DOJ OPINION NO. 044, s. 2000
May 30, 2000

Atty. Mylene G. Albano
Executive Director
Project Management Office
Land Administration and Management Project
Department of Environment and Natural Resources
Visayas Ave., Diliman, Quezon City

M a d a m :

        The opinion of this Department is requested on the necessity and propriety of the issuance of a Presidential Order before a systematic titling of alienable and disposable lands be undertaken by the Department of Environment and Natural Resources (DENR).

        It appears that an Inter-Agency Coordinating Committee (IACC) has been created in accordance with Executive Order No. 129 dated July 24, 1999 under the chairmanship of the DENR. The IACC's main task is to prepare and coordinate the implementation of a land administration and management program geared towards improving security of tenure to land as a means of alleviating poverty and sustaining economic growth by fostering an effective and equitable land market through the development of an efficient system of land administration and management.

        Through financing by the World Bank, the IACC will launch its Land Administration and Management Project (LAMP) via two (2) major prototypes particularly Prototype I on Land Titling and Administration and Prototype II on Land Records and Information Management. In this regard, the opinion of this Department on the aforestated query is sought as an additional condition for loan negotiation.

        Aside from the main query, the following specific questions are also raised:

1.         If cadastral proceedings will not be used in the prototype area, what type of judicial adjudication can be used?

2.         Does the issuance of patents require any action from the Government before DENR can issue patents?

3.         Does Sec. 35 of the Land Registration Decree of 1978 which repeats and amplifies the requirements of the 1913 Cadastral Act re: an Executive Order and publicity, not apply to the prototype exercise? 

4.         Is the 1987 Administrative Code a law, with the same force as the Cadastral Act of 1913 or the Property Registration Decree of 1978?

5.         In law, the specific controls the general, and courts in most jurisdictions would be reluctant to conclude that an attribution of administration competence in an Administrative Code, for instance in Title IV, s. 4(15), impliedly repealed or rendered inapplicable a provision in a substantive law that requires an Executive Order to proceed with systematic adjudication. Under the canons of interpretation implied to law in the Philippines, is the result not the same? And 4(15) does still refer to "consultation with appropriate agencies", which could be interpreted to include the Office of the President?

6.         Has it not been the practice to require an Executive Order for systematic adjudication?

7.         Are the publicity requirements of the laws met?

        From the papers submitted to us, it appears that the main issue we are called upon to resolve is whether or not a Presidential Order is needed before the DENR can undertake a cadastral survey in the light of the following provisions of laws:

Sections 1 and 5, Act No. 2259 ("The Cadastral Act")

"SECTION 1.           When in the opinion of the Governor-General (now the President), the public interests require that the title to any lands be settled and adjudicated, he may to this end order the Director of Lands to make a survey and plan thereof. (As amended by Sec. 1850, Act No. 2711)

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"SECTION 5.           When the lands have been surveyed and platted, the Director of Lands, represented by the Attorney-General (now Solicitor General), shall institute registration proceedings, by petition against the holders, claimants, possessors, or occupants of such lands or any part thereof, stating in substance that the public interests require that the titles to such lands be settled and interests require that the titles to such lands be settled and adjudicated, and praying that such titles be so settled and adjudicated.

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Sections 35(a) and 36, P.D. No. 1529 ("Property Registration Decree")

""SECTION 35.        Cadastral Survey preparatory to filing of petition. —

(a)     When in the opinion of the President of the Philippines public interest so requires that title to any unregistered lands be settled and adjudicated, he may to this end direct and order the Director of Lands to cause to be made a cadastral survey of the lands involved and the plans and technical descriptions thereof prepared in due form. 

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""SECTION 36.        Petition for registration. — When the lands have been surveyed or plotted, the Director of Lands, represented by the Solicitor General, shall institute original registration proceedings by filing the necessary petition in the Court of First Instance of the place where the land is situated against the holders, claimants, possessors, or occupants of such lands or any part thereof, stating in substance that public interest requires that the title to such lands be settled and adjudicated and praying that such titles be so settled and adjudicated.

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Section 4(15), Chapter I, Title XIV, Book IV, E.O. No. 292 ("Administrative Code of 1987")

""SECTION 4.          Powers and Functions. — The Department [DENR] shall:

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(15)   Exercise exclusive jurisdiction on the management and disposition of all lands of the public domain and serve as the sole agency responsible for classification, sub-classification, surveying and titling of lands in consultation with appropriate agencies." (Emphasis supplied)

        Pursuant to the aforequoted provisions of the Cadastral Act, which are restated in Sections 35(a) and 36 of the Property Registration Decree, a cadastral survey will be undertaken by the Director of Lands upon order of the President, if public interest requires that title to unregistered lands be settled and adjudicated. Thereafter, the Director of Lands, represented by the Solicitor General, shall institute registration proceedings against the holders, claimants, possessors or occupants of the lands surveyed praying that the title to the land be settled and adjudicated.   cdrep

        While the language of the law specifies a presidential order for the initiation of the cadastral survey, in practice, as we are informed, it is the DENR that authorizes the cadastral survey, implying a presidential delegation of that power to the Department which the President is constitutionally allowed to do.

        As Chief Executive and sole repository of all executive power (Sinco, Philippine Political Law, 232 [1962]), the President is not expected to perform all the multifarious executive and administrative functions of Government all by himself (see Cortes, "The Philippine Presidency", pp. 90-91). The Constitution makes him "head of the administration" by placing under his control the entire executive department, including all of its bureaus and offices (Sec. 17, Art. VII, 1987 Constitution, with counterpart provisions in previous Constitutions).

        Thus, it was held in Villena vs. Secretary of the Interior (67 Phil. 451):

". . . under the presidential type of governmental organization established . . . all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive". 

        The Supreme Court further said:

"Without minimizing the importance of the heads of the various departments, their personality is in reality but the projection of that of the president. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United States, 'each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority'."

        Significantly, the existing practice in the DENR regarding cadastral survey may be said to have received legislative imprimatur under Section 4 (15), aforequoted of the Administrative Code of 1987 which empowers the DENR to exercise "exclusive jurisdiction on the management and disposition of lands of the public domain and serve as the sole agency responsible for . . . surveying and titling of lands in consultation with appropriate agencies".

        Relative thereto, the Administrative Code of 1987 empowers the DENR to promulgate rules and regulations to "[A]ccelerate cadastral and emancipation patent surveys, land use planning and public land titling", which clearly contemplates cadastral surveys and titling of lands in a cadastral proceeding.

        The Administrative Code of 1987 (E.O. No. 292) is a law because it was issued by then President Aquino in the exercise of her reserved lawmaking power under the Constitution (Sec. 6, Art. XVIII, 1987 Constitution).

        The foregoing answers the main query and specific questions nos. 3, 4, 5 and 6. 

        In answer to question no. 1, there are two (2) modes of titling lands under the Torrens System of registration — judicial or administrative. Judicial proceedings can be either voluntary, as in ordinary land registration, or compulsory, as in a cadastral proceeding. Administrative proceedings contemplate the titling system provided for in the Public Land Act administered by the DENR, through the Director of Lands [now Regional Executive Director].

        Clearly, if cadastral proceedings will not be used in the prototype area, the remaining type of judicial adjudication would be through the ordinary land registration proceedings under the Land Registration Act (now "Property Registration Decree").

        In this connection, it is also possible to register an imperfect title to public land through judicial confirmation of imperfect titles authorized under Section 47 of the Public Land Act, as amended by R.A. No. 6940 which extended the period for availing of this mode up to December 31, 2000.

        We answer question no. 2 in the negative. The procedure for issuance of patents is prescribed under the Public Land Act which already sets forth all the legal requirements therefor. 

        The seventh and last query is rather vague. Nonetheless, publication of all laws is a legal requirement for validity (Art. 2, Civil Code of the Philippines; Tañada vs. Tuvera, 146 SCRA 446) and cannot, therefore, be dispensed with.

Very truly yours,

(SGD.) ARTEMIO G. TUQUERO

Secretary