G. R. No.

179987 HEIRS OF MARIO MALABANAN , petitioners, versus THE REPUBLICOF THE PHILIPPINES, respondent Promulgated: April 29, 2009 -------------------------------------------------------------------------------------------CONCURRING AND DISSENTING OPINION

BRION, J.: I concur with the ponencias modified positions on the application of prescription under Section 14(2) of the Property Registration Decree ( PRD), and on the denial of the petition of the Heirs of Mario Malabanan. I dissent in the strongest terms from the ruling that the classification of a public land as alienable and disposable can be made after June 12, 1945, in accordance with this Courts ruling in Republic v. Court of Appeals and Naguit (Naguit).[1] Effectively, what results from this decision is a new law, crafted by this Court, going beyond what the Constitution ordains and beyond the law that the Legislature passed. Because the majority has not used the standards set by the Constitution and the Public Land Act ( PLA),[2] its conclusions are based on a determination on what the law ought to be an exercise in policy formulation that is beyond the Courts authority to make. The discussions of these grounds for dissent follow, not necessarily in the order these grounds are posed above.

Prefatory Statement Critical to the position taken in this Dissent is the reading of the hierarchy of laws that govern public lands to fully understand and appreciate the grounds for dissent. In the area of public law, foremost in this hierarchy is the Philippine Constitution, whose Article XII (entitled National Economy and Patrimony) establishes and fully embraces the regalian doctrine as a first and overriding principle.[3] This doctrine postulates that all lands belong to the State,[4] and that no public land can be acquired by private persons without any grant, express or implied, from the State.[5] In the statutory realm, the PLA (Public Land Act) governs the classification, grant, and disposition of alienable and disposable lands of the public domain and, other than the Constitution, is the countrys primary law on the matter. Section 7 of the PLA delegates to the President the authority to administer and dispose of alienable public lands. Section 8 sets out the public lands open to disposition or concession, and the requirement that they should be officially delimited and classified and, when practicable, surveyed. Section 11, a very significant section, states that
Public lands suitable for agricultural purposes can be disposed of only as follows and not otherwise: (1) For homestead settlement; (2) By sale; (3) By lease; (4) By confirmation of imperfect or incomplete title; (5) By judicial legalization; (6) By administrative legalization (free patent)

Section 48 covers confirmation of imperfect title, and embodies a grant of title to the qualified occupant or possessor of an alienable public land. This section provides:
SECTION 48. The following described citizens of the Philippines, occupying lands of the public domain or claiming to own any such lands or an interest therein, but whose titles have not been perfected or completed, may apply to the Court of First Instance of the province where the land is located for confirmation of their claims and the issuance of a certificate of title therefor, under the Land Registration Act, to wit: (a) Those who prior to the transfer of sovereignty from Spain to the United States have applied for the purchase, composition or other form of grant of lands of the public domain under the laws and royal decrees then in force and have instituted and prosecuted the proceedings in connection therewith, but have, with or without default upon their part, or for any other cause, not received title therefor, if such applicants or grantees and their heirs have occupied and cultivated said lands continuously since the filing of their applications. (b) Those who by themselves or through their predecessors in interest have been in the open, continuous, exclusive, and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of acquisition or ownership, except as against the Government, since July twentysixth, eighteen hundred and ninety-four, except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this chapter.

Significantly, subsection (a) has now been deleted, while subsection (b) has been amended by PD 1073as follows:
SECTION 4. The provisions of Section 48(b) and Section 48(c), Chapter VIII of the Public Land Act are hereby amended in the sense that these provisions shall apply only to alienable and disposable lands of the public domain which have been in open, continuous, exclusive and notorious possession and occupation by the applicant himself or thru his predecessor-in-interest, under a bona fide claim of acquisition of ownership, since June 12, 1945.

Complementing the PLA is the PRD (Property Registration Decree).[6] It was enacted to codify the various laws relating to property registration. It governs

the

registration

of lands under the Torrens

System,

as well as unregistered the PRD provides:

lands, including chattel mortgages. Section 14 of

SECTION 14. Who May Apply. The following persons may file in the proper Court of First Instance an application for registration of title to land, whether personally or through their duly authorized representatives: (1) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier. Those who have acquired ownership of private lands by prescription under the provisions of existing laws. Those who have acquired ownership of private lands or abandoned river beds by right of accession or accretion under the existing laws.

(2) (3)

Right of Accession Coming into possession of a right or office; increase; augmentation; addition. The right to all that one's own property produces, whether that property be movable or immovable; and the right to that which is united to it by accession, either naturally or artificially. The right to own things that become a part of something already owned. A principle derived from the Civil Law, by which the owner of property becomes entitled to all that it produces, and to all that is added or united to it, either naturally or artificially (that is, by the labor or skill of another) even where such addition extends to a change of form or materials; and by which, on the other hand, the possessor of property becomes entitled to it, as against the original owner, where the addition made to it by skill and labor is of greater value than the property itself, or where the change effected in its form is so great as to render it impossible to restore it to its original shape. Generally, accession signifies acquisition of title to Personal Property by bestowing labor on it that converts it into an entirely different thing or by incorporation of property into a union with other property. The commencement or inauguration of a sovereign's reign. For example, a person who owns property along a river also takes ownership of any additional land that builds up along the riverbank. This right may extend to additions that result from the work or skill of another person. The buyer of a car who fails to make scheduled payments cannot get back his new spark plugs after the car is repossessed because they have become a part of the whole car. The principle of accession does not necessarily apply, however, where the addition has substantially improved the value and changed the character of the property, as when by mistake someone else's grapes were made into wine or someone else's clay made into bricks. In such cases, the original owner might recover only the value of the raw material rather than take ownership of the finished product.

In the context of a treaty, accession may be gained in either of two ways: (1) the new member nation may be formally accepted by all the nations already parties to the treaty; or (2) the new nation may simply bind itself to the obligations already existing in the treaty. Frequently, a treaty will expressly provide that certain nations or categories of nations may accede. In some cases, the parties to a treaty will invite one or more nations to accede to the treaty.

Accretion:

accretion
/krSHn/ Noun The process of growth or increase, typically by the gradual accumulation of additional layers or matter. A thing formed or added by such growth or increase.

Synonyms increase - increment - growth - augmentation - gain

(4)

Those who have acquired ownership of land in any other manner provided for by law.

Subsection (1) of Section 14 is a copy of, and appears to have been lifted from, Section 48(b) of the PLA. The two provisions, however, differ in intent and legal effect based on the purpose of the law that contains them. The PLA is a substantive law that classifies and provides for the disposition of alienable lands of the public domain. The PRD, on the other hand, specifically refers to the manner of bringing registerable lands, among them alienable public lands, within the coverage of the Torrens system. Thus, the first is a substantive law, while the other is essentially procedural, so that in terms of substantive content, the PLA should prevail.[7] Significantly bearing on the matter of lands in general is the Civil Code and its provisions on Property[8] and Prescription.[9] The law on property assumes

importance because land, whether public or private, is property. Prescription, on the other hand, is a mode of acquiring ownership of land, although it is not one of the modes of disposition mentioned in the PLA. Chapter 3, Title I of Book II of the Civil Code is entitled Property in Relation to the Person to Whom it Belongs. On this basis, Article 419 classifies property to be property of public dominion or of private ownership. Article 420 proceeds to further classify property of public dominion into those intended for public use, for public service, and for the development of the national wealth. Article 421 states that all other properties of the State not falling under Article 420 are patrimonial property of the State, and Article 422 adds that property of public dominion, no longer intended for public use or for public service, shall form part of the patrimonial property of the State. Under Article 425, property of private ownership, besides patrimonial property of the State, provinces, cities and municipalities, consists of all property belonging to private persons, either individually or collectively. Prescription is essentially a civil law term and is not mentioned as one of the modes of acquiring alienable public land under the PLA, (Significantly, the PLA under its Section 48 provides for its system of how possession can ripen into ownership; the PLA does not refer to this as acquisitive prescription but as basis for confirmation of title.) Section 14(2) of the PRD, however, specifies that [t]hose who have acquired ownership of private lands by prescription under the provisions of existing laws as among those who may apply for land registration. Thus, prescription was introduced into the land registration scheme (the PRD), but not into the special law governing lands of the public domain (the PLA). A starting point in considering prescription in relation with public lands is Article 1108 of the Civil Code, which states that prescription does not run against

the State and its subdivisions. At the same time, Article 1113 provides that all things which are within the commerce of men are susceptible of prescription, unless otherwise provided; property of the State or any of its subdivisions not patrimonial in character shall not be the object of prescription. The provisions of Articles 1128 to 1131 may also come into play in the application of prescription to real properties.

In light of our established hierarchy of laws, particularly the supremacy of the Philippine Constitution, any consideration of lands of the public domain should start with the Constitution and its Regalian doctrine; all lands belong to the State, and he who claims ownership carries the burden of proving his claim.[10] Next in the hierarchy is the PLA for purposes of the terms of the grant, alienation and disposition of the lands of the public domain, and the PRD for the registration of lands. The PLA and the PRD are special laws supreme in their respective spheres, subject only to the Constitution. The Civil Code, for its part, is the general law on property and prescription and should be accorded respect as such. In more concrete terms, where alienable and disposable lands of the public domain are involved, the PLA is the primary law that should govern, and the Civil Code provisions on property and prescription must yield in case of conflict.[11] The Public Land Act

At the risk of repetition, I start the discussion of the PLA with

a reiteration of the first principle that under the regalian doctrine, all lands of the public domain belong to the State, and the State is the source of any asserted right to ownership in land and charged with the conservation of such patrimony. Otherwise expressed, all lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State.[12] Thus, all lands that have not been acquired from the government, either by purchase or by grant, belong to the State as part of the inalienable public domain. [13] We should never lose sight of the impact of this first principle where a private ownership claim is being asserted against the State. The PLA has undergone many revisions and changes over time, starting from the first PLA, Act No. 926; the second public land law that followed, Act No. 2874; and the present CA 141 and its amendments. Act No. 926 was described in the following terms:
The law governed the disposition of lands of the public domain. It prescribed rules and regulations for the homesteading, selling and leasing of portions of the public domain of the Philippine Islands, and prescribed the terms and conditions to enable persons to perfect their titles to public lands in the Islands. It also provided for the issuance of patents to certain native settlers upon public lands, for the establishment of town sites and sale of lots therein, for the completion of imperfect titles, and for the cancellation or confirmation of Spanish concessions and grants in the Islands. In short, the Public Land Act operated on the assumption that title to public lands in the Philippine Islands remained in the government; and that the governments title to public land sprung from the Treaty of Paris and other subsequent treaties between Spain and the United States. The term public land referred to all lands of the public domain whose title still remained in the government and are thrown open to private appropriation and settlement, and excluded the patrimonial property of the government and the friar lands.[14]

This basic essence of the law has not changed and has been carried over to the present PLA and its amendments. Another basic feature, the requirement for open, continuous, exclusive, and notorious possession and occupation of the alienable and disposable public land under a bona fide claim of ownership also

never changed. Still another consistent public land feature is the concept that once a person has complied with the requisite possession and occupation in the manner provided by law, he is automatically given a State grant that may be asserted against State ownership; the land, in other words,ipso jure becomes private land.
[15]

The application for judicial confirmation of imperfect title shall then follow,

based on the procedure for land registration.[16] It is in this manner that the PLA ties up with the PRD. A feature that has changed over time has been the period for reckoning the required occupation or possession. In the first PLA, the required occupation/possession to qualify for judicial confirmation of imperfect title was 10 years preceding the effectivity of Act No. 926 July 26, 1904 (or since July 26, 1894 or earlier). This was retained up to CA 141, until this law was amended by Republic Act (RA) No. 1942 (enacted on June 22, 1957),[17] which provided for a simple 30-year prescriptive period for judicial confirmation of imperfect title. This period did not last; on January 25, 1977, Presidential Decree No. 1073 (PD 1073) [18] changed the required 30-year possession and occupation period provision, to possession and occupation of the land applied for since June 12, 1945, or earlier. PD 1073 likewise changed the lands subject of imperfect title , from agricultural lands of the public domain to alienable and disposable lands of the public domain. PD 1073 also extended the period for applications for free patents and judicial confirmation of imperfect titles to December 31, 1987. The significance of the date June 12, 1945 appears to have been lost to history. A major concern raised against this date is that the country was at this time under Japanese occupation, and for some years after, was suffering from the uncertainties and instabilities that World War II brought. Questions were raised on how one could possibly comply with the June 12, 1945 or earlier occupation/possession requirement of PD 1073 when the then prevailing situation did not legally or physically permit it.

Without the benefit of congressional records, as the enactment of the law (a Presidential Decree) was solely through the Presidents lawmaking powers under a regime that permitted it, the most logical reason or explanation for the date is the possible impact of the interplay between the old law and the amendatory law. When PD 1073 was enacted, the utmost concern, in all probability, was how the law would affect the application of the old law which provided for a thirty-year possession period. Counting 30 years backwards from the enactment of PD 1073 on January 25, 1977, 1945. The June 12, 1945 cut-off date raised legal concerns; vested rights acquired under the old law (CA 141, as amended by RA 1942) providing for a 30-year possession period could not be impaired by the PD 1073 amendment. We recognized this legal dilemna in Abejaron v. Nabasa,[19] when we said:
However, as petitioner Abejarons 30-year period of possession and occupation required by the Public Land Act, as amended by R.A. 1942 ran from 1945 to 1975, prior to the effectivity of P.D. No. 1073 in 1977, the requirement of said P.D. that occupation and possession should have started on June 12, 1945 or earlier, does not apply to him. As the Susi doctrine holds that the grant of title by virtue of Sec. 48(b) takes place by operation of law, then upon Abejarons satisfaction of the requirements of this law, he would have already gained title over the disputed land in 1975. This follows the doctrine laid down in Director of Lands v. Intermediate Appellate Court, et al., that the law cannot impair vested rights such as a land grant . More clearly stated, "Filipino citizens who by themselves or their predecessors-in-interest have been, prior to the effectivity of P.D. 1073 on January 25, 1977, in open, continuous, exclusive and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of acquisition of ownership, for at least 30 years, or at least since January 24, 1947" may apply for judicial confirmation of their imperfect or incomplete title under Sec. 48(b) of the Public Land Act.

PD 1073 should have provided for a January 24, 1947 cut-

off date, but it did not. Instead, it provided, for unknown reasons, the date June 12,

From this perspective, PD 1073 should have thus provided January 24, 1947 and not June 12, 1945 as its cut-off date, yet the latter date is the express legal reality. The reconciliation, as properly defined by jurisprudence, is that where an applicant has satisfied the requirements of Section 48 (b) of CA 141, as amended by RA 1942, prior to the effectivity of PD 1073 , the applicant is entitled to perfect his or her title, even if possession and occupation does not date back to June 12, 1945. For purposes of the present case, a discussion of the cut-off date has been fully made to highlight that it is a date whose significance and import cannot be minimized nor glossed over by mere judicial interpretation or by judicial social policy concerns; the full legislative intent must be respected.

In considering the PLA, it should be noted that its amendments were not confined to RA 1942 and PD 1073. These decrees were complemented by Presidential Decree No. 892 (PD 892)[20] - issued on February 16, 1976 which limited to six months the use of Spanish titles as evidence in land registration proceedings.[21] Thereafter, the recording of all unregistered lands shall be governed by Section 194 of the Revised Administrative Code, as amended by Act No. 3344. Section 3 of PD 1073 totally disallowed the judicial confirmation of incomplete titles to public land based on unperfected Spanish grants. Subsequently, RA 6940[22] extended the period for filing applications for free patent and judicial confirmation of imperfect title to December 31, 2000. The law now also allows the issuance of free patents for lands not in excess of 12 hectares to any natural-born citizen of the Philippines who is not the owner of more than 12 hectares and who, for at least 30 years prior to the effectivity of the amendatory Act, has continuously occupied and cultivated, either by himself or through his

predecessors-in-interest, a tract or tracts of agricultural public lands subject to disposition.

Congress recently extended the period for filing applications for judicial confirmation of imperfect and incomplete titles to alienable and disposable lands of the public domain under RA 9176 from December 31, 2000 under RA 6940 to December 31, 2020.[23] Read together with Section 11 of the PLA (which defines the administrative grant of title to alienable and disposable lands of the public domain through homestead settlement and sale, among others), RA 6940 and RA 9176 signify that despite the cut-off date of June 12, 1945 that the Legislature has provided, ample opportunities exist under the law for the grant of alienable lands of the public domain to deserving beneficiaries. Presidential Decree No. 1529 or the Property Registration Decree

As heretofore mentioned, PD 1529 amended Act No. 496 on June 11, 1978 to codify the various laws relative to registration of property. Its Section 14 describes the applicants who may avail of registration under the Decree, among them (1) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier. (2) Those who have acquired ownership of private lands by prescription under the provision of existing laws

These subsections and their impact on the present case are separately discussed below. Section 14(1) Section 14(1) merely repeated PD 1073 which sets a cut-off date of June 12, 1945 and which, under the conditions discussed above, may be read to be January 24, 1947. The ponencia discussed Section 48(b) of the PLA in relation with Section 14(1) of the PRD and, noted among others, that under the current state of the law, the substantive right granted under Section 48(b) may be availed of only until December 31, 2020. This is in light of RA 9176, passed in 2002,[24] limiting the filing of an application for judicial confirmation of imperfect title to December 31, 2020. The amendatory law apparently refers only to the use of Section 14(1) of the PRD as a mode of registration. Where ownership right or title has already vested in the possessor-occupant of the land that Section 48(b) of the PLA grants by operation of law, Section 14(2) of the PRD continuous to be open for purposes of registration of a private land since compliance with Section 48(b) of the PLA vests title to the occupant/possessor and renders the land private in character. The ponencia likewise rules against the position of the Office of the Solicitor General that the public land to be registered must have been classified as alienable and disposable as of the cut-off date for possession stated in Section 48(b) - June 12, 1945. In doing this, it cites and reiterates its continuing support for the ruling in Republic v. Court of Appeals and Naguit that held:[25]
Petitioner suggests an interpretation that the alienable and disposable character of the land should have already been established since June 12, 1945 or earlier. This is not borne out by the plain meaning of Section 14(1). Since June

12, 1945, as used in the provision, qualifies its antecedent phrase under a bonafide claim of ownership. Generally speaking, qualifying words restrict or modify only the words or phrases to which they are immediately associated, and not those distantly or remotely located. Ad proximum antecedents fiat relation nisi impediatur sentencia. Besides, we are mindful of the absurdity that would result if we adopt petitioners position. Absent a legislative amendment, the rule would be, adopting the OSGs view, that all lands of the public domain which were not declared alienable or disposable before June 12, 1945 would not be susceptible to original registration, no matter the length of unchallenged possession by the occupant. Such interpretation renders paragraph (1) of Section 14 virtually inoperative and even precludes the government from giving it effect even as it decides to reclassify public agricultural lands as alienable and disposable. The unreasonableness of the situation would even be aggravated considering that before June 12, 1945, the Philippines was not yet even considered an independent state. Instead, the more reasonable interpretation of Section 14(1) is that it merely requires the property sought to be registered as already alienable and disposable at the time the application for registration of title is filed . If the State, at the time the application is made, has not yet deemed it proper to release the property for alienation or disposition, the presumption is that the government is still reserving the right to utilize the property; hence, the need to preserve its ownership in the State irrespective of the length of adverse possession even if in good faith. However, if the property has already been classified as alienable and disposable, as it is in this case, then there is already an intention on the part of the State to abdicate its exclusive prerogative over the property. xxx This case is distinguishable from Bracewell v. Court of Appeals, wherein the Court noted that while the claimant had been in possession since 1908, it was only in 1972 that the lands in question were classified as alienable and disposable. Thus, the bid at registration therein did not succeed. InBracewell, the claimant had filed his application in 1963, or nine (9) years before the property was declared alienable and disposable. Thus, in this case, where the application was made years after the property had been certified as alienable and disposable, the Bracewell ruling does not apply.

As it did in Naguit, the present ponencia as well discredits Bracewell. It does the same withRepublic v. Herbieto[26] that came after Naguit and should have therefore overtaken the Naguitruling. In the process, the ponencia cites with

approval the ruling in Republic v. Ceniza,[27] penned by the same ponente who wrote Bracewell. While the ponencia takes pains to compare these cases, it however completely misses the point from the perspective of whether possession of public lands classified as alienable and disposable afterJune 12, 1945 should be credited for purposes of a grant under Section 48(b) of the PLA, and of registration under Section 14(1) of the PRD. These cases, as analyzed by the ponencia, merely granted or denied registration on the basis of whether the public land has been classified as alienable and disposable at the time the petition for registration was filed. Thus, except for Naguit, these cases can be cited only as instances when registration was denied or granted despite the classification of the land as alienable after June 12, 1945. The ruling in Naguit is excepted because, as shown in the quotation above, this is one case that explained why possession prior to the classification of public land as alienable should be credited in favor of the possessor who filed his or her application for registration after the classification of the land as alienable and disposable, but where such classification occurred after June 12, 1945. Closely analyzed, the rulings in Naguit that the ponencia relied upon are its statutory construction interpretation of Section 48(b) of the PLA and the observed ABSURDITY of using June 12, 1945 as the cut-off point for the classification. Five very basic reasons compel me to strongly disagree with Naguit and its reasons. First. The constitutional and statutory reasons. The Constitution classifies public lands into agricultural, mineral, and timber. Of these, only agricultural lands can be alienated.[28] Without the requisite classification, there can be no basis

to determine which lands of the public domain are alienable and which are not; hence, classification is a constitutionally-required step whose importance should be given full legal recognition and effect. Otherwise stated, without classification into disposable agricultural land, the land forms part of the mass of the public domain that, not being agricultural, must be mineral or timber land that are completely inalienable and as such cannot be possessed with legal effects. To allow effective possession is to do violence to the regalian doctrine; the ownership and control that the doctrine denotes will be less than full if the possession that should be with the State as owner, but is elsewhere without any authority, can anyway be recognized. From the perspective of the PLA under which grant can be claimed under its Section 48(b), it is very important to note that this law does not apply until a classification into alienable and disposable land of the public domain is made. If the PLA does not apply prior to a public lands classification as alienable and disposable, how can possession under its Section 48(b) be claimed prior such classification? There can simply be no imperfect title to be confirmed over lands not yet classified as disposable or alienable because, in the absence of such classification, the land remains unclassified public land that fully belongs to the State. This is fully supported by Sections 6, 7, 8, 9, and 10 of CA 141. [29] If the land is either mineral or timber and can never be the subject of administration and disposition, it defies legal logic to allow the possession of these unclassified lands to produce legal effect. Thus, the classification of public land as alienable and disposable is inextricably linked to effective possession that can ripen into a claim under Section 48(b) of the PLA. Second. The Civil Code reason. Possession is essentially a civil law term that can best be understood in terms of the Civil Code in the absence of any specific definition in the PLA other than in terms of time of possession. [30] Article 530 of the Civil Code provides that [O]nly things and rights which are

susceptible of being appropriated may be the object of possession. Prior to the declaration of alienability, a land of the public domain cannot be appropriated; hence, any claimed possession cannot have legal effects. This perspective fully complements what has been said above under the constitutional and PLA reasons. It confirms, too, that the critical difference the ponenciasaw in the Bracewell and Naguit situations does not really exist. Whether an application for registration is filed before or after the declaration of alienability becomes immaterial if, in one as in the other, no effective possession can be recognized prior to the declaration of alienability. Third. Statutory construction and the cut-off date June 12,

1945. The ponencia assumes, based on its statutory construction reasoning and its reading of Section 48(b) of the PLA, that all that the law requires is possession from June 12, 1945 and that it suffices if the land has been classified as alienable at the time of application for registration. As heretofore discussed, this cut-off date was painstakingly set by law and should be given full significance. Its full import appears from PD 1073 that amended Section 48(b), whose exact wordings state:
SECTION 4. The provisions of Section 48(b) and Section 48(c), Chapter VIII of the Public Land Act are hereby amended in the sense that these provisions shall apply only to alienable and disposable lands of the public domain which have been in open, continuous, exclusive and notorious possession and occupation by the applicant himself or thru his predecessor-in-interest, under a bona fide claim of acquisition of ownership, since June 12, 1945.

Under this formulation, it appears clear that PD 1073 did not expressly state what Section 48(b) should provide under the amendment PD 1073 introduced in terms of the exact wording of the amended Section 48(b). But under the PD 1073 formulation, the intent to count the alienability toJune 12, 1945 appears very clear. The provision applies only to alienable and disposable lands of the public domain that is described in terms of the character of the possession required since June 12, 1945. This intent seen in the direct, continuous and seamless

linking of the alienable and disposable lands of the public domain to June 12, 1945 under the wording of the Decree is clear and should be respected. Fourth. Other Modes of Acquisition of lands under the

PLA. Naguits absurdity argument that the ponencia effectively adopted is more apparent than real, since the use of June 12, 1945 as cut-off date for the declaration of alienability will not render the grant of alienable public lands out of reach. The acquisition of ownership and title may still be obtained by other modes under the PLA. Among other laws, RA 6940, mentioned above, now allows the use of free patents.[31] It was approved on March 28, 1990; hence, counting 30 years backwards, possession since April 1960 or thereabouts may qualify a possessor to apply for a free patent. The administrative modes provided under Section 11 of the PLA are also open, particularly, homestead settlement and sales. Fifth. Addressing the wisdom the absurdity of the law. This Court acts beyond the limits of the constitutionally-mandated separation of powers in giving Section 48(b), as amended by PD 1073, an interpretation beyond its plain wording. Even this Court cannot read into the law an intent that is not there even your purpose is to avoid an absurd situation. If we feel that a law already has absurd effects because of the passage of time, our role under the principle of separation of powers is not to give the law an interpretation that is not there in order to avoid the perceived absurdity. We thereby dip into the realm of policy a role delegated by the Constitution to the Legislature. If only for this reason, we should avoid expanding through Naguit and the present ponencia the plain meaning of Section 48(b) of the PLA, as amended by PD 1073. In standing by Naguit, the ponencia pointedly discredits the ruling in Herbieto; it is, allegedly, either an incorrect ruling or an obiter dictum. As to legal correctness, Herbieto is in full accord with what we have stated above; hence, it cannot be dismissed off-hand as an incorrect ruling. Likewise, its ruling on the

lack of effective legal possession prior to the classification of a public land as alienable and disposable cannot strictly be obiter because it responded to an issue directly raised by the parties. Admittedly, its ruling on jurisdictional grounds could have fully resolved the case, but it cannot be faulted if it went beyond this threshold issue into the merits of the claim of effective possession prior to the classification of the land as alienable and disposable. To be sure, Herbieto has more to it than the Naguit ruling that

the ponencia passes off as the established and definitive rule on possession under Section 14(1) of the PRD. There, too, is the undeniable reason that no definitive ruling touching on Section 14(1) can be deemed to have been established in the present case since the applicant Heirs could only prove possession up to 1948. For this reason, the ponencia falls back on and examines Section 14(2) of the PRD. In short, if there is a perfect example of a ruling that is not necessary for the resolution of a case, that unnecessary ruling is the ponencias ruling that Naguit is now the established rule.

Section 14(2) Section 14(2), by its express terms, applies only to private lands. Thus, on plain reading, it does not apply to alienable and disposable lands of the public domain that Section 14(1) covers. This is the difference between Sections 14(1) and 14(2). The ponencia, as originally formulated, saw a way of expanding the coverage of Section 14(2)via the Civil Code by directly applying civil law provisions on prescription on alienable and disposable lands of the public

domain. To quote the obiter dictum in Naguit that the ponencia wishes to enshrine as the definitive rule and leading case on Sections 14(1) and 14(2):[32]
Prescription is one of the modes of acquiring ownership under the Civil Code. There is a consistent jurisprudential rule that properties classified as alienable public land may be converted into private property by reason of open, continuous and exclusive possession of at least thirty (30) years. With such conversion, such property may now fall within the contemplation of private lands under Section 14(2), and thus susceptible to registration by those who have acquired ownership through prescription. Thus, even if possession of the alienable public land commenced on a date later than June 12, 1945, and such possession being open, continuous and exclusive, then the possessor may have the right to register the land by virtue of Section 14(2) of the Property Registration Decree.

The ponencia then posits that Article 1113 of the Civil Code should be considered in the interpretation of Section 14(2). Article 1113 of the Civil Code provides:
All things which are within the commerce of men are susceptible of prescription, unless otherwise provided. Property of the State or any of its subdivisions not patrimonial in character shall not be the object of prescription.

The application of Article 1113 assumes, of course, that (1) the Civil Code fully applies to alienable and disposable lands of the public domain; (2) assuming that the Civil Code fully applies, these properties are patrimonial and are therefore private property; and (3) assuming that the Civil Code fully applies, that these properties are within the commerce of men and can be acquired through prescription. I find the Naguit obiter to be questionable because of the above assumptions and its direct application of prescription under Section 14(2) to alienable or disposable lands of the public domain. This Section becomes relevant only once the ownership of an alienable and disposable land of the public domain vests in the occupant or possessor pursuant to the terms of Section 48(b) of the

PLA, with or without judicial confirmation of title, so that the land has become a private land. At that point, Section 14(2) becomes fully operational on what had once been an alienable and disposable land of the public domain. Hierarchy of Law in Reading PRDs Section 14(2)

The hierarchy of laws governing the lands of the public domain is clear from Article XII, Section 3 of the Constitution. There are matters that the Constitution itself provides for, and some that are left for Congress to deal with. Thus, under Section 3, the Constitution took it upon itself to classify lands of the public domain, and to state that only agricultural lands may be alienable lands of the public domain. It also laid down the terms under which lands of the public domain may be leased by corporations and individuals. At the same time, it delegated to Congress the authority to classify agricultural lands of the public domain according to the uses to which they may be devoted. Congress likewise determines, by law, the size of the lands of the public domain that may be acquired, developed, held or leased, and the conditions therefor. In acting on the delegation, Congress is given the choice on how it will act, specifically, whether it will pass a general or a special law. On alienable and disposable lands of the public domain, Congress has, from the very beginning, acted through the medium of a special law , specifically, through the Public Land Act that by its terms shall apply to the lands of the public domain; but timber and mineral lands shall be governed by special laws. Notably, the Act goes on to provide that nothing in it shall be understood or construed to change or modify the administration and disposition of the lands commonly called friar lands and those which, being privately owned, have reverted to or become

property of the Commonwealth of the Philippines, which administration and disposition shall be governed by laws at present in force or which may hereafter be enacted.[33] Under these terms, the PLA can be seen to be a very specific act whose coverage extends only to lands of the public domain; in this sense, it is a special law on that subject. In contrast, the Civil Code is a general law that covers general rules on the effect and application of laws and human relations; persons and family relations; property and property relations; the different modes of acquiring ownership; and obligations and contracts.[34] Its general nature is best appreciated when in its Article 18, it provides that: In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. The Civil Code has the same relationship with the PRD with respect to the latters special focus land registration and fully applies civil law provisions in so far only as they are allowed by the PRD. One such case where the Civil Code is expressly allowed to apply is in the case of Section 14(2) of the PRD which calls for the application of prescription under existing laws. As already explained above, the PLA and the PRD have their own specific purposes and are supreme within their own spheres, subject only to what the higher Constitution provides. Thus, the PRD must defer to what the PLA provides when the matter to be registered is an alienable and disposable land of the public domain. Application of the Civil Code In its Book II, the Civil Code has very clear rules on property, including State property. It classifies property as either of public dominion or of private ownership,[35] and property for public use, public service and those for the

development of the national wealth as property of the public dominion. [36] All property not so characterized are patrimonial property of the State[37] which are susceptible to private ownership,[38] against which prescription will run.[39] In reading all these provisions, it should not be overlooked that they refer to the properties of the State in general, i.e., to both movable and immovable properties.[40] Thus, the Civil Code provisions on property do not refer to land alone, much less do they refer solely to alienable and disposable lands of the public domain. For this specie of land, the PLA is the special governing law and, under the Civil Code itself, the Civil Code provisions shall apply only in case of deficiency.[41] This conclusion gives rise to the question can alienable and disposable lands of the public domain at the same time be patrimonial property of the State because they are not for public use, public purpose, and for the development of national wealth? The answer to this question can be found, among others, in the interaction discussed above between the PLA and PRD, on the one hand, and the Civil Code, on the other, and will depend on the purpose for which an answer is necessary. If, as in the present case, the purpose is to determine whether a grant or disposition of an alienable and disposable land of the public domain has been made, then the PLA primarily applies and the Civil Code applies only suppletorily. The possession and occupation that the PLA recognizes is based on its Section 48(b) and, until the requirements of this Section are satisfied, the alienable and disposable land of the public domain remains a State property that can be disposed only under the terms of Section 11 of the PLA. In the face of this legal reality, the question of whether for purposes of prescription an alienable and disposable land of the public domain is patrimonial or not becomes

immaterial; a public land, even if alienable and disposable, is State property and prescription does not run against the State.[42] In other words, there is no room for any hairsplitting that would allow the inapplicable concept of prescription under the Civil Code to be directly applied to an alienable and disposable land of the public domain before this land satisfies the terms of a grant under Section 48(b) of the PLA. Given this conclusion, any further discussion of the patrimonial character of alienable and disposable public lands under the norms of the Civil Code is rendered moot and academic. From the prism of the overriding regalian doctrine that all lands of the public domain are owned by the State, an applicant for land registration invoking Section 14(2) of the PRD to support his claim must first clearly show that the land has been withdrawn from the public domain through an express and positive act of the government.[43] A clear express governmental grant or act withdrawing a particular land from the mass of the public domain is provided both in the old and the prevailing Public Land Acts. These laws invariably provide that compliance with the required possession of agricultural public land (under the first and second PLAs) or alienable and disposable land of the public domain (under the prevailing PLA) in the manner and duration provided by law is equivalent to a government grant. Thus, the land ipso jurebecomes private land. It is only at that point that the private land requirement of Section 14(2) materializes.[44] Prescription In my original Dissent (in response to the original ponencia), I discussed ordinary acquisitive prescription as an academic exercise to leave no stone

unturned in rejecting the ponencias original conclusion that prescription directly applies to alienable and disposable lands of the public domain under Section 14(2) of the PRD. I am happy to note that the present ponencia has adopted, albeit without any attribution, part of my original academic discussion on the application of the Civil Code, particularly on the subjects of patrimonial property of the State and prescription. Specifically, I posited assuming arguendo that the Civil Code applies that the classification of a public land as alienable and disposable does not per se signify that the land is patrimonial under the Civil Code since property, to be patrimonial, must not be for public use, for public purpose or for the development of national wealth. Something more must be done or shown beyond the fact of classification. The ponencia now concedes that [T]here must also be an express government manifestation that the property is already patrimonial or no longer retained for public use or the development of the national wealth, under Article 422 of the Civil Code. And only when the property has become patrimonial can the prescriptive period for the acquisition of property of the public domain begin to run. I agree with this statement as it describes a clear case when the property has become private by the governments own declaration so that prescription under the Civil Code can run. Note in this regard that there is no inconsistency between this conclusion and the hierarchy of laws on lands of the public domain that I expounded on. To reiterate, the PLA applies as a special and primary law when a public land is classified as alienable and disposable, and remains fully and exclusively applicable until the State itself expressly declares that the land now qualifies as a patrimonial property. At that point, the application of the Civil Code and its law on prescription are triggered. The application of Section 14(2) of the PRD follows.

To summarize, I submit in this Concurring and Dissenting Opinion that: 1. The hierarchy of laws on public domain must be given full application in considering lands of the public domain. Top consideration should be accorded to the Philippine Constitution, particularly its Article XII, followed by the consideration of applicable special laws the PLA and the PRD, insofar as this Decree applies to lands of the public domain. The Civil Code and other general laws apply to the extent expressly called for by the primary laws or to supply any of the latters deficiencies. 2. The ruling in this ponencia and in Naguit that the classification of public lands as alienable and disposable does not need to date back to June 12, 1945 at the latest, is wrong because: a. Under the Constitutions regalian doctrine, classification is a required step whose full import should be given full effect and recognition; giving legal effect to possession prior to classification runs counter to the regalian doctrine. b. The Public Land Act applies only from the time a public land is classified as alienable and disposable; thus, Section 48(b) of this law and the possession it requires cannot be recognized prior to any classification. c. Under the Civil Code, [O]nly things and rights which are susceptible of being appropriated may be the object of possession. Prior to the classification of a public land as alienable and disposable, a land of the public domain cannot be appropriated; hence, any claimed possession cannot have legal effects.

d. There are other modes of acquiring alienable and disposable lands of the public domain under the Public Land Act; this legal reality renders the ponencias absurdity argument misplaced. e. The alleged absurdity of the law addresses the wisdom of the law and is a matter for the Legislature, not for this Court, to address. Consequently, Naguit must be abandoned and rejected for being based on legallyflawed premises and for being an aberration in land registration jurisprudence. At the very least, the present ponencia cannot be viewed as an authority on the effective possession prior to classification since this ruling, by the ponencias own admission, is not necessary for the resolution of the present case.

ARTURO D. BRION Associate Justice

[1] [2]

G.R. No. 144507, January 17, 2005, 442 SCRA 445. Commonwealth Act No. 141, as amended (CA 141). [3] See Collado v. Court of Appeals, G. R. No. 107764, October 4, 2002, 390 SCRA 343. [4] CONSTITUTION, Article XII, Section 2. [5] See Republic v. Herbieto, G. R. No. 156117, May 26, 2005, 459 SCRA 182. [6] Presidential Decree (PD) No. 1529, amending Act No. 496 that originally brought the Torrens system into the Philippines in 1903. [7] Substantive law is that which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action, that part of the law which courts are established to administer, as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtain redress for their invasion (Primicias v. Ocampo, 93 Phil. 446.) It is the nature and the purpose of the law which determines whether it is substantive or procedural, and not its place in the statute, or its inclusion in a code ( Regalado, Remedial Law Compendium, Volume I [Ninth Revised Edition], p. 19). Note that Section 55 of the PLA refers to the Land Registration Act (the predecessor law of the PRD) on how the Torrens title may be obtained. [8] CIVIL CODE, Book II (Property, Ownership and its Modifications), Articles 415-711. [9] CIVIL CODE, Book III (Different Modes of Acquiring Ownership), Articles 1106-1155. [10] See the consolidated cases of The Secretary of the Department of Environment and Natural Resources v. Yap , G.R. No. 167707 and Sacay v. The Secretary of the Department of Environment and Natural Resources , G.R. No. 173775, jointly decided on October 8, 2008 (the Boracay cases). [11] CIVIL CODE, Article 18. [12] Director of Lands and Director of Forest Development v. Intermediate Appellate Court and J. Antonio Araneta, G.R. No. 73246, March 2, 1993, 219 SCRA 339.

[13] [14]

See the Boracay cases, supra note 8. See the opinion of Justice Reynato S. Puno (now Chief Justice) in Cruz v. Secretary of the Department of Environment and Natural Resources (G.R. No. 135385, December 6, 2000, 347 SCRA 128) quoted in Collado (supra note 2). [15] Enunciated in the old case of Susi v. Razon and Director of Lands , 48 Phil. 424 (1925); See Abejaron v. Nabasa, cited on p. 10 of this Dissent. [16] PLA, Sections 49-56; the reference to the Land Registration Act (Act No. 496) should now be understood to mean the PRD which repealed Act 496. [17] An Act to Amend Subsection (b) of Section Forty Eight of Commonwealth Act Numbered One Hundred Forty One, otherwise known as the The Public Land Act. [18] Extending the Period of Filing Applications for Administrative Legislation (Free Patent) and Judicial Confirmation of Imperfect and Incomplete Titles to Alienable and Disposable Lands in the Public Domain Under Chapter VII and Chapter VIII of Commonwealth Act No. 141, As Amended, For Eleven (11) Years Commencing January 1, 1977. [19] G.R. No. 84831, June 20, 2001, 359 SCRA 47. [20] Discontinuance of the Spanish Mortgage System of Registration and of the Use of Spanish Titles as Evidence in Land Registration Proceedings. [21] Section 1of PD 892 states: SECTION 1. The system of registration under the Spanish Mortgage Law is discontinued, and all lands recorded under said system which are not yet covered by Torrens title shall be considered as unregistered lands. All holders of Spanish titles or grants should apply for registration of their lands under Act No. 496, otherwise known as the Land Registration Act, within six (6) months from the effectivity of this decree. Thereafter, Spanish titles cannot be used as evidence of land ownership in any registration proceedings under the Torrens system. Hereafter, all instruments affecting lands originally registered under the Spanish Mortgage Law may be recorded under Section 194 of the Revised Administrative Code, as amended by Act. 3344. An Act Granting a Period ending on December 31, 2000 for Filing Applications for Free Patent and Judicial Confirmation of Imperfect Title to Alienable and Disposable Lands of the Public Domain under Chapters VII and VIII of the Public Land Act (CA 141, as amended). R.A. No. 9176, Section 2. See pp. 14-15 of the ponencia. Supra note 1. G.R. No. 156117, May 26, 2005, 459 SCRA 183, 201-202. 440 Phil. 697 (2002); penned by Mme. Justice Consuelo Ynares-Santiago. CONSTITUTION, Article XII, Section 2. SECTION 6. The President, upon the recommendation of the Secretary of Agriculture and Commerce, shall from time to time classify the lands of the public domain into (a) Alienable or disposable, (b) Timber, and (c) Mineral lands, and may at any time and in a like manner transfer such lands from one class to another, for the purposes of their administration and disposition. SECTION 7. For the purposes of the administration and disposition of alienable or disposable public lands, the President, upon recommendation by the Secretary of Agriculture and Commerce, shall from time to time declare what lands are open to disposition or concession under this Act . SECTION 8. Only those lands shall be declared open to disposition or concession which have been officially delimited and classified and, when practicable, surveyed, and which have not been reserved for public or quasi-public uses, nor appropriated by the Government, nor in any manner become private property, nor those

[22]

[23] [24] [25] [26] [27] [28] [29]

on which a private right authorized and recognized by this Act or any other valid law may be claimed, or which, having been reserved or appropriated, have ceased to be so. However, the President may, for reasons of public interest, declare lands of the public domain open to disposition before the same have had their boundaries established or been surveyed, or may, for the same reason, suspend their concession or disposition until they are again declared open to concession or disposition by proclamation duly published or by Act of the National Assembly. SECTION 9. For the purpose of their administration and disposition, the lands of the public domain alienable or open to disposition shall be classified, according to the use or purposes to which such lands are destined, as follows: (a) Agricultural; (b) Residential, commercial, industrial, or for similar productive purposes; (c) Educational, charitable, or other similar purposes; (d) Reservations for town sites and for public and quasi-public uses. The President, upon recommendation by the Secretary of Agriculture and Commerce, shall from time to time make the classifications provided for in this section, and may, at any time and in a similar manner, transfer lands from one class to another. SECTION 10. The words "alienation," "disposition," or "concession" as used in this Act, shall mean any of the methods authorized by this Act for the acquisition, lease, use, or benefit of the lands of the public domain other than timber or mineral lands. [30] See: Article 18, Civil Code. [31] See: pp. 10-11 of this Dissent. [32] See p. 20 of the ponencia. [33] CA 141, Section 2. [34] These are the Introductory Chapters and Books I to IV of the Civil Code. [35] CIVIL CODE, Article 419. [36] Id.., Article 420. [37] Id.., Article 421. [38] Id.., Article 425. [39] Id.., Article 1108. [40] Article 415 of the Civil Code defines immovable property, while Article 416 defines movable property. [41] CIVIL CODE, Article 18. [42] Id.., Article 1108. [43] Supra note 10, Director of Lands v. Intermediate Appellate Court. [44] At this point, prescription can be invoked, not by the occupant/possessor who now owns the land in his private capacity, but against the new owner by whomsoever shall then occupy the land and comply with the ordinary or extraordinary prescription that the Civil Code ordains. This assumes that the new owner has not placed the land under the Torrens system; otherwise, indefeasibility and imprescriptibility would set in.