Saturday, July 10, 2010

Focus on Hacienda Luisita

With the ascent of President Benigno Aquino III to the presidency, the future of Hacienda Luisita has become a focus of attention. I know that the disposition of Luisita is presently under litigation, but since I do not know the facts of the case, my comment will be not on the Luisita case but only on the parameters within which agricultural land distribution controversies are resolved.

The 1987 Constitution contains a more expanded treatment of the subject of land reform than was contained in past Constitutions. The various aspects of land reform are discussed in separate provisions covering agricultural land, urban land, and other natural resources (that is, other lands of the public domain). They are placed under the general sweep of regulations governing "acquisition, ownership, use, and disposition."

The agrarian reform law promulgated by President Marcos covered only rice and corn land. The 1987 Constitution covers “all agricultural lands,” but subject to priorities and retention limits which Congress may prescribe. As currently understood, agricultural land covered by land reform is limited to arable lands suitable for raising agricultural crops. This, of course, includes sugar lands. But it does not include lands devoted to raising livestock, poultry or swine. Moreover, it does not matter who the owner is. Hence, even church agricultural lands are covered.

The mandate for agrarian reform is founded on "the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof." The Constitutional Commission discussions of the subject, however, made it clear that the right that is recognized is not an inalienable basic right but rather one that flows from the changing exigencies of the common good in the concrete circumstances of the nation. As one Commissioner put it, "the polar star -- when we expound the principle of land reform -- is that the farmer has a right to the land he tills, but this is not an immutable right. In other words, his claim of ownership does not automatically pertain or correspond to the same land that he is actually and physically tilling. It would yield to the limitations and adjustments.”

It will be noticed that the Constitution makes a distinction between what it calls “farmers who are regular farm workers” and “other farm workers.” “Farmers who are regular farm workers” are those who at the time of the enactment of the Constitution had a tenancy relationship with the landowners. They are given the right to own the land they till or its equivalent. The purpose of granting such farmers the right to own the land they till is to abolish tenancy relationship. This reflects the thinking that tenancy relations has been a source of many inequities.

As to “other farm workers,” e.g., seasonal workers, what is assured them is not the right to acquire ownership but a just share in the proceeds from the land.

To benefit from the ownership provision, however, regular farm workers must be “landless.” But what is meant is not absolute landlessness. It also refers to tillers who own land that is less than what the law would allow any landowner to keep.

Transfer of ownership to the tiller, however, does not come automatically with the enactment of the Constitution. It needs implementing legislation. This is what the Agrarian Reform Law does. The Hacienda Luisita case will be decided under the Agrarian Reform Law.

The law sets priorities and retention limits. Priorities refer to various factors which can affect the pace and scope of implementation and which can make implementation more manageable. This factor will certainly affect any decision on Luisita. As to retention limits, that is, how much and which area an owner may retain, the general guideline is that these should be "reasonable."

The important constitutional consideration in all this is that Congress is given discretion to set priorities and retention limits. Various factors will have to be evaluated in arriving at the proper limitations, but such factors would to a large extent be matters of wisdom and not of constitutionality. The over-riding guideline for Congress is the flexible concept of "reasonableness."

The law also allows conversion of agricultural lands into non-agricultural uses, such as commerce or residences. The implementation of the law on conversion comes under the Secretary of Agrarian Reform. Recently, to address the unabated conversion of prime agricultural lands for real estate development, the Secretary temporarily suspended the processing and approval of all land use conversion applications. A recent Supreme Court decision dismissed the challenge to the action taken by the Secretary. The Court noted that the suspension of conversions had been issued “upon the instruction of the President in order to address the unabated conversion of prime agricultural lands for real estate development because of the worsening rice shortage in the country at that time.” This is one illustration of the flexibility of the law on agrarian reform.

But one indispensable requirement of land reform is that the owner must be given just compensation. A recent decision of the Supreme Court emphasized that the concept of just compensation embraces not only the correct determination of the amount to be paid to the owners of the land, but also payment within a reasonable time from its taking.

12 July 2010

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