Position Paper on House Bill 3059[1]


One of the bills on agrarian reform pending in the 14th Congress of the House of Representatives, House Bill No. 3059 is unique. It is so in the sense, that among the said pending legislative proposals, it is the only bill that challenges one to consider a framework for agrarian reform that is well beyond the box of pertinent principles and concepts embodied in the past and present agrarian reform laws.

More particularly, compared to all the other related legislative proposals, it seeks not a few relatively radical changes to the way agrarian reform is currently understood and implemented. These provisions include: (a) a proposal for the implementation of a system of “free land distribution” – or distribution at no cost to farmer-beneficiaries[2]; (b) those relating to the “confiscation” -– or the taking away, without compensation, of “sullied” landholdings and their distribution to farmer-beneficiaries; (c) sections seeking the writing-off of amortizations on lands (required under existing agrarian reform laws); (d) a proposal on qualitative standards in defining the land award limit to a farmer-beneficiary (instead of the typical quantitative limits); (e) etc. Undeniably, these provisions stimulate images of agrarian reform implementation in a grand fashion; and to be sure, the bill is a set of well-intended rules that prioritize the welfare of landless farmers, more than anything else. But like any other legislative proposal, HB 3059 must be scrutinized and measured against the pertinent provisions of our Constitution. If it is to be the next agrarian reform law, it has to pass the test of constitutionality.

This position paper limits itself to the discussion of some constitutional issues which, unfortunately, a number of provisions in the bill fails to hurdle.

1. Confiscatory acquisition of private lands is not allowed by the express provision of the Constitution

The bill provides for the confiscation – defined therein as referring to “the State act of extraordinary exercise of its powers of eminent domain involving the taking away, without just compensation, of private agricultural lands and non-land assets necessary and vital to the operation of an agricultural activity” (Sec. 4) – of “sullied” landholdings.[3] Sullied landholdings are those “proven to have been acquired by their landowners through fraud, deception, intimidation, or the use of force or violence, and landholdings whose landowners have maintained private armed groups xxx” (Sec. 16).

Owners of private agricultural lands are, however, required to be paid just compensation when their landholdings are acquired for redistribution to qualified farmer beneficiaries. Section 4, Article XIII, 1987 Constitution mandates that “xxx. [T]he State shall undertake the just distribution of all agricultural lands xxx subject to the payment of just compensation.” As noted by the esteemed Constitutionalist Joaquin G. Bernas, S.J., “[T]o the extent that agrarian reform will mean government acquisition of the land, whether voluntary or forced, for distribution to agrarian reform beneficiaries, there is a need to compensate landowners justly. The agrarian reform program mandated by the Constitution is not a land confiscation program.”[4]

2. Violation of the due process clause

Sections 21 and 22, in relation to Section 16 of the bill provide for the manner by which landholdings subject to confiscation are to be taken by the state. By and large, the process described makes for a taking by the State through a summary and “ex parte” proceeding even as the same is also purely administrative.

In brief, the taking of sullied landholdings is to be done, as follows: (a) the People’s Coordinating Council for Agrarian Reform (PCCAR) – a body composed of representatives from the DAR and the DA and leaders of all peasant cooperatives and organizations as well as agrarian reform advocates[5] – will conduct pertinent consultations to “draw a list of landowners with sullied landholdings”; (b) the PCCAR shall thereafter submit the list to the DAR with the proper documentation which shall be “under oath and duly notarized.” (c) on the basis of the documentation, the DAR through the Secretary shall, if the listed landholdings are titled, cause the cancellation of the titles and, after such cancellation, notify the landowner of the same and advise him to vacate the property. If the landholdings are untitled, the DAR Secretary shall advise the landowner to vacate the landholding. A landowner who receives a Notice to Vacate shall be given a non-extensible period of fifteen days to leave the premises.

The intention to make acquisition as hasty as possible is all too evident in the procedure being proposed. However, the same also evidently fails to factor in the due process requirements enshrined in our Constitution. Essentially a guarantee against State abuse of power, the due process clause provides that “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.”[6] We will not delve on the matter of the reasonableness of the provision on confiscatory taking as our basic position on the same is already expressed in item 1 above. As to the matter of procedural due process, we maintain the above provisions offend against it.

The need for notice and an opportunity to be heard is at the core of procedural due process, whether judicial or administrative. Unfortunately, the cited sections totally exclude any rule ensuring that: (a) affected landowners are given proper notice of the “proceedings” against them; and (b) they are afforded the opportunity to heard, including the right to present their case and evidence in support thereof, before the landholding is declared subject of State acquisition. As a matter of fact, the provisions rule out any participation by landowners in the PCCAR consultation. If there is any mention of landowners at all, it is merely in regard to their being informed by Secretary of the DAR, of the cancellation of their titles and/or advised (by said department head) to vacate the landholdings and premises within a non-extendible period of fifteen (15) days.

3. No clear provision on retention limits

The bill fails to clearly provide for retention limits whereof the landowner is assured of the right to hold to a portion of his landholding for himself/herself. This retention right is constitutionally guaranteed.

Section 4, Article XIII of the Constitution provides that “[T]he State shall, by law, undertake an agrarian reform program xxx. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. xxx.”

On the other hand, there is nothing in the bill that unequivocally provides for the landowner’s retention right. Section 18 of the bill directs that landholdings below five (5) hectares and the lands of middle-income and higher income farmers shall not be expropriated, suggesting a rule on a retention limit in favor of landowners. However, Section 17 counteracts this proposition. Section 17 provides that “[I]n all other lands not exceeding fifteen (15) hectares, xxx their landowners shall be given the option to sell their lands to the State xxx.” If they fail to exercise this option, their lands shall be expropriated. The extent of the expropriation for these lands is not clear. In particular, Section 17 fails clarify if lands not exceeding 15 hectares but are more than 5 hectares will be “expropriated” in their entirety or only to the extent of the excess of 5 hectares. And as far as lands more than 15 hectares are involved, there are no explicit rules relative to the extent of their acquisition. Even so, it seems that if particular landholdings are owned by middle income and higher income farmers, they may actually “retain” their respective landholdings regardless of land area. In other words, only landowners with landholdings below 5 hectares and middle-income and higher-income farmers have some sort of retention right to their lands to the exclusion of all others. This makes the pertinent provisions stand on very tenuous grounds insofar as compliance with the constitutional requirement on retention limits is concerned.

In fact, to the extent that the bills provisions will mean that only some landowners (including farmer-landowners) are assured of effective “retention” or “retained” areas, the provisions are also vulnerable to objections anchored on the violation of the Constitutional guarantee to equal protection of the laws (Section 2, Article III, 1987 Constitution).

4. Inclusion of lands operated as cattle and livestock farms

The inclusion of cattle and livestock farms in the agrarian reform program (as fleshed out in R.A. 6657) has long been declared unconstitutional by the Supreme Court in the leading case of Luz Farms vs. Secretary of DAR[7]. The ruling was reiterated in the case of Department of Agrarian Reform vs. Delia Sutton, et al[8]. According to the Supreme Court, the deliberations of the 1987 Constitutional Commission show a clear intent to exclude from the coverage of agrarian reform all lands exclusively devoted to livestock, swine and poultry raising.//

[1] Filed with the Fourteenth Congress (First Regular Session), Hon. Crispin Beltran, et. al.

[2] Section 8

[4] Bernas, Joaquin G., SJ, The 1987 Constitution of the Republic of thePhilippines: A Commentary, 1996 Edition, p.1070

[5] Section 64, HB 3059

[6] Section 2, Article III, 1987 Constitution

[7] 192 SCRA 51 (1990).

[8] G.R. No. 162070, October 19, 2005

AR Dialogues No. 2-08 / February 8, 2008

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