Tuesday, October 23, 2018
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With Due Respect

Who owns Boracay?

The answer to that question may be found in “Secretary of the DENR vs Mayor Yap” (Oct. 8, 2008) which upheld Proclamation No. 1064 (Proc 1064) issued on May 22, 2006, by then President Gloria Macapagal Arroyo which, in turn, classified the entire island of Boracay into 400 hectares of protected or reserved forestland and 628.96 hectares of “alienable and disposable” agricultural land.

Legalese simplified. To this classification should be exempted the pieces of land that have been issued Torrens Certificates of Title, like those “covered by the Original Certificates of Title No. 19502 in the name of the Heirs of Ciriaco S. Tirol … issued on August 7, 1933” (Tirol OCT) and their successors-in-interest — i.e., those who derived their titles via inheritance, sale, donation, or other ways of acquiring private property.

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To understand the decision, let me begin with the “Regalian Doctrine” under which all lands, “not otherwise appearing to be clearly within private ownership” belong to the state. This doctrine originated from the Spanish conquest of our country and continued under the 1935, 1973 and 1987 Constitutions.

However, prior to the effectivity of our three Constitutions, public lands have been acquired privately under the Philippine Bill of 1902 and the Spanish royal decrees and concessions. And thereafter, they have also been privatized in accordance with existing laws, mainly Commonwealth Act 141 as amended (CA 141)  “governing the classification and disposition of lands of the public domain other than timber and mineral lands.”

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Having become private property, these pieces of real estate no longer belong to the state and may no longer be termed “lands of the public domain.”

Four kinds of public lands. Under the 1987 Constitution, “Lands of the public domain are classified into [1] agricultural, [2] forest or timber, [3] mineral lands and [4] national parks.” Of these four, only agricultural land “may be alienated” to and owned by Filipinos.

One of the ways of acquiring ownership of public agricultural land is by complying with the two requisites for the judicial confirmation of imperfect or incomplete title under CA 141: “(1) open, continuous, exclusive, and notorious possession and occupation of the subject land … under a bona fide claim of ownership since time immemorial or from June 12, 1945; and (2) the classification of the land as alienable and disposable…”

Applying these requisites to the cited case of Mayor Yap, the Supreme Court denied the ownership claims of the private parties regardless of the nature and length of their possession because no president, prior to the promulgation of Proc 1064, had issued any edict classifying the subject pieces of land as “alienable and disposable.”

Proc 1064 allows ownership. It further held: “Except for lands already covered by existing titles, Boracay was an unclassified land of the public domain prior to Proclamation No. 1064. Such unclassified lands [were] considered public forest under PD No. 705.”

Moreover, a “forested area … does not lose such classification simply because loggers or settlers may have stripped it of its forest cover… Hence, even if its forest cover has been replaced by beach resorts, restaurants and other commercial establishments, it has not been automatically converted from public forest to alienable public land.”

Having said that, the Court nonetheless ruled: “That Boracay Island was classified as a public forest under PD No. 705 did not bar the Executive from later converting it into agricultural land” as has been done under Proc 1064.

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In sum, except for those portions vested or titled privately under the Torrens System (like the Tirol OCT and its derivatives), the entire island of Boracay is owned by the state. However, pursuant to Proc 1064 and existing laws like CA 141, Filipinos may apply for judicial confirmation of their imperfect or incomplete titles, or for other modes of acquiring lands of the public domain.

Alternatively, I think President Duterte can repeal or modify Proc 1064 and reconvert the public lands in Boracay into a protected forest like PD 705 did, or better still, into a national park that cannot be owned privately.

Comments to chiefjusticepanganiban-@hotmail.com

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TAGS: Artemio V. Panganian, Boracay cleanup, Boracay closure, Gloria Macapagal Arroyo, With Due Respect
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