CONSTITUTIONAL BASIS & HISTORICAL Lands of the public domain are classified into agricultural, forest or timber,

mineral lands and national parks. Agricultural lands of the public domain
BACKGROUND 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
ARTICLE II, SECTION 21, 1987 CONSTITUTION 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
The State shall promote comprehensive rural development and agrarian
lease not more than five hundred hectares, or acquire not more than twelve
reform.
hectares thereof, by purchase, homestead, or grant.
ARTICLE XII, SECTION 1, 1987 CONSTITUTION Taking into account the requirements of conservation, ecology, and
development, and subject to the requirements of agrarian reform, the
The goals of the national economy are a more equitable distribution of
Congress shall determine, by law, the size of lands of the public domain
opportunities, income, and wealth; a sustained increase in the amount of
which may be acquired, developed, held, or leased and the conditions
goods and services produced by the nation for the benefit of the people;
therefor.
and an expanding productivity as the key to raising the quality of life for all,
especially the underprivileged. ARTICLE III, SECTION 4, 1987 CONSTITUTION
The State shall promote industrialization and full employment based on
The State shall, by law, undertake an agrarian reform program founded on
sound agricultural development and agrarian reform, through industries
the right of farmers and regular farmworkers who are landless, to own
that make full and efficient use of human and natural resources, and which
directly or collectively the lands they till or, in the case of other
are competitive in both domestic and foreign markets. However, the State
farmworkers, to receive a just share of the fruits thereof. To this end, the
shall protect Filipino enterprises against unfair foreign competition and
State shall encourage and undertake the just distribution of all agricultural
trade practices.
lands, subject to such priorities and reasonable retention limits as the
In the pursuit of these goals, all sectors of the economy and all regions of Congress may prescribe, taking into account ecological, developmental, or
the country shall be given optimum opportunity to develop. Private equity considerations, and subject to the payment of just compensation. In
enterprises, including corporations, cooperatives, and similar collective determining retention limits, the State shall respect the right of small
organizations, shall be encouraged to broaden the base of their ownership. landowners. The State shall further provide incentives for voluntary land-
sharing.
ARTICLE XII, SECTION 3, 1987 CONSTITUTION
ARTICLE XIII, SECTION 5, 1987 CONSTITUTION

OOTP | SocLeg Notes

1
The State shall recognize the right of farmers, farmworkers, and The State shall provide incentives to landowners to invest the proceeds of
landowners, as well as cooperatives, and other independent farmers’ the agrarian reform program to promote industrialization, employment
organizations to participate in the planning, organization, and management creation, and privatization of public sector enterprises. Financial
of the program, and shall provide support to agriculture through instruments used as payment for their lands shall be honored as equity in
appropriate technology and research, and adequate financial, production, enterprises of their choice.
marketing, and other support services.
The Social and Constitutional Context of Agrarian Reform
ARTICLE XIII, SECTION 6, 1987 CONSTITUTION by Atty. Christian S. Monsod
The State shall apply the principles of agrarian reform or stewardship,
The Constitution as the fundamental law is always invoked as a source of
whenever applicable in accordance with law, in the disposition or utilization
absolute rights especially against the state. Indeed, that is what the Bill of
of other natural resources, including lands of the public domain under lease
Rights is all about.
or concession suitable to agriculture, subject to prior rights, homestead
rights of small settlers, and the rights of indigenous communities to their The problem, however, in constitutional law is when there is an apparent
ancestral lands. conflict between two or several provisions, when those provisions involve
conflicting rights of private parties and when the State is the one called
The State may resettle landless farmers and farmworkers in its own
upon to resolve the conflict by legitimate means at its disposal.
agricultural estates which shall be distributed to them in the manner
provided by law. I would like to give you the perspective of a participant in the drafting of the
Constitution, particularly on those provisions on social justice and, in
ARTICLE XIII, SECTION 7, 1987 CONSTITUTION particular, agrarian reform.
The State shall protect the rights of subsistence fishermen, especially of Every law student is familiar with the definition of social justice by Justice
local communities, to the preferential use of the communal marine and Jose P. Laurel in the case of Calalang v. Williams:
fishing resources, both inland and offshore. It shall provide support to such
fishermen through appropriate technology and research, adequate Social justice is neither communism, nor despotism nor atomism nor
financial, production, and marketing assistance, and other services. The anarchy, but the humanization of laws and the equalization of social
State shall also protect, develop, and conserve such resources. The and economic forces by the state so that justice in its rational and
protection shall extend to offshore fishing grounds of subsistence fishermen objectively secular conception may at least be approximated. Social
against foreign intrusion. Fishworkers shall receive a just share from their justice means the promotion of the welfare of all the people, the
labor in the utilization of marine and fishing resources. adoption by the government of measures calculated to insure economic
stability of all the component elements of society through the
ARTICLE XIII, SECTION 8, 1987 CONSTITUTION maintenance of proper economic and social equilibrium in the

OOTP | SocLeg Notes

2
 interrelations of the members of the community, constitutionally, 1. Article XII, Section 1, On National Economy:
through the adoption of measures legally justifiable, or extra- The goals of the economy are a more equitable distribution of
constitutionally, through the exercise of powers underlying the existence opportunities, income and wealth x x x.
of all governments, on the time-honored principle of salus populi est 2. Article XII, Section 6:
suprema lex. The use of property bears a social function and all economic agents
shall contribute to the common good x x x subject to the duty of the
That is the legal definition. The scope and operative guidelines of that State to promote distributive justice x x x (distributive justice is
definition are found in the 1987 Constitution where social justice, unlike in agrarian reform).
the 1935 and 1973 Constitutions, is treated as a separate subject. If I were 3. Article XIV, Section 1:
asked to cite the one principal difference between the 1987 and other The State shall protect and promote the right of all citizens to
Constitutions, I would say that it is in its social justice provisions. quality education at all levels x x x.
The President of the Constitutional Commission, Justice Cecilia Muñoz- 4. The provisions in the Legislative and Executive Articles on term
Palma, said as much when she said that social justice is the heart of the new limits, party list and sectoral representation in local government
Constitution. Ultimately, regardless of its imperfections that reflect the unit;
imperfectability of those who tried to write it, the 1987 Constitution would 5. Article II, Section 26:
be judged by the efficacy and effectiveness of its provision on social justice. The State shall guarantee equal access to opportunities for public
service and prohibit political dynasties as may be defined by law
Article XIII, Section 1 says that:
The historical and social context of these social justice provisions as
The Congress shall give the highest priority to the enactment of measures discussed extensively in the deliberations of the Commission, were:
that:
1. Protect and enhance the right of all the people to human dignity; 1. The long history of social injustice that started when the Spaniards
2. Reduce social, economic, and political inequalities; destroyed the traditional system of land ownership – common
3. Remove cultural inequities; ownership of land by village clusters known as barangays, similar to
4. By equitably diffusing wealth and political power for the common existing systems among several indigenous communities – and
good. distributed the lands (haciendas) to Spanish military and clergy or
established encomiendas (administrative districts).
Given the scope and reach of that mother provision in Article XIII, other 2. The take-over by the U.S. did not address this problem, it only
articles of the Constitution contain social justice provisions. It is interesting established a new class, although certain changes were introduced,
to say that social justice provision is found all over the Constitution and not i.e., land titling, homestead and limitations on size of ownership.
just in Article XIII. 3. The 1935 Constitution – addressed the issue of foreign access to
land, i.e., corporations must have at least 60 percent Filipino
To mention a few: ownership and use-rights were limited in time. Other reforms
OOTP | SocLeg Notes

3
 included limitations on interest rates on loans and an increase in the The Report also says:
sharecroppings share from 50 percent to 70 percent. Very little of
Not surprisingly, the rate of accomplishments of land reform turns out
these laws were really followed in practice and the Huk rebellion
was born. to be a good predictor of the frequency of armed conflict: the higher the
proportion of land redistributed under the agrarian reform program
4. Independence years – Under Magsaysay (Mindanao resettlement
program) and Macapagal, land reform was again tackled but no relative to the potential land reform area, the lower the likelihood of
conflict.
significant results were achieved in terms of scope and magnitude
of land transfer However, the social dimension of agrarian reform appears to be less critical
5. Marcos years – With Martial Law, the whole of the Philippines was than before, with other social indicators, for example adult education,
declared a land reform area under Presidential Decree (P.D.) No. 27. having a greater impact on lessening the occurrence of armed conflict.
Significant progress was made, but the continued practice of the
share tenancy system, the exemptions allowed and shortcoming in Despite the successes, rural poverty continues to be the main problem of
support system (although it was Marcos who set up the new our country today.
Agrarian Reform Department as a focal point in its implementation)
In the deliberations of the Constitutional Commission, there was consensus
did much to limit the effectivity of the reforms on addressing rural
on the following:
poverty 50 percent of rural population).
6. The Comprehensive Agrarian Reform Law (CARL) years since 1988 – 1. There is a significant difference between equality and equity
land distribution increased substantially but lack of support system Inequality a condition that can exist without necessarily any
is still prevalent, and many big landed estates have not yet been connotation of a moral wrong. Inequality by itself is not evil, unless
included in the program. it is gross. Equality is a standard to aspire for but a realistic
approximation of it, as Laurel suggests, is reasonable enough. Thus,
The Human Development Report for the Philippines for 2005, which
the Constitution speaks of merely reducing inequalities because the
concentrates on Peace, Human Security and Human Development, just
objective is not to levelize all the people in all aspects of social,
released last week, acknowledges (quoting studies):
economic and political life.
By 2002, Comprehensive Agrarian Reform Program (CARP) officially Equity is something else. It is a normative or ethical concept and
claimed to have redistributed six million hectares of land to more than what is inequitable is “wrong” or “evil” or “unjust.” Hence, the
two million peasant households, accounting for nearly half of the reference to cultural inequity in Section 1 and the retention of the
country’s agricultural lands and two-fifths of the total rural households, prescription of “equitably diffusing wealth and political power for
respectively x x x. the common good.” The context of social reform with unjust
structures built up through the years which cannot be dismantled
(Even if there may be an overestimate, it is still a formidable except through asset reform such as redistribution of land.
accomplishment).
OOTP | SocLeg Notes

4
 2. However, the Commission was mindful of the fact that it is difficult 5. The pursuit of social justice is always subject to the requirements of
to implement asset reform or land redistribution in a democratic due process in the exercise by the State of powers delegated to it by
setting such as ours. The successful ones (Korea, Japan, Taiwan, the people themselves. The three most important of these powers
China) were undertaken under authoritarian rule. Hence, the are – taxation, expropriation, and police power. And when taxation
compromise in our Constitution was to give “just compensation” and expropriation are inadequate to the task of attaining an
despite the clear empirical evidence in the experience of the other equitable diffusion of wealth and political power, the State can
countries that: validly use its police powers.
a. Redistribution does not result in an equitable society if assets 6. There may be exemptions, or the need for incentives authorized by
such as land are priced at market values to determine just the Constitution and implementing legislation. There may be
compensation; and procedural requirements. There may even be a timeline for
b. Just compensation will only work if the government is willing accomplishing it, in the interest of faster justice. But with all due
and has the resources to subsidize the farmers with supporting respect, it does not appear from the deliberation of the Commission
services and pay the difference between just compensation to that all these conditions can be used to dilute, circumvent or
the landowner and affordable cost to the farmer, with the cost frustrate the objective of the constitutional provision – that the
of such subsidies being borne by taxpayers. process must result in the farmer being given the land and the
3. Agrarian reform should admit of other conditions, such as landowner being given just compensation.
ecological, developmental and equity considerations, such as rights
of small landowners and indigenous communities. But we must What is the point of my citing this background to the problem of agrarian
reform today when I do not believe there is any disagreement that landed
beware of creeping exception not originally contemplated that take
land out of the scope of agrarian reform. Example of this was the interest and gross inequalities of wealth and income have existed for more
than a hundred years and need to be changed? The point is that it is difficult
recent decision of the Supreme Court to declare the Calatagan area
as mineralized land. Some of the farmers have been there for more enough to navigate through the legal and economic constraints of the
Philippine version of agrarian reform without the government itself being
than 20 years, with Certificate of Land Ownership Award (CLOA).
Some have already paid for the land. Now, that is a problem. part of the problem
4. It was clear in the deliberation that the civil rights of the landowners Examples:
with respect to the land such as the right to enjoy, dispose and
recover,1 right to exclude others from the property, the right to 1. Interpreting the 2008 deadline for the program as a cutoff date such
enclose or fence property, the right to compensation in case of that those who have successfully resisted acquisition “get away with
eminent domain,2 accession,3 right to quiet title,4 are subordinated it.” The deadline was meant to push for the acceleration of the
to and cannot take precedence over the constitutional mandates on program not to reward those who resisted it. Be that as it may, to
social justice, such as agrarian reform. avoid the onerous interpretation, the Department of Agrarian

OOTP | SocLeg Notes

5
 Reform (DAR) should issue notices of acquisition for all the land together – the average landholding is about 1.5 hectares and no farm is
before the date. more than one kilometer away from a road.
2. The problem of installing the farmers because judges allow
themselves to be used to block it, to the extent of raising issues The Constitution recognizes the strong linkage between industrialization
and economic progress (full employment) and agricultural and agrarian
even on the constitutionality of an agrarian reform program that is
prescribed in unprecedented detail in the Constitution itself and reform in the second paragraph of Article XII, Section 1, on the National
Economy:
which the Supreme Court has upheld.
3. Fortunately, after about two years of litigation, the farmer won a The State shall promote industrialization and full employment based on
signal victory in the Supreme Court in the Cuenca case which settled sound agricultural development and agrarian reform x x x.
once and all the jurisdictional issue on agrarian reform issues. We
are pleased to hear that the Department of Agrarian Reform is That is the link. You cannot even have industrialization unless you have
acting pro-actively in implementing the installation of farmers since sound agricultural development and agrarian reform. This sentence in the
the injunction issued by courts are deemed to have been lifted by Constitution which is in the economic provisions and not in the social
the decision. provisions provides the link. The economic provision seeks to lift us as a
nation and the social justice provision seeks to distribute the fruits of
Chief Justice Roberto R. Concepcion, in the deliberations on social justice, economic progress.
asked the indulgence of the Commission for the literal and narrow
jurisprudential view of lawyers about the vision of social justice that non- In summary, if we go back to the original question posed in the beginning of
lawyers in the Commission seemed to see with clearer eyes. this session about the apparent conflicting rights of farmers and
farmworkers and those of landowners in the implementation of agrarian
If indeed the Executive is the sword, the Legislative is the purse and the reform, the answer is provided by the Constitution itself – the landowner
Judiciary is the conscience of a nation, it should be easy enough for our gets just compensation (which is a huge concession, given the resources of
judges to uphold the equity object of agrarian reform. As the record of the the government which has to subsidize it) and the farmer gets the land (that
Commission shows, the objective of agrarian reform is not efficiency or is why I was critical of the way CARP allowed the “corporatization” window
productivity or even faster economic growth, no matter how important and that Hacienda Luisita availed of because the farmers never get to control
laudable these objectives might be, but equity. the land). The power of the State can be used to make sure that happens –
taxation, expropriation, and if necessary, the exercise of police power, and
The empirical evidence shows that there need not be a contradiction
between agrarian reform and efficiency and productivity of farms, as long as by providing the resources for the farmers to own the land and to succeed
in farming it.
the appropriate support services and infrastructure (especially farm to
market roads) is provided by the State. Thailand is a good model of how In closing, may I say that I do not envy the agrarian reform officials who are
agrarian reform, productivity in agriculture and economic growth go at the frontlines of the legal and moral dilemmas that abound in concrete
situations in the field. It is easy enough for many of us to know what to do
OOTP | SocLeg Notes

6
when observing situations from a distance. But as a commentator said
about former President Clinton and his newly published book, “His integrity
is at its highest when the situation is at its most hypothetical.”

I wish them all the best in the difficult task of addressing the problems at
the ground level, which are certainly far from being hypothetical.

OOTP | SocLeg Notes