DOJ OPINION NO. 009, s. 1997
February 14, 1997
Secretary Ernesto D Garilao
Department of Agrarian Reform
Elliptical Road, Diliman
S i r :
This refers to your request for opinion on whether or not the ten-year schedule of implementation specified in Section 5 of the Comprehensive Agrarian Reform Law (R A No 6657) is mandatory or directory. Said Section 5 reads:
"SEC. 5. Schedule of Implementation.— The distribution of all lands covered by this Act shall be implemented immediately and completed within ten (10) years from the effectivity thereof"
You state that as of the end of 1994, the Department of Agrarian Reform (DAR) had a remaining balance of some 2.375 million hectares of land for acquisition and distribution and you expect that despite best efforts, there will still be lands which need to be acquired and distributed after June, 1998, when the ten-year period shall have expired.
It is your view that the DAR should be given the flexibility to continue the implementation of the program even after June, 1998 without further need of legislation provided that the activities to be undertaken is a continuation and completion of the original scope and mandate of the program as defined under R.A No. 6657.
We share your view.
R A No 6657 which was approved on June 10, 1988, took effect on June 15, 1988. The law institutes a comprehensive agrarian reform program (CARP) to attain the State's policy to promote social justice and to move the nation toward sound rural development and industrialization and the establishment of owner-cultivatorship of economic-size farms as the basis of Philippine agriculture (see Sec 2, R.A. No 6657). One of its goals is the immediate distribution of agricultural lands, which, as provided for in Section 5 of said Act, supra, is to be completed within ten (10) years from its effectivity or until June 15, 1998.
It is believed that the ten-year period of implementation prescribed in the aforequoted Section 5 is merely directory in character. It has been held that the difference between a mandatory and a directory provision is often determined on grounds of expediency. And 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. (See Marcelino vs. Cruz, Jr., 121 SCRA 51, citing authorities).
An examination of Section 5 of R.A. No. 6657 would readily disclose that its provision is more procedural than substantive in nature and its evident objective is expediency. It prescribes a ten-year schedule of implementation to dramatize the urgency of the CARP which must be implemented immediately and completed, ideally, within the time frame prescribed by law.
It could not have been the intention of the law to prescribe a fixed and rigid period of ten-years for the CARP. Such intention would have frustrated the policy and purpose of the law. The very essence of the CARP, which goes beyond the concepts of land acquisition and land distribution, does not justify a myopic view of Section 5. The policy of the law will be effectuated if the period prescribed in Section 5 is liberally construed.
It is true that Section 5 uses the word "shall", which is generally interpreted to be mandatory in character (Guiao vs. Figueroa, 94 Phil 1022). However, it is well-recognized that the ordinary acceptation of "shall" and ''may'' as being obligatory and permissive, respectively, is not an absolute and inflexible criterion (Vda. de Mesa vs. Mencias, 18 SCRA 533). Provisions as to time will generally be construed as directory if there are no negative words restraining the doing of the act afterwards (Phil Ass'n of Free Labor Unions vs. Sec of Labor, 27 SCRA 40).
In Marcelino vs. Cruz, Jr., supra, the constitutional provision mandating that the maximum period within which a case or matter shall be decided or resolved from its submission shall be three months for inferior courts was construed by the Supreme Court as merely directory and that non-compliance by the courts with the said provision does not result in loss of Jurisdiction. Also, this Department, in a previous opinion, had occasion to rule that the "six-month" period provided in Proclamation No. 50 is merely directory, it appearing that the said period was provided merely for facilitation and not for prescription purposes (Sec. of Justice Op. No. 210, s 1988).
The foregoing rules of construction apply equally to the provision of law under consideration. The CARP is a continuing program and there is no word of absolute prohibition in the law against the extension of the ten-year period provided for its implementation. On the contrary, Section 11 of the law provides that commercial farms shall be subject to immediate compulsory acquisition and distribution after ten (10) years from the effectivity of the law, clearly implying that the CARP does not end after the lapse of ten (10) years.
It bears emphasis that the ten-year period of implementation is only a time frame given to the DAR for the acquisition and distribution of public and private agricultural lands covered by R.A. No. 6657. It is a schedule to guide the DAR in setting its priorities, but it is not by any means a limitation of authority in the absence of more categorical language providing to that effect. This is made clear in the Bicameral Conference Committee Report for R.A. No. 6657, viz:
"Rep Zamora apprised the body on the panel's position on priorities after its consultation with the House, which is a proposition for a "no-date'' formula but providing a benchmark figure of ten (10) years where a categorization or phasing may be established and giving PARC the authority to move these phases in the course of its implementation".
Please be guided accordingly
Very truly yours,
(SGD.) TEOFISTO T. GUINGONA, JR.