The letter of the law and the social situation

THE Regal Doctrine is incorporated into the current Constitution, as it was in the Constitutions of 1935 and 1973, and made its appearance in this jurisdiction through the Philippine Bill of 1902.

Under the 1987 Constitution, the doctrine is found in Article 12, Section 2:

“All lands in the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fishing, forests or timber, fauna, flora and fauna and other natural resources belong to the state. With the exception of agricultural land, all other natural resources shall not be alienated. The exploration, development and use of natural resources shall be under the control and State supervision The State may directly undertake these activities, or it may enter into co-production, joint venture or production sharing agreements with Philippine citizens, corporations or associations at least [60] whose capital is held by these citizens. These agreements may be entered into for a period not exceeding [25] years, renewable for up to [25] years and under the conditions provided for by law. In cases of water rights for irrigation, water supply, fishing, or industrial uses other than hydropower development, the beneficial use may be the extent and limit of the subsidy. “

In short, everything that does not belong to private interests belongs to the state and, more importantly, certain features, resources and parts of Philippine territory cannot be privately owned.

For a long time, the champions of the native title denigrated the sovereign doctrine and announced its disappearance. Turns out the announcement was premature. In Federation of Coron, Busuanga, Palawan Farmers Association v Secretary of the Department of Environment and Natural Resources (2020), the court left no doubt that the Regalian doctrine is alive and well – and as powerful as ever. It can not be otherwise. The survival of the state requires the topicality of the doctrine. However, equally important is the fact that the doctrine is a legal and logical implication of sovereignty.

In this case, the farmers challenged the constitutionality of Executive Order 705, Section 3, which characterizes all unclassified land as “forest land”, and therefore beyond disposal and disposition. The petitioners argued that legislating such characterization deprives the “beneficial owners” of the land of the right to claim ownership.

Evidently stemming from the matrix of absolutist claims by monarchs, regal doctrine was traditionally meant to mean that it is the state – the modern Crown – that is the source of any claimed right to land ownership. In other words, any claim to ownership had to originate in a concession or acceptance granted by and by the State.

The Supreme Court, however, recognized “Aboriginal title” as the limit to the scope of the sovereign doctrine. The court recalled the groundbreaking doctrine enunciated by the United States Supreme Court in an earlier case involving the Philippines, Carino v. the Philippine Island Government, where the United States Supreme Court ruled:

“It would perhaps be fair and sufficient to say that where, so far as evidence or memory goes, land has been held by individuals under private title, it shall be presumed to have been held in the same way from before. the Spanish conquest and never having been public land.”

When the Spanish colonial government established a system of classification and registration of land and modes of acquisition of property under the Spanish Civil Code, it could not have – and it is not fair to claim that he could have – abolished the property which had already been enjoyed for a long time before the establishment of the colonial government. Aboriginal title is a property claim that predates the organization of government and its system of classification, registration and land ownership. Aboriginal title is the justice that recognizes pre-existing exclusive possession and use.

The result of DP 705 which became law in 1975 was that lands in the public domain that have not gone through the current system of classification—mineral, forest, and alienation and alienable—are considered forest land. Whether treed or not, ‘forest’ is only a classification term and the most immediate result is that hitherto unclassified land is public domain land, inalienable and unavailable.

The sovereign doctrine does not sequester, co-opt or appropriate land for the state. Rather, it is the legal statement that the state, being the repository of sovereignty that it is, enjoys full rights over every resource, square inch of land, body of water, or feature, except anything that may be private property. And therefore, the sovereign doctrine was never conceived as a state mechanism by which private property is set aside. In fact, this is what makes private property possible, in the case of land declared alienable and available. The native title, for its part, constitutes the margin of the sovereign doctrine. And whether land is reclassified as alienable and disposable is a prerogative of the executive branch of government and not a matter of judicial decision. The net effect of the Supreme Court’s judgment in this case, written by Chief Justice Gesmundo while still an Associate Justice, is that unclassified land is not available for appropriation or acquisition, as it belongs in the state.

The court rejected the claimants’ position that unclassified land should be treated as alienable and disposable. The court, with good reason, maintained that such a position would do violence to the sovereign doctrine and would ultimately constitute a derogation from the sovereignty of the State.

The claimants in this case claimed that they had worked the land for a long time until they discovered that it was unclassified forest land in the public domain. This alone shows that when they started farming, they did so without a land title, in fact, with no color of title at all.

Significantly, however, the court points out the disconnect between legal provisions and social realities – fully aware that its decision results in the displacement of many people who have plowed unclassified land in the public domain. The court should be quoted in full on this point:

“There are millions and millions of Filipinos who have individually or exclusively owned residential land on which they have lived and raised their families. Many others have plowed and made productive the unused lands of the state with their hands. They have been regarded for generations by their There is much to be said about the virtues of granting them legitimate property, but it is not for the court to translate it into positive law, because the law itself considered these lands as It could only be up to Congress to put in place a new phase of land reform to regularize and substantially formalize the colonization of these lands, which in legal theory are public domain lands before the problem becomes insoluble. accomplished, to cite two examples, by liberalizing the standards for judicial confirmation of an imperfect title, or by amending the Civil Code itself to relax the conditions ions of the conve rsion of the property of the public dominion into patrimonial property”.

Finally, Chief Justice Gesmundo emphasizes the social urgency of necessary legislative and executive action:

“The sense of security over land rights permeates all aspects of the well-being not only of that individual, but also of his family. Once he is deprived of this sense of security, his life and livelihoods are put into stasis. It’s for the political branches of government to put a welcome end to this long-simmering problem.”

Are presidential and legislative candidates listening?

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