition and distribution of public lands for CARP purposes, the two
agencies issued Joint DAR-DENR MC 9 (1995) which recognizes that lands of
the public domain are under the jurisdiction of the DENR unless placed by law
and/or by executive issuances under the jurisdiction of other government
departments or entities. Under the said circular, the disposition of non-
registrable lands of the public domain is the exclusive responsibility of the
DENR under its various programs (i.e., the Integrated Social Forestry). In this
instance, the role of the DAR is to assist the DENR in identifying and
screening of farmer beneficiaries. The responsibility and authority of DAR to
distribute public lands shall be limited to the following:

a) Lands proclaimed by the President as DAR Resettlement Projects

and placed under the administration of the DAR for distribution to
qualified farmer beneficiaries under CARP;

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

and

c) Lands previously proclaimed for the various government

departments, agencies and instrumentalities and subsequently turned
over to the DAR pursuant to EO 407 (1990), as amended by EO 448
and 506.

Untitled public alienable and disposable lands are still within the exclusive
jurisdiction of DENR pursuant to CA 141. However, in accordance with DOJ
Opinion No. 176 (1992), Joint DAR-DENR MC 14 (1997) provides that all
untitled public alienable and disposable lands are deemed "private" if the
criteria specified in RA 6940 for the determination of whether or not a person
has already acquired a recognizable private right over a landholding is met,
namely:

a) Continuous occupancy and cultivation by oneself or through

one's predecessors-in-interest for at least thirty (30) years prior to the
effectivity of RA 6940 on 16 April 1990;

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

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

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

d) There are no adverse claims on the land.

For these privately claimed public alienable and disposable lands, the
DENR first issues a Free Patent to qualified applicants for the retained area of
not more than five (5) hectares. The DAR shall then cover the excess area and
issue a CLOA or EP and distribute these to qualified beneficiaries. TcCDIS
 For untitled public alienable and disposable lands which are tenanted and
with claimants not qualified under the criteria specified in RA 6940, the
disposition shall be under the jurisdiction of the DENR. The role of the DAR in
this case is limited to the documentation and protection of the leasehold
arrangement between the public land claimant and the tenants.

If the alienable and disposable land is not tenanted but has actual farm
occupants, and the public land claimant lacks the requisite thirty (30)-year
possession, these shall be under the jurisdiction of the DENR and the
appropriate tenurial instrument shall be applied.

It is submitted, however, that these alienable and disposable lands that are
privately claimed by claimants who are not qualified under the criteria set
under RA 6940 (1990) should be turned over to DAR for distribution under
CARP. As these claimants/tenants are mere occupants and can not be granted
Free Patents by the DENR, these land should instead be committed for agrarian
purposes.

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

all Alienable ad Disposable Lands of the Public Domain," seems to abrogate or
set aside Joint DAR-DENR MC 14 (1997). It directs all Regional Executive
Directors to strictly exercise DENR's jurisdiction over all alienable and
disposable lands of the public domain, including those lands not specifically
placed under the jurisdiction of other government agencies, and prepare the
same for disposition to qualified and legitimate recipients under the People's
Alliance for the Rehabilitation of Environment of the Office of the Secretary of
the DENR.

This recent issuance impliedly prohibits the turnover of alienable and

disposable lands to CARP, and thus, effectively removes remaining public
alienable and disposable lands out of the scope of CARP. While merely an
administrative order that can not overturn legislation on the matter, DENR MC
22 (1999) poses another roadblock which if not corrected or legally challenged
in court can derail the already delayed coverage of public agricultural lands.
Sec. 7 of RA 6657 explicitly provides that alienable and disposable public
agricultural lands are among the priority lands for distribution. Needless to say,
the political implications of government's reluctance to commit public
agricultural lands for agrarian ends in the face of its relentless expropriation of
private landholdings is serious.

Ancestral Lands

Sec. 9 of RA 6657 defines ancestral lands as those lands that include, but
not limited to, lands in actual, continuous and open possession of an indigenous
cultural community and its members. Sec. 3 (b) of RA 8371 (1997) or the
"Indigenous Peoples Rights Act of 1997," has a more encompassing definition,
to wit:
 Sec. 3. Definition of Terms. . . .

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

occupied, possessed and utilized by individuals, families, and clans
who are members of the ICCs/IPs (indigenous cultural
communities/indigenous peoples) since time immemorial, by
themselves or through their predecessors-in-interests, under claims of
individual or traditional group ownership continuously, to the
present, except when interrupted by war, force majeure or
displacement by force, deceit, stealth or as a consequence of
government projects and other voluntary dealings entered into by
government and private individuals/corporations, including, but not
limited to, residential lots, rice terraces or paddies, private forests,
swidden farms and treelots;

Policy for ancestral lands under CARP

CARP ensures the protection of the right of ICCs/IPs to their ancestral lands
to ensure their economic, social and cultural well being. Systems of land
ownership, land use, and modes of settling land disputes of the ICCs/IPs shall
be recognized and respected in line with principles of self-determination and
autonomy.

The Presidential Agrarian Reform Committee (PARC), notwithstanding any

law to the contrary, has the power to suspend the implementation of the CARP
with respect to ancestral lands for the purpose of identifying and delineating
such lands. It shall also respect laws on ancestral domain enacted by the
respective legislators of autonomous regions, subject to the provisions of the
Constitution and the principles enunciated in RA 6657 and other national laws.

However, the full protection of the rights of the ICCs/IPs to their ancestral
lands under CARP is hampered by various legal constraints. For one, while
Sec. 9 respects or protects the rights of the ICCs/IPs to their ancestral lands as
means to protect their economic, social and cultural well-being, its definition of
ancestral lands is circumscribed by the limitation that the Torrens System shall
be respected. This is a fundamental legal setback to the rights of ICCs/IPs. It
should be noted that the vested rights of these communities to ancestral lands
have been recognized to have pre-existed the Regalian Doctrine which underlie
the government's perspective to full ownership and control over natural
resources as well as the current legal system that regulates private property
rights.

CARP involves alienable and disposable lands only while ancestral lands of
ICCs/IPs encompass forest and mineral lands and other lands of the public
domain which are by definition inalienable and indisposable. Thus, the benefit
of being awarded CLOAs over ancestral lands to these ICCs/IPs are limited to
private agricultural lands and public agricultural lands transferred to DAR.

In any case, to promote and protect the rights of the ICCs/IPs over ancestral
lands situated in inalienable and indisposable public lands, DAR issues
member/s of the ICCs who are engaged in agricultural activities over the said
lands CARP Beneficiary Certificate (CBC). Though these do not vest title, it
likewise recognizes the claim of the ICC over these lands and allows them to
access support services from DAR.

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

ancestral lands which includes lands that are legally determined as indisposable
and inalienable public lands. RA 8371 is a clear departure from earlier law and
regulation for not only does it expand the definition of ancestral lands but
recognizes the right of the ICCs/IPs to own these lands. National Commission
on Indigenous Peoples (NCIP), a body created by RA 8371, is vested, among
others with the power and issue Certificates of Ancestral Domain/Land Titles
over ancestral lands.