June 9, 2004
DAR OPINION NO. 17-04
MEMORANDUM
TO : Director Gloria J. Fabia
Bureau of Land Acquisition and Distribution
SUBJECT : Proposed Amendment to the Memorandum of Agreement Executed by and Between the DAR, The City Government of Palayan and The Petitioning Group of Farmers, and The Draft Joint Executive Order on the Implementation of CARP in Palayan City
This refers to your Memorandum addressed to the BALA Director dated 24 March 2004 on the abovementioned subject, requesting for legal opinion as to the legality or propriety of adopting the findings and recommendations of the Task Force (TF) duly signed by the TF Chairman as binding for implementation by the DAR and the City Government of Palayan (CGP), considering that the issues may involve the relocation or transfer of any person to and from the landholding in dispute, which properly fall under DAR's mandate, under R.A. No. 6657 (Comprehensive Agrarian Reform Program Law).
In the related letter of Palayan City Mayor Ma. Lorelei C. Fajardo dated 15 December 2003 addressed to then DAR Secretary Roberto M. Pagdanganan, she stated/requested the following:
"Also we would like to request your office to amend a certain provision under the terms and conditions of the Memorandum of Agreement between DAR, the Petitioning Farmers Group and LGU-Palayan City, specifically on second page paragraph four, last sentence,
from to
The Task Force shall submit its The recommendations/resolutions
Recommendation to the DAR and duly signed by the Chairman of
CGP for approval; the task force shall be deemed
approved for implementation.
The reason behind this amendment is based on the premise that at least four members of the Task Force are already from DAR office, hence, to avoid another level of bureaucratic process where DAR and LGU need to approve again any of task force's recommendation, we believe that decisions which have been properly deliberated upon and studied by your personnel in the local level is sufficient enough to arrive at a final decision." (emphasis supplied)
In connection with the above, please be informed of the following provisions of law and guideline, to wit:
1. Section 50, R.A. No. 6657 (Comprehensive Agrarian Reform Law)
"Section 50. Quasi-Judicial Powers of the DAR — The DAR is hereby vested with primary jurisdiction to determine and adjudicate agrarian reform matters and shall have exclusive original jurisdiction over all matters involving the implementation of agrarian reform, except those falling under the exclusive jurisdiction of the Department of Agriculture (DA) and the Department of Environment and Natural Resources (DENR)." (emphasis supplied) EITcaD
2. Section 4, Executive Order No. 129-A (Modifying Executive Order No. 129, Reorganizing And Strengthening Department of Agrarian Reform And For Other Purposes)
"Section 4. Mandate. — The Department shall be responsible for implementing the Comprehensive Agrarian Reform Program. . . . ." (emphasis supplied)
3. Sections 2.1, 2.2 and 2.3, 7, 10 and 12 of DAR Administrative Order No. 03, Series of 2003 (2003 Rules for Agrarian Law Implementation Cases)
"RULE 1— PRELIMINARY PROVISIONS
xxx xxx xxx
Section 2. ALI cases.— These Rule shall govern all cases arising from or involving:
2.1. Classification and identification of landholdings for coverage under the agrarian reform program and the initial issuance of Certificate of Land Ownership Awards (CLOAs) and Emancipation Patents (EPs), including protests or oppositions thereto and petitions for lifting of such coverage;
2.2. Classification, identification, inclusion, exclusion, qualification, or disqualification or potential/actual farmer-beneficiaries;
2.3. Subdivision surveys of land under Comprehensive Agrarian Reform Program (CARP).
xxx xxx xxx
RULE II — JURISDICTION OVER ALI CASES
Section 7. General Jurisdiction. — The Regional Director shall exercise primary jurisdiction over all agrarian law implementation cases except when a separate special rule vests primary jurisdiction in a different DAR office.
xxx xxx xxx
Section 10. Appellate Jurisdiction. — The Secretary shall exercise appellate jurisdiction over all ALI cases, and may delegate the resolution of appeals to any Undersecretary.
xxx xxx xxx
RULE III — PROCEDURE
Section 12. Applicability. — The procedures herein shall generally apply to all ALI cases except for specific situations such as applications for land use conversion and exemption/exclusion from CARP coverage which shall be governed by the special procedures therefore." (emphasis supplied)
Aside from the exceptions provided therein, we could clearly infer from the aforequoted provisions of law and guideline the following basic legal mandates and/or policy guides:
1. DAR is the lead agency primarily tasked to implement the Comprehensive Agrarian Reform Program (CARP);
2. The DAR is vested with the exclusive original jurisdiction over all matters involving the implementation of agrarian reform;
3. The DAR Regional Director shall exercise primary jurisdiction over all agrarian law implementation cases;
4. The DAR Secretary shall exercise appellate jurisdiction over all ALI cases; and
5. The procedures and processes laid down under DAR Administrative Order No. 03, Series of 2003 shall generally apply to all ALI Cases.
Considering that the subject proposed amendment to the MOA involves and includes Agrarian Law Implementation (ALI) cases (e.g., identification, screening, classification and disqualification of farmer-beneficiaries) as among those enumerated functions of the Task Force under the proposed Joint Executive Order Creating Task Force Imelda Valley (Section 3. a, b and e thereof), the proposed amendment may, therefore, be violative of the aforequoted provisions of law and guidelines.
Should the recommendations/resolutions duly signed by the Chairman of the Task Force be deemed approved for implementation as final decisions, the exclusive original jurisdiction of DAR over all matters involving the implementation of agrarian reform; the DAR Regional Director's exercise of primary jurisdiction over all agrarian law implementation cases; the DAR Secretary's exercise of appellate jurisdiction over all ALI cases; and the steps, procedures and appeal processes laid down under DAR Administrative Order No. 03, Series of 2003 and other existing laws, rules and guidelines, may be rendered nugatory and ineffective.
Otherwise stated, the proposed amendment may constitute as a delimitation and/or encroachment on the powers and functions of the DAR which, we reiterate, is mandated by law as the lead agency primarily tasked to implement the Comprehensive Agrarian Reform Program (CARP).
Accordingly and given all the above, with deep regret, we could not subscribe to the proposed amendment of the MOA.
On the other hand, as regards the draft Joint Executive Order Creating Task Force Imelda Valley, a "Joint Special Order" may be the more appropriate designation of the Order instead of a Joint Executive Order for the creation of the Task Force and the Technical Working Group. HCaDIS
It may be suggested that the composition of the Task Force should include the Chief of the Survey Team of the DAR Regional or Provincial Office, if necessary or warranted, considering that there is a finding that an overlap exists within the area of Parcel 1 of Presidential Proclamation 861-1992 as declared in the MOA.
We hope to have clarified the matter and please be guided accordingly.
(SGD.) RICARDO S. ARLANZA
Undersecretary for Policy, Planning and Legal Affairs Office