Advocate’s Overview: The national legal system on land and resources


By ARTHUR L. ALLAD-IW

Centuries ago, in the period of mercantilism at the dawn of capitalism, two powerful maritime states were emerging: Portugal and Spain. They began to explore and conquer new territories and, with the Pope’s intervention, agreed to divide the world: one division open for colonization by Portugal and the other by Spain.

This led to the “discovery” of the Philippine islands. Invoking the feudal conquest theory, they declared all the lands and resources in their “newly discovered” territories as owned by the Spanish crown. This theory is now known in the legal circles as the Regalian Doctrine.

Through the Treaty of Paris of December 10, 1898, our next colonial master – the United States of America after it paid $20 million to Spain – adopted the Regalian Doctrine with the same motive as its predecessor. The American regime passed laws that legally grabbed vast land and resources within its newly acquired Philippine colony.

We can clearly see that the most basic laws on land and resources were never neutral. Instead, they were enacted to further the basic socio-economic interests of the colonial rulers.

The U.S. colonizers imposed their own concepts of land usage and ownership system to combine with the Spanish colonial land system. Under the Torrens system, land ownership was proven only through a piece of paper called the Torrens Title. Lands not covered by such paper titles were automatically deemed part of the public domain, owned by the State, which has the sole right for disposition.

This colonial land system continued even after the so-called Philippine “independence” from the U.S.A. Even the fundamental laws of the land – the 1935, 1973, and 1987 Constitutions – contained the Regalian Doctrine. Thus, became institutionalized the State’s grabbing of land and resources.

The state ownership of land and resources within the Philippine territory is contained under the 1987 Philippine Constitution. Under Section 2, Article XII it states: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the state.”

This is the Regalian Doctrine provision, a legacy of the colonial past.

The Constitution classifies the public domain into agricultural lands, forest or timber, mineral lands, and national parks. Only agricultural lands are alienable and disposable, where the state can grant title to qualified Filipino citizen and after such citizen had undergone the long, tedious, and rigid processes outlined by the government.

Forest or timber, mineral lands, and national parks are inalienable and not disposable, they cannot be owned by anybody. Several and long line of cases decided by the Supreme Court, otherwise known as Philippine jurisprudence supported the above concept. The latest was Gordulla vs. CA (January 22, 1998) where the Supreme Court ruled: “Forestlands, being self-replenishing, versatile and all-important natural resource that they are, need to be reserved and saved to promote the peoples’ welfare.

By their very nature or by executive or statutory fiat, they are outside the commerce of man, not susceptible of private appropriation in any form, and inconvertible into any character less than of inalienable public domain, regardless of their actual state, for as long as the reservation subsists and it is not revoked by a subsequent valid declassification.”

The Supreme Court further stated: “Once again, we reiterate the rule enunciated by this Court in the Director of Forestry vs. Muñoz and consistently adhered to a long line of cases the more recent of which is Republic vs. CA, that forest lands or forests reserves are incapable of private appropriation, and possession thereof, however long, cannot convert them into private properties. This ruling is premised on the Regalian Doctrine enshrined not only in the 1935 and 1973 Constitutions but also in the 1987 Constitution.”

As the final arbiter of any legal controversy, the Supreme Court clears doubt that until now we are still under the aegis of the Regalian Doctrine. #

(Next Issue: Constitutional provisions affecting indigenous peoples.)

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