Reengineering Land Administration in the Philippines: A Policy Brief April 2010

Solomon Lumba

“Land is the foundation of the State.” – Mo Tun

Definition. Land administration is the process of gathering, recording and disseminating information about the ownership, value and use of land and its associated resources. Such process includes the adjudication of rights in relation thereto.

Purpose. Land administration exists for a purpose, which is to achieve specific policy objectives of the government. Traditionally, the policy objective has been simply to delineate property rights. However, in modern times, the objectives have diversified as the functions of government have evolved. In the Philippine context, these objectives will include the creation of a land market, land reform, environmental protection, recognition and promotion of the rights of indigenous cultural communities, and efficient resource allocation and management. All of these are interrelated and fall under the general rubric of good governance and sustainable development.

Information. The main product or commodity of a system of land administration system is information. As a commodity, it should be tailor-made to fit all the needs of the various stakeholders in a timely manner. The stakeholders are those who generate or use the information because either they implement, are substantially affected by, or are interested in the specific policy objectives involved.

In the Philippine context, they include property holders, local and foreign

investors, landlords, tenants, real estate developers, indigenous cultural communities, NGOs, interest groups, the academe, and government instrumentalities and agencies such as the DENR, DAR, LRA, NCIP, BIR, DOF, LBP, NAMRIA, HLURB, and the local governments. For example, in order to incentivize the creation of a land market, information on the economic characteristics of the land must be readily available to local and foreign investors in a form susceptible of easy commodification.

Since these policy objectives are interrelated, the information pertaining to

them are also necessarily interrelated. Thus, the needs of modern governance require that the information be: (1) corporatized or readily available to all stakeholders and not treated as the domain of any government agency; and (2) integrated through decision maps which overlay all the available information on land and associated resources so that stakeholders have all the relevant information at hand for decision making.

The Fundamental Problem. In the intelligence community, there is what is

called the intelligence cycle consisting of direction, collection, processing, analysis, dissemination and feedback. The most fundamental problem of Philippine land administration is that it does not possess all the information needed to completely

delineate property rights of the government and private persons in the country. It is the most fundamental problem since the other policy objects cannot be achieved without resolving this one first. It represents a failure of intelligence which can be traced to the very beginning of the intelligence cycle – direction and collection. Hereunder are a few illustrations to paint the broad outlines of this problem:

1. Around 4% or 1.1 million hectares of the country’s 30 million hectares are

yet unclassified. This includes the entire Quezon City, one of the most highly urbanized cities in the country. Under the law, unclassified lands are considered as forest lands. Moreover, they are owned by the State and cannot be alienated to private persons. Therefore, absurd though it may seem, it stands to argue that there are no private lands in Quezon City. A breakdown per region of the status of land classification as of December 2000 is shown in the table below:

Region Land Area A & D % Forest Land

% Unclassified %

CAR 1,829,368 350,099 19.14 1,471,164 80.42 8,105 0.44

NCR 63,600 48,232 75.84 628 0.99 14,740 23.18

1 1,284,019 810,899 63.15 442,826 34.49 30,271 2.36

2 2,683,758 965,965 35.99 1,711,543 63.77 6,250 0.23

3 1,823,082 1,051,908 57.70 744,300 40.83 26,874 1.47

4 4,692,416 2,172,866 46.31 1,995,284 42.52 524,266 11.17

5 1,763,249 1,222,060 69.31 511,316 29.00 29,873 1.69

6 2,022,311 1,408,782 69.66 611,923 30.26 1,606 0.08

7 1,495,142 959,223 64.16 466,364 31.19 69,555 4.65

8 2,143,169 1,023,715 47.77 1,080,529 50.42 38,925 1.82

9 1,599,734 762,280 47.65 810,611 50.67 26,843 1.68

10 1,403,293 657,100 46.83 703,250 50.11 42,943 3.06

11 2,714,059 1,079,824 39.79 1,518,586 55.95 115,649 4.26

12 1,437,274 546,828 38.05 840,815 58.50 49,631 3.45

CARAGA 1,884,697 542,447 28.78 1,333,336 70.75 8,914 0.47

ARMM 1,160,829 542,827 46.76 523,329 45.08 94,673 8.16

Total 30,000,000.00 14,145,055.00 47.15 14,765,804 49.22 1,089,118 3.63

2. Cadastral surveys are very important in land administration. It is through

these surveys that much of the information on land ownership and use needed for policy purposes are gathered. The country’s first cadastral law was enacted in 1913. To date, of the total 1613 cities and municipalities, only 917 have approved surveys. A breakdown of the status of cadastral survey as of December 2001 is shown in the table below:

LGU Total Approved In Progress Partial Survey Unsurveyed Municipalities 1523 845 325 285 68 Cities 90 72 12 6 0 Total 1613 917 337 291 68

3. Only around 52% or 7 million hectares of A & D lands are titled. To

compound matters, of those titled, there is a proliferation of fake, spurious or double titles which has seriously undermined the integrity of the Torrens system. A breakdown of the status of judicial and administrative titling as of June 2009 is shown in the table below:

Region A & D Judicial % Administrative %

CAR 350,099 8,648.49 2.47 92,776.10 26.50

NCR 48,232 0.00 0.00 6,890.70 14.29

1 810,899 57,954.64 7.15 229,858.48 28.35

2 965,965 37,886.99 3.92 658,491.83 68.17

3 1,051,908 376,058.77 35.75 797,764.61 75.84

4 2,172,866 202,667.78 9.33 721,380.65 33.20

5 1,222,060 96,329.22 7.88 464,091.69 37.98

6 1,408,782 818,616.50 58.11 272,098.43 19.31

7 959,223 61,243.51 6.38 136,120.47 14.19

8 1,023,715 58,678.39 5.73 240,687.23 23.51

9 762,280 55,956.60 7.34 316,345.08 41.50

10 657,100 82,026.42 12.48 518,258.05 78.87

11 1,079,824 38,032.59 3.52 97,150.98 9.00

12 546,828 2,315.13 0.42 188,933.44 34.55

CARAGA/ARMM 1,085,274 36,585.97 3.37 334,412.92 30.81

Total 14,145,055.00 1,933,001.00 13.67 5,075,260.66 35.88

Ostensible Causes. The Land Administration and Management Project

(LAMP) is an inter-agency project led by the DENR in partnership with the LRA and DOF with funding support from the World Bank and the Australian Agency for International Development. Phase 1 of the project started in 1999 and Phase 2 in 2004. Here are some of the causes of the problem identified by the LAMP:

1. Dual titling. The Philippines has a dual system of getting title to land –

judicial and administrative.

2. Multiple agencies. There are at least nineteen (19) agencies involved in land administration leading to an overlap in functions. For instance, the DENR, DAR and NCIP are authorized to conduct land surveys. The DENR and the LRA are authorized to approve subdivision surveys. Several agencies can also issue titles of ownership. The LRA issues original certificates (OCT) of title or transfer (TCT) certificates of title; the DAR issues a certificate of land ownership award (CLOA); the NCIP issues a certificate of ancestral land title or certificate of ancestral domain title (CALT/CADT); and the DENR issues free patents, homestead patents and sales patents.

Analyzing the Ostensible Causes. For the past few years, one of the primary strategies that the government has pursued to address these causes is to propose new legislation. To the government’s thinking perhaps, since these causes happen because existing laws allow them to happen, then the solution is to have new laws modifying or abrogating these existing laws so that they will never happen again. Thus, much hope has been pinned on the Land Administration Reform Act (LARA) currently pending in Congress.

There are two points that this policy brief will make regarding these causes.

First, they are not the real causes of the problem. Second, even if they were, they can be more easily addressed administratively/operationally within the framework of existing rather than through new legislation. Hence, there is no need to tie real time

administrative/operational matters to the legislative cycle. These points are illustrated below.

1. Dual system of registration. Only around 49% or 7 million hectares of A

& D lands are titled. This state of affairs has partly been blamed on the fact that the Philippines has a dual system of registering title to land – judicial and administrative. Under this system, privately-owned lands can only be registered judicially. Since this can entail significant costs in terms of time and resources (fees for surveys, filing, attorneys, etc.), it operates as a disincentive for owners of these lands to have them titled.

However, having a dual system of registration does not prevent all these untitled lands from being titled. This is because under the current law, these untitled lands can be titled en masse if the DENR would only perform its mandate and finish conducting the cadastral surveys and, on the basis thereof, file a case for judicial registration. However, the DENR will not do so because, among others, it considers the existing cadastral law a “dead law”. Thus, to date, only 1613 cities and municipalities, only 917 of the 1613 cities and municipalities have approved surveys, even though the country’s first cadastral law was enacted in 1913. If the concern is that these cadastral cases take a long time to resolve, part of the solution is to sit down with the Supreme Court to assign special courts that will finish these cadastral cases within a set period of time.

In connection with this, it is of interest to note that those running the LAMP

filed a cadastral case in Leyte as a sort of time-motion study to determine how long the judicial process would take. True enough, it confirmed their theory that judicial process is slow. However, those running the program did not explore other initiatives that would expedite the judicial process.

2. Multiple agencies. There is nothing inherently wrong with having multiple agencies involved in land administration. Land and its associated resources are classified differently and have varied aspects, each of which might require a specialized body to exercise regulatory functions. Currently, the LRA has jurisdiction over private lands; the DENR over forest lands and public agricultural lands; the NCIP over forest lands and public agricultural lands which are or might fall part of the ancestral domain/ancestral land; and the DAR over private lands, forest lands and public agricultural lands falling under the agrarian reform program.

While there is a claimed overlap of functions, there is really none. Even if the DENR, DAR and NCIP are all authorized by law to conduct land surveys, or the DENR and the LRA are authorized by law to approve subdivision surveys, or the LRA, DAR, NCIP and the DENR are authorized by law to issue titles, their jurisdictions relate to different kinds of land. If these parallel (but not overlapping functions) becomes a real problem, the President is vested with much discretion under the Administrative Code to rationalize their functions since they are all under him.

Exploring Alternative Solutions. Sometimes, decision makers in government

are wont to look at problems legally, whether as a result of societal conditioning or because the law or the lack thereof serves as a convenient excuse for talking much but

doing nothing. The most fundamental problem of Philippine administrative law does not require a legal solution but an administrative/operational one.

At its core, it is just the proper implementation of all the elements of the

intelligence cycle. This includes consulting all stakeholders to determine the information that must be gathered, collecting the information through cadastral surveys or from available materials or other means, recording the information in a manner that will allow them to be integrated into decision maps, and corporatizing the information through appropriate information systems.

While the steps appear simple, much of the success will depend on human

factors such as the leadership, organizational, technical and people skills of those involved. It might also require the active involvement at the highest levels of executive department to, among others, the sometimes overly territorial behavior of government agencies.