EN BANC

G.R. No. 171101 Hacienda Luisita v. Presidential Agrarian Reform Council, Secretary Nasser Pangandaman of the Department of Agrarian Reform, Alyansa ng mga Manggagawang Bukid ng Hacienda Luisita, Rene Galan, Noel Mallari, Julio Zuniga and his Supervisory Group of the Hacienda Luisita, Inc., and Windsor Andaya

Promulgated:

November 22, 2011

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CONCURRING AND DISSENTING OPINION

SERENO, J.:

At the outset, I have maintained that the nullity of the Stock Distribution Option Agreement (SDOA) in Hacienda Luisita should lead to the immediate distribution of the agricultural lands to the 6,296 qualified farmer-beneficiaries (FWBs). The first draft of the ponencia of the original Decision was circulated among the Members of the Court on 11 February 2011. The draft ponencia, which eventually became the majority Decision, said that the nullity of the SDOA notwithstanding, effects of its approval have taken place and cannot be undone under the operative facts doctrine and thus directed the holding of a secret voting among the FWBs on whether they will opt to remain as stockholders of petitioner Hacienda Luisita, Inc. (HLI). Shortly thereafter, on 25 March 2011, the first draft of my opinion objecting to the grant of the secret voting option to the FWBs to stay with the SDOA was circulated. Other draft dissenting opinions against the proposed ponencia were subsequently released. After the promulgation of the Decision dated 05 July 2011 and after carefully reviewing the instant motions for reconsideration, my initial position remains the same the SDOA is illegal and land distribution should immediately be directed under Section 33 of Republic Act No. 6657, or the Comprehensive Agrarian Reform Law (CARL).

I welcome the change in the position of the majority, and voting with them, this Court is now unanimously directing immediate land distribution. However, I disagree with its identification of the reckoning date of the taking of the lands ordered to be distributed for the purpose of eventually determining just compensation. On the instant motions for reconsideration, the ponencia talks of the possibility of rendering it impossible for the FWBs to pay for the lands if the reckoning date were the date of Notice of Coverage, or on 02 January 2006. It holds that regardless of the uniform rulings of the Court I enumerated in this Opinion to the effect that the taking is the date of the Notice of Coverage, it is creating a new rule that for SDOAs that are nullified, the compensation for the value of the lands that will be distributed are to be reckoned at their fair market value at the time of the approval of the nullified SDOA.

In my view, such an approach is partially confiscatory as it makes an unjustified exception to the long line of jurisprudence that the Court has laid down regarding the time of taking of agrarian reform lands for purposes of just compensation. It would have been preferable, from a policy point of view, that at the time that the CARL was passed in 1989, Congress had chosen one of two options: (a) either the State subsidize the difference between the fair market value at the time of the taking and what the farmers can afford to pay, which some of the 1986 Constitutional Commissioners said should happen; or (b) authorize the confiscation of a part of the price of the fair market value under a radical but rational interpretation of the social justice clause of the 1987 Constitution. Congress chose neither option and opted for payment of the fair market value at the time of the taking as just compensation to be amortized by the farmers for 30 years. This Court has invariably sustained that policy choice. This in large part accounts for the confessed lack of financial viability to make land reform a genuine success.

The choice having been thusly made, this Court has no alternative except to apply the rule uniformly, otherwise, this will result in a discriminatory and partially confiscatory treatment of the Hacienda Luisita lands. That is also why I was proposing that the lands to be distributed to the qualified FWBs be declared to be immediately and freely transferable. After all, the 10-year prohibition against the transfer effectively lapsed on the tenth year of the effectivity of the CARL. The FWBs can sell part and retain part of the lands, and can best determine how to make optimal economic use of them.

My view resonates with the opinion of Justice Arturo D. Brion, who reckoned the value of the lands to the time the SDOA was approved on 21 November 1989, but at the same time recognized petitioner HLIs entitlement to the value of the improvements to the land. He laments the fact that petitioner HLI will be uncompensated for all the improvements it has introduced as a builder in good faith from 21 November 1989 until now. I agree with him on this point.

The Five Approaches to Resolving this Petition

There are before the Court five major approaches to resolving the agrarian legal problems involving Hacienda Luisita. Each approach advances operative solutions to two standing issues: (a) whether to distribute the agricultural lands to the FWBs or allow them to secretly vote to remain as stockholders; and (b) how much compensation, if any, is due to the corporate landowner.

The first approach, which has now been abandoned, is that ordered by the Courts questioned Decision dated 05 July 2011, and as suggested by Chief Justice Renato C. Corona in his Dissenting Opinion of the same date. A secret voting will take place in which FWBs want to indicate whether they will retain their stockholding in petitioner HLI in lieu of their individual right to a direct share in the land, or whether they want direct land ownership. In cases where direct land ownership is selected, petitioner HLI shall be paid the value of the lands as of 21 November 1989, which was the date when the PARC approved its SDOA with the FWBs.

The second approach is that proposed by Justice Arturo D. Brion in his earlier Separate Concurring and Dissenting Opinion, which Justice Martin S. Villarama, Jr., joined in. The approach is to order direct land distribution to all the FWBs of the 4,916 hectares of land. The date of the taking will be pegged to 11 May 1989 (the date of the SDOA), and the just compensation will also be pegged to that time. There will be no interest on the just compensation and petitioner HLI will be required to pay back rentals as of that date.

The third approach is like the first approach, but modified by the legal consequences of the statement made by the majority in the body of the Decision that a stock option arrangement can only be valid if majority control of the corporation is in the hands of the FWBs. Thus, the Court must categorically direct (a) a revaluation of the assets of HLI; (b) this re-valuation must result in at least 51% control of the voting stock and the beneficial interest; and (c) this restructuring must be completed before the referendum for the FWBs is undertaken by public respondent Department of Agrarian Reform (DAR).

The fourth approach is a suggested modification of the second approach. The taking and the value of the just compensation is pegged to 11 May 1989, but the Tarlac Development Corporation (TADECO) and/or petitioner HLI (a) must be compensated for (i) interest on the value of the just compensation at that time onwards; (ii) and improvements that have been introduced to the lands with interest on the value of the improvements since these improvements were utilized; (b) may be required to pay rentals for the use of the land in their state as of 11 May 1989 adjudicated by a reasonable annual rate applicable to the lands in such state; and (c) cannot be made to return the entire ₱750,000,000 paid by Luisita Industrial Park Corporation (LIPCO) to petitioner HLI for the 300 hectare lands, the ₱80,000,000 paid by the national government for the 84 hectares expropriated for the Subic-Clark-Tarlac-Expressway (SCTEX), but only the value of the 300 hectares and the 84 hectares as of 11 May 1989, plus interest on the same at the same rate that will be given in favor of petitioner HLI under item (a) above.

The fifth approach requires direct land distribution. The taking and the value of the just compensation is pegged according to law and prevailing jurisprudence. The just compensation is pegged to the date of actual taking, and its value is approximately at fair market value.

The first approach is contrary to law and unjust to the farmers. The second approach is contrary to prevailing jurisprudence on just compensation and is confiscatory of the right of the landowners. It would have been legally supportable under the initial interpretation of just compensation in agrarian reform cases when socialized taking was contemplated, but since 1989, law and jurisprudence prevents this approach from being adopted. The third approach, while still legally wrong, mitigates much of the injustice that will be perpetrated by the first approach. The fourth approach will contradict jurisprudence on just compensation and require a lot of accounting exercises, but is less harsh to the farmers and the landowners. The fifth approach is logically consistent, but requires much creative designing by public respondent DAR. The last three approaches would not work too great an injustice on either the FWBs or the landowners.

Land Distribution v. Secret Voting

The Court has unanimously struck a lethal blow to the SDOA between petitioner Hacienda Luisita, Inc., (HLI) and the signatory farmworker-beneficiaries (FWBs), since its provisions were found to be in violation of the Comprehensive Agrarian Reform Law (CARL). Despite the unequivocal invalidation of the SDOA, the Court was divided on the various approaches in dealing with the aftermath of the declaration in accordance with the promises of agrarian reform under the Constitution.

To my mind, no other option is permissible under the law other than the immediate and direct land distribution to the FWBs as provided for under the CARL. The rejection of the secret voting option by the ponente, Justice Presbitero J. Velasco, Jr., in his Resolution of the various Motions for Clarification/Reconsideration by the main concerned parties, as well as by Chief Justice Corona in his Separate Opinion, is a very positive turn of events.

As the new ponencia points out, the distribution of the stocks under the SDOA is evidently iniquitous because the FWBs will continue to be relegated as minority stockholders holding, at best, 33.29% of the votes in the corporation.[1] Under the first approach, the secret voting option would, in fact, further aggravate the minority position of the FWBs in petitioner HLI since those who opt for direct land distribution would have to surrender their stockholdings. Should petitioner HLIs current corporate structure of lands-to-total-assets ratio be maintained, FWBs who will opt to remain as stockholders will find themselves with a decreased voting power base and placed at an even greater disadvantage with the exodus of other FWBs who will opt for individual distribution of land.

The outcome of the SDOA in Hacienda Luisita may have been different had the FWBs been given majority or even full control of petitioner HLI at the outset, which is the rationale of the third approach. The secret voting option would have been less unjust, if majority control of the corporation is first handed to the FWBs, before they decide whether to remain as stockholders or opt for land distribution. The third approach recognizes the constitutional mandate to hand over ownership and control of agricultural lands to the farmers or farmworkers, whether directly through individual ownership or indirectly through collective ownership. Considering that stock distribution options per se have not been declared as unconstitutional mechanisms in agrarian reform, the Court must at present give life to the intention of the legislature in opening up that option to corporate landowners, but not at the expense of relegating the FWBs to minority status. The presence of this solution also avoids having to pronounce Section 28 of the CARL void, a preferred approach to statutory construction that this Court is bound to observe by judicial review doctrines.

Just Compensation v. Modified Compensation

Since there is now unanimity in ordering the distribution of the agricultural lands to the FWBs in this case, the Court now contends with the quantum of compensation due to petitioner HLI with respect to its expropriated farm lands. It is not surprising that the issue of just compensation that has plagued the members of the Constitutional Commission and Congress has again reared its head in the present legal controversy, involving the peculiar mechanism of a stock distribution option under the CARL. Fortunately, the wealth of jurisprudence in the years following the passage of the landmark law up to the present offers some guidance in arriving at a solution that conforms with the constitutional mandate of agrarian reform and social justice.

While distribution of land was the prevailing ideology in crafting our agrarian reform policies in the Constitution, the other side of the spectrum is the recognition of the rights of the landowner specifically the right of just compensation.[2] The aim of redistributing agricultural lands under the Constitution was primarily to correct the unjust social structures then prevailing in order to achieve an equitable distribution of wealth from the landed few in favor of the landless majority. Yet, in recognizing the social function of the lands and the demands of social justice, the framers never lost sight of the property rights of landowners, as an inherent limitation to the exercise of the States power of eminent domain or expropriation, even in cases of agrarian reform. Concomitant with the fundamental right not to be deprived of property without due process of law[3] is the constitutional provision that [p]rivate property shall not be taken for public use without just compensation.[4] Hence, the policy underlying the provision for eminent domain is to make the private owner whole after his property is taken by the State.[5]

The taking of private lands under the agrarian reform program partakes of the nature of an expropriation proceeding.[6] For purposes of taking under the agrarian reform program, the framers of the Constitution expressly made its intention known that the owners of the land should not receive less than the market value for their expropriated properties and drew parallelisms with the ordinary understanding of just compensation in non-land reform expropriation.[7] Indeed, the matter of just compensation was never meant to involve a severe diminution of what the land owner gets.[8] The aim of just compensation in terms of expropriation, even in agrarian reform, should be just to the owner that
which approximates the market value.[9] Hence, the Court acknowledged the other side of the agrarian reform coin and ruled:

The Comprehensive Agrarian Reform Program was undertaken primarily for the benefit of our landless farmers. However, the undertaking should not result in the oppression of landowners by pegging the cheapest value for their lands. Indeed, the taking of properties for agrarian reform purposes is a revolutionary kind of expropriation, but not at the undue expense of landowners who are also entitled to protection under the Constitution and agrarian reform laws. [10] (Emphasis supplied)

In the seminal case Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform,[11] the Court, speaking through retired Justice Isagani Cruz, eloquently expounded on the inherent right of landowners to just compensation, in this wise:

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. It has been repeatedly stressed by this Court that the measure is not the takers gain but the owners loss. The word just is used to intensify the meaning of the word compensation to convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full, ample.

It bears repeating that the measures challenged in these petitions contemplate more than a mere regulation of the use of private lands under the police power. We deal here with an actual taking of private agricultural lands that has dispossessed the owners of their property and deprived them of all its beneficial use and enjoyment, to entitle them to the just compensation mandated by the Constitution.

As held in Republic of the Philippines v. Castellvi, there is compensable taking when the following conditions concur: (1) the expropriator must enter a private property; (2) the entry must be for more than a momentary period; (3) the entry must be under warrant or color of legal authority; (4) the property must be devoted to public use or otherwise informally appropriated or injuriously affected; and (5) the utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property. All these requisites are envisioned in the measures before us.

Since the farm lands in Hacienda Luisita are to be the subject of distribution, petitioner HLI or Tarlac Development Corporation (TADECO), as landowners, are entitled to just compensation, which is an indispensible legal requirement in agrarian reform expropriations.[12] The issue now lies in the reckoning period in which the just compensation shall be computed, as illustrated by the second, fourth and fifth approaches. Crucial to the Courts resolution of this matter is the time of the taking by the government of the farm lands in Hacienda Luisita.

Just compensation in cases of expropriation is ordinarily to be ascertained as of the time of the taking.[13] In computing the just compensation for expropriation proceedings, it is the value of the land at the time of the taking, not at the time of the rendition of judgment, which should be taken into consideration.[14] Hence, in determining the value of the land for the payment of just compensation, the time of taking should be the basis.[15] The concept of taking in both land reform and non-land reform expropriations is well-settled. There is taking of private property by the State in expropriation proceedings when the owner is ousted from his property and deprived of his beneficial enjoyment thereof.[16] The time of taking is the moment when landowners are deprived of the use and benefit of the property.[17]

Three reckoning periods are for consideration of the Court. First, Justice Velasco, who is now joined by Justice Brion, proposes that the amount of just compensation to be paid should be based on the date that the PARC approved the SDOA, or on 21 November 1989 (date of the PARC approval). Second, the date the SDOA was signed, 18 May 1989, (date of the SDOA) was also considered as a reckoning point of the valuation period. Lastly, I submit that the valuation be made based on the current fair market value in accordance with established laws, rules and jurisprudence; or more specifically, at the time that petitioner HLI was issued a Notice of Coverage on 02 January 2006 (date of Notice of Coverage). With all due respect to my colleagues, the third reckoning period alone satisfies the constitutional directive to give real, substantial, full and ample compensation to the landowner in recognition of the latters right to property and of the express limitation on the States power of expropriation.

The period of valuation of the property cannot be reckoned by considering the first two dates as the time that the agricultural lands were taken, precisely because petitioner HLI and the FWBs resorted to the mechanism of a stock distribution option. This was a distinctive mechanism under the agrarian reform scheme, by which shares of stock of the corporate landowner, instead of agricultural lands, were distributed to the farmers. The singular advantage of the said scheme, unlike a direct land transfer to individual farmers or cooperatives, is that title to the property remains with the corporate landowner, which should presumably be dominated by famers with majority stockholdings in the corporation.

The reason behind the 1989 reckoning periods (the date of SDOA or the date of PARC approval) is that the agricultural lands are made the subject of the CARL, and are thus considered to have been expropriated private property under the agrarian reform program. However, the use of these periods ignores the fact that petitioner HLI, as the corporate landowner, exactly availed itself of the stock distribution option under the CARL, which resulted in the title remaining in the hands of private persons. Instead of expropriating lands, what the government took and distributed to the FWBs were shares of stock of petitioner HLI in proportion to the value of the agricultural lands that should have been expropriated and turned over to the FWBs.

Hence, no taking of agricultural lands can be considered either at the time the SDOA was signed or at the time PARC approved it, since petitioner HLI retained full ownership and use of the lands thereafter. Despite the change in stockholders, petitioner was never ousted from or deprived of the beneficial enjoyment of the agricultural lands in Hacienda Luisita. This was the very reason why the stock distribution option was the mode specifically preferred by the corporate landowner in this case. Indeed, petitioner freely exercised ownership of the property in the interim, when it applied for the conversion of the lands and sold them to third parties. Even Justice Brion acknowledged this fact in his earlier Separate Opinion, in which he said: HLI never lost possession and control of the land under the terms of the SDOA. It appears iniquitous to reckon the valuation of the now expropriated farm lands in Hacienda Luisita by their 1989 levels, when the property had not yet been actually taken or expropriated by the government at that time.

The CARL, as amended, had expressly identified the factors in arriving at just compensation for landowners whose properties have been subject to land reform expropriation:

In determining just compensation, the cost of acquisition of the land, the value of the standing crop, the current value of like properties, its nature, actual use and income, the sworn valuation by the owner, the tax declarations, the assessment made by government assessors, and seventy percent (70%) of the zonal valuation of the Bureau of Internal Revenue (BIR), translated into a basic formula by the DAR shall be considered, subject to the final decision of the proper court. The social and economic benefits contributed by the farmers and the farmworkers and by the Government to the property as well as the nonpayment of taxes or loans secured from any government financing institution on the said land shall be considered as additional factors to determine its valuation.[18]

Pursuant to its rule-making powers, the Department of Agrarian Reform (DAR) reduced these factors into a basic general formula that computes the value of the land subject of agrarian reform in this manner:[19]

Land Value

=

(CNI x 0.6)

+

(CS x 0.3)

+

(MV x 0.1)

Where

CNI = Capitalized Net Income

CS = Comparable Sales

MV = Market Value per Tax Declaration

In a long line of cases, the Court has given judicial imprimatur to the above formulation made by the DAR. The following cases demonstrate judicial fealty to this formula: LBP v. Spouses Banal, G. R. No. 143276, 20 July 2004, 434 SCRA 543; LBP v. Celada, G. R. No. 164876, 23 January 2006, 479 SCRA 495; Lubrica v. LBP, G. R. No. 170220, 20 November 2006, 507 SCRA 415; LBP v. Lim, G. R. No. 171941, 02 August 2007, 529 SCRA 129; LBP v. Suntay, G. R. No. 157903, 11 October 2007, 535 SCRA 605; Spouses Lee v. LBP, G. R. No. 170422, 07 March 2008, 548 SCRA 52; LBP v. Heirs of Eleuterio Cruz, G. R. No. 175175, 29 September 2008, 567 SCRA 31; LBP v. Dumlao, G. R. No. 167809, 27 November 2008, 572 SCRA 108; LBP v. Gallego, Jr., G. R. No. 173226, 20 January 2009, 576 SCRA 680; LBP v. Kumassie Plantation, G. R. No. 177404 and 178097, 25 June 2009, 591 SCRA 1; LBP v. Rufino, G. R. No. 175644 and 175702, 02 October 2009, 602 SCRA 399; LBP v. Luciano, G. R. No. 165428, 25 November 2009, 605 SCRA 426; LBP v. Dizon, G. R. No. 160394, 27 November 2009, 606 SCRA 66; Heirs of Lorenzo and Carmen Vidad v. LBP, G. R. No. 166461, 30 April 2010, 619 SCRA 609; LBP v. Soriano, G. R. No. 180772 and 180776, 06 May 2010, 620 SCRA 347; LBP v. Barrido, G. R. No. 183688, 18 August 2010, 628 SCRA 454; LBP v. Colarina, G. R. No. 176410, 01 September 2010, 629 SCRA 614; LBP v. Livioco, G. R. No. 170685, 22 September 2010, 631 SCRA 86; LBP v. Escandor, G. R. No. 171685, 11 October 2010, 632 SCRA 504; LBP v. Rivera, G. R. No. 182431, 17 November 2010, 635 SCRA 285; LBP v. DAR, G. R. No. 171840, 04 April 2011. In all these cases, the formula approximately reflects the fair market value of the property at the time of the Notice of Coverage to estimate the loss suffered by the landowner, whose property was the subject of expropriation.

Thus, under the uniform rulings of this Court, the notice of coverage commences the process of acquiring private agricultural lands covered by the CARP.[20] The date of the notice of coverage is therefore determinative of the just compensation petitioner HLI is entitled to for its expropriated lands. In computing capitalized net income under the DAR formula, one should use the average gross production of the latest available 12 months immediately preceding the date of notice of coverage, in case of compulsory acquisition, and the average selling price of the latest available 12 months prior to the date of receipt of the claim folder by the Land Bank of the Philippines for processing.[21]

The rationale for pegging the period of computing the value so close or near the present market value at the time of the taking is to consider the appreciation of the property brought about by improvements therein and other factors. The nature and character of the land at the time of its taking is the principal criterion for determining how much just compensation should be given to the landowner.[22] All the facts as to the condition of the property and its surroundings, as well as its improvements and capabilities, should be considered.[23] For the compensation to be just to the owner of a commercial farm land, the facilities and improvements introduced by the landowner not just the land shall also be taken into consideration.[24] It is but equitable to extend to the landowner compensation arising from the appreciation of the property due to the improvements introduced therein. To simply disregard the changes, appreciation or improvements in the agricultural lands of Hacienda Luisita by pegging the property to its 1989 value is to resort to expropriation that is confiscatory considering that it will be the sole exception to a long line of jurisprudence and not compensatory which is prescribed under the Constitution as a fundamental right of a landowner.

Indeed, the previous decisions of this Court dealt with voluntary or compulsory coverage under the CARL. It would appear that this is the first instance that the Court is confronted with the question of determining just compensation for cases where the landowners and farmworker-beneficiaries resorted to a stock distribution option that had failed and was nullified. Unlike voluntary or compulsory coverage where the payment of just compensation was roughly speaking executed together with the taking, the stock distribution option in the present scenario has time complication. Although the lands were subjected the stock distribution mechanism in 1989, the PARCs decision to nullify the SDOA and its Notice of Coverage ordering immediate land distribution came about only in 2006. The Court is confronted with the judicial task of determining standards to reconcile the various legal contentions on this time difference, considering other existing stock distribution schemes across the country that are also subject of similar legal challenges.

I believe there is no reason why those same principles and standards in determining just compensation in voluntary or compulsory acquisition should not be equally applicable to a stock distribution scheme. The Constitution, the CARL and even our own jurisprudence have been consistent in approximating a fair valuation of the properties expropriated by the State under its agrarian reform program, and must continue to do so in the case of a failed stock distribution scheme.

With the equal protection clause in mind, it is simply wrong for landowners to have their real properties, subject of expropriation, valued several years or even decades behind, considering the upward trend in property values. The Court explained this inherent unfairness when it was confronted by a non-land reform expropriation case, in which the trial court and the appellate court fixed the valuation of the property at its 1984 and 1993 values, respectively, in this wise:

In eminent domain cases, the time of taking is the filing of the complaint, if there was no actual taking prior thereto. Hence, in this case, the value of the property at the time of the filing of the complaint on November 20, 1990 should be considered in determining the just compensation due the respondents. So it is that in National Power Corporation v. Court of Appeals, et al., we ruled:

Normally, the time of the taking coincides with the filing of the complaint for expropriation. Hence, many rulings of this Court have equated just compensation with the value of the property as of the time of filing of the complaint consistent with the above provision of the Rules. So too, where the institution of the action precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint.

The trial court fixed the value of the property at its 1984 value, while the CA, at its 1993 worth. Neither of the two determinations is correct. For purposes of just compensation, the respondents should be paid the value of the property as of the time of the filing of the complaint which is deemed to be the time of taking the property.

It was certainly unfair for the trial court to have considered a property value several years behind its worth at the time the complaint in this case was filed on November 20, 1990. The landowners are necessarily shortchanged, considering that, as a rule, land values enjoy steady upward movement. It was likewise erroneous for the appellate court to have fixed the value of the property on the basis of a 1993 assessment. NPC would be paying too much. Petitioner corporation is correct in arguing that the respondents should not profit from an assessment made years after the taking.

The expropriation proceedings in this case having been initiated by NPC on November 20, 1990, property values on such month and year should lay the basis for the proper determination of just compensation. In Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, the Court ruled that the equivalent to be rendered for the property to be taken shall be substantial, full, ample and, as must apply to this case, real. This must be taken to mean, among others, that the value as of the time of taking should be the price to be paid the property owner.

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. In this case, this simply means the propertys fair market value at the time of the filing of the complaint, or that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefor. The measure is not the takers gain, but the owners loss.

In the determination of such value, the court is not limited to the assessed value of the property or to the schedule of market values determined by the provincial or city appraisal committee; these values consist but one factor in the judicial valuation of the property. The nature and character of the land at the time of its taking is the principal criterion for determining how much just compensation should be given to the landowner All the facts as to the condition of the property and its surroundings, as well as its improvements and capabilities, should be considered.

Neither of the two determinations made by the courts below is therefore correct. A new one must be arrived at, taking into consideration the foregoing pronouncements.[25] (Emphasis supplied)

In Apo Fruits Corporation, et al., v. Land Bank of the Philippines,[26] the Court en banc awarded 12% interest to petitioners Apo Fruits Corporation and Hijo Plantation, Inc., for prime agricultural farmlands voluntarily offered to the farmers way back in 1995. We underscored then the value-for-value exchange dictated by just compensation in land reform expropriations, so that the landowner would not be short-changed:

Under the circumstances of the present case, we see no compelling reason to depart from the rule that Republic firmly established. Let it be remembered that shorn of its eminent domain and social justice aspects, what the agrarian land reform program involves is the purchase by the government, through the LBP, of agricultural lands for sale and distribution to farmers. As a purchase, it involves an exchange of values the landholdings in exchange for the LBP's payment. In determining the just compensation for this exchange, however, the measure to be borne in mind is not the takers gain but the owners loss since what is involved is the takeover of private property under the States coercive power. As mentioned above, in the value-for-value exchange in an eminent domain situation, the State must ensure that the individual whose property is taken is not shortchanged and must hence carry the burden of showing that the just compensation requirement of the Bill of Rights is satisfied.

The owners loss, of course, is not only his property but also its income-generating potential. Thus, when property is taken, full compensation of its value must immediately be paid to achieve a fair exchange for the property and the potential income lost. The just compensation is made available to the property owner so that he may derive income from this compensation, in the same manner that he would have derived income from his expropriated property. If full compensation is not paid for property taken, then the State must make up for the shortfall in the earning potential immediately lost due to the taking, and the absence of replacement property from which income can be derived; interest on the unpaid compensation becomes due as compliance with the constitutional mandate on eminent domain and as a basic measure of fairness. (Emphasis supplied)

In the seminal case Land Bank of the Philippines v. Natividad,[27] the Court rejected outright the contention of Land Bank of the Philippines that the compensation for property, subject of agrarian reform expropriation, should be based on the effectivity of the previous law (Presidential Decree No. 27) on 21 October 1972. The Court ruled that the compensation should be pegged to the time the property was taken in possession in 1993 under the new CARL:

Land Banks contention that the property was acquired for purposes of agrarian reform on October 21, 1972, the time of the effectivity of PD 27, ergo just compensation should be based on the value of the property as of that time and not at the time of possession in 1993, is likewise erroneous. In Office of the President, Malacaang, Manila v. Court of Appeals, we ruled that the seizure of the landholding did not take place on the date of effectivity of PD 27 but would take effect on the payment of just compensation.

Under the factual circumstances of this case, the agrarian reform process is still incomplete as the just compensation to be paid private respondents has yet to be settled. Considering the passage of Republic Act No. 6657 (RA 6657) before the completion of this process, the just compensation should be determined and the process concluded under the said law. Indeed, RA 6657 is the applicable law, with PD 27 and EO 228 having only suppletory effect, conformably with our ruling in Paris v. Alfeche.

Section 17 of RA 6657 which is particularly relevant, providing as it does the guideposts for the determination of just compensation, reads as follows:

Sec. 17. Determination of Just Compensation. In determining just compensation, the cost of acquisition of the land, the current value of like properties, its nature, actual use and income, the sworn valuation by the owner, the tax declarations, and the assessment made by government assessors shall be considered. The social and economic benefits contributed by the farmers and the farm-workers and by the Government to the property as well as the non-payment of taxes or loans secured from any government financing institution on the said land shall be considered as additional factors to determine its valuation.

It would certainly be inequitable to determine just compensation based on the guideline provided by PD 27 and EO 228 considering the DARs failure to determine the just compensation for a considerable length of time. That just compensation should be determined in accordance with RA 6657, and not PD 27 or EO 228, is especially imperative considering that just compensation should be the full and fair equivalent of the property taken from its owner by the expropriator, the equivalent being real, substantial, full and ample.

In this case, the trial court arrived at the just compensation due private respondents for their property, taking into account its nature as irrigated land, location along the highway, market value, assessors value and the volume and value of its produce. This Court is convinced that the trial court correctly determined the amount of just compensation due private respondents in accordance with, and guided by, RA 6657 and existing jurisprudence.[28] (Emphasis supplied)

Applied to the instant case, the more just and equitable solution is to reckon the period of the taking from the date of the notice of coverage under the fifth approach, since this was the time that petitioner HLI was put on notice that its stock distribution option was defective and that its agricultural lands therein would be subject to compulsory coverage and direct land distribution under the CARL. It is argued that the time the SDOA was signed and/or the PARC Resolution was issued could be considered as the time petitioner HLI was given due notice that its agricultural lands would be subject of agrarian reform. This argument is undeniably unfair and contrary to uniform jurisprudence interpreting the constitutional dictum that just compensation in expropriations should approximate equivalent value that is real, substantial, full and ample. Landowners would be shortchanged if their real properties are taken by the State in exchange for compensation that is pegged at values two decades prior. In this case, unwarranted discrimination would be committed against petitioner HLI if the agricultural lands to be distributed to the FWBs are to be valued at their 1989 levels.

To be sure, the fourth approach explained above may approximate the value of the property at the date of the Notice of Coverage, but would unnecessarily call for meticulous accounting and valuation of improvements. Although the fourth approach would continue to peg the value of the agricultural land to its 1989 level, it recognizes the passage of an inordinate length of time and hopes to mitigate its unjust effects by adding the payment of interest. The award of interest may alleviate the hardship caused by depriving petitioner HLI of the current and fair market value of the property under the prevailing laws and rules, but the order for it to pay rentals for the lands from 1989[29] would negate the benefit of any interest, if not possibly saddle it with a heavier financial burden.

Although Justice Brion reckoned the period for the valuation of the land to 21 November 1989, he recognized petitioner HLIs entitlement to the value of the improvements that it has introduced into the agricultural lands for the past twenty years. The proposition is akin to the Civil Code[30] situation where a landowner opts to acquire the improvements introduced by a builder in good faith and must necessarily pay their value.[31] Hence, although the land of petitioner HLI is expropriated by the government, there is a need for compensation for the introduction of the improvements actually installed by petitioner HLI, such as roads and other infrastructure, which have evidently improved the value of the property, aside from its appreciation over time. In recognizing the necessity for compensating petitioner HLI for their improvements, pegging the values to its 1989 levels will not be as severely confiscatory, if the value will be included as part of the just compensation to be paid. I would even be willing to accept the formulation proposed by Justice Brion since it would, to a lesser amount, approximates a fair market value of the property. But to simply evaluate the propertys worth to outdated levels and exclude entirely the improvements made and the market appreciation of the lands in all the 17 years that petitioner HLI invested in the lands is not even supportable by the Civil Code.

Furthermore, identifying and valuing the improvements in Hacienda Luisita introduced by petitioner HLI may pose another source of conflict that may protract the case further. In addition, their naked costs and book values may fail to account for the intangible effects and the appreciation of values that may result from improvements, such as roads. To obviate these possible deficiencies in approximating the fair value of the farm lands, their real value at the time of the notice of coverage, following the DARs formula, would render a better accounting result and preclude complicated calculations.

The approximation of fair value of the expropriated lands as just compensation is not meant to increase the burdens of payment by the qualified FWBs. When the framers of the Constitution originally determined that just compensation, as understood in prevailing jurisprudence, was to be given to landowners in agrarian reform expropriation, the point was clarified that the amounts to be awarded to the landowners were not the exact figures that would in turn be paid by the farmers, in other words it should be subsidized:

MR. RODRIGO: I was about to say what Commissioner Concepcion said. I just want to add that the phrase just compensation already has a definite meaning in jurisprudence. And, of course, I would like to reiterate the fact that just compensation here is not the amount paid by the farmers. It is the amount paid to the owner, and this does not necessarily have to come from the farmer. The State should subsidize this and pay a just compensation to the owner and let the tenant farmer pay the state in accordance with the capacity of the farmer. If there is a difference let the State subsidize the difference. (Emphasis supplied)[32]

Thus, the original intention was that there should be no strict correspondence between the just compensation due to the landowner and the amounts to be paid by the farmworkers:

MR. MONSOD: However, as far as the source of the repayment is concerned, it may be that the famer is not able to afford the just compensation. This is a proper area where the State can come in, if it intends to give support or subsidy. That may be called for in order that the farmer will get a chance to own a piece of land. Besides, there might not be a strict correspondence between a just compensation for the landowner and the capacity of the farmer to pay.

MR. DAVIDE: As a matter of fact, the opening sentence of my proposal states: It is the duty of the State. This means that the State should first expropriate, distribute and then the government will deal with the farmers or farmworkers as to the mode of reimbursement or refunding the amount that the government had paid to the landowner, which should be a more just and equitable arrangement for the famers and the farm workers. It is now a duty.

MR. MONSOD: That is why I believe that his is consistent with the comments of Commissioner Tadeo because the objective of the agrarian reform is equity. It is really not efficiency or production, but the first objective is equity. In that sense, the State may have to step in to help the farmer pay for the land. (Emphasis supplied)[33]

Hence, there was an acknowledgement of the limited capacity of the farmers to pay for value of the expropriated lands under a willing-buyer-willing seller formulation. Thus, the obligation was imposed on the State to subsidize payments in order to support the financial arrangements of the countrys agrarian reform program. The fair value paid to the landowner for the distributed lands is to be shouldered by the State, in line with the right to just compensation and the limitations on the state power of expropriation. However, a different principle governs when it is the State that will receive amortization payments from the farmers for expropriated lands, namely the policy of social justice. Hence, the States function is to subsidize the repayment schemes and offer terms that are affordable to the farmers considering their limited capacity to pay. The burden is now on the State to consider programs that are more financially viable in order to balance the rights of the landowners to just compensation with the social justice demands of the poor farmworkers with limited capabilities to simultaneously pursue agricultural enterprises and pay for the lands.

Petitioner HLI, as a corporate landowner, must undoubtedly share the costs and burdens of the countrys type of agrarian reform scheme by surrendering the agricultural lands to the government for distribution to the qualified FWBs. But in order to come within the constitutional directives on eminent domain and just compensation, its sacrifice cannot be made to be overly burdensome as to force them to receive but a small fraction of current market values for its expropriated properties. In ruling for the payment of just compensation to petitioner HLI under the fifth approach which is pegged to the date of notice of coverage under the prevailing laws, rules and jurisprudence the Court will perform its obligation to uphold the dictates of social justice in distributing the lands in Hacienda Luisita to the qualified FWBs, but not to the extent of sacrificing the right of landowners and consigning them to accept the cheapest value for their lands. In Land Bank of the Philippines v. Chico,[34] the Court, through retired Justice Eduardo Nachura, succinctly summarized this point in this wise:

The Comprehensive Agrarian Reform Program was undertaken primarily for the benefit of our landless farmers. However, the undertaking should not result in the oppression of landowners by pegging the cheapest value for their lands. Indeed, the taking of properties for agrarian reform purposes is a revolutionary kind of expropriation, but not at the undue expense of landowners who are also entitled to protection under the Constitution and agrarian reform laws. Verily, to pay respondent only ₱10,000.00 per hectare for his land today, after he was deprived of it since 1994, would be unjust and inequitable. (Emphasis supplied)

Sale of Distributed Lands to Third Parties

In my earlier Dissenting Opinion, I forwarded the position that once the agricultural lands are transferred and awarded to the qualified FWBs, they, as absolute landowners, should be able to make full use of the properties, including the right to sell them, considering the lapse of the ten-year prohibition under the CARL:

In addition, considering the lapse of the prohibitive period for the transfer of agricultural lands, nothing prevents the FWBs, as direct owner-beneficiaries of the Hacienda Luisita lands, from selling their ownership interest back to petitioner HLI, or to any other interested third-party, such as but not limited to the government, LBP, or other qualified beneficiaries, among others. Considering that the Hacienda Luisita lands were placed under CARP coverage through the SDOA scheme of petitioner HLI on 11 May 1989 and the lapse of the two-year period for the approval of its compliance, the period prohibiting the transfer of awarded lands under CARL has undeniably lapsed. As landowner-beneficiaries, the qualified FWBs are now free to transact with third parties with respect to their land interests, regardless of whether they have fully paid for the lands or not.

To make the qualified FWBs of Hacienda Luisita wait another 10 years from the issuance of the Certificate of Land Ownership Award (CLOA) or Emancipation Patent (EP) before being allowed to transfer the land is unduly prohibitive in the instant case. The prohibitive period under the CARL was meant to provide CARP beneficiaries sufficient time to profit from the awarded lands in order to sustain their daily living, pay off the yearly amortization, and earn modest savings for other needs. This period protected them from being influenced by dire necessity and short-sightedness and consequently, selling their awarded lands to a willing buyer (oftentimes the previous landowner) in exchange for quick money. This reasoning ordinarily may have been availing during the first few years of the CARL, but becomes an unreasonable obstruction for the qualified FWBs of Hacienda Luisita, who have been made to endure a null and void SDOA for more than 20 years.

Undeniably, some of the lands under compulsory coverage have become more viable for non-agricultural purposes, as seen from the converted lands of LIPCO and RCBC. In fact, the then Municipality of Tarlac had unanimously approved the Luisita Land Use Plan covering 3,290 hectares of agricultural lands in Hacienda Luisita, owned by, among others, petitioner HLI; and reclassifying them for residential, commercial,  industrial or institutional use. The development of these kinds of land in Hacienda Luisita would better serve the local communities through the increase in economic activities in the area and the creation of more domestic employment.

Similarly, qualified FWBs should be afforded the same freedom to have the lands awarded to them transferred, disposed of, or sold, if found to have substantially greater economic value as reclassified lands. The proceeds from the sale of reclassified lands in a free, competitive market may give the qualified FWBs greater options to improve their lives. The funds sourced from the sale may open up greater and more diverse entrepreneurial opportunities for them as opposed to simply tying them to the awarded lands. Severely restricting the options available to them with respect to the use or disposition of the awarded lands will only prolong their bondage to the land instead of freeing them from economic want. Hence, in the interest of equity, the ten-year prohibitive period for the transfer of the Hacienda Luisita lands covered under the CARL shall be deemed to have been lifted, and nothing shall prevent qualified FWBs from negotiating the sale of the lands transferred to them.  (Emphasis supplied)

Concerns have been expressed that such a reading of the provisions of the CARL shows an indifference to the retention limits imposed, and that strict adherence to the law and the rules would dictate that the ten-year period should commence only upon the issuance and registration of the emancipation patent or certificate of land ownership award. However, considering the protracted litigation in this case and the years that the FWBs have been made to wait, I maintain that absolute ownership be immediately transferred to them in this case, with the full freedom to transfer or sell the properties, if they so choose.

The rationale for the 10-year prohibition on the sale of the transferred land may have been laudable at the starting point of the CARL but it comes close to oppressing agrarian reform beneficiaries 20 years hence. The aim of the prohibition then was to ensure that agricultural lands would be retained by those who were awarded by government and to ensure their continued possession and enjoyment of the property for the purpose of cultivation.[35] It was to preclude farmers from becoming easy prey to those who would like to tempt [them] with cash in exchange for inchoate title over the same and thus allow non-tillers of the soil to acquire title over agricultural lands.[36] Hence, lands acquired under the CARL were sought to be retained for a decade as properties for purposes of agricultural cultivation, even when they were transferred or sold to other owners. However, significant time has passed and considerable developments have occurred in the neighboring areas of formerly exclusive agricultural lands, thus requiring a review of the initial assumptions. Are the acquired lands more economically beneficial or feasible as agricultural lands? Will these properties become more financially viable for other economic uses? Do the FWBs want to remain as farmers forever, or do they want to branch out to other profitable enterprises or interests? With these compelling questions, the current realities confronting the FWBs require a careful and considerate study of the application and interpretation of the laws that would extend their maximum benefit and uphold their welfare.

The qualified FWBs in Hacienda Luisita should not only be confined to a ten-year license to farm the distributed lands, but should be able to enjoy all the rights to the land and fruits thereof. As full owners, the qualified FWBs who would be awarded lands must be afforded the entire gamut of opportunities to make use of the land as their circumstances and capabilities see fit. Nothing prevents them from continuing to till the agricultural land, whether individually or as a collective, as in the case of a cooperative. However, the same freedom should be afforded to them when they see that the best economically and financially advantageous use of the property is to sell portions of the property, especially in this case in which developments in the neighboring lots have greatly enhanced the value thereof.

To prolong for a decade the FWBs enjoyment of the right to transfer and dispose of portions of the agricultural lands is to continue to bind them to the land. Without any assistance from the government or other civic organizations, FWBs may be awarded a possible pyrrhic legal victory, in which they own the land but without the financial means to till and cultivate it. Freeing them from the strict application of the ten-year prohibition under the CARL, will allow them full discretion to dispose and transfer portions of the property as they see fit and as are suitable to their needs. This will release locked-up capital in the soil and enable the qualified FWBs to use the proceeds thereof in other productive enterprises or in the procurement of other assets necessary for tilling the remaining land.

To insist that the rights of the FWB sleep for a period of ten years is unrealistic and may seriously deprive them of real opportunities to capitalize on and maximize the victory of direct land distribution. The restriction will limit their access to credit markets, as studies in land reform have shown. In a World Bank Policy Research Report,[37] Klaus Deininger identified the counterproductive effects of transferability restrictions:

Governments have frequently imposed restrictions on the transferability of land through the sales market on beneficiaries of land reform or settlers on formerly state-owned land to prevent them from selling or mortgaging their land. Such a restriction could be justified as a temporary measure to prevent the beneficiaries of a land reform program from selling their land based on inadequate information or in response to temporary imperfections in product and financial markets. Even temporary restrictions on land mortgages can be counterproductive, however, as they would deprive beneficiaries from accessing credit during the establishment phase when they need it the most. The literature has reported cases where farmers were forced to resort to less efficient arrangements, such as usufruct mortgaging and use of wage labor, to gain access to credit. Investigators have also noted this problem in Korea and in the Philippines, where restrictions on land market activity have limited investment. Land received under land reform in Chile was freely transferable, and Jarvis (1985) views this as one of the key ingredients of its success. Precluding land reform beneficiaries from sales in the medium term would reduce efficiency by preventing adjustments in response to differential beneficiary abilities, and could, if combined with rental restrictions, cause large tracts of land to be underutilized. The danger of beneficiaries undervaluing their land could be reduced through other means, and the goal of preventing small landowners from selling out in response to temporary shocks would be better served by ensuring that they have access to output and credit markets and to technical assistance, and by providing safety nets during disasters to avoid distress sales.

Restrictions on land sales markets can increase the costs associated with certain actions, but if the rewards from circumventing them are high enough, will not eliminate them. For example, owners who have no desire to farm tend to disregard the temporary prohibition of land sales in Nicaragua and circumvent it by long-term rentals with the promise to sell, which because of the associated insecurity leads to much lower land prices.

A number of countries have combined initial privatization of land with a moratorium on land sales to prevent the possibility that, after decades of collectivism, new landowners exposure to land sales markets may cause them to dispose of their assets without being aware of their true value, leading to negative social consequences and concentration of land in the hands of speculators. The example of some CIS countries suggests that such concerns may not be completely unfounded. Moratoriums may be justified as a way of allowing new landowners to acquire better knowledge of their assets and prevent quick sell-offs at unrealistic prices in an environment where markets work imperfectly. In Albania this restriction has been combined with a right of first refusal, whereby before consummating a land sale to an outsider, neighbors or village members must be given the opportunity to acquire the land at the same price for some period. This has few adverse consequences and can help allay communities fears of being bought out by outsiders.

General imposition of restrictions on the transferability of land by sale is unlikely to be enforceable or beneficial. In many situations such restrictions will have little impact in practice because of the absence of land or credit markets. Where appropriate institutions for intragroup decisionmaking are available, permitting the community to limit sales and giving it the right to decide whether to eventually allow sales to outsiders may be an acceptable compromise between equity and efficiency concerns. Restrictions on the marketability of land are common in many developing countries, and many customary or communal systems prohibit the sale of land to outsiders. Some countries, such as Bolivia, have a minimum holding size that cannot be mortgaged or alienated. While these regulations impose some losses in terms of foregone credit market access, they can also help to reduce undesirable social externalities from driving some people into destitution. As long as they are the product of a conscious choice by the group and the group has clear and transparent mechanisms for changing the land tenure regime, they are unlikely to be harmful. As traditional social ties loosen or the efficiency loss from the sales restriction becomes too high, groups are likely to allow sales to outsiders in some form. The recent constitutional reform of the land rights system in Mexico allows for free sales and rental within all ejidos and for decisionmaking by majority vote on whether to eliminate the restriction on sales to outsiders. An initial evaluation of the reforms suggests that with appropriate technical assistance communities are clearly able to make such decisions. (Emphasis supplied; citations omitted)

Imposing a ten-year restriction will decrease the desirability of these farm lands as collateral and will even increase the transaction costs for private creditors to extend farm loans to the small qualified FWBs. In fact, in the experience of other countries like Venezuela, the governments imposition of transferability restrictions have compelled desperate famers to resort to selling their awarded farm lands in the black market way below their fair value and have made poor farmers even poorer:

For example, in an attempt to curb formerly-landless peasants selling their newly acquired lands back to the large landowners, the INTI [National Land Institute] will hold the land title in an escrow account for three years. Once three years have passed, with the new landowner living and cultivating the land during that time period, title will pass to the landowner free from any government enacted restrictions that initially made the land inalienable. According to critics of the Chavez administration, these government restrictions on land transfers are tantamount to providing only licenses to farm the land, rather than actual ownership of it. Moreover, excessive restrictions on the alienability of land may actually burden the new farmers more, especially since they will be deprived of access to credit to improve their land and expand its size when it is economically prudent. Desperate farmers will have to resort to selling their farmland at 40 to 60 percent below its fair market value on the black market due to the government restrictions currently in place. And with poor farmers having to sell their land at such a low level, such a provision made to assist the destitute will unintentionally lead to making poor farmers even poorer than they otherwise would be.[38] (Emphasis supplied; citations omitted)

Considering the perceived inadequacy of public funds to provide the qualified FWBs access to farm credits and loans to finance the cultivation of the awarded lands, it is necessary to afford them the prospect of soliciting private funds and loans to cultivate and develop their lands by freeing them from the 10-year prohibition period. At this delayed stage in the agrarian reform program covering Hacienda Luisita after the failed stock distribution mechanism, the protection afforded by inflexible restriction on the alienability of the awarded lands is greatly outweighed by the market opportunities available to the qualified FWBs if full ownership is given to them.

The agrarian reform policies placed in the Constitution and as implemented in the CARL were laudable efforts to address social injustice. However, Fr. Joaquin Bernas, S. J., a member of the Constitutional Commission, compared the previous attempts at agrarian reform and underscored the crucial role of effective public financing in the success of the program.[39] As aptly captured by then Senator Heherson Alvarez, funding became the defining line that would determine whether the promises of agrarian reform would remain a dream or become a reality:

Where will the funding come from? Without going to an involved accounting let me say that funding for this program will come from various sources already identified, among which are proceeds from the Assets Privatization Trust, the Presidential Commission on Good Government, the Economic Support Fund, PAGCOR, Philippine Charity Sweepstakes Office, the sales of government properties in Tokyo and if need be, from foreign sources or foreign borrowings.

Funding and cost were thoroughly considered in this bill in weeks, even months, as it became clear that implementability went hand in hand with cost, our Committee, in collaboration with financing institutions of the Government, studiously pored over details that drew the line between keeping agrarian reform a dream and making it a reality.[40] (Emphasis supplied)

After the fall of the martial law regime and at the start of the new democratic society, a window of opportunity was presented to the State to determine and adopt the type of land and agrarian reform to be implemented.[41] The newly formed administration enjoyed a strong mandate from the people, who desired change and would support a sweeping agrarian reform measure to distribute lands. In this scenario, the State could have chosen a more revolutionary approach, introducing into its agrarian reform program a more confiscatory element.[42] Following the examples of other revolutionary governments, the State could have resorted to simply confiscating agricultural lands under the claim of social justice and the social function of lands, with little need of payment of full just compensation.[43]

However, the framers of the Constitution and the legislators at that time chose a different path and employed a traditional land reform program, where landowners are paid approximately the full and fair market value of their expropriated properties. The competing interests of the influential landowners and the peasant agrarian unrest posed serious dilemmas to the nations leaders and, in the end, resulted in an agrarian reform program that satisfied neither group:

This campaign against agrarian reform placed Aquino in a very difficult situation. If in the first three months of the year Aquino had been forced to move more rapidly on land reform in response to peasant demands, these recent events had forced her to hesitate. Aquino was thus faced with a dilemma: either she decree agrarian reform and face the immediate threat of destabilization by those opposed to land reform, or she leave the task to Congress and perhaps forfeit legitimacy among the rural poor thereby precipitating the long-term destabilization of her government by fueling insurgency.[44]

The country thus bound itself to finance an ambitious and expensive land acquisition and redistribution scheme without the necessary public resources to fund it. The policy choice was made based on the examples of land reform in Japan, Taiwan, and South Korea,[45] which had adequate financial resources to fund a distributive land reform program.[46] Unfortunately, the country at that time was heavily burdened by foreign debt due to the excessive borrowings made during the Marcos regime. Worse, legislators pinned their hopes of the financial sustainability of the program on the future proceeds of Marcos ill-gotten wealth to be recovered by the Presidential Commission on Good Government. That the country is still in the process of identifying and fully recovering these moneys from Marcos and his cronies only speak of the inadequate viability of the agrarian reform program. The unrealistic and nave expectations of financial self-sufficiency doomed the full implementation of a redistributive land reform.

For the Court to suddenly shift the burden to landowners 20 years after the government has chosen market value compensation over partial or total confiscation is to treat petitioner HLI with an uneven hand. The Court cannot simply reckon the valuation of the Hacienda Luisita properties from its 1989 levels based on the unspoken premise that the government does not possess sufficient public resources to pay the approximate fair market value of the expropriated lands. The framers of the Constitution, the legislators, and even this Court have long defined the concept of just compensation when the State exercises eminent domain that should apply squarely in land reform expropriation. The only plausible justification for antedating the valuation of the land to its 1989 levels would be the inability of the State to shoulder such amount. Yet, neither the PARC nor the DAR has shown in their Motion for Reconsideration in this case that the State has utter lack of available resources to shoulder such costs or is without any available schemes that would permit a staggered and affordable payment of just compensation to the landowner. Let the Court not pre-judge the ability or willingness of the government to pay just compensation under the same formula the latter applied to other agrarian reform cases.

Without any exceptional reason or circumstance obtaining, aside from a supposed lack of government funds (which has not been alleged by government), there is no apparent justification for denying petitioner HLI the fair market value of its property. To materially uplift the conditions of qualified FWBs who have been awarded agricultural lands, at the expense of imposing upon petitioner HLI old and low valuation levels, may have been permissible during those revolutionary times of 1987, but it has now become unacceptable due to standards that Congress and this Court itself have uniformly applied.

Inapplicability of the Operative Facts Doctrine

A brief disgression. The resort to the secret voting option under the first or third approach is premised on a misapplication of the operative facts doctrine. The majority has now abandoned the actual application of the operative facts doctrine to the HLI SDOA after realizing that indeed, as I had earlier stated, the most that the FWBs can hope to control in HLI is a third of the shares. Considering the outcome of the new voting, any discussion on the operative facts doctrine would therefore be primarily academic. But the new ponencia continues to insist that its description of the operative facts doctrine is correct. A clarification must be made to correctly place the application of the doctrine.

The general rule is that an unconstitutional law has no force and effect it produces no rights, imposes no duties and affords no protection.[47] Hence, the pronouncement of unconstitutionality by the Court retroacts to all acts undertaken between the effectivity of the law and the declaration of its invalidity.

The doctrine of operative facts serves as an exception to this general rule.[48] The declaration of a law or an executive act as unconstitutional is given limited retroactive application in cases in which acts or circumstances may have arisen in the operation of the invalidated law prior to the pronouncement of invalidity. Considerations of equity would avert the injustice of nullifying the interim effects of a persons good faith reliance on the laws provisions. The cases involving the unconstitutionality of the debt moratorium laws and the non-payment of debts during the suspensive period prior to the declaration best exemplify the application of the exceptional doctrine of operative facts.[49] In these instances, equity interests of the parties surpass the concern over the retroactive application of the laws unconstitutionality.

The application of the operative facts doctrine to the invalidated SDOA is being justified on the ground that what is being nullified is the PARCs prior approval of the SDOA, which is an executive act. According to the argument, since petitioners HLI and the FWBs have relied for the past two decades on the validity of the SDOA and accumulated benefits therefrom, it would be prejudicial to their interests if their prior acts would be wiped clean by the nullification of the SDOA. The reasoning is strained.

No law or executive act with respect to stock distribution options has been declared unconstitutional by the Court. For the operative facts doctrine to have been applied, a law or an executive act that was made effective for a temporary period should have been invalidated by the Court for being inherently in contravention of the Constitution and, thus, without force and effect from its very inception. Except for the previous Separate Opinions of Chief Justice Renato Corona and Justice Jose Mendoza, a majority of the Court generally refrained from making any declaration as to the constitutional validity of a stock distribution option on the ground that it is not the lis mota of the present Petition, and that the challenge was not timely made, among others.

What the Court invalidated was the SDOA, which was simply an application of the law, and not any statute or executive act, on the basis of its having violated the spirit and intent of the existing law. The invalidated PARC Resolution that approved the SDOA of Hacienda Luisita did not rise to the level of a legislative statute or executive act, in which the operative facts doctrine would become applicable.

In Municipality of Malabang v. Benito,[50] the Court recognized the applicability of the operative facts doctrine to an executive order (Executive Order No. 386) issued by then President Carlos P. Garcia, creating the municipality of Balabagan out of sitios and barrios of the municipality of Malabang,[51] based on earlier jurisprudence holding that the executive did not have authority to create municipal corporations.[52] In his Concurring Opinion, then Justice Enrique Fernando made explicit the application of the doctrine of operative facts only to executive acts that are quasi-legislative in nature, specifically in the creation of municipal corporations by the executive and the subsequent declaration of unconstitutionality by the judiciary:

Nothing can be clearer therefore in the light of the two above cases than that a previous declaration of invalidity of legislative acts would not be bereft of legal results. Would that view hold true of nullification of executive acts? There might have been doubts as to the correct answer before. There is none now.

A judicial decision annulling a presidential exercise of authority is not without its effect either. That much is evident from the holding now reached. The act stricken down, whether proceeding from the legislature or the Executive, could in the language of the Chicot County case, be considered, prior to the declaration of invalidity, as an operative fact and may have consequences which cannot justly be ignored.

Thus the frontiers of the law have been extended, a doctrine which to some may come into play when a statute is voided is now considered equally applicable to a Presidential act that has met a similar fate. Such a result should not occasion surprise. That is to be expected.

There would be unjustified deviation from the doctrine of separation of powers if a consequence attached to the annulment of a statute is considered as not operative where an executive order is involved. The doctrine of co-equal or coordinate departments would be meaningless if a discrimination of the above sort were considered permissible. The cognizance taken of the prior existence of an enactment subsequently declared unconstitutional applies as well to a Presidential act thereafter successfully assailed. There was a time when it too did exist and, as such, a fact to be reckoned with, though an infirm source of a legal right, if, as subsequently held, considered violative of a constitutional command. (Emphasis supplied)

The PARC Resolution, while an executive act, is not an exercise of a quasi-legislative power by the executive, but a mere wrongful application of the law on stock distribution options under the CARL. The CARL provided the norms used to evaluate any stock distribution option and this was applied by the PARC in deciding whether to approve the SDOA. Hence, it was the interpretation of the PARC when it mistakenly approved the SDOA of petitioner HLI and the FWBs that has been declared invalid, and not the enabling law itself. The source of infirmity in this case lies not in the provisions of the CARL allowing stock distribution options, but in the erroneous approval previously granted by the PARC. The good faith reliance of petitioner HLI with respect to the approval (albeit erroneous) of its SDOA does not justify the operation of the doctrine, since no less than this Court has found that the SDOA and its approval were in utter violation of the intent of the CARL on stock distribution options.

Furthermore, it would be incongruous to avoid the constitutionality issue of the stock distribution mechanism under the CARP on the ground that it is not the lis mota of the case, yet at the same time, invoke the operative facts doctrine. There is simply no room for the application of operative facts doctrine, absent an unconstitutionally invalid legislative or executive act.

The operative facts doctrine can only come into play as a rule of equity in cases where there is a vacuum in the law created by the subsequent declaration of nullity by the Court. In those instances where the operative facts doctrine was used (i.e., debt moratorium cases), the unraveling of the effects of the declaration of unconstitutionality resorted to a dearth in the law and the need for the courts to provide guidance as to its retroactive application. In this case, no such vacuum exists, as in fact the CARL itself provides for the ultimate consequence when a stock distribution plan or option is eventually invalidated direct land distribution.[53] The Court therefore need not exercise its equity jurisdiction.

Guiding Principles for the Operational Steps

I maintain that the outright distribution of the agricultural lands in Hacienda Luisita to the qualified FWBs should be immediately ordered owing to the absolute nullification of the SDOA. Considering the multilayered issues of implementation surrounding the case and imposed on the DAR, it is best to offer some guiding principles and values when executing the Courts orders in this landmark case.

1. Scope of Covered Lands

DAR shall first determine which of the lands in Hacienda Luisita previously owned by both petitioner HLI and TADECO should be included in the compulsory coverage, including the identification of the improvements previously introduced by the corporate landowners.

As previously discussed,[54] the nullification of the SDOA brings into question the preliminary arrangements made by petitioner HLI, TADECO and the qualified FWBs, specifically the unilateral decision of TADECO to segregate and select which of its lands (totaling 6,443 hectares) will be transferred to petitioner HLI for purposes of the SDOA (4,916 hectares), and which of those it will keep for itself (1,527 hectares). Whether the sizeable area of 1,527 hectares of farm lands should have been excluded from the SDOA at the time of its execution on 11 May 1989, is best determined by the DAR.

The lands determined by the DAR to be subject of compulsory coverage shall, nonetheless, exclude the following lands:

a. The 300 out of the 500 hectares of converted lands, which are now titled in the names of LIPCO and RCBC, both of whom are considered innocent purchasers in good faith;

b. The 80 hectares of land purchased and acquired by the Bases Conversion Development Authority for the construction of a portion of the Subic-Clark-Tarlac Expressway; and

c. All homelots already awarded to the qualified FWBs.

2. Preliminary Valuation of the Lands

Based on its own rules and formula, DAR shall give a preliminary and objective valuation of the covered lands, whose values shall be pegged to the time of the Notice of Coverage issued on 02 January 2006. This valuation is, of course, subject to a determination of just compensation by the proper court in case of disagreement.

Accounting and Compensation

Thereafter, DAR shall also make a factual determination of the values and amounts of benefits actually received by the qualified FWBs under the SDOA, including but not limited to the following:

a. Three percent (3%) total gross sales from the production of the agricultural lands

b. Homelots actually awarded to qualified FWBs

c. Any dividends received by qualified FWBs

d. The proceeds of the sale of the 300-hectare converted land and SCTEX land, if any, distributed to the FWBs

However, petitioner HLI shall have no claim over any salary, wage or benefit given to the farmworker, and neither shall the latter, qualified or otherwise, be required to return the same, since they received those benefits for services rendered in an employee-employer relationship, and not under the relationship established under the SDOA. However, all FWBs shall surrender all their shareholdings in petitioner HLI to the corporation.

Thereafter, the DAR shall calculate the amounts due to each of the parties, namely, petitioner HLI, Luisita Realty Corporation (LRC) and the qualified FWBs. These amounts shall be offset one another for purposes of convenience in order to arrive at a single amount to be paid:

Amounts due to petitioner HLI/LRC	Amounts due to qualified FWBs
a. The value of the total lands subject of compulsory coverage, excluding the 300-hectare converted lands of LIPCO and RCBC and the 80 hectares of SCTEX lands;
b. The value of the 200-hectare converted lands, which shall be awarded to LRC;
c. The 3% of the purchase price of the 300-hectare converted lands given to FWBs;	a. The purchase price of the 300-hectare converted lands; and
d. The 3% of the purchase price of the SCTEX lands, and the cost of titling and other expenses;	b. The price paid by the government for the 80-hectare SCTEX lands.
e. The 3% of total gross sales from the production of agricultural lands given to the FWBs;
f. The values of the homelots awarded to the FWBs;
g. Any dividend actually received by the FWBs.

After determining the just compensation due to petitioner HLI, TADECO and LRC, the DAR shall settle the amount with the qualified FWBs under an affordable program or scheme that takes cognizance of their ability to pay, under the existing rules and procedures.

3. Support Services

In order to ensure that the qualified FWBs can maximize the use of the lands awarded to them, the DAR, in the performance of its mandate, shall provide support services to them, including but not limited to adequate

agricultural credit, technical assistance, and enhanced market infrastructures to improve the delivery and sale of their agricultural produce.

True agrarian reform must not be limited to the equitable redistribution of lands, but shall encompass the extension of supplemental public services that will enable the FWBs of Hacienda Luisita to realize and capitalize on the full potential of the lands given to them.

EPILOGUE

Twenty years after the CARL was issued and the hope of farmers and farmworkers across the country was renewed, the fulfillment of the promise of a sweeping agrarian reform program in the country to spur agricultural and economic growth has remained elusive. Although there have been instances of a successful redistribution of land, they are too few to have had a positive and appreciable impact in uplifting farmers across the nation. The main obstacles to the success of our agrarian reform program are its lack of financial viability and the lack of adequate public resources to ensure full implementation.

The wide gap between the just compensation due to the landowner and the ability of the farmer-beneficiaries to pay was intended to be subsidized by the State.[55] Despite the identification of the public resources

that would be used by the government under the CARL,[56] these proved elusive or insufficient to successfully finance the costly agrarian reform program in the entire country. The result was the stifling of crucial developments in agriculture in the rural areas, and continuing agrarian unrest among the farmer-beneficiaries, who have remained destitute and unable to improve their families quality of life.

In doing right by the qualified FWBs in Hacienda Luisita by ordering the distribution of the land in this case, the government must now face the current economic difficulties and devise creative solutions and programs for moving forward. The legal victory that the qualified FWBs have secured from this Court in awarding them the lands that they have tilled will only be felt if the State, especially the DAR, extends all the necessary support that will allow them to maximize the agricultural outputs of the lands. Long-term vision, responsive action plans and strong political will are necessary to realize the social justice tenets of the Constitution in the countrys agrarian reform program. These tenets are aimed at ending economic disparities in the rural areas and affording Filipino farmer-beneficiaries the tools required to become more productive citizens. There is no better opportunity to start on this path than with full support for the qualified FWBs of Hacienda Luisita. This support should include full freedom to make use of the land by allowing the qualified FWBs to deal with them as any property owner can, including the right to immediately transfer the same.

DISPOSITIVE PORTION

          Although I agree with the majority with respect to the revocation of the Stock Distribution Option Agreement, the immediate compulsory coverage of the agricultural lands in Hacienda Luisita under the Comprehensive Agrarian Reform Law, and their immediate distribution to the qualified farmworker-beneficiaries, I maintain my dissent regarding the following: (a) the amount of just compensation to be awarded to petitioner Hacienda Luisita, Inc., and Tarlac Development Corporation should be reckoned from the fair market value under the law, rules and jurisprudence, specifically as of the date of the issuance of the Notice of Coverage on 02 January 2006; (b) the 10-year limitation on the transferability of the awarded agricultural lands is no longer applicable, and the qualified farmworker-beneficiaries should be allowed to sell or transfer the properties, if they so desire; and (c) that the benefits received by the qualified FWBs be offset by the amount of just compensation due to petitioner Hacienda Luisita, Inc., Tarlac Development Corp., and Luisita Realty, Corp.

Thus, I maintain my previous Opinion on the following points:

1. Agricultural lands covered by the Comprehensive Agrarian Reform Law and previously held by the Tarlac Development Corp., including those transferred to petitioner Hacienda Luisita, Inc., shall be subject to compulsory coverage and immediately distributed to the 6,296 original qualified farmworker-beneficiaries who signed the Stock Distribution Option Agreement; or, if deceased, their heirs, subject to the disposition of the converted lands expressed in the paragraph after the next, but shall necessarily exclude only the following:

 a. 300 out of the 500 hectares of converted lands, now in the name of Luisita Industrial Park Corp., (LIPCO) and Rizal Commercial Banking, Corp., (RCBC);

b. 80 hectares of Subic-Clark-Tarlac Expressway (SCTEX) land; and

c. homelots already awarded to the qualified FWBs.

2. Petitioner HLI and Luisita Realty, Inc., shall be entitled to the payment of just compensation for the agricultural lands and the 200-hectare converted lands, which shall be based on their fair market value as of 02 January 2006, to be determined by the Department of Agrarian Reform; petitioner HLI shall not be held liable for the payment of any rentals for the use of the property with final turn-over of the lands to the qualified FWBs.

3 All shares of stock of petitioner HLI issued to the qualified FWBs, as beneficiaries of the direct land transfer, are nullified; and all such shares are restored to the name of TADECO, insofar as it transferred assets and liabilities to petitioner HLI as the spin-off corporation; but the shares issued to non-qualified FWBs shall be considered as additional and variable employee benefits and shall remain in their names.

4. Petitioner HLI shall have no claim over any of the salaries, wages and benefits given to farmworkers; and neither shall the farmworkers, qualified or not, be required to return the same, having received them for services rendered in an employer-employee relationship.

5. Petitioner HLI shall be liable to the qualified FWBs for the value received for the sale or transfer of the 300 out of the 500 hectares of converted lands, specifically the equivalent value of 12,000,000 shares of Centennary Holdings; for the 300-hectare land assigned, but not less than ₱750,000,000; and the money received from the sale of the SCTEX land, less taxes and other legitimate expenses normally associated with the sale of land.

6. Petitioner HLIs liability shall be offset by payments actually received by qualified FWBs under the SDOA, namely:

a. Three percent (3%) total gross sales from the production of the agricultural lands;

b. The value of the homelots awarded to qualified FWBs;

c. Any dividend given to qualified FWBs; and

d. Proceeds of the sale of the 300-hectare converted land and SCTEX land, if any, distributed to the FWBs.

The DAR is DIRECTED to determine the scope of TADECOs and/or petitioner HLIs agricultural lands that should have been included under the compulsory coverage of CARL at the time the SDOA was executed on 11 May 1989, but excluding those directed to be excluded as stated above. This means that the unilateral designation of those lands by TADECO, of which only 4,916 hectares were counted as the farmers agricultural land contribution to the SDO is to be disregarded and a new assessment is to be made by the DAR.

The DAR is also ORDERED to monitor the land distribution and extend support services that the qualified farmworker-beneficiaries may need in choosing the most appropriate and economically viable option for land distribution, and is further REQUIRED to render a compliance report on this matter one-hundred eighty (180) days after receipt of this Order. The compliance report shall include a determination of Hacienda Luisitas exact land area that shall be subject to compulsory coverage in accordance with the Decision.

Petitioner HLI is REQUIRED to render a complete accounting and to submit evidentiary proof of all the benefits given and extended to the qualified FWBs under the void SDOA including but not limited to the dividends received, homelots awarded, and proceeds of the sales of the lands, which shall serve as bases for the offset of petitioner HLIs liabilities to the qualified FWBs, and its accounting shall be subject to confirmation and verification by the DAR.

All titles issued over the 300-hectare converted land, including those under the names of petitioners-in-intervention Rizal Commercial Banking Corporation and Luisita Industrial Park Corporation and those awarded as homelots, are hereby AFFIRMED and EXCLUDED from the Notice of Compulsory coverage. The 200-hectare converted lands transferred to Luisita Realty, Inc., by petitioner Hacienda Luisita, Inc. is deemed covered by the direct land transfer under the CARP in favor of the qualified FWBs, subject to the payment of just compensation.

MARIA LOURDES P. A. SERENO

Associate Justice

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[1] Under the SDOA, the FWBs are entitled to the equivalent of the value of the agricultural lands compared with the total assets of petitioner HLI. In this case, the value of petitioner HLIs agricultural land is pegged at ₱196,630,000; while its claimed total assets are worth ₱590,554,220. Thus, the FWBs would be able to hold at maximum 33.296% of petitioner HLIs shares.

[2] 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. (Constitution, Art. XIII, Sec. 4)

[3] 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. (Constitution, Art. III, Sec. 1)

[4] Constitution, Art. III, Sec. 9.

[5] Dissenting Opinion of Chief Justice Renato C. Corona, in Republic of the Philippines v. Gingoyon, G. R. No. 166429, 19 December 2005, 478 SCRA 474, citing State by Department of Highways v. McGuckin, 242 Mont 81, 788 P2d 926.

[6] Gabatin v. Land Bank of the Philippines, G. R. No. 148223, 25 November 2004, 444 SCRA 176.

[7] FR. BERNAS: But is it the intention of the Committee that the owner should receive less than the market value?

MR. MONSOD: It is not the intention of the Committee that the owner should receive less than the just compensation. (Minutes of the Deliberations of the Constitutional Commission, [17 August 1986], p. 17)

[8] Minutes of the Deliberations of the Constitutional Commission, Fr. Joaquin Bernas, S. J. (04 August 1986), p. 648.

[9] FR. BERNAS. The sense is, it must be just to the owner.

MR. TREAS. Precisely.

FR. BERNAS. The owner should get the full market value. But then we have to make a provision as to where the payment will come from. (Minutes of the Deliberations of the Constitutional Commission, [17 August 1986], p. 18)

[10] LBP v. Chico, G. R. No. 168453, 13 March 2009, 581 SCRA 226.

[11] G.R. Nos. 78742, 79310, 79744, and 79777, 14 July 1989, 175 SCRA 343.

[12] Agrarian reform is a revolutionary kind of expropriation. The recognized rule in expropriation is that title to the expropriated property shall pass from the owner to the expropriator only upon full payment of the just compensation. Thus, payment of just compensation to the landowner is indispensable. (Land Bank of the Philippines v. Dumlao, G. R. No. 167809, 27 November 2008, 572 SCRA 108)

[13] B. H. Berkenkotter & Co. v. Court of Appeals, G. R. No. 89980, 14 December 1992, 216 SCRA 584, citing Land Bank of the Philippines v. Court of Appeals, 258 SCRA 404 (1996) and Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343 (1989).

[14] B. H. Berkenkotter & Co. v. Court of Appeals, id., citing Republic of the Philippines v. Ker and Company Limited, 383 SCRA 584 (2002) and Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343 (1989).

[15] B. H. Berkenkotter & Co. v. Court of Appeals, id.

[16] Taking under the power of eminent domain may be defined generally as entering upon private property for more than a momentary period, and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof. (Republic of the Philippines v. vda. de Castellvi, G. R. No. L-20620, 15 August 1974, 157 Phil. 329, citing 26 Am. Jur. 2nd ed., Sec. 157)

[17] It is reminded to adhere strictly to the doctrine that just compensation must be valued at the time of taking. The time of taking is the time when the landowner was deprived of the use and benefit of his property, such as when title is transferred to the Republic. (Land Bank of the Philippines v. Livioco, G. R. No. 170685, 22 September 2010, citing Eusebio v. Luis, 603 SCRA 576, 586-587 [2009])

[18] Republic Act No. 6657, Sec. 17, as amended by Republic Act No. 9700.

[19] DAR Administrative Order No. 06-92 dated 30 October 1992, as amended by DAR Administrative Order No. 11-94 dated 13 September 1994; see also DAR Administrative Order No. 05-98 dated 15 April 1998 and DAR Administrative Order No. 02-09 dated 15 October 2009.

[20] DLR Administrative Order No. 04-05 dated 02 August 2005.

[21] LBP v. Rufino, G. R. No. 175644 and 175702, 02 October 2009, 602 SCRA 399.

[22] National Power Corporation v. Tiangco, G. R. No. 170846, 06 February 2007, 514 SCRA 674, citing National Power Corporation v. Chiong, 404 SCRA 527 (2003).

[23] National Power Corporation v. Tiangco, id., citing Export Processing Zone Authority v. Dulay, 149 SCRA 305 (1987).

[24] Determination of just compensation for commercial farms shall include not only the land but also the facilities and improvements introduced by the landowner. It may take into account the type of commercial crops planted (e.g. banana, pineapple, rubber) and such other relevant factors consistent with agrarian laws, rules and regulations; (DAR Administrative Order No. 09-98 dated 23 December 1998, Art. 1, Sec. 2 [f])

[25] National Power Corporation v. Tiangco, G. R. No. 170846, 06 February 2007, 514 SCRA 674.

[26] G. R. No. 164195, 12 October 2010, 632 SCRA 727.

[27] G. R. No. 127198, 16 May 2005, 458 SCRA 411.

[28] See also Land Bank v. Livioco, G. R. No. 170685, 22 September 2010; Land Bank v. J. L. Jocson and Sons, G. R. No. 180803, 23 October 2009, 604 SCRA 373; Land Bank v. Heirs of Asuncion Aonuevo vda. de Santos, et al., G. R. No. 179862, 03 September 2009, 598 SCRA 115; DAR v. Tongson, G. R. No. 171674, 04 August 2009; Land Bank v. Carolina B. vda. de Abello, et al., G. R. No. 168631, 07 April 2009, 584 SCRA 342; Land Bank v. Chico, G. R. No. 168453, 13 March 2009, 581 SCRA 226; Land Bank v. Pacita Agricultural Multi-Purpose Cooperative, Inc., G. R. No. 177607, 19 January 2009; Land Bank v. Dumlao, G. R. No. 167809, 27 November 2008, 572 SCRA 108; Land Bank v. Heirs of Eleuterio Cruz, G. R. No. 175175, 29 September 2008, 567 SCRA 31; Land Bank v. Heirs of Angel Domingo, G. R. No. 168533, 04 February 2008, 543 SCRA 627; Land Bank v. Spouses Hermosa, G. R. No. 166777, 10 July 2007, 527 SCRA 181; Lubrica v. Land Bank, G. R. No. 170220, 20 November 2006, 507 SCRA 415.

[29] Since land reform coverage and the right to the transfer of the CARL-covered lands accrued to the FWBs as of May 11, 1989, HLI which continued to possess and to control the covered land should pay the qualified FWBs yearly rental for the use and possession and control over these lands. As a detail of land reform implementation the authority to determine the appropriate rentals belongs to the DAR using established norms and standards for the purpose. Proper adjustment, of course, should be made for the sale of the acquired lands to LIPCO and to the government as no rentals can be due for these portions after their sale. (Separate Opinion of Justice Brion)

[30] The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in Articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and, in case of disagreement, the court shall fix the terms thereof. (Civil Code, Art. 448)

Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor. (Civil Code, Art. 546)

Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof. (Civil Code, Art. 546)

[31] Where the builder, planter or sower has acted in good faith, a conflict of rights arises between the owners, and it becomes necessary to protect the owner of the improvements without causing injustice to the owner of the land. In view of the impracticability of creating a state of forced co-ownership, the law has provided a just solution by giving the owner of the land the option to acquire the improvements after payment of the proper indemnity, or to oblige the builder or planter to pay for the land and the sower the proper rent. He cannot refuse to exercise either option. It is the owner of the land who is authorized to exercise the option, because his right is older, and because, by the principle of accession, he is entitled to the ownership of the accessory thing. (Heirs of the Late Joaquin Limense, v. vda. De Ramos, G. R. No. 152319, 28 October 2009, 604 SCRA 599 citing Rosales v. Castelltort, 472 SCRA 144, 161 [2005]).

[32] Minutes of the Deliberations of the Constitutional Commission, (07 August 1986), at pp. 17-18.

[33] Minutes of the Deliberations of the Constitutional Commission, (05 August 1986), p. 703.

[34] G. R. No. 168453, 13 March 2009, 581 SCRA 226.

[35] The object of agrarian reform is to vest in the farmer-beneficiary, to the exclusion of others, the rights to possess, cultivate and enjoy the landholding for himself; hence, to insure his continued possession and enjoyment thereof, he is prohibited by law to make any form of transfer except only to the government or by hereditary succession. (Maylem v. Ellano, G. R. No. 162721, 13 July 2009, 592 SCRA 440, citing Torres v. Ventura, 187 SCRA 96 [1990])

[36] Estate of the Late Encarnacio vda. de Panlilio v. Dizon, G. R. No. 148777 & 157598, 18 October 2007, citing Torres v. Ventura, 187 SCRA 96 (1990).

[37] Klaus Deninger, Land Policies for Growth and Poverty Reduction (June 2003), pp. 122-124 available at http://www-wds.worldbank.org/external/default/WDSContentServer/IW3P/IB/2003/08/08/000094946_0307250400474 /Rendered/PDF/multi0page.pdf last visited on 11 November 2011.

[38] Andy Mielnik, Hugo Chavez: Venezuelas New Bandit or Zorro, 14 L. & Bus. Rev. Am. 591 (2008).

[39] FR. BERNAS: I do not see the possibility of massive land reform unless the government somehow gets involved in the financings; and I think one of the reasons the past land reform program did not have the success that it gave the impression of having was precisely the fact that there was no effective financing system for it.

So all of these will have to be necessarily packaged into the land reform program. (Minutes of the Deliberations of the Constitutional Commission, [04 August 1986], p. 648)

[40] Sponsorship speech of Sen. Heherson Alvarez, chairperson of the Committee on Land Reform, Records of the Senate dated 26 June 1988, pp. 2975-2977.

[41] Successful land reforms in this century have had many common characteristics.  Often there is a window of opportunity where land reform is possible. Land reform efforts necessitate significant political will to commit to change. In addition, grassroots support of the populace and threat of violent uprising can be an impetus for reform. The government must also have adequate financial resources or external support for the program. Successful land reforms, such as those in Japan, Taiwan, South Korea, Mexico, and certain states in India, have involved the mandatory expropriation of land, but with reasonable (although not full market value) compensation to the landowner. (Kristen Mitchell, Market-Assisted Land Reform in Brazil: A New Approach to Address an Old Problem, 22 N.Y.L. SCh. J. Intl & Comp. L. 557 [2003])

[42] The banks mission also called attention to the problem of just compensation arguing that successful agrarian reform programmes have always included a confiscatory element. (James Putzel, A Captive Land: The Politics of Agrarian Reform in the Philippines [Ateneo de Manila University Press 1992] p. 288)

[43] The most successful land reforms have been traditional programs that used a mandatory redistribution mechanism, and they often occurred during periods of political instability. In these situations, authoritarian governments have been able to forcibly remove property from wealthy landowners. Based on this history, some scholars question the feasibility of mandatory redistribution in a full democracy. In particular, scholars have begun to question the contemporary applicability of the traditional land reform model in many developing countries where governments cannot afford expensive social programs, and where peace, industrialization, and foreign investment are seen as more important than shifting the power balances within the country. (Andre Sawchenko, Choosing a Mechanism for Land Distribution in the Philippines, 9 Pac. Rim L. & Poly J. 681 [2000])

[44] Simeon Gilding, Agrarian Reform and Counter-Reform under the Aquino Administration: Study in Post-Marcos Politics (1993), p.11.

[45] MR. OPLE: We all know, those who have taken a glance at the history of land reform in Japan, Taiwan and Korea, that the economic miracles that have taken place in those countries and have compelled the admiration of the whole world, to a large extent, were rooted in the earlier land reform program pursued by their governments. (Minutes of the Deliberations of the Constitutional Commission, [08 August 1986], p. 83)

[46] Kristen Mitchell, Market-Assisted Land Reform in Brazil: A New Approach to Address an Old Problem, 22 N.Y.L. Sch. J. Intl & Comp. L. 557 (2003).

[47] Planters Products, Inc. v. Fertiphil Corp., G.R. No. 166006, 14 March 2008, 548 SCRA 485.

[48] Yap v. Thenamaris Ships Management and Intermare Maritime Agencies, Inc., G. R. No. 179532, 30 May 2011.

[49] Manila Motor Co., Inc., v. Flores, G. R. No. L-9396, 16 August 1956, 99 Phil. 738; De Agbayani v. Philippine National Bank, G.R. No. L-23127, 29 April 1971, 38 SCRA 429; Republic v. Herida, G. R. No. L-34486, 27 December 1982, 119 SCRA 411; Republic v. Court of First Instance, G. R. No. L-29725, 27 January 1983, 120 SCRA 154.

[50] G.R. No. L-28113, 28 March 1969, 27 SCRA 533.

[51] Executive Order 386 created no office. This is not to say, however, that the acts done by the municipality of Balabagan in the exercise of its corporate powers are a nullity because the executive order is, in legal contemplation, as inoperative as though it had never been passed. For the existence of Executive Order 386 is an operative fact which cannot justly be ignored. (Id.)

[52] Then, also, the power of control of the President over executive departments, bureaus or offices implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such control does not include the authority either to abolish an executive department or bureau, or to create a new one. As a consequence, the alleged power of the President to create municipal corporations would necessarily connote the exercise by him of an authority even greater than that of control which he has over the executive departments, bureaus or offices. In other words, Section 68 of the Revised Administrative Code does not merely fail to comply with the constitutional mandate above quoted. Instead of giving the President less power over local governments than that vested in him over the executive departments, bureaus or offices, it reverses the process and does the exact opposite, by conferring upon him more power over municipal corporations than that which he has over said executive departments, bureaus or offices.

WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the respondent permanently restrained from passing in audit any expenditure of public funds in implementation of said Executive Orders or any disbursement by the municipalities above referred to. It is so ordered. (Pelaez v. Auditor General, G. R. No. L-23825, 24 December 1965, 15 SCRA 569)

[53] If within two (2) years from the approval of this Act, the land or stock transfer envisioned above is not made or realized or the plan for such stock distribution approved by the PARC within the same period, the agricultural land of the corporate owners or corporation shall be subject to the compulsory coverage of this Act. (CARL, Sec. 31)

[54] However,  as pointed out by   private   respondent  FARM,  there  were  other  lots  in   Hacienda  Luisita  that  were not  included  in  the  stock distribution scheme, but should  have been covered  under  the CARP. TADECO, as the previous agricultural landowner, preempted the determination of the lands to be covered under the CARP by selecting which of the agricultural lands it would transfer to petitioner HLI and consequently, subject to the SDOA. The DAR never approved the exclusion of the other lands that TADECO kept for itself. It seems incongruous to the intention of the CARP under a stock distribution agreement, to let the corporate landowner choose and select which of its agricultural lands would be included and which ones it would retain for itself. Serious doubts are entertained with respect to the process of inclusion and exclusion of agricultural lands for CARP coverage employed by the corporate landowner, especially since the excluded land area (1,527 hectares) involves one-third the size of the land TADECO surrendered for the SDOA (4,916 hectares). The exclusion of a substantial amount of land from the SDOA is highly suspicious and deserves a review by the DAR.  Whether these lands were properly excluded should have been subject to the DARs determination and validation. Thus, the DAR is tasked to determine the breadth and scope of the portion of the agricultural landholdings of TADECO and petitioner HLI that should have been the subject of CARP coverage at the time of the execution of the SDOA on 11 May 1989. (Dissenting Opinion)

[55] MR. RODRIGO: I was about to say what Commissioner Concepcion said. I just want to add that the phrase just compensation already has a definite meaning in jurisprudence. And, of course, I would like to reiterate the fact that just compensation here is not the amount paid by the farmers. It is the amount paid to the owner, and this does not necessarily have to come from the farmer. The State should subsidize this and pay a just compensation to the owner and let the tenant farmer pay the state in accordance with the capacity of the farmer. If there is a difference let the State subsidize the difference. (Minutes of the Deliberations of the Constitutional Commission, [07 August 1986], at pp. 17-18)

[56] The initial amount needed to implement this Act for the period of ten (10) years upon approval hereof shall be funded from the Agrarian Reform Fund created under Sections 20 and 21 of Executive Order No. 229.

Additional amounts are hereby authorized to be appropriated as and when needed to augment the Agrarian Reform Fund in order to fully implement the provisions of this Act.

Sources of funding or appropriations shall include the following:

a) Proceeds of the sales of the Assets Privatization Trust;

b) All receipts from assets recovered and from sales of ill-gotten wealth recovered through the Presidential Commission on Good Government;

c) Proceeds of the disposition of the properties of the Government in foreign countries;

d) Portion of amounts accruing to the Philippines from all sources of official foreign grants and concessional financing from all countries, to be used for the specific purposes of financing production credits, infrastructures, and other support services required by this Act;

e) Other government funds not otherwise appropriated.

All funds appropriated to implement the provisions of this Act shall be considered continuing appropriations during the period of its implementation. (CARL, Sec. 63)