Chapter 9: SUPPORT SERVICE

Section 35: Creation of Support Service

Department of Agrarian Reform (DAR)
-Office of Support Service The Office shall provide general support and coordination services in implementation of the program particularly in carrying out the provisions of the services to farmers-beneficiaries and affected landowners.

Services offered by the DAR

1. Irrigation facilities 2. Infrastructure development and public works projects 3. Government Subsidiaries for the use of irrigation facilities 4. Price support and guarantees for all agricultural produce 5. Extend to small landowners and farmers' organizations the necessary credits 6. Promoting, developing and extending financial assistance to small- and medium-scale industries in agrarian reform areas 7. Assigning sufficient numbers of agricultural extension workers to farmers' organizations 8. Research, development, and dissemination of information on agrarian reform, plants, and crops best suited for cultivation and marketing 9. Development of cooperative management skills through intensive training 10. Assistance in the identification of ready markets for agricultural produce and training in other various prospects of marketing 11. Conduct an effective information dissemination through DAR to promote marketing and minimize spoilage of agricultural produce and products 12. Create a credit guarantee fund for agricultural landowners that will enhance the collateral value of agricultural lands that are affected or will be affected by coverage under CARP 13. Administration, operation, management and funding of support services programs and projects including pilot projects and models related to agrarian reform as developed by DAR

DAR specifically made a policy statement in Administrative Order No. 05

The success of the CARL depends on the provision if the necessary support services and an organizational vehicle that will propel the beneficiaries to attain economic independence and self-reliance. The lives of the agrarian reform beneficiaries (FBs) will be uplifted through the provision of the support services.

Are the services enumerated sufficiently funded and implemented?

A Support Service Office is created, however there are no funds definitely appropriated to cover such services. The provision is, therefore, at best, a STATEMENT OF INTENT.

Section 36. Funding for Support Services

In order to cover the expenses and support services, at least forty percent (40%) of all appropriations for agrarian reform during the five (5)-year extension period shall be immediately set aside and made available for this purpose: Provided, that the DAR shall pursue integrated land acquisition and distribution and support services strategy requiring a plan to be developed parallel to the land acquisition and

distribution process. The planning and implementation for land acquisition and distribution shall be hand-in-hand with support services delivery Provided, further, that for the next five (5) years, as far as practicable, a minimum of two (2) Agrarian Reform Communities (ARCs) shall be established by the DAR, in coordination with the local government units, non-governmental organizations, community-based cooperatives and people's organizations in each legislative district with a predominant agricultural population: Provided, furthermore, that the areas in which the ARCs are to be established shall have been substantially covered under the provisions of this Act and other agrarian or land reform laws: Provided, finally, that a complementary support services delivery strategy for existing agrarian reform beneficiaries that are not in barangays within the ARCs shall be adopted by the DAR.

What is an Agrarian Reform Community?

For this purpose, an Agrarian Reform Community is composed and managed by agrarian reform beneficiaries who shall be willing to be organized and to undertake the integrated development of an area and/or their organizations/cooperatives.

Is this an adequate and practical way of funding the support services?

Apparently, it is not. It would be preferable for Congress to provide in the Annual Appropriations Act appropriations for support services. However, the provision may serve as a useful guide in providing appropriations for agrarian reform.

What is the implication of inadequate support services?

Because of absence of government support for distributed land, agricultural production for the whole country has fallen far below expected level. Almost all crops have suffered severe declines in production nationwide. For the past successive years, all agricultural crops shows negative growth with the possible exception of poultry. We are now importing all basic commodities rice, sugar, corn, coconut oil.

Sec. 37 Support Services For Agrarian Reform Beneficiaries

The following shall institute reform to liberalize access to credit by ARBs:
Department of Agriculture (DAR) Department of Finance Bangko Sentral ng Pilipinas (BSP)

Support Services For Agrarian Reform Beneficiaries:

1. Land Survey and Titling 2. Socialized terms on Agricultural Credit Facilities 3. Extension Services 4. Infrastructure 5. Research, Production, and Use of Organic Fertilizer and Other Local Substances 6. Direct and Active DAR Assistance in the Education & Organization of Actual and Potential Agrarian Reform Beneficiaries

Socialized terms on Agricultural Credit Facilities:

30% of the 40% support services allocation shall be immediately set aside and made available for agricultural credit facilities

1/3 allocated for subsidiaries to support the initial capitalizations for agricultural production to new agrarian reform beneficiaries upon the awarding of emancipation patent or the certificate of land award. 2/3 allocated to provide access to socialized credit to existing agrarian reform beneficiaries including the leaseholder The following shall provide a delivery system for disbursement of financial assistance to: 1. individual ARBs, 2. holders of collective titles, and 3. Cooperatives: Land Bank of the Phils. (LBP) & other concerned govt financial institutions Accredited savings & credit cooperatives Financial service cooperatives & accredited cooperative banks

Acceptable Collateral For Loans

1. Purchase Orders 2. Marketing Agreements or expected harvests

Loans obtained shall be used in the following:

1. Improvement and development of the farm holding of the ARB; or 2. Establishment of facilities which shall enhance production or marketing of agricultural products or increase farm income therefrom 70% of 15% earmarked for farm inputs as requested by the duly accredited ARBs organizations 5% for seminars, trainings and the like to help empower ARBs

Farm Inputs

1. Seeds, seedlings and/or planting materials; 2. Organic Fertilizers 3. Pesticides 4. Herbicides 5. Farm animals, implements/machineries

Extension Services

1. Planting, cropping, production and post harvest technology transfer; 2. Marketing and management assistance and 3. support to cooperatives and farmers organization

Infrastructure

1. Access Trails 2. Mini-dams

3. Public Utilities 4. Marketing and Storage Facilities

Research, Production, and Use of Organic Fertilizer and Other Local Substances
- Those necessary in farming and cultivation

Direct and Active DAR Assistance in the Education & Organization of Actual and Potential Agrarian Reform Beneficiaries
Barangay Municipal City Provincial National

DAR to assist them in

Understanding their rights and responsibilities as owner-cultivators developing farmrelated trust relationships among themselves and their neighbors. Increasing farm production and profitability with the ultimate end of empowering them to chart their own destiny.

PRESIDENTIAL AGRARIAN REFORM COUNCIL (PARC)

- Formulate policies to ensure that support services for ARBs shall be provided at all stages of the program implementation with the concurrence of the concerned ARBs - Adopt, implement, and monitor policies and programs to ensure the fundamental equality of women and men in the agrarian reform program as well as respect for the human rights, social protection, and decent working conditions of both paid and unpaid men and women farmer beneficiaries.

Bagong Kilusang Kabuhayan Sa Kaunlaran (Bkkk) Secretariat

- Transferred and attached to the Land Bank of the Philippines, for its supervision including all its applicable and existing funds, personnel, properties, equipment, and records.

MISUSE OR DIVERSION OF THE FINANCIAL AND SUPPORT SERVICES Sanctions against beneficiary found guilty:
1. Forfeiture of the land transferred to him/her or lesser sanctions as may be provided by the PARC 2. Criminal prosecution

Sec. 37-A Equal Support for Rural Women

Support services shall be extended equally to women and men agrarian reform beneficiaries.

PRESIDENTIAL AGRARIAN REFORM COUNCIL (PARC) shall ensure that:

1. The support services integrate the specific needs and well-being of women farmerbeneficiaries taking into account the specific requirements of female family members of farmer beneficiaries 2. Rural women will be able to participate in all community activities.

RURAL WOMEN Entitled to

1. Self-organization in order to obtain equal access to economic opportunities; 2. Access to agricultural credit loans, marketing facilities and technology, and other support services; 3. Equal treatment in land reform and resettlement schemes. WOMENS DESK To be established by DAR Primarily responsible for formulating and implementing programs and activities related to the protection and promotion of womens rights Provide an avenue where women can register their complaints and grievances principally related to their rural activities

Sec. 38 Support Services for Landowners

PARC and other govt agencies and instrumentalities shall provide landowners:
1. 2. 3. 4. Investment Information, Financial and Counselling Assistance; Facilities, Programs and Schemes for Conversion or Exchange of bonds issued Marketing of Agrarian Reform Bonds Other services

Investment Information, Financial and Counselling Assistance

- Investment information on government owned and/or controlled corporations and disposable assets of the government in pursuit of national industrialization and economic independence.

Facilities, Programs and Schemes for Conversion or Exchange of bonds issued

Bonds issued for payment of the lands acquired with stocks Bonds issued by the National Government, the BSP and other government institutions and instrumentalities.

Marketing of Agrarian Reform Bonds

- Promotion of the marketability of said bonds in traditional and non-traditional financial markets and stock exchanges

Other Services
- Services designed to utilize productively the proceeds of the sale of such lands for rural industrialization.

Landowner who invests in rural-based industries shall be entitled to:

Incentives granted to a registered enterprise engaged in a pioneer or preferred area of investment as provided in the Omnibus Investment Code of 1987; Other incentives as the PARC, the LBP, or other government financial institutions shall provide. LBP shall redeem an los agrarian reform bonds at face value as an incentive, provided that: At lease 50% of the proceeds thereof shall be invested in a 1. Board of Investments (BOI)-registered company or 2. Any agri-business or agro-industrial enterprise in the region where the CARP-covered landholding is located.

Additional incentive:
Additional 2% incentive in cash shall be paid to a landowner who: 1. Maintains his/her enterprise as a going concern for 5 years; or 2. Keeps his/her investments in a BOI-registered firm for 5 years. PROVIDED: The rights of ARBs are not, in any way, prejudiced or impaired thereby. The DAR, LBP and the DTI shall jointly formulate the program to carry out these provisions under the supervision of PARC. In no case shall the landowners sex, economic, religious, social, cultural, and political attributes exclude them from accessing these support services.

Section 39. Land Consolidation

The DAR shall carry out land consolidation projects to promote equal distribution of landholdings, to provided the needed infrastructures in agriculture, and to conserve soil fertility and prevent erosion.

Has the DAR been faithful to this mandate of promoting among others, equal distribution and providing necessary infrastructure under Section 39?

Apparently not. Among the models used by Congress in enacting an agrarian reform is that of Taiwan. There, the farm-lands are well-laid out and the areas are identical. Here, the lands were simply taken and distributed to the FBs without making any physical change in boundaries to make it more adaptable to mechanization and irrigation.

Has the DAR been faithful to this mandate of promoting among others, equal distribution and providing necessary infrastructure under Section 39?

Apparently not. Among the models used by Congress in enacting an agrarian reform is that of Taiwan. There, the farm-lands are well-laid out and the areas are identical. Here, the lands were simply taken and distributed to the FBs without making any physical change in boundaries to make it more adaptable to mechanization and irrigation. But then, Taiwan covered only 400,000 hectares while our country has to date covered a total of 7 million hectares.

Chapter 10: SPECIAL AREAS OF CONCERN

Sec. 40 Special Areas of Concern
As an integral part of the Comprehensive Agrarian Reform Program the following principles in these special areas of concern shall be observed:

A. Subsistence Fishing
Small fisherfolk, including seaweed farmers, shall be assured of greater access to the utilization of water resources.

Applicable laws in this is special concern is:

Republic Act 8550 An Act Providing For The Development, Management And Conservation Of The Fisheries And Aquatic Resources, Integrating All Laws Pertinent Thereto, And For Other Purposes.

Declaration of Policy of RA 8550

To achieve food security as overriding consideration in the utilization, management, development, conservation and protect of fishery resources. To limit access to the fishery and aquatic resources of the Philippines for the exclusive use and enjoyment of Filipino citizens. To ensure the rational and sustainable development, management and conservation of the fishery and aquatic resources in Philippine waters. To protect the rights of fisherfolk. To provide support to the fishery sector.

To manage fishery and aquatic resources in a manner consistent with the concept of integrated costal area management. To grant private sector the privilege to utilize fishery resources under the basic concept that the grantee, licensee or permittee shall not only be a privileged beneficiary of the but also an active participant of the Government.

Objectives:
1. Conservation, protection and sustained management of the country's fishery and aquatic resources; 2. Poverty alleviation and the provision of supplementary livelihood among municipal fisherfolk; 3. Improvement of productivity of aquaculture within ecological limits; 4. Optimal utilization of offshore and deep-sea resources; and 5. Upgrading of post-harvest technology.

Powers of the Secretary of Dept. of Agriculture:

Use and exploitation of the fishery and aquatic resources in Philippine waters shall be reserved exclusively to Filipinos. The secretary may determine the required fees for the Fishpond Lease Agreement. The Secretary may prescribe limitations or quota on the total quantity of fish captured. The secretary may declare a closed season for conservation and ecological purposes. Environmental Impact System is a mandatory requirement.

Prohibited Acts:
1. 2. 3. 4. 5.

Unauthorized fishing or engaging in other unauthorized fisheries activities. Poaching in Philippine waters. Fishing through explosives, noxious or poisonous substance, and/or electricity. Fishing in overfished areas and during closed season. Aquatic pollution.

B. Logging and Mining Concessions

Logging and Mining shall be opened up for agrarian settlements whose beneficiaries shall be required to undertake reforestation and conservation production methods. Subject to existing laws, rules and regulations, settlers and members of tribal communities shall be allowed to enjoy and exploit the products of the forest.

C. Sparsely occupied public agricultural lands

Surveyed, proclaimed and developed as farm settlements for qualified landless people Agricultural land allocations shall be made for ideal family-size farms Uncultivated lands of the public domain shall be made available on a lease basis to interested and qualified parties Parties who will engaged in the development of capital-intensive, traditional or pioneering crops shall be given priority The lease period, which shall not be more than a total of fifty (50) years, shall be proportionate to the amount of investment and production goals of the lessee

D. Idle, Abandoned, Foreclosed and Sequestered Lands

They shall be planned for distribution as homelots and family-size farmlots to actual occupants If land area permits, other landless families shall be accommodated in these lands

Art. XVIII, Sec. 22 - Transitory Provisions

At the earliest possible time, the Government shall expropriate idle or abandoned agricultural lands as may be defined by law, for distribution to the beneficiaries of the agrarian reform program

Guidelines in homelots:
Refers to a parcel of agricultural lands being used by the ARB as the site of his permanent dwelling including the area utilized for raising vegetables, poultry, pigs, and other animals and engaging in minor industries. The area may not eceed 1000 square meters. It may be awarded if it is subject of land distribution under the CARP, provided, it does not form part of the retained area of the landowner If within the retained area of the landowner, he may be made to transfer his dwelling in his farmlot or other area designated for his homelot which shall be agreed by the parties The landowner may opt to request the farmworker-beneficiary not to remove the dwelling or other improvements for his own use. In such case he shall pay for the value of the dwelling and other improvements As a rule, the homelot is computed on the basis of the price of the farmlot transferred to the ARB. However if it is outside the farmlot, the price shall be based on the value of the farmholding where said homelot is located

E. Rural Women
They shall have equal rights to ownership of the land, equal shares of the farms produce and representation in advisory or appropriate decision making bodies.

F. Veterans And Retirees

If landless, they shall be given due consideration in the disposition of agricultural lands of the public domain

Dar Administrative Order No. 03-97:

Section 7 of Article XVI of the Constitution and Section 40 (6) of Republic Act No. 6657 state that landless war veterans and veterans of military campaigns, their surviving spouses and orphans, retirees of the Armed Forces of the Philippines (AFP) and the Integrated National Police (INP, now PNP), returnees, surrenderees, and similar beneficiaries, shall be considered in the disposition of agricultural lands of the public domain. Members of the Citizen Armed Forces Geographical Units (CAFGUs) or their surviving spouses and orphans, who were recruited by the Armed Forces of the Philippines (AFP) but who were disbanded are likewise included in the disposition of agricultural lands of the public domain subject of this Order.

G. Agricultural Graduates

If landless, they shall be assisted by the government, through the DAR, in their desire to own and till agricultural lands.

Chapter 11: PROGRAM IMPLEMENTATION

Sec. 41 THE PRESIDENTIAL AGRIARIAN REFORM COUNCIL (PARC)
The following comprises the PARC:
1. President of the Philippines Chairman 2. Secretary of Agrarian Reform Vice Chairman 3. Secretary of the Department of Agriculture 4. Secretary of the Department of Environment and Natural Resources 5. Secretary of the Department of Budget and Management 6. Secretary of the Department of Interior and Local Government 7. Secretary of the Department of Public Works and Highways 8. Secretary of the Department of Trade and Industry 9. Secretary of the Department of Finance 10. Secretary of the Department of Labor and Employment 11. Director-General of the National Economic and Development Authority 12. President, Land Bank of the Philippines 13. Administrator, National Irrigation Administration 14. Administrator, Land Registration Authority 14. Six (6) representatives of affected landowners to represent Luzon, Visayas, and Mindanao 15. Six (6) representatives of agrarian reform beneficiaries: Two each from Luzon, Visayas, and Mindanao Provided, that one of them shall be from cultural communities: Provided, further, that at least one of them shall come from a duly recognized national organization of rural women or a national organization of agrarian reform beneficiaries with a substantial number of women members: Provided, finally, that at least 20% of the members of the PARC shall be women but in no case shall they be less than two. The representation between landowners and agrarian reform beneficiaries is not balanced. While the beneficiaries have six representatives, the landowners have only three. It should further be noted that in Section 42 concerning the composition of the Executive Committee of the PARC, neither the landowners nor the beneficiaries have representatives. The membership of the EXCOM is entirely at the discretion of the President. Yet, the EXCOM would merely have as much authority as the PARC.

Sec. 42 THE EXECUTIVE COMMITTEE (EXCOM)

The following comprises the EXCOM of the PARC:
1. Secretary of the DAR Chairman; and 2. Such other members as the President may designate, taking into account Section 5,

Article XIII, of the 1987 Constitution.

Unless otherwise directed by PARC, the EXCOM may meet and decide on any and all matters in between meetings of the PARC: Provided, that its decision must be reported to the PARC immediately and not later than the next meeting.

Sec. 43 THE PARC SECRETARIAT

Composition :
1. Secretary of Agrarian Reform; 2. Undersecretary; and 3. Staff The Secretary of Agriarian Reform shall be the Head of the Secretariat. The Undersecretary shall the Secretary of Agrarian Reform. The composition of the staff shall be determined by the PARC Executive Committee, and its compensation shall be chargeable against the Agrarian Reform Fund. All officers and employees of the Secretariat shall be appointed by the Secretary of Agrarian Reform.

Duties and functions:

1. To provide general support and coordinative services, e.g. inter-agency linkages; 2. To provide program and project appraisal and evaluation; and 3. To provide general operations monitoring for the PARC.

Sec. 44 THE PROVINCIAL AGRARIAN REFORM COORDINATING COMMITTEE (PARCCOM)

R.A. No. 6657 (Comprehensive Agrarian Reform Law) created the Provincial Agrarian Reform Coordinating Committee (PARCCOM) with the primary functions of coordinating and monitoring the implementation of CARP in the province.

Functions:
1. Coordinate and monitor implementation of CARP The PARCCOM serves as the instrumentality for policy formulation and inter-agency work programming of DARPO/PCIT in accordance with the guidelines set by PARC. A PARCCOM Tracking Guide shall be adopted and used which will show the progress of the CARP implementation program in the provincial level. Furthermore, PARCCOM will initiate the holding of on-site inspections, public hearings and consultations with concerned sectors utilizing appropriate mechanisms and entities already in place, like DARPO/PCIT, and other provincial bodies such as the Provincial Development Council (PDC), People's Economic Council (PEC), Provincial Agricultural and Fisheries Council (PAFC), Provincial Peace and Order Council (PPOC), People's Law Enforcement Board (PLEB), among others. Joint PARCCOM-PCIT meetings will also be held quarterly or whenever necessary. A PARCCOM Work and Financial Plan will also be submitted annually to PARC Executive Committee through the PARC Secretariat. A quarterly report containing the development and achievements of CARP implementation shall also be submitted and a copy thereof furnished to DAR Regional Director. 2. Coordinate and monitor implementation of CARP Provides information, progress and guidelines on the provisions of CARP in the province. The PARCCOM in coordination with the DARPO/PCITs shall implement information dissemination and promote awareness of Agrarian Laws, guidelines and issues or such matters of interest.

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It may conduct information dissemination seminars in groups or communities for the above-stated purpose. It may also recommend to PARC a priority land reform area for immediate acquisition and distribution to qualified ARBs. The PARCCOM may also recommend to the PARC the following: a. Market prices as used in the determination of the profit-sharing obligation of agricultural entities in the province; and b. Adoption of direct payment scheme between landowner and farmer and/or farmworker beneficiary under the following conditions: i. The amount and terms of payment are not more burdensome to the agrarian reform beneficiary than under the compulsory coverage of CARL; ii. The agrarian reform beneficiary agrees to the amount and terms of payment; iii. The DAR shall act as mediator in cases of disagreement between the landowner and the farmer/farmworker beneficiary; and iv. The farmer and/or farmer beneficiary shall be eligible to borrow from the LBP an amount equal to 85% of the selling price of the land that they have acquired. 3. Continuous processing of applications for the following: a. Lease back arrangements (must be the last resort); b. Joint-venture agreements; and c. Other schemes that will optimize the operating size for agricultural production and also promote both security of tenure and income to farmer beneficiaries. PARCCOM shall maintain coordination with the DARPO/PCIT and other provincial bodies created pursuant to an effective implementation of the CARP law. It may also conduct in-depth studies or evaluations, using the technical and administrative support of the DARPO/PCIT, PARCCOM Secretariat and others concerned.

Composition :
PARCCOM is a 13-member committee composed of the following: 1. Chairperson Chairman. The Chairman is appointed by the President upon the recommendation of the Executive Committee. He is the presiding officer and may call, on his initiative or whenever expedient, a meeting to confer with the council on matters involving agrarian policy formulation on provincial levels. He shall serve for a term of 3 years subject to the discretion of the President. In the same manner, the Chief Executive may opt to reappoint him at the expiration of his term of office. 2. Ex Officio Members Provincial Agrarian Reform Officer (PARO). The PARO acts as the action officer. Also known as the Executive Officer of the Council, he brings to the attention of PARCCOM matters that is deemed necessary for PARCCOM information, action or resolution. Furthermore, PARO renders periodic reports to the PARCCOM, the Regional Director and the DAR Secretary. He will also provide the PARCCOM, with the necessary secretariat support and supervise the same. Members of the PARCCOM with staff complement shall be enjoined to assist in providing personnel support to the secretariat. Finally, he may act as Acting Chairperson should there be a vacancy in the position of Chairperson. One representative from each of the following: Department of Agriculture (Provincial Agriculture Officer); Department of Environment and National Resources (Provincial Environment and Natural Resources Officer); and Land Bank of the Philippines.

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3. Elected Members There shall be one representative each from existing farmers organization; agricultural cooperatives; and non-governmental organization in the province. There shall be two representatives from landowners, at least one of whom shall be a producer representing the principal crop of the province. There shall be two representatives from farmer and farmworker or beneficiaries, at least one of whom shall be a farmer or farmworker representing the principal crop of the province. In areas where present, there shall be one representative from cultural communities. The ex officio members and elective members shall perform all official functions of the PARCCOM and actively participate in its deliberations, articulating their official position of their respective agency or sector on the CARP development issues at hand to provide the PARCCOM with the most significant insights but never for purely parochial and/or partisan purposes.They shall represent the PARCCOM and its officially agreed upon views/decisions on CARP/development matters to their respective agency/sector such that those concerned will understand the facts and insights involved, thereby facilitating positive and favorable actions to the Program. They each shall have a term of shall serve for a term of three years and maybe re-elected for another term of three years.

What is a joint economic enterprise?

Agrarian Reform means not just the redistribution of lands to farmers, but includes the totality of factors and support services designed to lift the economic status of the beneficiaries. To ensure adequate support services, there is a need for greater private sector participation, both civil society and business, in the development of agrarian reform areas. This shall be facilitated through agribusiness partnerships or arrangements, otherwise known as Joint Economic Enterprises, between beneficiaries and investors. Joint Economic Enterprises generally refer to partnerships or arrangements between beneficiaries and investors to implement an agribusiness enterprise in agrarian reform areas. It shall involve distributed lands and shall be at the option of the beneficiary. Their availability, however, does not mean government will cease to provide agrarian support services. These are merely alternatives that beneficiaries may consider to sustain the operations of distributed farms, or to make their lands productive, thus enable them to enjoy the full benefits of agrarian reform. Beneficiaries shall have full freedom to engage in a joint economic enterprise with investors of their own choice.

Limitation :
1. In Commercial Farms: the former landowner or operator shall be given priority;2 2. The beneficiaries remain as owners of the land. Only the use of the land may be conveyed where necessary to the enterprise; and 3. Period/term: a. The parties will agree on the period; and b. And cause the annotation of the agreement on the titles of the properties (Emancipation Patent/ CLOA).

Legal Bases:
1. Sections 4 and 5, Article XIII, of the 1987 Constitution; and 2. Sections 35 and 44 of R.A. No. 6657, as amended by R.A. No. 7905.

General Features Or Purposes:

1. Production, processing and marketing of agricultural products;

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2. Introduction, maintenance, rehabilitation or upgrading of agricultural capital assets, infrastructure, facilities or services; and 3. Provision of expertise, technology, equipment and other services that will make distributive lands productive.

Forms Of Joint Economic Enterprise 1. Joint Venture

Beneficiaries Contribute 1. Use of the land held individually or in common 2. Facilities 3. Improvements (if any) Investor Furnishes 1. Capital 2. Technology for: a. Production, processing and marketing of agricultural goods or b. Construction, rehabilitation, upgrading and operation of agricultural capital assets, infrastructure and facilities

Joint ventures seek to implement agricultural-related projects and activities over distributed lands. It has a personality separate and distinct from that of the contracting parties in accordance with the Corporation Code of the Philippines. Joint ventures shall acquire merely usufructuary rights over the land for an agreed period, subject to the limitations under Article 605 of the Civil Code of the Philippines and subject to the condition that it shall preserve the form and substance thereof. The ownership of the land remains with the beneficiary. It cannot be used to settle obligations of the joint venture corporations (JVCs) in the event of insolvency or bankruptcy. JVCs shall pay the taxes due on the improvements while the agrarian reform beneficiaries (ARBs) shall pay the taxes due on the land. The equity participation of beneficiaries shall be based on the value of the use of the land, its improvements and facilities, and other applicable factors consistent with standard valuation practices. The following are its limitations: (a) equivalent to the lease rental as determined in accordance with existing laws; (b) shall not be less than the total amount due from the ARBs as payment for the land and its improvements; and (c) shall not be subject to dilution in case of additional issuance by the JVC shares of their capital stock to reduce their voting rights. JVCs have voting shares, unless the beneficiaries prefer otherwise. The increases in the fair market value of the use of the land, improvements and facilities may result in corresponding increase in equity, which is determined by equity review mechanisms. Joint ventures are managed jointly by investors and ARBs. ARBs shall be given fixed number of seats in its board of directors corresponding to their equity interest. ARBs may be given additional seats, if agreed upon by the parties.3 The agreement shall provide for the procedures, terms, and conditions for equity divestment by the investor in favor of the beneficiaries.

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2. Production, Processing and Marketing agreement: Beneficiaries Investor Engage in production and processing of Buys the crops pursuant to a pre-agreed agricultural crops selling price and takes charge of the marketing Makes available the technology prescribed for the production and processing of agricultural goods according to the quality standards set by the market

Any loss resulting to the arbitrary adjustments in the quality standards:

General Rule: shall be borne by the investor Exception: If the ARBs are a. Informed, at the earliest opportunity, of the adjustments b. Provided with reasonable means to cope therewith.

3. Build-operate-transfer scheme:
Beneficiaries Receives reasonable rent for the use of the land where the facilities and improvements are located Investor Builds or rehabilitates facilities and improvements necessary to make the lands productive Directly operates the same for a specific period

The facilities and improvements shall be constructed at the investors own expense. Investor shall not be allowed to access government funds that would otherwise be available as financing or capital for beneficiaries. Beneficiaries may continue to engage in production activities on the portions of the land not affected by the facilities and improvements. This scheme is separate and distinct from the BOT provided under R.A. No. 6957.

4. Management contract:
Beneficiaries Hire the services of a contractor Contractor Hired to Manage and operate the farm for purposes of producing high value cops/ other agricultural crops for export Management contractor receives a fixed compensation, commission or other forms of remuneration for his services The farm under this scheme remains under the control of ARBs.

5. Service contract:
Beneficiaries Engages the services of a contractor Service Contractors Provides services for -harvest facilities for storage and packing Remain to be in control and in possession of the land

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The service contractors may include other ARBs with necessary equipment and facilities for mechanized farm operations. Beneficiaries who wish to engage in service contracting but with limited financial capability may avail of loan facilities or credits.

6. Lease contract:
Beneficiaries Allows/ authorizes the lessee to Lessee/ Investor Provides capital to

For the purpose of agricultural production Extend all technical and management services for the efficient operation of the farm Former landowners or other investors may become lessees. Leaseback arrangements, however, should be the last resort.5

In case of loss:

General Rule: the lessee/investor assumes the risk of loss of agricultural operations Exception: If the loss is caused by force majeure, payment of lease rental may be deferred or paid on instalment basis until such time the lessee covers the losses. The period of the lease contract shall be subject to stipulations of the parties in accordance with the law.

The following are the rights of the parties after the termination of the contract:
Beneficiaries All buildings, roads, bridges and other permanent structures/improvements and facilities on the land under lease, shall accrue or belong to the ARB Lessee/ Investor Shall have the option to: 1. Remove or 2. Transfer any non-permanent improvement When? agreement At whose expense? Limitation: the land

7. Any combination of the preceding schemes; and 8. Such other schemes that will promote the productivity of agrarian reform areas consistent with existing laws.

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Approval Of Joint Economic Enterprises In determining whether the Joint Economic Enterprise is required to undergo review and approval process, the parties must make a distinction and determination of the presence of some elements.
Required to go through Review and Approval NOT required to go through Review and Process Approval Process Contracts which have the following elements: All other contracts 1. It will optimize the operating size for agricultural production 2. The investor is the former landowner 3. It will require conveyance of the use and possession of the land in favour of the investor (or former landowner Procedure 1. Contracts shall be submitted to PARCCOM 1. Agreement shall be witnessed by the for endorsement to PARC a. Provincial Reform Officer (PARO) or 2. DAR Support Service Office shall review the b. Municipal Agrarian Reform Officer (MARO) contract 2. Copy of Agreement shall be furnished to 3. Approval of PARC DAR Regional Office 3. DAR Regional Office shall forward a copy to DAR Support Service Office

Sec. 45 PROVINCE-BY-PROVINCE IMPLEMENTATION

The PARC shall provide the guidelines for a province-by-province implementation of the CARP. The ten-year program of distribution of public and private lands in each province shall be adjusted from year by the province's PARCCOM in accordance with the level of operations previously established by the PARC, in every case ensuring that support services are available or have been programmed before actual distribution is effected. The DAR may not validly implement the CARP independently and without the participation of the PARC or the PARCCOM and even beyond the 10-year period specified in the law.

Sec. 46 BARANGAY AGRARIAN REFORM COMMITTEE

Unless otherwise provided in this Act, the provisions of Executive Order No. 229 regarding the organization of the Barangay Agrarian Reform Committee (BARC) shall be in effect.

Creation:
The government promulgated E.O. 229 and affirmed its commitment to build a community-based implementing and coordinating mechanism for CARP by providing for the establishment of the Barangay Agrarian Reform Council. In line with the policy of encouraging people's initiative and self-reliance, the law provided that the BARC shall operate on a selfhelp basis.

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Composition:
The BARC has regular voting members and ex-officio non-voting members. Regular members shall be limited to residents of the barangay. On the other hand, the ex-officio members shall comprise representatives of government agencies and the barangay council. The BARC shall be composed of 11 members, as follows: 1. A representative of the barangay council; 2. The Department of Agriculture official assigned in the barangay; 3. The DENR official assigned in the area; 4. The DAR Agrarian Reform Technologist assigned in the area; 5. A representative of the Land Bank of the Philippines (LBP); 6. A representative of farmer and farmworker beneficiaries; 7. A representative of non-beneficiary farmers and farmworkers; 8. A representative of the local agricultural cooperative; 9. A representative of other farmer or farmworker organizations; 10. A representative of Non-Government Organizations; and 11. A representative of the landowners group. The members specified above from (1) to (5) shall be designated by their respective offices, while those from (6) to (11) shall be elected respectively, in a meeting called for this purpose by the Municipal Agrarian Reform Officer (MARO), from among and by the representatives of each sector. An equal number of alternate representatives shall be elected at the same meeting. If any elective member mentioned under (6) to (11) in the list of BARC members is unable to serve in the committee for some reasons, an alternate member shall serve the remaining tenure of the original member. There should be an executive committee composed of the BARC chairman, DAR representative and two members chosen by the chairman.

Election Process:
The MARO shall prepare a voters' list for the following sectoral groups in every barangay: 1. Farmer and farmworker beneficiaries; 2. Farmer and farmworker non-beneficiaries; 3. Agricultural cooperatives; 4. Other farmers' organizations; 5. Non-Government Organizations; and 6. Landowners The list shall be posted in the barangay hall and other conspicuous places for a period of 10 days prior to the scheduled elections. The election by sectoral group shall be held separately. Each election shall be supervised by the Agrarian Reform Technologist who shall likewise certify to the election results. Election shall be done by secret balloting.

Tenure Of Office:
The elected BARC members shall hold office for two (2) years.

Responsibilities:

1. The BARC may create such committee/s as may be necessary to assist in the exercise of its functions;

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2. A BARC member shall withdraw from the meeting when any matter concerning his person is under discussion. He shall be replaced by his alternate representative; 3. The BARC shall operate on a self-help and free-service basis; 4. Any elected BARC member who fails to fulfill his duties may be removed by a majority vote of the members. He shall be replaced by the alternate sectoral representative; 5. The BARC shall endeavor to mediate, conciliate and settle agrarian disputes lodged before it within 30 days from its taking cognizance thereof. If after the lapse of the thirty day period it is unable to settle the dispute, it shall issue a certification of the proceedings and shall furnish a copy thereof upon the parties within seven days after the expiration of the thirty day period; 6. All decision of the BARC shall be final and executory unless appealed to the PARO, within 10 days from receipt of decision, by any party aggrieved thereof. The PARO, in turn, shall render his decision on the appeal within 15 days from receipt of the records of the case; and 7. The BARC shall have its seat at a suitable place in the barangay hall or any other suitable place.

Sec. 47 THE FUNCTIONS OF THE BARC

The BARC shall have the following functions:
1. Mediate and conciliate between parties involved in an agrarian dispute including matters related to tenurial and financial arrangements; 2. Assist in the identification of qualified beneficiaries and landowners within the barangay; 3. Attest to the accuracy of the initial parcellary mapping of the beneficiarys tillage; 4. Assist qualified beneficiaries in obtaining credit from lending institutions; 5. Assist in the initial determination of the value of the land; 6. Assist the DAR representatives in the preparation of periodic reports on the CARP implementation for submission to the DAR; 7. Coordinate the delivery of support services to beneficiaries; and 8. Perform such other functions as may be assigned by the DAR. The abovementioned functions shall be in addition to the functions of the BARC under E.O. 229. The BARC shall endeavour to mediate, conciliate, and settle agrarian disputes lodged before it within 30 days from its taking cognizance thereof. If after the lapse of the 30-day period, it is unable to settle the dispute, it shall issue a certificate of its proceedings and shall furnish a copy thereof upon the parties within seven days after the expiration of the 30-day period.

Sec. 48 LEGAL ASSISTANCE

The BARC or any member thereof may, whenever necessary in the exercise of any of its functions, seek the legal assistance of the DAR and the provincial, city, or municipal government.

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Sec. 49 POWER TO ISSUE RULES AND REGULATIONS

The PARC and the DAR shall have the power to issue rules and regulations, whether substantive or procedural, to carry out the objects and purposes of this Act. Said rules shall take effect 10 days after publication in two national newspaper of general circulation.

Chapter 12: ADMINISTRATIVE ADJUDICATION

Sec. 50 QUASI-JUDICIAL POWERS OF THE DAR
Section 50 of R.A. 6657 provides that 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 under the jurisdiction of Dept. of Agriculture and DENR. Quasi-Judicial Powers of DAR and its exclusive jurisdiction: Decisions of DAR shall be immediately executory notwithstanding an appeal to the Court of Appeals, except a decision or a portion thereof involving solely the issue of just compensation; ARBs or identified beneficiaries can intervene concerning their individual rights or interests under CARL. Non registration with the SEC of associations of ARBs or identified beneficiaries not a bar to the existence of said legal standing and interest. Except for the Supreme Court, no other courts in the Philippines can issue any restraining order or writ of injunction against PARC, the DAR or any of its authorized representatives. No court or prosecutors office shall take cognizance of cases pertaining to the implementation of the CARP except those provided under section 57 of RA 6657. Automatic referral by judges and prosecutors to the DAR of cases where the parties have allegations that the dispute is agrarian in nature and one of the parties is a farmer/worker or tenant. The DAR has to certify within 15 days whether or not an agrarian dispute exists. Aggrieved party shall have judicial recourse, in cases referred by the MTC and prosecutors office, with the proper regional trial court, and in cases referred by the RTC, to the CA Extent of Jurisdiction: DAR has exclusive and original jurisdiction over all matters involving agrarian implementations of agrarian reform laws. Exceptions: -Those falling under the exclusive and original jurisdiction of the DA and DENR -Petitions for determination of Just Compensation -Prosecution of Criminal offenses under CARL. What is DARAB and its Purpose: The Department of Agrarian Reform Adjudication Board or DARAB was constituted for adjudication and settlement of Agrarian cases, disputes or controversies and to conduct proceedings thereof. Whereby it has to promote just, expeditious, and inexpensive adjudication.

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Powers of Department of Agrarian Reform Adjudication Board: The DARAB new Rules on Procedure 2009 Section 6 provides that the Members of the Board and the Adjudicators are empowered to summon witnesses, administer oaths, take testimony, require submission of reports, compel production of books and documents and answers to interrogatories, and to issue subpoena ducestecum, writs of possession, writs of execution, and other writs to enforce its orders and decisions through their Sheriffs or duly deputized officers. For this purpose, whenever necessary, they shall direct the Philippine National Police, the Armed Forces of the Philippines or any of their component units, or other law enforcement agencies to assist in the enforcement and execution of their decisions, orders, writs, and other processes. Subpoena ducestecum A subpoena ducestecum (or subpoena for production of evidence) is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. Jurisdiction of Department of Agrarian Reform Adjudication Board: The DAR adjudication Board has primary and exclusive jurisdiction, both original and appellate, to determine and adjudicate all agrarian disputes involving the implementation of agrarian laws as well as the implementing rules and regulation. Agrarian Dispute Defined: Section 3(d) of Republic Act No. 6657 provides that Agrarian Dispute refers to any controversy relating to tenurial arrangements, whether leasehold, tenancy, stewardship or otherwise, over lands devoted to agriculture, including disputes concerning farmworkers associations or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of such tenurial arrangements. It includes any controversy relating to compensation of lands acquired under this Act and other terms and conditions of transfer of ownership from landowners to farmworkers, tenants and other agrarian reform beneficiaries, whether the disputants stand in the proximate relation of farm operator and beneficiary, landowner and tenant, or lessor and lessee. How to establish Agrarian Dispute: In order that DARAB may entertain a case, Agricultural tenancy or leasehold relationship must be shown to exist.Because cases involving an agricultural lands does not automatically make such case an agrarian dispute which upon the DARAB has jurisdiction. The law states that it should be Controversy relating to tenurial agreement over lands devoted for agricultural use There are elements that should be taking into consideration: The parties are the landowner and the tenant; The subject matter is agricultural land; There is consent between the parties; The purpose is agricultural production; There is personal cultivation by the tenant; There is sharing of the harvests between the parties. The presence of all of these elements must be proved by substantial evidence.

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DARABs jurisdiction extending over but not limited to the following: The rights and obligations of persons, whether natural or juridical, engaged in the management, cultivation, and use of all agricultural lands covered by R.A. No. 6657, otherwise known as the Comprehensive Agrarian Reform Law (CARL), as amended, and other related agrarian laws; The preliminary administrative determination of reasonable and just compensation of lands acquired under Presidential Decree (PD) No. 27 and the Comprehensive Agrarian Reform Program (CARP); Those cases involving the ejectment and dispossession of tenants and/or leaseholders; Those cases involving the sale, alienation, pre-emption, and redemption of agricultural lands under the coverage of the CARL, as amended or other agrarian laws; Those involving the correction, partition, secondary and subsequent issuances such as reissuance of lost/destroyed owners duplicate copy and reconstitution of Certificates of Land Ownership Award (CLOAs) and Emancipation Patents (EPs) which are registered with the Land Registration Authority; Those cases involving the review of leasehold rentals and fixing of disturbance compensation; Those cases involving the collection of amortization payments, foreclosure and similar disputes concerning the functions of the LBP, and paymentsfor lands awarded under PD No. 27, RA No. 3844, as amended, and R.A. No. 6657, as amended by R.A. No. 9700, and other related laws, decrees, orders, instructions, rules, and regulations, as well as payment for residential, commercial, and industrial lots within the settlement and resettlement areas under the administration and disposition of the DAR; Those cases involving boundary disputes over lands under the administration and disposition of the DAR and the LBP, which are transferred, distributed, and/or sold to tenant-beneficiaries and are covered by deeds of sale, patents, and certificates of title; Those cases previously falling under the original and exclusive jurisdiction of the defunct Court of Agrarian Relations under Section 12 of PD No. 946 except those cases falling under the proper courts or other quasi-judicial bodies; and Those cases involving the annulment or rescission of lease contracts or deeds of sale or their amendments involving lands under the administration and disposition of the DAR or Land Bank of the Philippines (LBP), and the amendment of titles pertaining to agricultural lands under the administration and disposition of the DAR and LBP; as well as EPs issued under PD 266, Homestead Patents, Free Patents, and miscellaneous sales patents to settlers in settlement and re-settlement areas under the administration and disposition of the DAR; Such other agrarian cases, disputes, matters or concerns referred to it by the Secretary of the DAR. Distinguish DAR offices from DARAB: A DAR office concerns the implementation of agrarian DARAB/RARAD/PARAD is the adjudication of agrarian reform cases. reform laws while

Rule II of DARAB new rules and Procedure 2009: SECTION 5 provides that the RARAD shall be the Executive Adjudicator in his Region directly responsible to the Board. As such, he shall: 1. Exercise administrative supervision over the PARADs and, in the absence of the PARAD concerned, their personnel, which shall include, among others, the monitoring of cases in his Region; 2. Receive, hear, and adjudicate agrarian disputes and land cases within the Region; 3. He shall also hear the following cases:

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a. Those cases that cannot be handled by the PARAD on account of inhibition, disqualification or when there is no PARAD designated in the locality; b. Those matters of such complexity and sensitivity that the decision thereof would constitute an important precedent affecting regional interest as may be recommended by the concerned RARAD and approved by the Board; and c. Preliminary determination of just compensation within the jurisdictional limits as stated in Rule XIX, Sec. 2 hereof; and d. Hear application for the issuance of a writ of preliminary injunction and/or temporary restraining order and such other cases which the Board may assign. May the DARAB issue a Warrant of Arrest? To enforce such contempt order, DARAB can issue warrant of arrest. RULE XVIII (Rules of Procedure 2009) Direct and Indirect Contempt SECTION 1. Direct Contempt. The Board or any of its Members or Adjudicator may summarily pass judgment on acts of direct contempt committed in the presence of, or so near the Chairman or any Member of the Board or its Adjudicator, as to obstruct or interrupt the proceedings before the same, including disrespect towards the Members of the Board or its Adjudicator, offensive behavior towards others, or refusal to be sworn or to answer as a witness, or to subscribe to an affidavit or deposition when lawfully required to do so. If the offense is committed against the Board or any of its Members or its Adjudicator, the same shall be punished by a fine not exceeding One Thousand Pesos (P1,000.00), or imprisonment of not exceeding ten (10) days or both. The judgment of the Board or any of its Members or Adjudicator on direct contempt is immediately executory and not appealable. SECTION 2.Indirect Contempt. The Board or any of its Members or its Adjudicator may also cite and punish any person for indirect contempt in accordance with Section 50 of R.A. No. 6657 as amended by R.A. No. 9700. Proceedings for indirect contempt may be initiated motuproprio by the board or adjudicator against which the contempt was committed by order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings in the board or adjudicator concerned. If the contempt charges arise out of or are related to a principal action pending before the Board or Adjudicator, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately. SECTION 3. Appeal from Indirect Contempt. Any person adjudged guilty of indirect contempt by the Adjudicator, may, within a period of five (5) days from notice of the judgment, appeal the same to the Board, and the execution of said judgment shall be suspended pending the resolution of the appeal upon the filing by the said person of a bond on condition that he will abide by, and perform the judgment should the appeal be decided against him. Nature of Proceedings? Proceedings before the board (DARAB) and its adjudicators PARAD/RARAD shall be non-litigious in nature. Subject to the essential requirements of due process, the technicalities of law and procedure and the rules governing the admissibility and sufficiency of evidence in the courts of law shall not strictly apply. The decisions made of the board or its adjudicators may be brought to the courts of appeals in accordance with rules of court

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The Constitutionality of the Department Agrarian Reform Adjudication Board The DARAB, as the entity under the Department of Agrarian Reform having exclusive and original jurisdiction of cases involving agrarian disputes, must of course conform to the express edicts of the Supreme law of the land. However, upon chancing on various comments and theories of legal luminaries of the Philippines, they concluded that the DARAB suffers from various legal defects that proves to be fatal in providing due process to the tenants and land tillers, which is supposed to be the very doctrine that the DARAB must uphold. Of course, this report does not prove the law to be invalid since there is no Supreme Court decision yet deciding the matter. It only helps us students of law to understand the various points on the law creating the DARAB and the powers conferred to the DAR itself with its conflicts to the constitution. It is of course to be disclaimed that no matter how convincing the findings of some legal writers are in pressing their opinions as to be discussed in this report, the decisions of the DARAB and the laws governing the DARAB is still valid and constitutional. This report is divided in four main points that shall discuss how the rules and procedure creating and governing the DARAB is contrary to the provisions of the Constitution. THE DARAB, ALTHOUGH NOT A COURT EXERCISES JUDICIAL FUNCTIONS NOT MERELY QUASI JUDICIAL In order to trace the constitutionality of a law, it is indispensible that we trace the various laws and jurisprudence, as well as rules of procedure affecting the same. We will examine which provisions in these laws grant powers to the DAR and the DARAB in adjudicating agrarian disputes 1. Sec. 50 of the RA 6657 The most important provision in this law that pertains to the subject matter at hand states that: DAR is vested with quasi judicial powers or primary jurisdiction to determine and adjudicate agrarian reform matters and exclusive original jurisdiction over matters involving implementation of agrarian reform It shall not be bound by technical rules of procedure and evidence but shall proceed to hear and decide all cases, disputes or controversies in a most expeditious manner, employing all reasonable means to ascertain the facts of every case in accordance with justice and equity and the merits of the case. Toward this end, it shall adopt a uniform rule of procedure to achieve a just, expeditious and inexpensive determination for every action or proceeding before it. It shall have the power to summon witnesses, administer oaths, take testimony, require submission of reports, compel the production of books and documents and answers to interrogatories and issue subpoena, and subpoena duces tecum, and enforce its writs through sheriffs or other duly deputized officers.t shall likewise have the power to punish direct and indirect contempts in the same manner and subject to the same penalties as provided in the Rules of Court. 2. Executive Order 129-A Sec. 5. Powers and Functions. Pursuant to the mandate the Department, and in order to ensure the successful implementation of the Comprehensive Agrarian Reform Program, the department is hereby authorized to: Resolve agrarian conflicts and Land tenure related problems as may be provided by law

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Sec. 13.There is hereby created an Agrarian Reform Adjudication Board under the Office of the Secretary. The Board shall be composed of the Secretary as Chairman, two (2) Undersecretaries as may be designated by the Secretary, the Assistant Secretary for Legal Affairs, and three (3) others to be appointed by the President upon the recommendation of the Secretary as members. A Secretariat shall be constituted to support the Board. The Board shall assume the powers and functions with respect to the adjudication of agrarian reform cases under Executive Order No. 229 and this Executive Order. These powers and functions may be delegated to the regional offices of the Department in accordance with rules and regulations to be promulgated by the Board. 3. Rules of Procedure of the DARAB Under the Rules of Procedure of DARAB, the most important provision for our discussion is: Sec 1. Primary and Exclusive jurisdiction of the Board and its Adjudicators Determine and Adjudicate the rights and obligations of persons, engaged in the management and cultivation of all agricultural lands On the other hand, we should also examine the provisions of the constitution that is being defied by the laws and procedure of the DARAB. 1. Article VIII section 1 of the Constitution confers judicial power upon the courts.\ Sec. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law Sec. 6. The Supreme Court shall have administrative supervision over all the courts and personnel thereof. 2. The Doctrine of Separation of Powers The Doctrine of separation of powers which is guaranteed in various provisions of the constitution states that there shall be three co-equal branches of the government and shall provide checks and balances of the powers and functions of each so that no one branch shall exercise its function with abuse of discretion and arbitrarily. Moreover, the doctrine also states that no one branch shall usurp in the powers and function of the other Now therefore, having discussed the important provisions on the law creating and rules of procedure governing the DARAB and the important provisions of the Constitution, we now come to the first point of this paper; That the DARAB, although not a court, performs judicial and not merely quasi judicial functions. Under the discussion of Isagani Cruz, on his book Philippine Political Law (1991), the DARAB is not under the administrative supervision of the Supreme Court, the Constitution only mentions that a court is one under the Supreme Court and the courts mentioned in the Judiciary Reorganization Act. Therefore being not a court, under the constitution, it cannot be vested with judicial power. Therefore, the laws previously mentioned are therefore void under Article 7 of the Civil Code that mandates that every law contrary to the Constitution is void and of no effect. It follows that the DARAB does not exist under the contemplation of law and thus cannot exercise jurisdiction. However, it may be asked if whether or not the DARAB really exercise judicial power? The question is answered in a decision of the Supreme Court that indeed the DARAB exercises judicial power and not merely quasi judicial as it claims. However, in order to ascertain that it indeed exercises judicial power, we must first trace the laws that conferred quasi judicial powers to the DAR and the DARAB. According to Quismundo vs CA, Executiove Order 229 which is the law providing for the mechanisms and implementation of the CARP vests in the

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DAR quasi judicial powers to determine and adjudicate agrarian reform matters. It also has the pwer of contempt and the cases are appealable to the RTC. This provision of law should be taken to have repealed PD 946 which grants the Court of Agrarian relations under the RTC exclusive and original jurisdiction over rights and obligations in relation to agrarian reform matters. We can see therefore that there was only transfer of the judicial power granted to the RTC to the DARAB under the EO 229 and eventually EO 129-A which created the DARAB. Under the Constitution, Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. We can therefore trace that it is the judicial power from the RTC which is transferred to the DARAB. Thus the transfer vested by the legislature to a non-court is a clear violation of the Separation of Powers which is granted by the Constitution

Another issue that will be discussed in this report is that the Department Secretary of the DAR is counsel for the tenant through the Bureau of Agrarian Legal Assistance and a judge through the DARAB in a case filed before it. Is this permissible? Under execution order 129, the shall be created a Bureau of Legal Assistance which shall represent the agrarian reform beneficiaries and his dependents over criminal, civil and administrative cases over all matters involving agrarian dispute. This is of course under the control and supervision of the DAR secretary. And also under the same law, there shall also be created the DAR adjudication board which shall adjudicate the same case. The DARAB is also headed by the DAR secretary as the chairman of the Board. Therefore, is it permissible for the DAR secretary to be the judge and a litigant at the same time? Various doctrines of various cases answered in the negative. Nemo potest esse simul actor et judge. No man can be at once a litigant and a judge (Corona vs CA) One cannot be a prosecutor and a judge at the same time ( Cojuangco jr. vs PCGG) No man can be plaintiff or prosecutor in any action and at the same time sit in judgment to decide that particular case (30 am jur 67) It has been said in fact that due process of law requires a hearing before an impartial and a disinterested tribunal, and that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is therefore a denial of due process for the DAR secretary to sit as judge and represent the plaintiff at the same time.

The Dar Secretary Is A Judge And A Litigant At The Same Time

The Darab Cannot Claim Judicial Independence Necessary In The Exercise Of Judicial Function
In the book of Fernando, The Constitution, he said that in the discharge of judicial function, there is a vital need for judicial independence. No judge worthy of the name can dispense of mete out justice with an impartial eye and an even hand unless he can decide the case or controversy before him on the merits alone. It is clear in the discussion that the DARAB gets the final approval of the DAR secretary in every case, which is the alter ego of the president. How can therefore the DARAB claim independence if the whims of the President and the current political landscape affect every decision? The independence of the court thus entails an independence from the executive and the legislature, and since the DARAB is impartial, then again it is acting without jurisdiction and without due process of law which as discussed is guaranteed by the constitution. It is also asserted that what the DARAB exercises is merely quasi judicial and not judicial powers so as to justify its acts of submission to the will of the DAR secretary in promulgating its decisions. According to the thesis of Tanada and Carreon, purely judicial powers cannot be exercised by an administrative agency. And also according to the decision of the Supreme

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Court in the case of Ruperto vs Torres, judicial power is the power which adjudicates upon and protects the rights and interest of the individual citizens, and to that end construes and applies the law. Therefore, viewed from these definitions and the powers and functions of the DAR as already discussed, the DARAB is not primarily a regulatory body nor does it perform some administrative function. The primary object of the board therefore is to resolve the legal rights and disputes between the parties. It cannot be therefore be vested with judicial powers as an administrative agency since this power properly is maintained by the courts.

The Doctrine of Primary Jurisdiction

As explained in the case of Villaflor v. Court of Appeals The doctrine of primary jurisdiction means that courts cannot and will not resolve a controversy involving questions which is within the jurisdiction of an administrative tribunal especially where the question demands exercise of sound administrative discretion requiring special knowledge, experience and services of administrative tribunal to determine technical and intricate matters of fact. This doctrine has become applicable as the jurispridential trend in cases involving matters which demand the special competence of administrative agencies even if the question is one of judicial character. It is applicable if the claim is originally cognizable in courts and comes into play when enforcement of such claim will require the resolution of issues which have been placed within the special competence of an administrative body Judicial process suspended pending referral of issues to an administrative body for review. Where doctrine of primary jurisdiction is clearly applicable, court cannot arrogate unto itself the authority to resolve a controversy, the jurisdiction of which is lodged with an administrative body of special competence. Issues preclude prior judicial determination and it mandates that the courts step aside even if appears that they possess statutory power to proceed.

Can a Party Ignore the Primary Jurisdiction Doctrine?

General Rule is administrative remedies must be exhausted Exception (as per Jaime C. Lopez v. City of Manila): 1. Question raised is purely legal 2. Administrative body is in estoppel 3. Act being complained of is patently illegal 4. Urgent need for judicial intervention 5. Claim involved is small 6. When irreparable damage will be suffered 7. When there is no other plain, speedy and adequate remedy 8. Strong public interest is involved 9. The subject of controversy is private land 10. If its a quo warranto proceeding DARAB has no jurisdiction in taking cognizance of an original action and issue a status quo order thereto. (DARAB v. Court of Appeals) It is the DAR which is vested with primary jurisdiction to rule on agrarian reform matters and exclusive original jurisdiction over matters involving the implementation of agrarian reform except those falling under the Department of Agriculture and the Department of Environment and Natural Resources. Furthermore, trial courts designated Special Agrarian Courts are vested original and exclusive jurisdiction over all petitions for the determination just compensation and prosecution of all criminal offenses under the Act.

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DARABs jurisdiction under Sec. 50 of the CARP Act extends to cases that are mere offshoots of the case originally decided by DARAB. (Centeno v. Centeno) 1. As according to Sec. 1 Rule II of the Revised Rules of Procedure The Agrarian Reform Adjudication Board shall have primary jurisdiction, both original and appellate, to determine and adjudicate all agrarian disputes, cases and controversies and matters and incidents involving the implementation of the Comprehensive Agrarian Reform Program under RA 6657 EO Nos. 228, 229 and 129-A, RA 3844 as amended RA 6389, PD 27 and other agrarian laws and their implementing rules and regulations. Under these provisions, jurisdiction also covers cases involving issuance of Certificate of Land Titles, Certificate of Land Ownership Award, and Emancipation Patents and the administrative correction thereof. Also, petitioners are estopped from raising the issue of DARABs jurisdiction and they will be deemed to have participated in all stages of the instant case, setting up a counterclaim and asking for affirmative relief in their answer. Participation by certain parties in the administrative proceedings without raising objections, bar them from any jurisdictional infirmity after an adverse claim is rendered against them. DARAB has no jurisdiction where the issue is the ownership of land. (Morta v. Occidental) DARAB jurisdiction does not extend to all disputes over agricultural land Exception: Controversy is not one which is related to tenurial agreements evern if the land is agricultural land. (Isidro v. CA) An agricultural leasehold relationship should be shown to exist in order that DARAB may entertain a case. Requisites of Agricultural Leasehold Relationship Parties are the landowner and tenant Subject is agricultural land There is consent Purpose is agricultural production Personal cultivation of the tenant Sharing of harvests between parties. Jurisdiction of DARAB AGRICULTURAL TENANCY or AGRICULTURAL LEASEHOLD RELATIONSHIP must EXIST

Essential Requisites:
1. 2. 3. 4. 5. 6. The parties are the LANDOWNER and the TENANT The subject matter is AGRICULTURAL LAND There is CONSENT The purpose is AGRICULTURAL PRODUCTION There is PERSONAL CULTIVATION by the tenant There is SHARING of harvest between the parties

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Application of the criteria by the Supreme Court Bejasa vs. Court of Appeals Malabanan and the Bejasas. True, Malabanan (as Candelarias usufructuary) allowed the Bejasas to stay on and cultivate the land. However, even if we assume that he had the authority to give consent to the creation of a tenancy relation, still, no such relation existed. There was no proof that they shared the harvests. Reynaldo Bejasa testified that as consideration for the possession of the land, he agreed to deliver the landowners share (1/5 of the harvest) to Malabanan. Only Reynaldo Bejasas word was presented to prove this. At one time Reynaldo categorically stated that 25% of the harvest went to him, that 25% was for Malabanan and 50% went to the landowner, Candelaria. Later on he stated that the landowners share was merely one fifth. In Chico v. Court of Appeals, we faulted private respondents for failing to prove sharing of harvests since "no receipt, or any other evidence was presented." We added that "Self serving statements ... are inadequate; proof must be adduced. Candelaria and the Bejasas. Between them, there is no tenancy relationship. Candelaria as landowner never gave her consent. The Bejasas admit that prior to 1984, they had no contact with Candelaria. They acknowledge that Candelaria could argue that she did not know of Malabanans arrangement with them. True enough Candelaria disavowed any knowledge that the Bejasas during Malabanans lease possessed the land. However, the Bejasas claim that this defect was cured when Candelaria agreed to lease the land to the Bejasas for P20,000.00 per annum, when Malabanan died in 1983. We do not agree. In a tenancy agreement, consideration should be in the form of harvest sharing. Even assuming that Candelaria agreed to lease it out to the Bejasas for P20,000 per year, such agreement did not create a tenancy relationship, but a mere civil law lease. Dinglasan and the Bejasas. Even assuming that the Dinglasans had the authority as civil law lessees of the land to bind it in a tenancy agreement, there is no proof that they did. Again, there was no agreement as to harvest sharing. The only agreement between them is the "aryenduhan", which states in no uncertain terms the monetary consideration to be paid, and the term of the contract. Heirs of the late Herman Ray Santos vs. Court of Appeals the DARAB has jurisdiction only over agrarian disputes Includes any controversy relating to compensation of lands acquired under this Act and other terms and conditions of transfer of ownership from landowners to farmworkers, tenants and other agrarian reform beneficiaries, whether the disputants stand in the proximate relation of farm operator and beneficiary, landowner and tenant, or lessor and lessee. Morta v. Occidental, et al., For DARAB to have jurisdiction over a case, there must exist a tenancy relationship between the parties. 1) that the parties are the landowner and the tenant or agricultural lessee; 2) that the subject matter of the relationship is an agricultural land; 3) that there is consent between the parties to the relationship; 4) that the purpose of the relationship is to bring about agricultural production; 5) that there is personal cultivation on the part of the tenant or agricultural lessee; and 6) that the harvest is shared between the landowner and the tenant or agricultural lessee. Vda. de Tangub vs. Court of Appeals Limitations of the jurisdiction of DARAB: 1. Adjudication of all matters involving implementation of agrarian reform 2. Resolution of agrarian conflicts and land tenure related problems 3. Approval and disapproval of the conversion, restructuring or readjustment of agricultural lands into residential, commercial, industrial, and other non-agricultural uses.

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4. Tenant- farmer who is installed by the LEGAL POSSESSOR may entitled to security of tenure even without the consent of the owner. 5. as long as the legal possessor of the land constitutes a person as a tenant-farmer by virtue of an express or implied lease, such an act is binding on the owner of the property even if he himself may not have given consent to such an agreement. Agrarian Disputes - Refers to any controversy relating to tenurial arrangements, whether leasehold, tenancy, stewardship or otherwise, over lands devoted to agriculture, including disputes concerning farmworkers associations or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of such tenurial arrangements. (sec. 3(d) of CARP LAW) - Only DE JURE TENANT may invoke the right of security of tenure. Agricultural lessees right of redemption Mallari vs. Court of Appeals st 1 issue: Private respondents have no cause of action Section 12 of R.A. No. 3844, provides: Lessee's Right of Redemption. In case the landholding is sold to a third person without the knowledge of the agricultural lessee, the latter shall have the right to redeem the same at a reasonable price and consideration: ... The right of redemption under this Section may be exercised within two years from the registration of the sale and shall have priority over any other right of legal redemption. Amended by R.A. No. 6389, otherwise known as the Code of Agrarian Reforms of the Philippines, and reads, thus: Lessee's Right of Redemption: In case the land-holding is sold to a third person without the knowledge of the agricultural lessee, the latter shall have the right to redeem the same at a reasonable price and consideration: ... The right of redemption under this Section may be exercised within one hundred eighty days from notice in writing which shall be served by the vendee on all lessees affected and the Department Ashville of Agrarian Reform upon the registration of the sale. Petitioners contention: since the deed of conditional sale in their favor has not yet been registered, no redemption proceedings can yet be instituted against them under Republic Act No. 3844, as amended; hence, private respondents have no cause of action against them. On the other hand, if the right of redemption by the tenants under the said law is to be reckoned from the registration of the sale of the land, such right of redemption has already lapsed, since the PNB, as vendee of the land in a foreclosure sale, had been issued a certificate of sale on March 17, 1978 and subsequently was issued T.C.T. No. 154516-R upon failure of the mortgagors to redeem the property within the one-year period as required by law. According to the SC: Contention is without merit If the tenants had right to redeem the property under the law upon the sale of the property to the PNB since 1978, such right has not yet prescribed because no notice in writing of the sale was ever given by the vendee upon the tenant as agricultural lessees of the land, as required by law. Republic Act No. 3844, as amended, prescribes the period within which the right of redemption must be exercised by the agricultural lessees, which is one hundred eighty days from written notice from the vendee of the property upon registration of the sale. But certainly there is nothing in the law which provides that without such written notice, the agricultural lessees can not exercise their right of redemption.

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2nd issue: Private respondents did not make any valid tender of payment or consignation of the redemption price It is not necessary for the lessee to make a tender of payment and/or consignation of the amount of the redemption price, a certification issued by the Land Bank of the Philippines that it will finance the redemption of the property in question is sufficient . Section 11 of R.A. No. 3844, as amended, is a provision on the lessee's right of preemption and provides that: "... If the agricultural lessee agrees with the terms and condition of the sale ... [he] must either tender payment of, or present a certificate from the Land Bank that it shall make payment ... on the price of the landholding to the agricultural lessor. If the latter refuses to accept such tender or presentment, he may consign it with the court ... " The lessee-preemptioner and the lessee-redemptioner have the same rights and are in the same footing and category insofar as the availment of the facilities of the Land Bank and the Ministry of Agrarian Reform are concerned. Moreover, it is explicitly provided in Section 12 that "the Department of Agrarian Reform shall initiate while the Land Bank shall finance, said redemption as in the case of pre-emption." Hence, it is not necessary for tenants- redemptioners to make a tender and/or consignation of the redemption price. A certification of the Land Bank to finance the redemption when presented will suffice. As observed by the appellate court: ... Unlike the agricultural lessee whose financial capacity to pay the redemption price may be doubtful so that in case of direct payment of the redemption price by him to the owner of the land, he is obligated to make an actual tender of the reasonable price of the land, the Land Bank is a solvent government agency which is mandated to finance acquisition of farm lots. Its obligations are unconditional guaranteed by the government (Sec. 76, R.A. 3844). SEC. 50-A. Exclusive Jurisdiction on Agrarian Dispute. - No court or prosecutor's office shall take cognizance of cases pertaining to the implementation of the CARP except those provided under Section 57 of Republic Act No. 6657, as amended. If there is an allegation from any of the parties that the case is agrarian in nature and one of the parties is a farmer, farmworker, or tenant, the case shall be automatically referred by the judge or the prosecutor to the DAR which shall determine and certify within fifteen (15) days from referral whether an agrarian dispute exists: Provided, That from the determination of the DAR, an aggrieved party shall have judicial recourse. In cases referred by the municipal trial court and the prosecutor's office, the appeal shall be with the proper regional trial court, and in cases referred by the regional trial court, the appeal shall be to the Court of Appeals. In cases where regular courts or quasi-judicial bodies have competent jurisdiction, agrarian reform beneficiaries or identified beneficiaries and/or their associations shall have legal standing and interest to intervene concerning their individual or collective rights and/or interests under the CARP. The fact of non-registration of such associations with the Securities and Exchange Commission, or Cooperative Development Authority or any concerned government agency shall not be used against them to deny the existence of their legal standing and interest in a case filed before suchcourts and quasi-judicial bodies.

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Sec. 51 FINALITY OF DETERMINATION

Any case or controversy before it shall be decided within thirty (30) days after it is submitted for resolution. Only one (1) motion for reconsideration shall be allowed. Any order, ruling or decision shall be final after the lapse of fifteen (15) days from receipt of a copy thereof. Decided within 30 days after it is submitted for resolution. 1 motion for reconsideration is allowed. Final after 15 days from receipt of a copy thereof.

Sec. 52 FRIVOLOUS APPEALS

To discourage frivolous or dilatory appeals from the decisions or orders on the local or provincial levels, the DAR may impose reasonable penalties, including but not limited to fines or censures upon erring parties.

Sec. 53 CERTIFICATION OF THE BARC

The DAR shall not take cognizance of any agrarian dispute or controversy unless a certification from the BARC that the dispute has been submitted to it for mediation and conciliation without any success of settlement is presented: provided, however, that if no certification is issued by the BARC within thirty (30) days after a matter or issue is submitted to it for mediation or conciliation the case or dispute may be brought before the PARC.

Chapter 13: JUDICIAL REVIEW

General Rule: an administrative agencys decision may be validly rendered final and unappealable at the administrative level without allowing the aggrieved party a final resort to the courts of justice Exception: Such decisions may be appealed to the courts of justice if: The constitution or the law permits it (in this case, 54-62 of RA 6657) Issues to be reviewed involve questions of law (even without legislative permission)

Sec. 54 CERTIORARI
Any decision, order, award or ruling of the DAR on any agrarian dispute or on any manner pertaining to the application, implementation, or interpretation of this Act and other pertinent laws on agrarian reform may be brought to the Court of Appeals by certiorari except as otherwise provided in this Act within 15 days from the receipt of a copy thereof. The findings of fact of the DAR shall be final and conclusive if based on substantial evidence.

Substantial Evidence
Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and its absence is not shown by stressing that there is contrary evidence on record, direct or circumstantial Evidence which afford a substantial basis from which the fact in issue can be reasonably inferred

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Doctrine of Exhaustion of Administrative Remedies (DEAR)

An administrative decision must first be appealed to the administrative superiors up to the highest level before it may be elevated to the courts of justice for review

Procedure:

Exceptions to the DEAR:

Cases of denial of due process (Samahang Magbubukid ng Kapdula, Inc. v CA) Where filing a motion for reconsideration or appealing would be futile (Heirs of Pedro Atega v Garilao)

Sec. 55 NO RESTRAINING ORDER OR PRELIMINARY INJUNCTION

Except for the Supreme Court, no court in the Philippines shall have jurisdiction to issue any restraining order or writ of preliminary injunction against the PARC, the DAR or any of its duly authorized or designated agencies in any case, dispute or controversy arising from, necessary to, or in connection with the application, implementation, enforcement, or interpretation of this Act and other pertinent laws on agrarian reform.

Prohibition:

Covers only matters within the jurisdiction of administrative agencies To allow the courts to judge these matters would disturb the smooth functioning of the administrative machinery. Must be necessarily construed to apply only where the act sought to be enjoined is a valid and legal act of the PARC or its duly authorized or designated agency

Exceptions:

Administrative irregularities have been committed tantamount to grave abuse of discretion Constitutional rights have been violated Graft and corruption is being committed Issues involve questions of law (Malaga vs. Penachos) Questions of constitutionality (DAR vs. RTC and Cuenca)

Sec. 56 SPECIAL AGRARIAN COURTS (SAC) 32

The Supreme Court shall designate at least 1 branch of the RTC within each province to act as a Special Agrarian Court. The Supreme Court may designate more branches to constitute such additional Special Agrarian Courts as may be necessary to cope with the number of agrarian cases in each province. In the designation, the Supreme Court shall give preference to the RTCs which have been assigned to handle agrarian cases or whose presiding judges were former judges of the defunct Court of Agrarian Relations. The RTC judges assigned to said courts shall exercise said special jurisdiction in addition to the regular jurisdiction of their respective courts. The Special Agrarian Courts shall have the powers and prerogatives inherent in or belonging to the RTCs.

SAC Cases:

petitions for determination of just compensation to landowners. (57) criminal prosecution under 73 and 74 of RA 6657. An imprisonment of not less than 1 month to not more than 3 years or a fine of not less than 1,000.00 pesos to not more than 15,000.00 pesos or both, under the discretion of the court.(57) (d)The willful prevention or obstruction by any person, association or entity of the implementation of the CARP. (e)The sale, transfer, conveyance or change of the nature of lands outside of urban centers and city limits either in whole or in part after the effectivity of this Act. The date of the registration of the deed of conveyance in the Register of Deeds with respect to titled lands and the date of the issuance of the tax declaration to the transferee of the property with respect to unregistered lands, as the case may be, shall be conclusive for the purpose of this Act. (f)The sale, transfer or conveyance by a beneficiary of the right to use or any other usufructuary right over the land he acquired by virtue of being a beneficiary, in order to circumvent the provisions of this Act. Violation of Prohibited Acts and Omissions. The following are prohibited: (73) (a)The ownership or possession, for the purpose of circumventing the provisions of this Act, of agricultural lands in excess of the total retention limits or award ceilings by any person, natural or juridical, except those under collective ownership by farmer-beneficiaries. (b)The forcible entry or illegal detainer by persons who are not qualified beneficiaries under this Act to avail themselves of the rights and benefits of the Agrarian Reform Program. (c)The conversion by any landowner of his agricultural land into any non-agricultural use with intent to avoid the application of this Act to his landholdings and to dispossess his tenant farmers of the land tilled by them.

Sec. 57 SPECIAL JURISDICTION

The Special Agrarian Courts shall have original and exclusive jurisdiction over all petitions for the determination of just compensation to landowners, and the prosecution of all criminal offense under this Act. The Rules of Court shall apply to all proceedings before the Special Agrarian Courts, unless modified by this Act.

Special Jurisdiction of the SAC:

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 As accepted by Department of Agrarian Reform, Determination of just compensation has been in an exclusive jurisdiction over other agencies concerned such as PARC, RARAD, PARAD and DARAB. No need of preliminary investigation by the agencies mentioned in order to fill a case for determination of just compensation of the landowners. Explained in Land Bank of the Philippines v Court of Appeals: explained in section 57 of RA 6657, the SAC has original end exclusive jurisdiction over determination of just compensation to landowners. This jurisdiction would be undermined if prior investigations, approvals or recommendation coming from other related agencies, hence it must be recognized that Special Agrarian Court acquires jurisdiction over such. The jurisdictions vested on Special Agrarian Courts are those of a Regular court and the special jurisdiction under section 57. The Rules of Court shall apply to all proceedings before the Special Agrarian Courts, unless modified by this Act. The Special Agrarian Courts shall decide all appropriate cases under their special jurisdiction within thirty (30) days from submission of the case for decision.

Sec. 58 APPOINTMENT OF COMMISSIONERS

The Special Agrarian Courts, upon their own initiative or at instance of any parties may appoint one or more commissioners to examine, investigate, and ascertain facts relevant to the dispute including the valuation of properties, and to file a written report thereof with the court. Patterned after Rule 33 of the Rules of Court which empowers the court to appoint commissioners on motion of the parties or on its own initiative The commissioners must be: persons who are experts in their field of endeavor; or At least whose competence in land valuation is acceptable to the parties with the approval of the court The commissioners, in order to effectuate the performance of their duties: are authorized to issue subpoenas and subpoenas duces tecum to witnesses The court shall allow the commissioners to receive reasonable compensation for their services The commissioners shall be guided by factors enumerated under Action 17, RA 6657 or the comprehensive agrarian reform law The commissioners' findings shall be recommendatory in nature

Sec. 59 ORDERS OF THE SPECIAL AGRARIAN COURT

No Order of the Special Agrarian Courts on any issue, question, matter or incident raised before them shall be elevated to the appellate courts until the hearing shall have been terminated and the case decided on the merits.

Sec. 60 APPEALS 34

An appeal may be taken from the decision of the Special Agrarian Courts by filing a petition for review with the Court of Appeals within fifteen (15) days receipt of notice of the decision; otherwise, the decision shall become final.

15-day Reglementary Period

An appeal from the decision of the Court of Appeals, or from any order, ruling or decision of the DAR, as the case may be, shall be by a petition for review with the Supreme Court within a non-extendible period of fifteen (15) days from receipt of a copy of said decision. However, as the Supreme Court is supposed to exercise supervision over the courts, it would have been "best to leave to the Supreme Court whether to grant an extension of time. A non-extendable period of fifteen days may result to injustice."

Sec. 61 PROCEDURE ON REVIEW

Review by the Court of Appeals or the Supreme Court, as the case may be, shall be governed by the Rules of Court. The Court of Appeals, however, may require the parties to file simultaneous memoranda within a period of fifteen (15) days from notice, after which the case is deemed submitted for decision.

Sec. 62 PREFERENTIAL ATTENTION IN COURTS

All courts in the Philippines, both trial and appellate, shall give preferential attention to all cases arising from or in connection with the implementation of the provisions of this Act. All cases pending in court arising from or in connection with the implementation of this Act shall continue to be heard, tried and decided into their finality, notwithstanding the expiration of the ten-year period mentioned in Sec. 5 hereof.

Chapter 14: FINANCING

Sec. 63 FUNDING SOURCE
SECTION 21 of Republic Act No. 9700 (SECTION 63 of RA No. 6657, as amended) FUNDING SOURCE of CARP (until 2014)
Additional funding for CARP until June 30, 2014 of at least P 1.5 Billion is provided from the Agrarian Reform Fund and other funding sources. All funds appropriated during the 5-year period shall be considered continuing appropriation during the period of its implementation. As the need arises, specific amounts for bond redemption, interest payments, and other existing obligations arising from the program implementation shall be included in the annual general appropriations.

Sources of Funding or Appropriations

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A. Proceeds of the sales of the Privatization and Management Office (PMO) B. All receipts from assets recovered and from sales of ill-gotten wealth recovered through the Presidential Commission on Good Government (PCGG) excluding the amount appropriated for compensation of human rights victims C. Proceeds of the disposition and development of Philippine Government properties abroad. D. All income and collections of whatever form and nature arising from the agrarian reform operations, projects and programs of the DAR and other CARP implementing agencies E. Portion of amounts accruing to the Philippines from all sources of official foreign aid grants and concessional financing F. Yearly appropriations of no less than Five billion pesos (P5,000,000,000.00) from the General Appropriations Act (GAA) G. Gratuitous financial assistance from legitimate sources H. Other government funds not otherwise appropriated.

Funding of Just Compensation

Just compensation payments shall only be sourced from the Agrarian Reform Fund (ARF). Just compensation payments that cannot be covered within the programs approved annual budget shall be chargeable against the debt service program of the national government or any unprogrammed item in the GAA. After completion of the LAD component of the CARP (June 30,2014),yearly appropriation shall be allocated fully to support services, agrarian justice delivery and operational requirements of the DAR and the other CARP implementing agencies.

Are the Financial Resources allocated to support CARP adequate?

NO. They are NOT. In April 2001, the LBP presented to the Secretaries of the Department of Finance(DOF), and Budget and Management (DBM) and the Bureau of Treasury (BTR) various strategic options to sufficiently cover the huge CARP funding requirement for CYs 2001 to 2018. The discussions were premised on the insufficiency of the Agrarian Reform Fund (ARF) to finance the acquisition of CARP covered agricultural lands. The LBP reported that early August 1998, it had been using its corporate funds to finance landowners compensation, which resulted in an obligation of DBM-BTR to LBP of P4.3 billion as of March 2001.

LBP, facing serious problems with the World Bank

Under the rural finance projects between World Bank and DOF/LBP; the loan covenant stipulates that the cash advances of LBP for CARP must not exceed P1.0 billion. This covenant has been breached since January 1999. If the LBP advances for CARP are not reduced to the covenanted level of P1.0 billion for June 30 2001 the World Bank intends to suspend the right of the Borrower (LBP, to make further withdrawals.) Another loan movement with World Bank is that LBPs net past due loans to equity rate shall not exceed 25 percent. Land Banks 4.3 billion advances have strained its program to increase profits and expand equity which is necessary to attain the 25% net past due loans to equity ratio.

To address these concerns, the LBP proposed to PARC a package of strategies which included the following:

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1. Refocus CARP land transfer to public or government-owned lands, involving a total of 1.4 million hectares. 2. Adopt a more realistic direct payment scheme between private landowners and farmer beneficiaries. 3. Explore other modes of non-cash compensation, such as, payment to landowners then shares of stocks in government-owned and controlled corporations. 4. Issuance of special-purpose bonds for CARP by the National Government, i.e. DOF, or DBM, and BTR. All proceeds will be utilized to settle the ARF and advances made by LBP (P4.1 billion) and the landowners compensation requirement for CY 2001.

Importance of such financial support

It must be pointed out that a survey showed that 18 million Filipinos rely on farms with an area of less than 5 hectares for their livelihood. Even without land re-distribution, this segment of the population already constitutes the baseload of beneficiaries whose productivity the government must urgently address, with or without the CARP. The financial requirements of CARP are gigantic because it does not merely fund land transfers, but also finances the massive requirements of the support services necessary to ensure that CARP becomes a productive boon rather than a burden to the country. These must provide for, in the face of competing claims from other programs (education, defense, non-CARP public works, industrialization, etc.) and in the face of the countrys US$29 billion debt. The funding source such as APT has limitations not only in the speed of disposition of government assets, but also in the release of the sale proceeds as many of these are subject to escrow or are awaiting a staggered approval through the debt to equity swap program. A large portion of APT assets are, however, subject to lengthy legal entanglements. The assets under the PCGG likewise appear to be subject of many years of litigation. No firm and realistic pipeline of assets to be monetized in next few years has materialized in our view. There appears to be latent support among foreign allies and external funding agencies for CARP. However, traditionally, they never fund the land transfer portion. Moreover, they will expect to see the total framework of implementation from the laws, to manpower and organization, to timetables. Decisive remedies must be in place before such external funds can be tapped especially considering that at least US$2 billion in aid funds have not been utilized due to incomplete program or project planning and implementation.

Sec. 64 FINANCIAL INTERMEDIARY FOR THE CARP

The Land Bank of the Philippines shall be the financial intermediary for the CARP, and shall insure that the social justice objectives of the CARP shall enjoy a preference among its priorities.

Role of Land Bank in lawsuits filed in relation to the implementation of Agrarian Reform
The Land Bank is the financial arm of the CARP. For purposes of implementing the agrarian laws, the LBP under the Administrative Code is an adjunct of the DAR. It is a necessary party but not an indispensable party in the court suits. As such, LBP has no right to appeal unless the DAR also appeals.

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How may Land Bank perform its task as financial intermediary in order to boost the objectives of CARP?

The distribution of credit must be restructured to make a larger proportion flow to the small farmers, the intended beneficiaries of CARP. A recent government study showed that only 10% of total Philippine commercial credit went to agriculture in 1985. In 1987, this went down further to 8%. Yet, whatever goes to agriculture are mostly for large farms as shown by the following table from a US AID study in 1973:
No. of Farms Farm Area Credit Volume

Commercial (10-500 has.) Small Farmer (3-10 has) Subsistence Farmer (2-3 has.)

5.0% 22.4% 72.6%

30.3% 30.8% 38.9%

81% 17% 2%

The success of CARP will require a massive re-channeling of credit towards the beneficiaries (away from urban/industrial centers), at terms and costs that they can afford. The fact that land is used as the collateral for the loans could further complicate the program. Of the 900-plus surviving rural banks today, only 232 are adjudged by the BSP to be in good standing. There appears to be no strategic plan to make sure that adequate credit delivery will be made. Unfortunately, under section 64, the Land Bank is expected to finance the entire financial requirements for CARP. Its financial resources are, however, not enough to cover land acquisition and distribution, let alone support services. In fact, it spent beyond the limit on its corporate funds imposed by the World Bank by more all phases of its agrarian program. It has to encourage the private banks to participate despite the restrictive provisions of CARP on mortgages.

Chapter 15: GENERAL PROVISIONS

Sec. 64 CONVERSION OF LANDS
After the lapse of 5 years from its award
Application of the beneficiary or the land owner to DAR 1. When the land ceases to be economically feasible and sound for agricultural purposes 2. Locality has become urbanized and land will have a greater economic value for RESIDENTIAL, COMMERCIAL or INDUSTRIAL purposes

Requisites
1. Land sought to be converted is the land awarded or any portion thereof; 2. Shall invest 10% of the proceeds in government securities 3. Full payment of the price of the land Irrigated and irrigable lands (National Irrigation Administration)

Conversion

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Land use conversion refers to the change from agricultural to non agricultural use.

Rationale
Other programs of the government like tourism, housing, and industrialization, among others, are being pursued and these all require land. To prevent waste of land To promote industrialization and the optimum use of the land as a national resource for public welfare.

Sec. 65 CONVERSION INTO FISHPOND AND PRAWN FARMS

General Rule: No conversion Exception:

When Provincial government and BFAR declares a coastal zone as a suitable for fishpond development.

Conversion into Fishpond and Prawn Farms:

DENR shall allow the lease and development

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Approval in accordance with the guidelines promulgated by DAR and BFAR Small farmer cooperatives No conversion of more than 5 hectares of private land to fishponds and prawn farms Exception: When the use of land is more economically feasible and sound for fishpond and prawn farm Must be certified by the BFAR Majority of the tenants or farm workers agree to the conversion No piecemeal conversion be allowed to circumvent the provisions of the law Subject to the approval of DAR

Sec. 65-B INVENTORY

BFAR
Inventory of all government and private fishponds and prawn farms No lease under 65-A be granted until after the completion of the inventory Undertake program to promote the sustainable management and utilization of fishpond and prawn farms Must be in accordance with the standards of 1. pollution control - Quantity of fertilizers, pesticides, other chemicals (FPA,EMB and other appropriate government regulatory bodies ) and 2. Water utilization

Sec. 65-C PROTECTION OF MANGROVE AREAS

Fishpond Lease Agreements
Buffer Zone Portion of fishpond area fronting the sea Be planted with mangrove species (DENR) Secretary of DENR shall provide penalties

Sec. 65-D CHANGE OF CROPS

Change of crops shall not be considered as a conversion in the use or nature of the land. Commercial or high value crops

Sec. 66 EXCEPTIONS FROM TAXES AND FEES OF LAND TRANSFERS

Either from natural or juridical

Exemptions from Taxes and Fees

Taxes arising from capital gains Payment of registration fees

However, PENALTY or INTEREST shall be deductible from the compensation to which the owner may be entitled.

Sec. 67 FREE REGISTRATION OF PATENTS AND TITLES 40

Register of Deeds Free from payment of all fees and charges

Sec. 68 IMMUNITY OF GOVERNMENT AGENCIES FROM UNDUE INTERFERENCE

This provision violates the basic principle of public accountability. However, it is noted that the text is not what the title of the section suggests.

Sec. 69 ASSISTANCE OF OTHER GOVERNMENT ENTITIES

Support of other government agencies, bureaus and offices

Sec. 70 DISPOSITION OF PRIVATE AGRICULTURAL LANDS

The sale or disposition of agricultural lands retained by a landowner as a consequence of Section 6 hereof shall be valid as long as the total landholdings that shall be owned by the transferee thereof inclusive of the land to be acquired shall not exceed the landholding ceilings provided for in this Act. Any sale or disposition of agricultural lands after the effectivity of this Act found to be contrary to the provisions hereof shall be null and void. Transferees of agricultural lands shall furnish the appropriate Register of Deeds and the BARC an affidavit attesting that his total landholdings as a result of the said acquisition do not exceed the landholding ceiling. The Register of Deeds shall not register the transfer of any agricultural land without the submission of this sworn statement together with proof of service of a copy thereof to the BARC.

Sec. 71 BANK MORTGAGES

Banks and other financial institutions allowed by law to hold mortgage rights or security interests in agricultural lands to secure loans and other obligations of borrowers, may acquire title to these mortgaged properties, regardless of area, subject to existing laws on compulsory transfer of foreclosed assets and acquisition as prescribed under Section 13 of this Act.

Sec. 72 LEASE, MANAGEMENT, GROWER OR SERVICE CONTRACTS, MORTGAGES AND OTHER CLAIMS
Lands covered by this Act under lease, management, grower or service contracts, and the like shall be disposed of as follows: a) Lease, management, grower or service contracts covering private lands may continue under their original terms and conditions until the expiration of the same even if such land has, in the meantime, been transferred to qualified beneficiaries. b) Mortgages and other claims registered with the Register of Deeds shall be assumed by the government up to an amount equivalent to the landowner's compensation value as provided in this Act.

Sec. 72 PROHIBITED ACTS AND OMISSIONS 41

The following are prohibited:

1. The ownership or possession, for the purpose of circumventing the provisions of this Act, of agricultural lands in excess of the total retention limits or award ceilings by any person, natural or juridical, except those under collective ownership by farmer-beneficiaries. 2. The forcible entry or illegal detainer by persons who are not qualified beneficiaries under this Act to avail themselves of the rights and benefits of the Agrarian Reform Program. 3. The conversion by any landowner of his agricultural land into any non-agricultural use with intent to avoid the application of this Act to his landholdings and to dispossess his tenant farmers of the land tilled by them. 4. The willful prevention or obstruction by any person, association or entity of the implementation of the CARP. 5. The sale, transfer, conveyance or change of the nature of lands outside of urban centers and city limits either in whole or in part after the effectivity of this Act. The date of the registration of the deed of conveyance in the Register of Deeds with respect to titled lands and the date of the issuance of the tax declaration to the transferee of the property with respect to unregistered lands, as the case may be, shall be conclusive for the purpose of this Act. 6. The sale, transfer or conveyance by a beneficiary of the right to use or any other usufructuary right over the land he acquired by virtue of being a beneficiary, in order to circumvent the provisions of this Act.

Sec. 73 PENALTIES
Any person who knowingly or willfully violates the provisions of this Act shall be punished by imprisonment of not less than one (1) month to not more than three (3) years or a fine of not less than one thousand pesos (P1,000.00) and not more than fifteen thousand pesos (P15,000.00), or both, at the discretion of the court. If the offender is a corporation or association, the officer responsible therefor shall be criminally liable.

Sec. 74 SUPPLETORY APPLICATION OF EXISTING LEGISLATION

The provisions of Republic Act No. 3844 as amended, Presidential Decree Nos. 27 and 266 as amended, Executive Order Nos. 228 and 229, both Series of 1987; and other laws not inconsistent with this Act shall have suppletory effect.

SOME PROVISIONS OF R.A. 9700

Section 26. Congressional Oversight Committee. - A Congressional Oversight Committee
on Agrarian Reform (COCAR) is hereby created to oversee and monitor the implementation of this Act. It shall be composed of the Chairpersons of the Committee on Agrarian Reform of both Houses of Congress, three (3) Members of the House of Representatives, and three (3) Members of the Senate of the Philippines, to be designated respectively by the Speaker of the House of Representatives and the President of the Senate of the Philippines. The Chairpersons of the Committees on Agrarian Reform of the House of Representatives and of the Senate of the Philippines shall be the Chairpersons of the COCAR. The Members shall receive no compensation; however, traveling and other necessary expenses shall be allowed. In order to carry out the objectives of this Act, the COCAR shall be provided with the necessary appropriations for its operation. An initial amount of Twenty-five million pesos

42

(P25,000,000.00) is hereby appropriated for the COCAR for the first year of its operation and the same amount shall be appropriated every year thereafter. The term of the COCAR shall end six (6) months after the expiration of the extended period of five (5) years.

Section 27. Powers and Functions of the COCAR. - The COCAR shall have the following
powers and functions: (a) Prescribe and adopt guidelines which shall govern its work; (b) Hold hearings and consultations, receive testimonies and reports pertinent to its specified concerns; (c) Secure from any department, bureau, office or instrumentality of the government such assistance as may be needed, including technical information, preparation and production of reports and submission of recommendations or plans as it may require, particularly a yearly report of the record or performance of each agrarian reform beneficiary as provided under Section 22 of Republic Act No. 6657, as amended; (d) Secure from the DAR or the LBP information on the amount of just compensation determined to be paid or which has been paid to any landowner; (e) Secure from the DAR or the LBP quarterly reports on the disbursement of funds for the agrarian reform program; (f) Oversee and monitor, in such a manner as it may deem necessary, the actual implementation of the program and projects by the DAR; (g) Summon by subpoena any public or private citizen to testify before it, or require by subpoena duces tecum to produce before it such records, reports, or other documents as may be necessary in the performance of its functions; (h) Engage the services of resource persons from the public and private sectors as well as civil society including the various agrarian reform groups or organizations in the different regions of the country as may be needed; (i) Approve the budget for the work of the Committee and all disbursements therefrom, including compensation of all personnel; (j) Organize its staff and hire and appoint such employees and personnel whether temporary, contractual or on constancy subject to applicable rules; and (k) Exercise all the powers necessary and incidental to attain the purposes for which it is created.

Section 28. Periodic Reports. - The COCAR shall submit to the Speaker of the House of
Representatives and to the President of the Senate of the Philippines periodic reports on its findings and recommendations on actions to be undertaken by both Houses of Congress, the DAR, and the PARC.

Section 29. Access to Information. - Notwithstanding the provisions of Republic Act No. 1405
and other pertinent laws, information on the amount of just compensation paid to any landowner under Republic Act No. 6657, as amended, and other agrarian reform laws shall be deemed public information.

Section 30. Resolution of Case. - Any case and/or proceeding involving the implementation
of the provisions of Republic Act No. 6657, as amended, which may remain pending on June 30, 2014 shall be allowed to proceed to its finality and be executed even beyond such date.

Section 31. Implementing Rules and Regulations. - The PARC and the DAR shall provide
the necessary implementing rules and regulations within thirty (30) days upon the approval of

43

this Act. Such rules and regulations shall take effect on July 1, 2009 and it shall be published in at least two (2) newspapers of general circulation.

Section 32. Repealing Clause. - Section 53 of Republic Act No. 3844, otherwise known as the
Agricultural Land Reform Code, is hereby repealed and all other laws, decrees, executive orders, issuances, rules and regulations, or parts thereof inconsistent with this Act are hereby likewise repealed or amended accordingly.

Section 33. Separability Clause. - If, for any reason, any section or provision of this Act is
declared unconstitutional or invalid, the other sections or provisions not affected thereby shall remain in full force and effect.

Section 34. Effectivity Clause. - This Act shall take effect on July 1,2009 and it shall be
published in at least two (2) newspapers of general circulation.

Chapter 16: VIOLATION OF LANDOWNERS CONSTITUTIONAL RIGHTS

Land Owners under Comprehensive Agrarian Reform Program are person, natural or juridical, who either as owner, lessee, usufractuary, or legal possessor, permits another to cultivate his land and in return expects some share in the produce under share tenancy system or some price under the leasehold tenancy system. Like the farmers and regular farm workers, they too have rights under the Comprehensive Agrarian Reform Program. As provided in the 1987 Constitution; and Bill of Rights, land owners have: 1987 Constitution
1. Right to retain property until she/ he has fully reimbursed all the necessary and useful expenses made by him/her on the property (Art I, Sec.4) 2. Right to be paid just compensation for their landholdings acquired by the government for distribution to Agrarian Reform Beneficiaries (Art III. Sec. 9) 1. Right to due process of proceedings according to law of the land; 2. Right to equality in the enjoyment of similar rights and privileges granted by law; 3. Prohibition against undue delegation of legislative powers

Bill of Rights of the 1987 Constitution

I. CONSTITUTIONAL PROVISIONS
A. DUE PROCESS
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. -Section 1, Article III, 1987 Constitution Due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the

44

accusations against him constitute the minimum requirements of due process. The essence of due process is simply to be heard, or as applied to administrative proceedings, an opportunity to explain ones side, or an opportunity to seek a reconsideration of the action or ruling complained of.1 The case of Ang Tibay v. Court of Industrial Relations2 laid down the guidelines that due process in administrative proceedings requires compliance with the following cardinal principles: (1) the respondents right to a hearing, which includes the right to present ones case and submit supporting evidence, must be observed; (2) the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and the facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for it and the various issues involved. In the application of The Comprehensive Agrarian Reform Law Of 1988, the allegation of lack of due process goes into the validity of the acquisition proceedings themselves. Before we can determine whether there is a violation of due process, however, there is a need to lay down the procedure in the acquisition of private lands under the provisions of the law:
LAWS AND DAR ADMINISTRATIVE ORDER Sec 16 RA 6657 Procedure for Acquisition of Private Lands. - THE COMPREHENSIVE AGRARIAN REFORM LAW OF 1988 (CARL) EFFECTI VITY DATE June 10, 1988 SALIENT POINTS In the compulsory acquisition of private lands, the landholding, the landowners and the farmer beneficiaries must first be identified. After identification, the DAR shall send a Notice of Acquisition to the landowner, by personal delivery or registered mail, and post it in a conspicuous place in the municipal building and barangay hall of the place where the property is located. Within thirty days from receipt of the Notice of Acquisition, the landowner, his administrator or representative shall inform the DAR of his acceptance or rejection of the offer. If the landowner accepts, he executes and delivers a deed of transfer in favor of the government and surrenders the certificate of title. Within thirty days from the execution of the deed of transfer, the Land Bank of the Philippines (LBP) pays the owner the purchase price. If the landowner rejects the DAR's offer or fails to make a reply, the DAR conducts summary administrative proceedings to determine just compensation for the land. The landowner, the LBP representative and other interested parties may submit evidence on just compensation within fifteen days from notice. Within thirty days from submission, the DAR shall decide the case and inform the owner of its decision and the amount of just compensation. Upon receipt by the owner of the corresponding payment, or, in case of rejection or lack of response from the latter, the DAR shall deposit the compensation in cash or in LBP bonds with an accessible bank. The DAR shall immediately take possession of the land and cause the issuance of a transfer certificate of title in the name of the Republic of the Philippines. The land shall then be redistributed to the farmer beneficiaries. Any party may question the decision of the DAR in the regular courts for final determination of just compensation. If the defendant is a corporation organized under the laws of the Philippines or a partnership duly registered, service may be made on the president, manager, secretary, cashier, agent, or any of its directors or partners.

Sec 6, 1989 DARAB

Service upon Private Domestic Corporation or Partnership. THE 1989 DEPT OF

December 26, 1988

1 2

Ledesma v. Court of Appeals, G.R. No. 166780, December 27, 2007, 541 SCRA 444 G.R. No. L-46496, February 27, 1940, 69 Phil. 635

45

DAR A. O. No. 12 SERIES, OF 1989

AGRARIAN REFORM ADJUDICATION BOARD (DARAB) REVISED RULES OF PROCEDURE REVISED RULES AND REGULATIONS ON THE COMPULSORY ACQUISITION OF AGRICULTURAL LANDS UNDER R.A. NO. 6657

July 26, 1989

DAR A.O. No. 9, Series of 1990

REVISED RULES GOVERNING THE ACQUISITION OF AGRICULTURAL LANDS SUBJECT OF VOLUNTARY OFFER TO SELL AND COMPULSORY ACQUISITION PURSUANT TO RA 6657

August 30, 1990

Requires that the Municipal Agrarian Reform Officer (MARO) keep an updated master list of all agricultural lands under the CARP in his area of responsibility containing all the required information. The MARO prepares a Compulsory Acquisition Case Folder (CACF) for each title covered by CARP. The MARO then sends the landowner a "Notice of Coverage" and a "letter of invitation" to a "conference/meeting" over the land covered by the CACF. He also sends invitations to the prospective farmer-beneficiaries, the representatives of the Barangay Agrarian Reform Committee (BARC), the Land Bank of the Philippines (LBP) and other interested parties to discuss the inputs to the valuation of the property and solicit views, suggestions, objections or agreements of the parties. At the meeting, the landowner is asked to indicate his retention area. The MARO shall make a report of the case to the Provincial Agrarian Reform Officer (PARO) who shall complete the valuation of the land. Ocular inspection and verification of the property by the PARO shall be mandatory when the computed value of the estate exceeds P500,000.00 Upon determination of the valuation, the PARO shall forward all papers together with his recommendation to the Central Office of the DAR. The DAR Central Office, specifically, the Bureau of Land Acquisition and Distribution (BLAD), shall review, evaluate and determine the final land valuation of the property. The BLAD shall prepare, on the signature of the Secretary or his duly authorized representative, a Notice of Acquisition for the subject property. Lays down the rules on both Voluntary Offer to Sell (VOS) and Compulsory Acquisition (CA) transactions involving lands enumerated under Section 7 of the CARL. In both VOS and CA transactions, the MARO prepares the Voluntary Offer to Sell Case Folder (VOCF) and the Compulsory Acquisition Case Folder (CACF), as the case may be, over a particular landholding. The MARO notifies the landowner as well as representatives of the LBP, BARC and prospective beneficiaries of the date of the ocular inspection of the property at least one week before the scheduled date and invites them to attend the same. The MARO, LBP or BARC conducts the ocular inspection and investigation by identifying the land and landowner, determining the suitability of the land for agriculture and productivity, interviewing and screening prospective farmer beneficiaries. This survey shall delineate the areas covered by Operation Land Transfer (OLT), areas retained by the landowner, areas with infrastructure, and the areas subject to VOS and CA. After the survey and field investigation, the MARO sends a "Notice of Coverage" to the landowner or his duly authorized representative inviting him to a conference or public hearing with the farmer beneficiaries, representatives of the BARC, LBP, DENR, Department of Agriculture (DA), non-government organizations, farmer's organizations and other interested parties. At the public hearing, the parties shall discuss the results of the field investigation, issues that may be raised in relation thereto, inputs to the valuation of the subject landholding, and other comments and recommendations by all parties concerned. Modified the identification process and increased the number of government agencies involved in the identification and delineation of the land subject to acquisition. This time, the Notice of Coverage is sent to the landowner before the conduct of the field investigation and the sending must

DAR A.O. No. 1, Series of 1993

RULES AND REGULATIONS GOVERNING THE EXCLUSION OF AGRICULTURAL

December 27, 1993

46

LANDS USED FOR LIVESTOCK, POULTRY AND SWINE RAISING FROM THE COVERAGE OF THE COMPREHENSIVE AGRARIAN REFORM PROGRAM (CARP).

DAR A.O. No. 1, Series of 1998

AMENDMENTS TO ADMINISTRATIVE ORDER NO. 02, SERIES OF 1996, ENTITLED, "REVISED RULES AND PROCEDURES GOVERNING THE ACQUISITION OF AGRICULTURAL LANDS SUBJECT OF VOLUNTARY OFFER TO SELL AND COMPULSORY ACQUISITION PURSUANT TO REPUBLIC ACT NO. 6657

February 5, 1998

comply with specific requirements. Representatives of the DAR Municipal Office (DARMO) must send the Notice of Coverage to the landowner by "personal delivery with proof of service, or by registered mail with return card," informing him that his property is under CARP coverage and that if he desires to avail of his right of retention, he may choose which area he shall retain. The Notice of Coverage shall also invite the landowner to attend the field investigation to be scheduled at least two weeks from notice. The field investigation is for the purpose of identifying the landholding and determining its suitability for agriculture and its productivity. If the landowner and other representatives are absent, the field investigation shall proceed, provided they were duly notified thereof. After the field investigation, the DAR Municipal Office shall prepare the Field Investigation Report and Land Use Map, a copy of which shall be furnished the landowner "by personal delivery with proof of service or registered mail with return card." Emphasizes that notice of publication is merely an alternative mode of notifying the land owner of the placement of his land 3 under CARP coverage after attempt using the preferred modes.

Clearly then, the notice requirements under the CARL are not confined to the Notice of Acquisition set forth in Section 16 of the law. They also include the Notice of Coverage first laid down in DAR A.O. No. 12, Series of 1989 and subsequently amended in DAR A.O. No. 9, Series of 1990 and DAR A.O. No. 1, Series of 1993. This Notice of Coverage does not merely notify the landowner that his property shall be placed under CARP and that he is entitled to exercise his retention right; it also notifies him, pursuant to DAR A.O. No. 9, Series of 1990, that a public hearing shall be conducted where he and representatives of the concerned sectors of society may attend to discuss the results of the field investigation, the land valuation and other pertinent matters. Under DAR A.O. No. 1, Series of 1993, the Notice of Coverage also informs the landowner that a field investigation of his landholding shall be conducted where he and the other representatives may be present.4

Two Notice Requirement for a valid implementation of the CAR Program:

1. The Notice of Coverage and letter of invitation to a preliminary conference sent to the landowner, the representatives of the BARC, LBP, farmer beneficiaries and other interested parties pursuant to DAR A.O. No. 12, Series of 1989; and 2. The Notice of Acquisition sent to the landowner under Section 16 of the CARL.

Importance of the first notice (the Notice of Coverage and the letter of invitation to the conference) and its actual conduct:
3 4

By personal delivery with proof of service and registered mail with return card. ROXAS & CO., INC., vs CA, G.R. No. 127876, December 17, 1999

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They are steps designed to comply with the requirements of administrative due process. The implementation of the CARL is an exercise of the State's police power and the power of eminent domain. To the extent that the CARL prescribes retention limits to the landowners, there is an exercise of police power for the regulation of private property in accordance with the Constitution. But where, to carry out such regulation, the owners are deprived of lands they own in excess of the maximum area allowed, there is also a taking under the power of eminent domain. The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the title to and physical possession of the said excess and all beneficial rights accruing to the owner in favor of the farmer beneficiary. The Bill of Rights provides that "no person shall be deprived of life, liberty or property without due process of law." The CARL was not intended to take away property without due process of law. The exercise of the power of eminent domain requires that due process be observed in the taking of private property.5

Certificate of Land Ownership Award (CLOA):

An evidence of complete compliance with the requirements of the law for the transfer of the ownership to the awardees, which requires that the owner should at least be given an opportunity to contest the propriety of the expropriation, and the qualifications of the intended awardees.

B. EMINENT DOMAIN
Section 9 of Article III (Bill of Rights) of the 1987 Constitution provides that the taking of private property in the states exercise of the power of eminent domain must com ply with the requirement of: 1. Public Use and 2. Payment of Just Compensation 1. PUBLIC USE The public use for the taking of the property in relation to the governments agrarian reform program is defined in Sec 4 of Art XIII of the Constitution, which reserves the right to own the lands they till to farmers (agricultural lessees) and regular farmworkers; and the right to a just share of the fruits of the land to seasonal and other farm workers. The right is given to the landless tillers of the soil. There is no precise meaning of public use and the term is susceptible of myriad meanings depending on diverse situations. The limited meaning attached to public use is use by the public or public employment, that a duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and that there must be a right on the part of the public, or some portion of it, or some public or quasi-public agency on behalf of the public, to use the property after it is condemned. The more generally accepted view sees public use as public advantage, convenience, or benefit, and that anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, [which]

Id.

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contributes to the general welfare and the prosperity of the whole community. In this jurisdiction, public use is defined as whatever is beneficially employed for the community.6 It is settled that the public nature of the prospective exercise of expropriation cannot depend on the numerical count of those to be served or the smallness or largeness of the community to be benefited. The number of people is not determinative of whether or not it constitutes public use, provided the use is exercisable in common and is not limited to particular individuals.7 The landmark case of Association of Small Landowners Inc. vs Sec. of Agrarian Reform 8 declares that the public use for agrarian reform defined in the Constitution is binding. Eminent domain is an inherent power of the State that enables it to forcibly acquire private lands intended for public use upon payment of just compensation to the owner. Obviously, there is no need to expropriate where the owner is willing to sell under terms also acceptable to the purchaser, in which case an ordinary deed of sale may be agreed upon by the parties. It is only where the owner is unwilling to sell, or cannot accept the price or other conditions offered by the vendee, that the power of eminent domain will come into play to assert the paramount authority of the State over the interests of the property owner. Private rights must then yield to the irresistible demands of the public interest on the time-honored justification, as in the case of the police power, that the welfare of the people is the supreme law. Under the Agrarian Reform Program, the equitable distribution of the land is a right given to landless farmers and regular farm workers to own the land they till, while the other or seasonal farm workers are only entitled to a just share of the fruits of the land.9 Consequently, DARs identification of outsiders or non workers of the farm who are not given by the Constitution any right to the land nor even to a just share of the fruits thereof as beneficiaries to be installed by the DAR does not comply with the public use requirement in Agrarian Reform, as defined and limited by Sec.4 of Art.XIII of 1987 Constitution. Thus, RA 665710 recognizes labor administration as one of the alternative modes of Agrarian Reform which is not just limited to land distribution.

Labor Administration means cases where farm workers are employed wholly in the
Agricultural Production. (Sec. 166 of Republic Act 384411 which applies suppletorily to RA 6657.

2. JUST COMPENSATION
The basis of the land owners right to just compensation is found in Section 9, Article III of the 1987 Constitution, which states that private property shall not be taken for public use without just compensation. The expropriation of private property must comply with the requirements of public use and payment of just compensation. Just compensation has been described by the Court as the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation (Province of Tayabas v. Perez).

Requirement of full payment

Before title to the property may be transferred, what is necessary to comply with the requirement of just compensation is full payment. As held by the Court, payment of just
6 7

Barangay Sindalan, San Fernando, Pampanga vs Court of Appeals G.R. No. 150640 Id. 8 G.R. No. 78742 July 14, 1989 9 Fr. Juaquin Bernas commenting on Sec.4 of Art.XIII of 1987 Constitution 10 Comprehensive Agrarian Reform Law of 1988 11 Agricultural Land Reform Code

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compensation is not always required to be made fully in money (Association of Small Landowners v. Sec. of Agrarian Reform). The content and manner of just compensation is provided for in Section 18 of R.A. 6657. The Court ruled as such, due to the revolutionary and extraordinary nature of the expropriation involved under RA 6657. Full payment, however, as a requirement is still not dispensed with.

Initial deposit or partial payment is not sufficient to comply with the rule.

The manner of payment that is required is delivery or performance which will completely extinguish the obligation. The pertinent provision of law as regards to the payment which extinguishes the obligation is Article 1233 of the Civil Code, which states that: A debt shall not be understood to have been paid unless the thing or service in which the obligation consists has been completely delivered or rendered, as the case may be.

Receipt of partial payment does not amount to waiver of balance.

In the case of Amor De Castro v. CA and Artigo, the Court held that partial payment does not extinguish the obligation. The Court, citing Tolentino, explained the distinction between acceptance and mere receipt, to wit: Artigo's acceptance of partial payment of his commission neither amounts to a waiver of the balance nor puts him in estoppel. This is the import of Article 1235 which was explained in this wise: "The word accept, as used in Article 1235 of the Civil Code, means to take as satisfactory or sufficient, or agree to an incomplete or irregular performance. Hence, the mere receipt of a partial payment is not equivalent to the required acceptance of performance as would extinguish the whole obligation."

Landowners have the option to reject.

If the offered amount is unacceptably low, the landowners may reject such offer.

Initial Deposit must completely extinguish the obligation, to be considered as full payment.

Initial deposit will not be considered as full payment, if the amount was based only on a preliminary determination by the administrative agency. A judicial determination is necessary in order for the amount of an initial deposit to be considered as full payment.

Necessity of judicial determination of just compensation.

According to RA 6657, Sec. 16 (e), Upon receipt by the landowner of the corresponding payment or, in case of rejection or no response from the landowner, upon the deposit with an accessible bank designated by the DAR of the compensation in cash or in LBP bonds in accordance with this Act, the DAR shall take immediate possession of the land and shall request the proper Register of Deeds to issue a Transfer Certificate of Title (TCT) in the name of the Republic of the Philippines. The DAR shall thereafter proceed with the redistribution of the land to the qualified beneficiaries. However, according to the Supreme Court in the case of Export Processing Zone Authority v. Dulay, The determination of "just compensation" in eminent domain cases is a judicial function. The executive department or the legislature may make the initial determinations but when a party claims a violation of the guarantee in the Bill of Rights that private property may not be taken for public use without just compensation, no statute, decree, or executive order can mandate that its own determination shall prevail over the

50

court's findings. Much less can the courts be precluded from looking into the "just-ness" of the decreed compensation. Thus, the mere opening of a bank deposit by Land Bank, without a judicial determination of the correct amount, cannot be considered the full payment of just compensation.

C. SEPARATION OF POWER
Although holding neither purse nor sword and so regarded as the weakest of the three departments of the government, the judiciary is nonetheless vested with the power to annul the acts of either the legislative or the executive or of both when not conformable to the fundamental law. This is the reason for what some quarters call the doctrine of judicial supremacy. Even so, this power is not lightly assumed or readily exercised. The doctrine of separation of powers imposes upon the courts a proper restraint, born of the nature of their functions and of their respect for the other departments, in striking down the acts of the legislative and the executive as unconstitutional. The policy, indeed, is a blend of courtesy and caution. To doubt is to sustain. The theory is that before the act was done or the law was enacted, earnest studies were made by Congress or the President, or both, to insure that the Constitution would not be breached.12 In addition, the Constitution itself lays down stringent conditions for a declaration of unconstitutionality, requiring therefor the concurrence of a majority of the members of the Supreme Court who took part in the deliberations and voted on the issue during their session en banc.13 And as established by judge-made doctrine, the Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself.14

D. CONTRACT
The Constitution guarantees that the rights of both the landowner and his employees be respected. These are based on the following provisions of the Bill of Right, 1987 Constitution: SECTION 8, Article III: The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. SECTION 10, Article III: No law impairing the obligation of contracts shall be passed. SECTION 18, Article III: 1. No person shall be detained solely by reason of his political beliefs and aspirations. 2. No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.
12 13

Association of Small Landowners Inc. vs Sec. of Agrarian Reform, G.R. No. 78742. July 14, 1989 Id. 14 Dumlao v. COMELEC, 95 SCRA 392

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These Constitutional provisions guarantee that the following rights be respected:

1. Right of the landowner and his employees to their Collective Bargaining Agreement with their Labor Union executed prior to the taking; 2. Right of the landowner and his lessees to have their contract of lease executed prior to the effectivity of RA No. 6657; 3. Right of the landowner to reject the compensation offered by the government when the public use or purpose for the taking does not exist and/or the value offered is too low and not commensurate with the lands market value; 4. Right of the landowner not to be forced to terminate the services of the employees in violation of labor laws; 5. Right of the employees to refuse to accept the offer of DAR to forcibly take the land from the landowner and distribute the same to them; 6. The right of the employees not to be coerced or compelled -a. Severing their existing contractual relations when they find the same to be more beneficial and stable than what the government, through DAR and LB, offers them; b. Taking on obligations to pay the government through DAR and LB for land which they are unwilling to accept. Such was well-explained by former Chief Justice Hilario Davide, who was then a member of the Constitutional Commission. According to him, such right maybe waived because it is up to the farmer of the farm worker to enjoy such privilege. Farmer cannot be compelled to avail of any advantages of a right if he does not wish to use such right.15 Where the employees are receiving benefits same as those of the commercial or industrial employees, they have the right: not to sever their harmonious relationship with their landowner; nor against the disruption of their income stability and benefits that such relationship provide; DAR to cut up landholding and to distribute it to unqualified claimants so as to punish workers for their refusal to cooperate with DARs land distribution program; DARs attempt to force employees to accept the land and the threat of displacing them is tantamount to involuntary servitude prohibited by the Constitution. Furthermore, it violates the right of employees to continue their employment with their employer as well as their CBA.

NOTE: There is employer-employee relationship when:

a. The workers incomes being in form of salaries and not by any sharing of harvests; b. Landowner pay their appropriate contributions for: 1. Social Secuirty System (SSS); 2. Philhealth Insurance; 3. Social amelioration benefits; and 4. Other bonuses and benefits based on the total production in accordance with their CBAs or laws on the particular agricultural industry.

15

Record of 1986 Constitutional Commission, Vol. 2 \08-05-86 R.C.C. No. 48.

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1. 2. 3. 4.

Farm workers are also given the right not to be compelled to contract with the government and accept the latters offer for employees to buy the land. This would entail: the obligation to pay for the price of the land; for them to till and use it only for agricultural purposes; to pay taxes; and to spend capital outlays required to maintain the farm with use of modern technology. DARs acts of issuing EPs/CLOAs to outsiders other than those qualified beneficiaries violates workers right not to be compelled. Such acts also represents undue and illegal interference to the contractual relationship of the Landowner and his workers.

In the case of Gabelo vs. Court of Appeals (GR No.111743, October 8, 1999), the Supreme Court held that the freedom of the contract necessarily implies ones right to choose with whom to contract. The burden that was imposed by the Reform Program must still pass the Constitutional requirement of reasonableness and propriety of the measures and means. Such must not interfere with the rights of the private property and freedom of contract. 16 Furthermore, as provided under the New Civil Code: ART. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy. This means that the contract may be considered as the law between parties, just as long as said contract is not contrary to law, morals, good customs, public order or public policy.17

II. REMEDY OF THE LAND OWNER

A. CONSTITUTIONAL AND LEGAL RIGHTS
Land Owners have every right to Complain about violations of their constitutional and Legal Rights.

1. UNREASONABLE DELAY
Even a singular violation of the Constitution and/or the law is enough to awaken judicial duty Pimentel vs Pagdanganan18 "As this Court has repeatedly and firmly emphasized in many cases, it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government." - Cf. Daza v. Singson19

16 17

Acebedo Optical, Inc. vs. Court of Appeals (GR No. 100152, March 31, 2001). Heirs of Juan San Andres (Victor S. Ziga) and Salvacion Tria vs. Vicente Rodriguez (GR No. 135634, May 31, 2000). 18 G.R. No. 132988. July 19, 2000 19 180 SCRA 496, December 21, 1989

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2. UNJUST COMPENSATION The determination of "just compensation" in eminent domain cases is a judicial function. The executive department or the legislature may make the initial determinations but when a party claims a violation of the guarantee in the Bill of Rights that private property may not be taken for public use without just compensation, no statute, decree, or executive order can mandate that its own determination shall prevail over the court's findings. Much less can the courts be precluded from looking into the "just-ness" of the decreed compensation. EPZA vs Daza20 3. DAMAGES The regular courts may entertain an action for damages against public officials who violate the Constitution, as shown in the discussion of the Supreme Court in the case of VitalGozon vs. Court of Appelas, with Chief Justice Davide being the ponente:21 The instances when moral damages may be recovered xxx are found in the Chapter on Human Relations of the Preliminary title of the Civil code. Relevant to the instant case, which involves public officers, is Article 2722. It is thus evident that under Article 27, a public officer may be held liable for moral damages for a slong as the moral damages suffered by a private respondent were the proximate result of a petitioners wrongful act or omission. In fact, if only to underscore the vulnerability of public officials and employees to suits for damages to answer for any form or degree of misfeasance, malfeasance or nonfeasance, the Supreme Court has had occasion to rule that under Articles 19 and 27 of the Civil Code, a public official may be made to pay damages for performing a perfectly legal act, albeit with bad faith or in violation of the abuse of right doctrine emobodied in the preliminary articles of the Civil Code concerning Human Relations.23

B. JURISDICTION
An action for violation of constitutional rights is clearly within the jurisdiction of the regular courts as provided in Art. VIII, section 1, par. 2 of the Constitution: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Supreme Court explained this provision in the case of Tatad vs. Secretary of the Department of Energy wherein it stated that:24 Judicial power includes not only the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable, but also the duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The
20 21

G.R. No. L-59603. April 29, 1987 G.R. No. 129132, 8July1998 22 See also paragraph (1), Section 38, chapter 9, Book I of the Administrative code of 1987 which provides that a public officer may be liable for damages for acts done in the performance of his official duties if there is a clear showing of bad faith, malice or gross negligence. 23 Llorente vs. Sandiganbayan, G.R. No. 85464, 3October1991 24 G.R. No. 124360, 5November1997

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courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. Where the statute violates the Constitution, it is not only the right but the duty of the judiciary to declare such act unconstitutional and void. Even Sections 50, 55, and 53 of Republic Act 6657 and the DARAB 2003 Rules could not prevail against the Constitution because where the case involves questions of the Constitutional delineations and bounds of the authority of a governmental branch or instrumentality only the judiciary may resolve such matters, in line with its duty to uphold the supremacy of the Constitution. C. RATIONALE BEHIND THE RECOGNITION OF JURISDICTION BY THE REGULAR COURTS Under Section 50-A, if the case is agrarian, the Regional Trial Court will automatically refer the same to the DAR but from the determination of the DAR, the party may go to the Court of Appeals.25 When the complaint involves grave abuse of authority by the DAR, such as: a.) lack of notice to the landowner; b.) installing unqualified beneficiaries; c.) deprivation of the retention rights of the landowner; or d.) distribution of the land without any deposit or determination of just compensation after several years Courts cannot be prevented from interfering to inquire whether the constitutional requirements protecting property owners have been respected on the mere allegation that the DAR has the exclusive jurisdiction under Section 50. As a rule, courts cannot be ousted of jurisdiction even on agrarian matters where constitutional rights are violated. Under our Constitution, judicial powers are vested in the Supreme Court and all other courts created by law. And under our separation of powers clause held sacred by our Constitution, administrative/executive officers may not exercise judicial powers and as succinctly defined by Chief Justice Fernando, judicial powers simply means the power to try cases. As declared by the Supreme Court in the case of Pimentel vs. Aguirre26, even a singular violation of the Constitution and/or the law is sufficient to set in motion the judicarys exercise of its Constitutionally mandated duty, as follows: In the unanimous en banc case of Tanada vs. Angara, this Court held that when an act of the legislative department is seriously alleged to have infringed the Constitution, settling the controversy becomes the duty of this Court. Indeed, even a singular violation of the Constitution and/or law is enough to awaken judicial duty.

25 26

See Sec. 50-A, RA 9700 amending RA 6657 G.R. No. 132988, 19July2000

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