October 27, 1999

DAR OPINION NO. 58-99

Ms. LEONORA B. CAOLI

OIC-PARO

DAR Provincial Office

Calapan City

Dear PARO Caoli:

This has reference to your Memorandum dated 12 April 1999 addressed to the Honorable Secretary Horacio R. Morales, Jr. requesting for the immediate review of the DAR-DECS MOA dated 28 December 1992, specifically to determine the following:

1)        Whether or not the existence of the MOA will hinder DAR from indorsing the request for re-proclamation to the Office of the President;

2)        Whether or not DAR will be violating any law or contractual obligation if it favorably indorses re-proclamation to the Office of the President; and

3)        Does non-acceptance by the farmer-beneficiaries be a ground for revocation of the MOA.

You stated in your Memorandum that on December 28, 1992, a Memorandum of Agreement (MOA) was signed by the Department of Education, Culture and Sports (DECS) and the Department of Agrarian Reform (DAR) granting usufructuary rights for 50 years to the occupant-settlers of the 700-hectare retention area of the school; that the MOA was implemented except the granting of the usufructuary rights which was openly and directly opposed by the occupant-settlers; that the continued reluctance of the DECS (now CHED) to sit and settle the issues amicably had contributed to the delay of the complete acquisition and distribution of the land actually held and tilled by the farmer-beneficiaries; that all administrative remedies had been exhausted to the point that one of the suggested solution is to bring the matter to the Office of the President for possible reproclamation of the area; that you remembered the Honorable Secretary emphasizing the suggested solution in your meeting held on December 8, 1998, in the presence of the leaders of non-government and peoples organization who reacted on the legal opinion on the matter; and that one legal obstacle foreseen was the existence of the MOA cited above. Hence, this query.

Anent your first query, the existence of the MOA between the DECS and DAR will not necessarily hinder the latter from indorsing request for re-proclamation of the area to the Office of the President. However, in view of Executive Order No. 448 dated 14 February 1991 (amending E.O. No. 407, Series of 1990), we believe that such indorsement may not appropriately be the immediate legal recourse. Section 1 of the abovecited Executive Order provides:

SECTION 1.            Executive Order No. 407 is hereby amended by adding a new section to read as follows:

"Sec. 1-A.     All lands or portions thereof reserved by virtue of Presidential Proclamations for specific public uses by the government, its agencies and instrumentalities, including government-owned or controlled corporations suitable for agriculture and no longer actually, directly and exclusively used or necessary for the purposes for which they have been reserved, as determined by the Department of Agrarian Reform in coordination with the government agency or instrumentality concerned in whose favor the reservation was established, shall be segregated from the reservation and transferred to the Department of Agrarian Reform for distribution to qualified beneficiaries under the Comprehensive Agrarian Reform Program." (emphasis supplied)

From the aforequoted provision of law, it is clear that all lands or portions thereof reserved by virtue of Presidential Proclamation which are suitable for agriculture and no longer actually, directly and exclusively used or necessary for the purpose for which they have been reserved, as determined by the DAR in coordination with the government agency or instrumentality concerned, shall be covered by CARP. It is therefore instead suggested that a SURVEY be conducted to determine once and for all the exact area being used by MCAT and necessary for its educational purposes. Further, should the survey be conducted, representatives from agencies concerned (i.e. MCAT, DECS/CHED, DILG and DAR) shall take part, including the Mangyan groups and farmer-occupants who have claims over the same. In the survey and concomitant consultation process, however, earnest efforts be exerted to convince the school to release more lands suitable for agriculture to be distributed to qualified agrarian reform beneficiaries pursuant to the State principles of land-to-the-tiller and owner-cultivatorship, considering that land has a social function and landownership has a social responsibility, thus, agricultural lands should be turned into their wisest and most productive use for the material upliftment of the many and the prosperity of all.

Anent your second query, the DAR will not be violating any law or contractual obligation in the event that it gives its favorable recommendation to the Office of the President for re-proclamation of subject area should MCAT/DECS/CHED be unreasonably uncooperative.

As regards your last query, the answer is in the negative. A. reading of the MOA would indicate that what is granted to the farmer-beneficiaries was only a usufructuary privilege and, as such, they have the option whether or not to accept the same. The non-acceptance by the farmer-beneficiaries of the conditions indicated in the MOA regarding the grant of usufructuary rights is not a violation as to be a ground for the revocation of the MOA. Meanwhile, we await report on the suggested course of action on re-survey.

Please be guided accordingly.

Very truly yours,

(SGD.) DANILO T. LARA

Undersecretary for Legal Affairs, and Policy and Planning

Copy furnished

Director Renato F. Herrera

DAR Regional Office No. IV

Capitol Compound, Pasig City