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Towards Equitable & Sustainable Land Use Interventions

“Land is indispensable to any and all human activity; and how a nation uses its lands, to a large extent determines its fate – whether its people will remain as tillers of the soil or homeless nomads, or prosper along with the better part of the human race.”

Ever since the Department of Agrarian Reform (DAR) assumed predominance, it became the primary thrust of government policy and legislation to attempt to distribute practically all of the country’s lands to farmers, or otherwise preserve them for agriculture.

This is despite the fact that, as of 2012 there were only some 5.5 million farmers (or agricultural operators) in the country, and that agriculture contributed only 9.3% to the country’s gross domestic product (GDP); whereas World Bank statistics for the same period show that 40% of the country’s urban population are slum dwellers.

The land development and housing industry has been publicly maligned repeatedly as the “devil incarnate” for allegedly impairing food security through the unabated conversion of agricultural lands.

This is despite the fact that as of Year 2010, built-up areas accounted for only 2.26% of the country’s total land area, and the acreage of agricultural land  actually increased by 5.39% from Year 2003 to 2010.

Clearly, if the nation is to prosper at more than a snail’s pace it is imperative to reorient the jaundiced view and patent bias, with respect to land allocation, that has persisted for more than two decades.

The CARP (CY 1987)

The Philippine Constitution places a premium on how the country’s lands may be used to further the cause of social justice and economic prosperity for the Filipino people. It directs the just distribution of lands to the nation’s landless farmers, just as it mandates the provision of land and decent dwelling to the nation’s underprivileged landless and homeless non-farmers. It requires the full and efficient use of land and all resources to “provide all sectors of the economy and all regions of the country the optimum opportunity to develop”, and thus “raise the quality of life for all”.

Aware of the developmental balance that the framers of the Constitution sought to achieve, CREBA never questioned the Comprehensive Agrarian Reform Program (CARP) when it was first instituted in 1987 by then President Corazon Aquino under Proclamation No. 131, and again in June 1988 when the Comprehensive Agrarian Reform Law (RA 6657) was enacted.

At that time, CREBA was supportive of the program, finding it a just solution to the inequity of a feudal system that had persisted in the country for centuries, and finding its provisions to be non-threatening to the Chamber’s vision of a home for every Filipino.

CREBA was then relying on the exception clause in the definition of agricultural lands under said law – i.e. “and not classified as mineral, forest, residential, commercial or industrial land” – as being sufficient to ensure availability of land for non-agricultural pursuits.

However, the private land sector was thrown into turmoil when, in December 1988, the Department of Agrarian Reform (DAR) issued its first land conversion rules under Administrative Order (AO) No. 15.

In essence, AO 15 – disregarding the exception clause under RA 6657 – extended the DAR’s authority to cover ALL lands “suitable” for agriculture regardless of classification. CREBA assailed it as being contrary not only to the Constitutional mandates, but also to the limitations under RA 6657.

The DAR was unmoved, as it continued to exercise dominion with the support of presidential issuances that either restricted or banned outright the conversion and reclassification of practically all lands.

The shelter industry saw a glimmer of hope when the DAR’s march towards unrestricted power met obstacles, in the form of Supreme Court decisions in the following landmark cases:

  • Luz Farms vs. DAR (G.R. No. 86889, 04 December 1990) – a case spearheaded by CREBA Founder Manuel Serrano who was also then head of the largest livestock and poultry association in the country. In this case, the Court ruled that DAR’s inclusion of livestock and poultry farms in the coverage of the CARP was unconstitutional.
  • Province of Camarines Sur vs CA (G.R. No.  103125, 17 May 1993), wherein the Supreme Court ruled that the DAR’s conversion authority is limited only to cases where an application for conversion has been submitted by the landowner or tenant beneficiary.
  • Natalia Realty vs. DAR (G.R. No. 103302, 12 August 1993), wherein the Court ruled that the DAR has no jurisdiction over lands which have already been reclassified for non-agricultural uses.

In 1995, the DAR suffered another setback when Congress enacted RA 7991 which exempted aquaculture farms from CARP coverage.

Apparently realizing the precariousness of its legal footing, the DAR – with the support of former activists and militants serving in the Executive Branch – began pushing for enactment of a National Land Use Code that it can use as strong legal basis for its issuances.

The Proposed National Land Use Code (CY 1999)

In 1999, the Housing and Urban Development Coordinating Council (HUDCC) under Chairman Karina David came up with a National Urban Development and Housing Framework (NUDHF), one stated objective of which was “to insure adequate supply of reasonably priced land for urban development” and “to reduce the cost of urban development.”

Contradictorily, one of the proposed solutions under the NUDHF was to enjoin the DAR and the Department of Agriculture (DoA) to work with urban authorities in effecting conservation and conversion processes, and “prioritize the conservation of agricultural lands” through a National Land Use Code (NLUC).

CREBA submitted that the policy recommendation and the proposed (NLUC) were non-workable on the following counts:

1.    It apparently assumes that the DAR and the DA have the ultimate say as far as use of “agricultural lands” is concerned, and therefore their prior imprimatur is required by urban authorities in the use of lands for urban development or other non-agricultural purposes.

This assumption is faulty. Under the law, the DAR has no authority to “conserve” agricultural lands. Its authority to regulate conversion embraces only those “agricultural” lands that have been actually awarded under the CARP. The DoA’s jurisdiction, on the other hand, covers only those lands that are strictly agricultural as defined under the law. In both cases, urban lands and lands already reclassified for non-agricultural uses by law (such as RA 7279, PD 399 and RA 7916), or by local ordinance pursuant to LGU powers under the Local Government Code, are outside of the jurisdiction of these two agencies.

Hence, urban authorities may plan for, allow and regulate the development of these lands for their intended urban uses without need of any intervention by either the DAR or the DoA.

2.    The “illegal” or “extra-legal” conservation and conversion policies, regulations and processes of the DAR – which practically preclude all non-agricultural development – are precisely the root cause of the artificial scarcity and exorbitant price of land for urban development and other non-agricultural purposes.

Adoption of the proposed National Land Use Code would only serve to legitimize this illegal exercise of DAR’s authority, and thus exacerbate rather than mitigate the problem that is proposed to be solved by the policy recommendation.

If enacted in its present form, the proposed Code would mean that virtually all lands would be:

  • Redistributed under the CARP;
  • Identified as part of the DoA’s National Protected Areas for Agriculture and Agrarian Reform (NPAA);
  • Reserved exclusively for agriculture;
  • Non-negotiable for conversion; and therefore
  • Unavailable for urban or non-agricultural uses.

If any land would be available at all, its development would likewise be precluded by the proposed Code’s exorbitant land conversion tax provisions.

Unfold

Consequently, the proposed NLUC did not prosper.

Nonetheless, seeking to curb the DAR’s continuing excesses, under the Estrada and Arroyo administrations CREBA continued to push for an Executive Order that would institute its recommended measures for equitable land access.

In a parallel move, the Chamber also pushed for inclusion of its proposed Land Access provisions in the Department of Housing Bill then pending.

The DAR, on the other hand continued to push for enactment of its version of a National Land Use Act (NLUA).

The Proposed National Land Use Act (CY 2001)

In 2001, the vocal representative of the “marginalized” sector, Rep. Loretta Rosales, filed a bill for the NLUA. Other House bills and Senate counterpart bills of the same tenor followed.

Upon its analysis of the bills, CREBA found that taken together, the provisions of the proposed Act would mean that no land will be made available for non-agricultural development activity, unless the land is first awarded to CARP beneficiaries and conversion is thereafter allowed exclusively upon the DAR’s discretion.

CREBA immediately launched a media campaign assailing the bill as nothing more than a class legislation designed to expand the CARP to cover practically all of the country’s lands – and thus legitimize DAR’s authority – instead of a true land use act that will ensure rational land use allocation for the benefit of all sectors of the economy and society.

However, in the deliberations of the Congressional committees involved, CREBA’s voice was drowned by the more strident voices of the bills’ sponsors and militant radical elements.

In 2002, CREBA took its case before the Senate, formally stating its position that it will not oppose the proposed law, provided that:

  1. None of the conversion provisions shall be interpreted to apply to all lands in all urban areas as defined in the proposed Act, as well as all other lands classified or designated by law or local ordinance for residential, commercial, industrial or other non-agricultural uses; and
  2. Said lands shall neither be included in the NPAAD and/or SAFDZ nor require conversion approval by the DAR for purposes of actual development, and any notice of CARP coverage that may have been issued to cover these lands shall be deemed revoked upon effectivity of the Act.

Apparently due to CREBA’s representations, the bills were shelved.

The DAR then reverted to getting support from the Executive Branch in the issuance of more restrictive conversion and reclassification rules. On 15 April 2008, it came out with a Memorandum Circular suspending the processing and approval of all land use conversion applications.

This finally compelled CREBA to resort to the Supreme Court via a petition for nullification.

The CARPer Law (CY 2009)

Failing in the effort to get the radical NLUA passed, the DAR sought to have its pet provisions incorporated in the bills filed for extension of the CARP, which was then nearing the end of the prescribed implementation period under RA 6657.

Again, CREBA vehemently opposed the onerous provisions, reiterating its earlier stand. However, extended rallies and hunger strikes by militant groups apparently influenced Congress to cave in to their demands. Thus, in July 2009, Congress passed RA 9700 (CARPer Law) with the following amendments to RA 6657:

  1. Redefinition of agricultural lands as “all lands suitable for agriculture”, and removal of the phrase “and not classified as mineral, forest, residential, commercial or industrial land”;
  2. Barring courts from taking cognizance of court cases pertaining to the implementation of agrarian reform; and
  3. Banning the conversion ban of all irrigated and irrigable lands.

Those amendments represented a major blow to CREBA’s cause, as the apparent interpretation would be that:

  1. Except only for non-agricultural lands of the public domain, and subject to the retention limits of five (5) hectares accorded to land owners, all lands are subject to acquisition and redistribution under the CARP;
  2. The exercise of DAR’s authority is beyond the ambit of court review; and
  3. Land conversion to non-agricultural use may be allowed only when (1) the land has already been awarded to a CARP beneficiary, (2) the land is not irrigated or irrigable, (3) five years shall have lapsed from the date of award; and (4) other conditions prescribed in the amended Section 65 of RA 6657 have been fulfilled.

Such interpretation begs the question: Exactly which lands will be available for housing, commerce, manufacturing, industry and infrastructure?

The Proposed National Land Use Act (CY 2009 - 2011)

The proposed NLUA was resurrected in 2010 with the filing of several bills in the Lower House and the Senate.

Again, CREBA launched an information campaign in support of its updated position. Apparently as a consequence, again, the bills did not prosper.

The Proposed National Land Use Act (CY 2016)

Again, the proposed NLUA was resurrected in 2016 via Senate Bill 34 filed by Senator Loren Legarda, which was essentially a reproduction of the consolidated Senate bill of 2011.

Again, CREBA interposed its objections. Militant peasant groups responded by publicly maligning the private land sector, claiming that the indiscriminate conversion of agricultural lands by developers considerably reduced the land area for agricultural production, threatening food security and depriving farmers of their means of livelihood.

Joining these groups’ outcry, environmentalist groups claimed that by their indiscriminate acts, land developers were endangering the ecology and contributing to disasters.

To squarely counter the accusations with facts and figures, CREBA commissioned its technical arm, CREBALAND, to use its advanced GIS facility in identifying, locating and quantifying the extent of built-up areas vis- à-vis agricultural lands and other land categories.

The result of the mapping and “land count”, covering every municipality in the country, was a startling revelation:

  • As of Year 2010, lands built up or developed for non-agricultural uses, including all roads, amount to only 2.26% of the country’s total land area
  • Despite progress brought about by non-agricultural land development – including government buildings, educational and medical institutions, commercial, industrial and residential facilities, airports and roads for the benefit of the entire nation – agricultural lands still comprise more than 42% of the country’s total land area.
  • Non-agricultural development did not diminish agricultural land area. The agricultural land percentage actually increased by 5.39% from Year 2003 to 2010.
  • As agricultural land area increased, forestlands and shrub lands decreased by 1.64% and 5.81%, respectively.
Built-up Areas
vs
Agricultural Areas
Nationwide Land Count Using Geo-Statistical Analysis
Nationwide Land Count
Agricultural Land Increase
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CREBA’s findings were verified and confirmed to be accurate by no less than the National Mapping and Resource Information Agency (NAMRIA) – the country’s central mapping agency.

Faced with those statistics supported by GIS-derived maps, opposition to CREBA’s stand was silenced.

Nonetheless, CREBA manifested willingness to fully suppport enactment of a National Land Use Act, as long as:

  • The provisions of RA 7279, RA 7160, RA 7916 and PD 399 with respect to the lands mentioned therein for non-agricultural uses are affirmed;
  • The lands set aside under said laws are categorically exempted from any provision relating to conversion ban or restrictions and/or redistribution under the CARP; and
  • Reasonable provisions that will protect the environment and preserve ecological balance are included.

Yet again, the bills were shelved.

To date, CREBA continues to exert effort towards equitable and rational land allocation that will address not only the needs of the peasant sector, but also those of the rest of the social and economic spectrum, such as:

  • Some 6.5 million families in the low-income sector who neither have security of land tenure nor their own dwellings; and
  • The entire non-agricultural labor sector who could benefit with jobs and other income opportunities that expanded non-agricultural development activities would bring.

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