DOJ OPINION NO. 053, s. 1989
March 13, 1989
Hon. Carlos G. Dominguez
Department of Agriculture
Elliptical Road, Diliman
S i r :
This refers to your request for opinion on the effect of the 1987 Constitution and the Comprehensive Agrarian Reform Law of 1988 (Republic Act No. 6657) on the power or authority of the Department of Agriculture to grant or approve fishpond lease agreement over alienable public lands declared suitable for fishpond purposes.
Specifically, the issues raised are as follows:
1) Whether the Department of Agriculture has been divested of its power or authority under P.D. No. 704 to grant or issue Fishpond Lease Agreements (FLA) over disposable and alienable public lands for fishpond purposes in the light of the provisions of the 1987 Constitution, particularly Par. 2, Section 3, Article XII, thereof and R.A. No. 6657.
2) Whether the retention limits provided for in Section 7, of R.A. No. 6657 shall apply to existing FLA's issued or granted by that Office prior to its effectivity.
3) Whether the same limits are likewise applicable to applications which are now pending approval in the Department.
As to the first query you take the view that Section 3, Article XII of the Constitution, did not divest nor affect the authority of the Department of Agriculture to grant or approve lease/permits to qualified applicants over alienable public lands which have been declared suitable for fishpond purposes, as the last paragraph of the same section has laid the basis for Congress to enact the law Congressional would determine the size of the land that the Government may grant/lease for development as well as the conditions for such development.
The pertinent provisions of the 1987 Constitution on the matter are as follows:
Section 3, Article XII. —
"Lands of public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain 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." (Emphasis supplied)
Section 6, Article XIII. —
"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." (Emphasis supplied)
On the other hand, the Comprehensive Agrarian Reform Law of 1988 (R.A. No. 6657) provides:
"SEC. 7. Priorities. — The Department of Agrarian Reform (DAR) in coordination with the Presidential Agrarian Reform Council (PARC) shall plan and program the acquisition and distribution of all agricultural lands through a period of ten (10) years from the effectivity of this Act. Lands shall be acquired and distributed as follows:
xxx xxx xxx
"Phase Two" All alienable and disposable public agricultural lands: all arable public agricultural lands under agro-forest, pasture, and agricultural leases already cultivated and planted to crops in accordance with Section 6, Article XIII of the Constitution; all public agriculture lands which are to be opened for new development and resettlement; and all private agricultural lands in excess of fifty (50) hectares, insofar as the excess hectares is concerned, to implement principally the rights of farmers and regular farm workers who are landless, to own directly or collectively the lands they till, which shall be distributed immediately upon the effectivity of this Act, with the implementation to be completed within a period of not more than four (4) years." prcd
xxx xxx xxx
SEC. 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)."
Under the abovequoted provisions it would appear that the Department of Agriculture has not been divested of the power to grant or issue leases or permits to qualified applicants over alienable public land suitable for fishpond purposes.
It will be seen from Section 50 of R.A. No. 6657 that the "DAR is . . . 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) . . ."
It is clear therefrom that while the DAR has been granted quasi-judicial powers to determine and adjudicate agrarian reform matters, the same law provided for an exception, i.e., "those falling under exclusive jurisdiction of the Department of Agriculture," which could only refer to such power as have heretofore been exercised by the DA under existing laws, e.g., P.D. No. 704 (the Fisheries Decree of 1975), provided, of course, that in the grant of such lease or permits for fishpond purposes, the limitations set by the Constitution and the Comprehensive Agrarian Reform Law shall be respected.
Although it is provided in the aforequoted Constitutional provision that the maximum size of the disposable public agricultural land that maybe allowed through lease to each qualified Filipino is 500 has., it is also mandated in the second paragraph of the same Section 3, Article XII, of the Constitution, that the size of the land of public domain which may be leased should be subject, among others, to the requirements of agrarian reform as determined by law.
The aforesaid constitutional requirement of agrarian reform is believed to have been implemented with the enactment of Republic Act No. 6657. Section I thereof urges the State to encourage and undertake "the just distribution of all agricultural lands, subject to priorities and retention limits set forth in this Act." This "retention limits" provision is that which is provided in Section 6 thereof which restricts the right of a person to own or retain any public agricultural land to an area not exceeding 5 has., and 3 has. for each child subject to the conditions therein stated. For this reason, it is believed that the fishpond lease agreement that may be issued by that Office to a qualified applicant cannot be more than the size prescribed to Section 6 of Republic Act No. 6657.
As regards the second and third queries, you concede that while the retention limits provided by CARL are applicable to fishpond operations, the same could not effect those existing fishpond lease operations executed prior to the effectivity of the said law on June 14, 1988; and that they shall apply only to application filled with you office after said date.
You state that as to applicant who were already granted permits or lease over lands in excess of the retention limits, the land can no longer be reduced as any such reduction would constitute an infringement of contracts validly entered into by the government with qualified applicants as provided under Section 10, Article III, of the Constitution. Likewise, you state that with respect to other applicants who have already complied with the requirements necessary for approval of issuance of the lease or permits and what is left is merely the issuance of the permit or the execution of the lease, the retention limit should not apply.
We beg to differ with your position on these two points.
It is settled that the constituted guaranty of non-impairment is limited (1) by the police power of the State ( Abe v. Poster Wheeler Corporation, G.R. No. 14785, November 29, 1966; Ongsioko v. Gamboa, 86 Phil. 50; Alalayan v. National Power Corporation, 4 SCRA 1421 (2) by the power of eminent domain (Long Island Water Supply v. Brooklyn, 165 U.S. 685) and (3) when the right to impair it is reserved (Dartmouth College v. Woodword, 4 Wheat, 41 ed.)
The CARL is unquestionably a remedial legislation, pursuant to the social justice precepts of the Constitution and in the exercise of police power of the State and therefore its provisions would prevail over contracts already in existence. Moreover, the Revised Fisheries Administrative Order No. 60 (Regulations Governing the Issuance of Fishpond Permits and/or Leases on Public Lands) provides:
"SEC. 28. General condition under which permits or leases are issued. — Every permit or lease shall be governed by the provisions of this Order, as well as by those which may hereafter be issued or promulgated, especially by the following terms and conditions:
"(a) Power of Congress. — The permits or leases limit in no way the right of Congress to impose such terms and conditions as it may consider necessary for public interest. (Emphasis supplied)
"(b) Permittee on lessee shall comply with the law, rules and regulations. — The permittee or lessee subjects himself or itself unconditionally to all laws, rules and regulations now existing and to those that may hereafter be promulgated governing fisheries. (Emphasis supplied).
"(c) . . .
"(d) No title acquired. — A permittee or lessee shall have no right to a title or claim of any sort whether on the land covered by the permit of lease. No such land shall be deemed to be occupied within the meaning of the Public Land Act but shall remain subject to disposition under the forestry and fishery laws, rules and regulations."
xxx xxx xxx
"SEC. 30. Suspension or cancellations. — The application, permit or lease may be suspended or canceled for any of the following reasons:
"(a) . . .
"(d) When public interest so require."
In view of these provisions, it seems that the non-impairment clause cannot be involved here because the aforementioned Administrative Order which lays down the general conditions under which permits or lease are issued specifically provides that every permits or lease shall be governed by the provisions of said Order as well as by those which may hereafter be issued; that the permit or lease shall limit in no way the right of Congress to impose such terms and conditions as it may consider necessary for public interest; and that the "permittee or lessee subjects himself or itself unconditionally to all laws, rules and regulations now existing and to those that may hereafter be promulgated governing fisheries" (Section 28 [a] and [b]).
As regards your contention that as to those applicants who have applications pending approval by the Department but who have already complied with requirements necessary for the approval/issuance the lease or permit the retention limits provided by CARL should not apply, we believe that said applicants have no better right than those who have existing duly issued leases or permits. We understand that the query has been posed as some of these applicants introduced improvements on the sites subject of their fishpond applications even before the issuance of the necessary permit or lease.
It should be noted that such act on their part may be in violation of the Revised Administrative Order No. 60, which provides:
"Section 2. Use of forest lands. — No person shall occupy or use any portion of the public forest lands, including tidal, mangrove and other swamps, ponds and streams within public forest lands or proclaimed timberlands or established forest reserves, for fishpond purposes without first securing therefor a permit or lease in accordance with the provisions of this Order."
xxx xxx xxx
"Section 34. Unlawful use or occupation of public forest lands.
(a) Any applicant using or occupying public permit of lease in violation of the provisions of Section 2 of this Order shall be charged double the ordinary rental charges for the land so used or occupied from the date such land has been certified available for fishpond purposes by the Director of Forestry and for the entire period of such unlawful use or occupation."
If the applicants have by their unlawful acts or even tolerance of the implementing authorities, done so, they did so at their own risk.
Please be guided accordingly.
Very truly yours,
(SGD.) SEDFREY A. ORDOÑEZ
Secretary of Justice