1
classification has always been construed as referring to those lands that were neither timber
[No. L-630. November 15, 1947]
ALEXANDER A. KRIVENKO, petitioner and appellant, vs. THE REGISTER OF DEEDS, CITY OF
MANILA, respondent and appellee.
1.CONSTITUTIONAL LAW; JUDICIAL POLICY; CONSTITUTIONAL QUESTION SHOULD BE
AVOIDED IF POSSIBLE.—The rule that a court should not pass upon a constitutional question
if its decision may be made to rest upon other grounds, does not mean that to avoid a
constitutional question, the court may decline to decide the case upon the merits. In the
instant case, the only issue is a constitutional question which is unavoidable if the case is to
be decided upon the merits. And the court cannot avoid. rendering its decision simply
because it has to avoid the constitutional question. It cannot, for instance, grant appellant's
motion withdrawing his appeal only because the constitutional issue should be avoided.
Whether that motion should be, or should not be, granted, is a question involving different
considerations.
2.ID.; APPEAL; WITHDRAWAL OF APPEAL DISCRETIONARY UPON THE COURT AFTER BRIEFS
ARE PRESENTED.—Withdrawal of appeal
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
after briefs are presented, may or may not be granted in the discretion of the court, according
to the rules. In the instant case, withdrawal was denied because under the circumstances.
particularly the circular of the Department of Justice issued while this case was pending
before this Court and ordering all registers of deeds to accept for registration all transfers of
residential lots to aliens, together with the circumstance that probably a similar question may
never come up again before this Court, the effect of the withdrawal would be offensive to the
opinion reached by a majority of the members of the Court after long and exhaustive
deliberations on the constitutional question. To allow the withdrawal under such
circumstances is equivalent to tolerating an offense to the constitution, offense which may be
permanent.
3.CLASSIFICATION OF LANDS or THE PUBLIC DOMAIN UNDER THE CONSTITUTION.—When
section 1, Article XIII, of the Constitution, with reference to lands of the public domain, makes
mention of only agricultural, timber and mineral lands, it undoubtedly means that all lands of
the public domain are classified into said three groups, namely, agricultural, timber and
mineral. And this classification finds corroboration in the circumstance that at the time of the
adoption of the Constitution, that was the basic classification existing in the public laws and
judicial decision in the Philippines, and the term "public agricultural lands" under said
nor mineral, and as including residential lands. It may safely be presumed, therefore, that
what the members of the Constitutional Convention had in mind when they drafted the
Constitution was this well-known classification and its technical meaning then prevailing,
There seems to be no question among members of this Court that the phrase "public
agricultural lands" appearing in section 1 of Article XIII of the Constitution includes residential
lands. And this is in conformity with a legislative interpretation given after the adoption of the
Constitution. Well known is the rule that "where the Legislature has revised a statute after a
Constitution has been adopted, such a revision is to be regarded as a legislative construction
that the statute so revised conf forms to the Constitution." Soon after the Constitution was
adopted, the National Assembly revised the Public Land Law and passed Commonwealth Act
No. 141, and sections 58, 59 and 60 thereof permit the sale of residential lots to Filipino
citizens or to associations or corporations controlled by such citizens, which is equivalent to a
solemn declaration that residential lots are considered as agricultural lands, for, under the
Constitution, only agricultural lands may be alienated.
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Krivenko vs. Register of Deeds of Manila
Furthermore, prior to the Constitution, under section 24 of Public Land Act No. 2874, aliens
could acquire public agricultural lands used for industrial or residential purposes, but after
the Constitution and under section 23 of Commonwealth Act No. 141, the right of aliens to
acquire such kind of lands is completely stricken out, undoubtedly in pursuance of the
constitutional limitation. And, again, prior to the Constitution, under section 57 of Public Land
Act No. 2874, land of the public domain suitable for residence or industrial purposes could be
sold or leased to aliens, but after the Constitution and under section 60 of Commonwealth
Act No. 141, such land may only be leased, but not sold, to aliens, and the lease granted shall
only be valid while the land is used for the purposes referred to. The exclusion of sale in the
new Act is undoubtedly in pursuance of the constitutional limitation, and this again is another
legislative construction that the term "public agricultural land" includes land for residence
purposes.
The legislative interpretation is also in harmony with the interpretation given by the Executive
Department of the Government. Way back in 1939, Secretary of Justice Jose Abad Santos
rendered an opinion holding that under the Constitution, the phrase "public agricultural
lands" includes residential lands.
4.PRIVATE AGRICULTURAL LANDS UNDER THE CONSTITUTION.—Under section 1 of Article XIII
of the Constitution, "natural resources, with the exception of public agricultural land, shall
not be alienated," and with respect to public agricultural lands, their alienation is limited to
2
Filipino citizens. But this constitutional purpose of conserving agricultural resources in the
hands of Filipino citizens may easily be def eated by the Filipino citizens themselves who may
transfer their agricultural lands in favor of aliens. It is partly to prevent this result that section
5 is included in Article XIII, which reads: "Save in cases of hereditary succession, no private
agricultural land shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the Philippines." This
constitutional provision closes the only remaining avenue through which agricultural
resources may leak into aliens' hands. It would certainly be futile to prohibit the alienation of
public agricultural lands to aliens if, after all, they may be freely so alienated upon their
becoming private agricultural lands in the hands of Filipino citizens. Undoubtedly, as above
indicated, section 5 is intended to insure the policy of nationalization contained in section 1.
Both sections must, therefore, be read together for they have the same purpose and the
same subject matter. It must be noticed that the persons against whom the prohibition is
directed in section 5 are the very same persons who under section 1 are dis
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
qualified to acquire or hold lands of the public domain in the Philippines. And the subject
matter of both sections is the same, namely, the non-transferability of agricultural land to
aliens. Since "agricultural land" under section 1 includes residential lots, the same technical
meaning should be attached to "agricultural land" under section 5. It is a rule of statutory
construction that a word or phrase repeated in a statute will bear the same meaning
throughout the statute, unless a different intention appears. The only difference between
"agricultural land" under section 1 and "agricultural land" under section 5, is that the former
is public and the latter, private. But such difference refers to ownership and not to the class of
land. The lands are the same in both sections, and, for the conservation of the national
patrimony, what is important is the nature or class of the property regardless of whether it is
owned by the State or by its citizens.
If, as conceded by all the members of this Court, residential lands of the public domain should
be considered as agricultural lands to be protected as part of the national patrimony, there
can be no reason why residential lands of private ownership should not deserve the same
consideration and protection. There is absolutely no difference in nature, character, value or
importance. to the nation between a residential land of the public domain and a residential
land of private ownership, and, therefore, both should equally be considered as agricultural
lands to be protected as part of the national patrimony. Specially is this so where, as indicated
above, the prohibition as to the alienation of public residential lots may become superfluous
if the same prohibition is not equally applied to private residential lots. Indeed, the
prohibition as to private residential lands will eventually become more important, for time
will come when, in view of the constant disposition of public lands in favor of private
individuals, almost all, if not all, the residential lands of the public domain shall have become
private residential lands.
The constitutional intent is made more patent and is strongly implemented by an Act of the
National Assembly passed soon after the Constitution was approved. We are referring again
to Commonwealth Act No. 141. Prior to the Constitution, there Were in the Public Land Act
No. 2874 provisions contained in sections 120 and 121 thereof which granted to aliens the
right to acquire private agricultural lands only by way of reciprocity. Then came the
Constitution, and Commonwealth Act No. 141 was passed containing sections 122 and 123
which strike out completely the right of reciprocity granted to aliens. This, undoubtedly, is to
conform to the absolute policy contained in section 5 of Article XIII of the Constitution, which,
in prohibiting
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VOL. 79, NOVEMBER 15, 1947
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Krivenko vs. Register of Deeds of Manila
the alienation of private agricultural lands to aliens, grants them no right of reciprocity.
5.EFFECT UPON THE SPIRIT OF THE CONSTITUTION OF NOT CONSIDERING RESIDENTIAL
LANDS AS AGRICULTURAL LANDS.—If the term "private agricultural lands" is to be construed
as not including residential lots or lands not strictly agricultural, the result would be that
aliens may freely acquire and possess not only residential lots and houses for themselves but
entire subdivisions, and whole towns and cities, and that they may validly buy and hold in
their names lands of any area for building homes, factories, industrial plants, fisheries,
hatcheries, schools, health and vacation resorts, markets, golf courses, playgrounds, airfields,
and a host of other uses and purposes that are not, in apellant's words, strictly agricultural.
That this is obnoxious to the conservative spirit of the Constitution is beyond question.
APPEAL from a judgment of the Court of First Instance of Manila. De la Rosa, J.
The facts are stated in the opinion of the court.
Gibbs, Gibbs, Chuidian & Quasha for petitioner-appellant.
First Assistant Solicitor General Reyes and Solicitor Carreon for respondent-appellee.
Marcelino Lontok appeared as amicus curiæ.
MORAN, C. J.:
3
Alexander A. Krivenko, alien, bought a residential lot from the Magdalena Estate, Inc., in
December of 1941, the registration of which was interrupted by the war. In May, 1945, he
sought to accomplish said registration but was denied by, the register of deeds of Manila on
the ground that, being an alien, he cannot acquire land in this jurisdiction. Krivenko then
brought the case to the fourth branch of the Court of First Instance of Manila by means of a
consulta, and that court rendered judgment sustaining the refusal of the register of deeds,
from which Krivenko appealed to this Court.
There is no dispute as to these facts. The real point in issue is whether or not an alien under
our Constitution may acquire residential land.
It is said that the decision of the case on the merits is unnecessary, there being a motion to
withdraw the ap-A
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
peal which should have been granted outright, and reference is made to the ruling laid down
by this Court in another case to the effect that a court should not pass upon a constitutional
question if its judgment may be made to rest upon other grounds. There is, we believe, a conf
fusion of ideas in this reasoning. It cannot be denied that the constitutional question is
unavoidable if we choose to decide this case upon the merits. Our judgment cannot to be
made to rest upon other grounds if we have to render any judgment at all. And we cannot
avoid our judgment simply because we have to avoid a constitutional question. We cannot,
for instance, grant the motion withdrawing the appeal only because we wish to evade the
constitutional issue. Whether the motion should be, or should not be, granted, is a question
involving different considerations now to be stated.
According to Rule 52, section 4, of the Rules of Court, it is discretionary upon this Court to
grant a withdrawal of appeal after the briefs have been presented. At the time the motion for
withdrawal was filed in this case, not only had the briefs been presented, but the case had
already been voted and the majority decision was being prepared. The motion for withdrawal
stated no reason whatsoever, and the Solicitor General was agreeable to it. While the motion
was pending in this Court, came the new circular of the Department of Justice, instructing all
register of deeds to accept for registration all transfers of residential lots to aliens. The herein
respondent-appellee was naturally one of the registers of deeds to obey the new circular, as
against his own stand in this case which had been maintained by the trial court and firmly
defended in this Court by the Solicitor General. If we grant the withdrawal, the result would
be that petitioner-appellant Alexander A. Krivenko wins his case, not by a decision of this
Court, but by the decision or circular of the Department of Justice, issued while this case was
pending before this Court. Whether
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VOL. 79, NOVEMBER 15, 1947
467
Krivenko vs. Register of Deeds of Manila,
or not this is the reason why appellant seeks the withdrawal of his appeal and why the
Solicitor General readily agrees to that withdrawal, is now immaterial. What is material and
indeed very important, is whether or not we should allow interference with the regular and
complete exercise by this Court of its constitutional functions, and whether or not after
having held long deliberations and after having reached a clear and positive conviction as to
what the constitutional mandate is, we may still allow our conviction to be silenced, and the
constitutional mandate to be ignored or misconceived, with all the harmful consequences
that might be brought upon the national patrimony. For it is but natural that the new circular
be taken full advantage of by many, with the circumstance that perhaps the constitutional
question may never come up again before this court, because both vendors and the vendees
will have no interest but to uphold the validity of their transactions, and very unlikely will the
register of deeds venture to disobey the orders of their superior. Thus, the possibility for this
court to voice its conviction in a future case may be remote, with the result that our
indifference of today might signify a permanent offense to the Constitution.
All these circumstances were thoroughly considered and weighed by this Court for a number
of days and the legal result of the last vote was a denial of the motion withdrawing the
appeal. We are thus confronted, at this stage of the proceedings, with our duty to decide the
case upon the merits, and by so doing, the constitutional question becomes unavoidable. We
shall then proceed to decide that question.
Article XIII, section 1, of the Constitution is as follows:
"Article XIII.—Conservation and utilization of natural resources.
"SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their disposition, exploitation,
4
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
development, or utilization shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for another twenty-five years, except as to
water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water 'power' in which cases beneficial use may be the measure and the limit
of the grant."
The scope of this constitutional provision, according to its heading and its language, embraces
all lands of any kind of the public domain, its purpose being to establish a permanent and
fundamental policy for the conservation and utilization of all natural resources of the Nation.
When, therefore, this provision, with reference to lands of the public domain, makes mention
of only agricultural, timber and mineral lands, it means that all lands of the public domain are
classified into said three groups, namely, agricultural, timber and mineral. And this
classification finds corroboration in the circumstance that at the time of the adoption of the
Constitution, that was the basic classification existing in the public laws and judicial decisions
in the Philippines, and the term "public agricultural lands" under said classification had then
acquired a technical meaning that was well-known to the members of the Constitutional
Convention who were mostly members of the legal profession.
As early as 1908, in the case of Mapa vs, Insular Government (10 Phil, 175, 182), this Court
said that the phrase "agricultural public lands" as defined in the Act of Congress of July 1,
1902, which phrase is also to be found in several sections of the Public Land Act (No. 926),
means "those public lands acquired from Spain which are neither mineral nor timber lands,"
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VOL. 79, NOVEMBER 15, 1947
469
Krivenko vs. Register of Deeds of Manila
This definition has been followed in a long line of decisions of this Court. (See Montano vs.
Insular Government, 12 Phil., 572; Santiago vs. Insular Government, 12 Phil., 593; Ibañez de
Aldecoa vs. Insular Government, 13 Phil., 159; Ramos vs. Director of Lands, 39 Phil, 175;
Jocson vs. Director of Forestry, 39 Phil., 560; Ankron vs. Government of the Philippines, 40
Phil., 10.) And with respect to residential lands, it has been held that since they are neither
mineral nor timber lands, of necessity they must be classified as agricultural. In Ibañez de
Aldecoa vs. Insular Government (13 Phil., 159, 163), this Court said:
"Hence, any parcel of land or building lot is susceptible of cultivation, and may be converted
into a field, and planted with. all kinds of vegetation; for this reason, where land is not mining
or f forestal in its nature, it must necessarily be included within the classification of
agricultural land, not because it is actually used for the purposes of agriculture, but because it
was originally agricultural and may again become so under other circumstances; besides, the
Act of Congress contains only three classifications, and makes no special provision with
respect to building lots or urban lands that have ceased to be agricultural land."
In other words, the Court ruled that in determining whether a parcel of land is agricultural,
the test is not only whether it is actually agricultural, but also its susceptibility to cultivation
for agricultural purposes. But whatever the test might be, the fact remains that at the time
the Constitution was adopted, lands of the public domain were classified in our laws and
jurisprudence into agricultural, mineral, and timber, and that the term "public agricultural
lands" was construed as referring to those lands that were not timber or mineral, and as
including residential lands. It may safely be presumed, therefore, that what the members of
the Constitutional Convention had in mind when they drafted the Constitution was this well-
known classification and its technical meaning then prevailing.
"Certain expressions which appear in Constitutions, * * * are obviously technical; and where
such words have.been in use prior to
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
the adoption of a Constitution, it is presumed that its framers and the people who ratified it
have used such expressions in accordance with their technical meaning." (11 Am. Jur., sec. 66,
5
p. 688.') Also Calder vs. Bull, 3 Dall. [U. S.], 386; 1 Law. ed., 648; Bronson vs. Syverson, 88
Wash., 264; 152 P., 1039.)
"It is a fundamental rule that, in construing constitutions, terms employed therein shall be
given the meaning which had been put upon them, and which they possessed, at the time of
the framing and adoption of the instrument. If a word has acquired a fixed, technical meaning
in legal and constitutional history, it will be presumed to have been employed in that sense in
a written Constitution." (McKinney vs. Barker, 180 Ky., 526; 203 S. W., 303; L. R. A., 1918E,
581.)
"Where words have been long used in a technical sense and have been judicially construed to
have a certain meaning, and have been adopted by the legislature as having a certain
meaning prior to a particular statute in which they are used, the rule of construction requires
that the words used in such statute should be construed according to the sense in which they
have been so previously used, although the sense may vary from the strict literal meaning of
the words." (II Sutherland, Statutory Construction, p. 758.)
Therefore, the phrase "public agricultural lands" appearing in section 1 of Article XIII of the
Constitution must be construed as including residential lands, and this is in conformity with a
legislative interpretation given after the adoption of the Constitution. Well known is the rule
that "where the Legislature has revised a statute after a Constitution has been adopted, such
a revision is to be regarded as a legislative construction that the statute 80 revised conforms
to the Constitution." (59 C. J., 1102.) Soon after the Constitution was adopted, the National
Assembly revised the Public Land Law and passed Commonwealth Act No. 141, and sections
58, 59 and 60 thereof permit the sale of residential lots to Filipino citizens or to associations
or corporations controlled by such citizens, which is equivalent to a solemn declaration that
residential lots are considered as agricultural lands, for, under the Constitution, only
agricultural lands may be alienated.
It is true that in section 9 of said Commonwealth Act No. 141, "alienable or disposable public
lands" which are
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VOL. 79, NOVEMBER 15, 1947
471
Krivenko vs. Register of Deeds of Manila
the same "public agricultural lands" under the Constitution, are classified into agricultural,
residential, commercial, industrial and for other purposes. This simply means that the term
"public agricultural lands" has both a broad and a particular meaning. "Under its broad or
general meaning, as used in the Constitution, it embraces all lands that are neither timber nor
mineral. This broad meaning is particularized in section 9 of Commonwealth Act No. 141
which classifies "public agricultural lands" for purposes of alienation or disposition, into lands
that are strictly agricultural or actually devoted to cultivation for agricultural purposes; lands
that are residential; commercial; industrial; or lands for other purposes. The fact that these
lands are made alienable or disposable under Commonwealth Act No. 141, in favor of Filipino
citizens, is a conclusive indication of their character as public agricultural lands under said
statute and under the Constitution.
It must be observed, in this connection, that prior to the Constitution, under section 24 of
Public Land Act No. 2874, aliens could acquire public agricultural lands used for industrial or
residential purposes, but after the Constitution and under section 23 of Commonwealth Act
No. 141, the right of aliens to acquire such kind of lands is completely stricken out,
undoubtedly in pursuance of the constitutional limitation. And, again, prior to the
Constitution, under section 57 of Public Land Act No. 2874, land of the public domain suitable
for residence or industrial purposes could be sold or leased to aliens, but after the
Constitution and under section 60 of Commonwealth Act No. 141, such land may only be
leased, but not sold, to aliens, and the lease granted shall only be valid while the land is used
for the purposes referred to. The exclusion of sale in the new Act is undoubtedly in pursuance
of the constitutional limitation, and this again is another legislative construction that the term
"public agricultural land" includes land for residence purposes.
472
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
Such legislative interpretation is also in harmony with the interpretation given by the
Executive Department of the Government. Way back in 1939, Secretary of Justice Jose Abad
Santos, in answer to a query as to "whether or not the phrase 'public agricultural lands' in
section 1 of Article XII (now XIII) of the Constitution may be interpreted to include residential,
commercial, and industrial lands for purposes of their disposition," rendered the following
short, sharp and crystal-clear opinion:
"Section 1, Article XII (now XIII) of the Constitution classifies lands of the public domain in the
Philippines into agricultural, timber and mineral. This is the basic classification adopted since
the enactment of the Act of Congress of July 1, 1902, known as the Philippine Bill. At the time
of the adoption of the Constitution of the Philippines, the term 'agricultural public lands' and,
6
therefore, acquired a technical meaning in our public laws. The Supreme Court of the
Philippines in the leading case of Mapa vs. Insular Government, 10 Phil., 175, held that the
phrase 'agricultural public lands' means those public lands acquired from Spain which are
neither timber nor mineral lands. This definition has been followed by our Supreme Court in
many subsequent cases. * *
"Residential, commercial, or industrial lots forming part of the public domain must have to be
included in one or more of these classes. Clearly, they are neither timber nor mineral, of
necessity, therefore, they must be classified as agricultural.
"Viewed from another angle, it has been held that in determining whether lands are
agricultural or not, the character of the land is the test (Odell vs. Durant, 62 N. W., 524; Lorch
vs. Missoula Brick & Tile Co., 123 p. 25). In other words, it is the susceptibility of the land to
cultivation for agricultural purposes by ordinary farming methods which determines whether
it is agricultural or not (State vs. Stewart, 190 p. 129).
"Furthermore, as said by the Director of Lands, no reason is seen why a piece of land, which
may be sold to a person if he is to devote it to agricultural, cannot be sold to him if he intends
to use it as a site for his home."
This opinion is important not alone because it comes from a Secretary of Justice who later
became the Chief Justice of this Court, but also because it was rendered by a member of the
cabinet of the late President Quezon who actively participated in the drafting of the
constitutional provision under consideration. (2 Aruego,
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VOL. 79, NOVEMBER 15, 1947
473
Krivenko vs. Register of Deeds of Manila
Framing of the Philippine Constitution, p. 598.) And the opinion of the Quezon administration
was reiterated by the Secretary of Justice under the Osmeña administration, and it was firmly
maintained in this Court by the Solicitor General of both administrations.
It is thus clear that the three great departments of the Government—judicial, legislative and
executive—have always maintained that lands of the public domain are classified into
agricultural, mineral and timber, and that agricultural lands include residential lots.
Under section 1 of Article XIII of the Constitution, "natural resources, with the exception of
public agricultural land, shall not be alienated," and with respect to public agricultural lands,
their alienation is limited to Filipino citizens. But this constitutional purpose conserving
agricultural resources in the hands of Filipino citizens may easily be defeated by the Filipino
citizens themselves who may alienate their agricultural lands in favor of aliens. It is partly to
prevent this result that section 5 is included in Article XIII, and it reads as follows:
"Sec. 5. Save in cases of hereditary succession, no private agricultural land will be transferred
or assigned except to individuals, corporations, or associations qualified to acquire or hold
lands of the public domain in the Philippines."
This constitutional provision closes the only remaining avenue through which agricultural
resources may leak into aliens' hands. It would certainly be futile to prohibit the alienation of
public agricultural lands to aliens if, after all, they may be freely so alienated upon their
becoming private agricultural lands in the hands of Filipino citizens. Undoubtedly, as above
indicated, section 5 is intended to insure the policy of nationalization contained in section 1.
Both sections must, therefore, be read together for they have the same purpose and the
same subject matter. It must be noticed that the persons against whom the prohibition is
directed in section 5 are the very same persons who under section 1 are disqualified "to
acquire or hold lands of the public
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
domain in the Philippines." And the subject matter of both sections is the same, namely, the
non transferability of "agricultural land" to aliens. Since "agricultural land" under section 1
includes residential lots, the same technical meaning should be attached to "agricultural
land" under section 5. It is a rule of statutory construction that "a word or phrase repeated in
a statute will bear the same meaning throughout the statute, unless a different intention
appears." (II Sutherland, Statutory Construction, p. 758.) The only difference between
"agricultural land" under section 1, and "agricultural land" under section 5, is that the former
is public and the latter private. But such difference refers to ownership and not to the class of
land. The lands are the same in both sections, and, for the conservation of the national
patrimony, what is important is the nature or class of the property regardless of whether it is
owned by the State or by its citizens.
7
Reference is made to an opinion rendered on September 19, 1941, by the Hon. Teofilo Sison,
then Secretary of Justice, to the effect that residential lands of the public domain may be
considered as agricultural lands, whereas residential lands of private ownership cannot be so
considered. No reason whatsoever is given in the opinion for such a distinction, and no valid
reason can be adduced for such a discriminatory view, particularly having in mind that the
purpose of the constitutional provision is the conservation of the national patrimony, and
private residential lands are as much an integral part of the national patrimony as the
residential lands of the public domain. Specially is this so where, as indicated above, the
prohibition as to the alienable of public residential lots would become superfluous if the
same prohibition is not equally applied to private residential lots. Indeed, the prohibition as
to private residential lands will eventually become more important, for time will come when,
in view of the constant disposition of public lands in favor of private individuals,
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VOL. 79, NOVEMBER 15, 1947
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Krivenko vs. Register of Deeds of Manila
almost all, if not all, the residential lands of the public domain shall have become private
residential lands.
It is maintained that in the first draft of section 5, the words "no land of private ownership"
were used and later changed into "no agricultural land of private ownership," and lastly into
"no private agricultural land" and from these changes it is argued that the word "agricultural"
introduced in the second and final drafts was intended to limit the meaning of the word
"land" to land actually used for agricultural purposes. The implication is not accurate. The
wording of the first draft was amended for no other purpose than to clarify concepts and
avoid uncertainties. The words "no land" of the first draft, unqualified by the word
"agricultural," may be mistaken to include timber and mineral lands, and since under section
1, this kind of lands can never be private, the prohibition to transfer the same would be
superfluous. Upon the other hand, section 5 had to be drafted in harmony with section 1 to
which it is supplementary, as above indicated. Inasmuch as under section 1, timber and
mineral lands can never be private, and the only lands that may become private are
agricultural lands, the words "no land of private ownership" of the first draft can have no
other meaning than "private agricultural land." And thus the change in the final draft is
merely one of words in order to make its subject matter more specific with a view to avoiding
the possible confusion of ideas that could have arisen from the first draft.
If the term "private agricultural lands" is to be construed as not including residential lots or
lands not strictly agricultural, the result would be that "aliens may freely acquire and possess
not only residential lots and houses for themselves but entire subdivisions, and whole towns
and cities," and that "they may validly buy and hold in their names lands of any area for
building homes, factories, industrial plants, fisheries, hatcheries, schools, health and vacation
resorts, markets, golf courses.
476
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
playgrounds, airfields, and a host of other uses and purposes that are not, in appellant's
words, strictly agricultural." (Solicitor General's Brief, p. 6.) That this is obnoxious to the
conservative spirit of the Constitution is beyond question.
One of the fundamental principles underlying the provision of Article XIII of the Constitution
and which was embodied in the report of the Committee 011 Nationalization and
Preservation of Lands and other Natural Resources of the Constitutional Convention, is "that
lands, minerals, forests, and other natural resources constitute the exclusive heritage of the
Filipino nation. They should, therefore, be preserved for those under the sovereign authority
of that nation and for their posterity." (2 Aruego, Framing of the Filipino Constitution, p. 595.)
Delegate Ledesma, Chairman of the Committee on Agricultural Development of the
Constitutional Convention, in a speech delivered in connection with the national policy on
agricultural lands, said: "The exclusion of aliens from the privilege of acquiring public
agricultural lands and of owning real estate is a necessary part of the Public Land Laws of the
Philippines to keep pace with the idea of preserving the Philippines for the Filipinos." (Italics
ours.) And, of the same tenor was the speech of Delegate Montilla who said: "With the
complete nationalization of our lands and natural resources it is to be understood that our
God-given birthright should be one hundred per cent in Filipino hands * * *. Lands and
natural resources are immovables and as such can be compared to the vital organs of a
person's body, the lack of possession of which may cause instant death or the shortening of
life. * * * If we do not completely nationalize these two of our most important belongings, I
am afraid that the time will come when we shall be sorry for the time we were born. Our
independence will be just a mockery, for what kind of independence are we going to have if a
part of our country is not in our hands but in those of foreigners?" (Italics ours.) Professor
Aruego says
477
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Krivenko vs. Register of Deeds of Manila
that since the opening days of the Constitutional Convention one of its fixed and dominating
objectives was the conservation and nationalization of the natural resources of the country.
(2 Aruego, Framing of the Philippine Constitution, p. 592.) This is ratified by the members of
the Constitutional Convention who are now members of this Court, namely, Mr. Justice
Perfecto, Mr. Justice Briones, and Mr. Justice Hontiveros. And, indeed, if under Article XIV,
section 8, of the Constitution, an alien may not even operate a small jitney for hire, it is
certainly not hard to understand that neither is he allowed to own a piece of land.
This constitutional intent is made more patent and is strongly implemented by an act of the
National Assembly passed soon after the Constitution was approved. We are referring again
to Commonwealth Act No. 141. Prior to the Constitution, there were in the Public Land Act
No. 2874 sections 120 and 121 which granted aliens the right to acquire private lands only by
way of reciprocity. Said section reads as follows:
"SEC. 120. No land originally acquired in any manner under the provisions of this Act, nor any
permanent improvement on such land, shall be encumbered, alienated, or transferred,
except to persons, corporations, associations, or partnerships who may acquire lands of the
public domain under this Act; to corporations organized in the Philippine Islands authorized
therefor by their charters, and, upon express authorization by the Philippine Legislature, to
citizens of countries the laws of which grant to citizens of the Philippine Islands the same
right to acquire, hold, lease, encumber, dispose of, or alienate land, or permanent
improvements thereon, or any interest therein, as to their own citizens, only in the manner
and to the extent specified in such laws, and while the same are in force, but not thereafter.
"SEC. 121. No land originally acquired in any manner under the provisions of the former
Public Land Act or of any other Act, ordinance, royal order, royal decree, or any other
provision of law formerly in force in the Philippine Islands with regard to public lands,
terrenos baldios y realengos, or lands of any other denomination that were actually or
presumptively of the public domain, or by royal grant or in any other form, nor any
permanent improvement on such land, shall be encumbered, alienated, or conveyed, except
to persons, corporations, or associations who may acquire land of the
478
478
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
public domain under this Act; to corporate bodies organized in the Philippine Islands whose
charters may authorize them to do so, and, upon express authorization by the Philippine
Legislature, to citizens of the countries the laws of which grant to citizens of the Philippine
Islands the same right to acquire, hold, lease, encumber, dispose of, or alienate land or
permanent improvements thereon or any interest therein, as to their own citizens, and only
in the manner and to the extent specified in such laws, and while the same are in force, but
not thereafter: Provided, however, That this prohibition shall not be applicable to the
conveyance or acquisition by reason of hereditary succession duly acknowledged and
legalized by competent courts, nor to lands and improvements acquired or held for industrial
or residence purposes, while used for such purposes: Provided, further, That in the event of
the ownership of the lands and improvements mentioned in this section and in the last
preceding section being transferred by judicial decree to persons, corporations or
associations not legally capacitated to acquire the same under the provisions of this Act, such
persons, corporations, or associations shall be obliged to alienate said lands or improvements
to others so capacitated within the precise period 'of five years, under the penalty of such
property reverting to the Government in the contrary case." (Public Land Act, No. 2874.)
It is to be observed that the phrase "no land" used in these section refers to all private lands,
whether strictly agricultural, residential or otherwise, there being practically no private land
which had not been acquired by any of the means provided in said two sections. Therefore,
the prohibition contained in these two provisions was, in effect, that no private land could be
transferred to aliens except "upon express authorization by the Philippine Legislature, to
citizens of countries the laws of which grant to citizens of the Philippine Islands the same
right to acquire, hold, lease, encumber, dispose of, or alienate land." In other words, aliens
were granted the right to acquire private land merely by way of reciprocity. Then came the
Constitution and Commonwealth Act No. 141 was passed, sections 122 and 123 of which
read as follows:
"SEC. 122. No land originally acquired in any manner under the provisions of this Act, nor any
permanent improvement on such land, shall be encumbered, alienated, or transferred,
except to per-
479
VOL. 79, NOVEMBER 15, 1947
479
9
Krivenko vs. Register of Deeds of Manila,
sons, corporations, associations, or partnerships who may acquire lands of the public domain
under this Act or to corporations organized in the Philippines authorized therefor by their
charters. "SEC. 123. No land originally acquired in any manner under the provisions of any
previous Act, ordinance, royal order, royal decree, or any other provision of law formerly in
force in the Philippines with regard to public lands, terrenos baldíos y realengos, or lands of
any other denomination that were actually or presumptively of the public domain, or by royal
grant or in any other form, nor any permanent improvement on such land, shall be
encumbered, alienated, or conveyed, except to persons, corporations or associations who
may acquire land of the public domain under this Act or to corporate bodies organized in the
Philippines whose charters authorize them to do so: Provided, however, That this prohibition
shall not be applicable to the conveyance or acquisition by reason of hereditary succession
duly acknowledged and legalized by competent courts: Provided, further, That in the event of
the ownership of the lands and improvements mentioned in this section and in the last
preceding section being transferred by judicial decree to persons, corporations or
associations not legally capacitated to acquire the same under the provisions of this Act, such
persons, corporations, or associations shall be obliged to alienate said lands or improvements
to others so capacitated within the precise period of five years; otherwise, such property shall
revert to the Government."
These two sections are almost literally the same as sections 120 and 121 of Act No. 2874, the
only difference being that in the new provisions, the right to reciprocity granted to aliens is
completely stricken out. This, undoubtedly, is to conform to the absolute policy contained in
section 5 of Article XIII of the Constitution which, in prohibiting the alienation of private
agricultural lands to aliens, grants them no right of reciprocity. This legislative construction
carries exceptional weight, for prominent members of the National Assembly who approved
the new Act had been members of the Constitutional Convention.
It is said that the lot in question does not come within the purview of sections 122 and 123 of
Commonwealth Act No. 141, there being no proof that the same had been acquired by one of
the means provided in said provisions. We are not, however, deciding the instant case under
the provisions of the Public Land Act, which have to refer to
480
480
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
lands that had been formerly of the public domain, otherwise their constitutionality may be
doubtf ful. We are deciding the instant case under section 5 of Article XIII of the Constitution
which is more comprehensive and more absolute in the sense that it prohibits the transfer to
aliens of any private agricultural land including residential land whatever its origin might have
been.
And, finally, 011 June 14, 1947, the Congress approved Republic Act No. 133 which allows
mortgage of "private real property" of any kind in favor of aliens but with a qualification
consisting of expressly prohibiting aliens to bid or take part in any sale of such real property
as a consequence of the mortgage. This prohibition makes no distinction between private
lands that are strictly agricultural and private lands that are residential or commercial. The
prohibition embraces the sale of private lands of any kind in favor of aliens, which is again a
clear implementation and a legislative interpretation of the constitutional prohibition. Had
the Congress been of opinion that private residential lands may be sold to aliens under the
Constitution, no legislative measure would have been found necessary to authorize mortgage
which would have been deemed also permissible under the Constitution. But clearly it was
the opinion of the Congress that such sale is forbidden by the Constitution and it was such
opinion that prompted the legislative measure intended to clarify that mortgage is not within
the constitutional prohibition.
It is well to note at this juncture that in the present case we have no choice. We are
construing the Constitution as it is and not as we may desire it to be. Perhaps the effect of our
construction is to preclude aliens, admitted freely into the Philippines from owning sites
where they may build their homes. But if this is the solemn mandate of the Constitution, we
will not attempt to compromise it even in the name of amity or equity. We are satisfied,
however, that aliens are not completely excluded by the Constitution from the use of lands
for residential purposes. Since their residence in the Philip-
481
VOL. 79, NOVEMBER 15, 1947
481
Krivenko vs, Register of Deeds of Manila
pines is temporary, they may be granted temporary rights such as a lease contract which is
not forbidden by the Constitution. Should they desire to remain here forever and share our
fortunes and misfortunes, Filipino citizenship is not impossible to acquire.
10
For all the foregoing, we hold that under the Constitution aliens may not acquire private or
public agricultural lands, including residential lands, and, accordingly, judgment is affirmed,
without costs.
Feria, Pablo, Perfecto, Hilado, and Briones, JJ., concur.
PERFECTO, J., concurring:
Today, which is the day set for the promulgation of this Court's decision, might be
remembered by future generations always with joy, with gratitude, with pride. The failure of
the highest tribunal of the land to do its duty in this case would have amounted to a national
disaster. We would have refused to share the responsibility of causing it by, wittingly or
unwittingly, allowing ourselves to act as tools in a conspiracy to sabotage the most important
safeguard of the age-long patrimony of our people, the land which destiny or Providence has
set aside to be the permanent abode of our race for unending generations. We who have
children and grandchildren, and who expect to leave long and ramifying dendriform lines of
descendants, could not bear the thought of the curse they may fling at us should the day
arrive when our people will be foreigners in their fatherland, because in the crucial moment
of our history, when the vision of judicial statemanship demanded on us the resolution and
boldness to affirm and withhold the letter and spirit of the Constitution, we faltered. We
would have preferred heroic defeat to inglorious desertion. Rather than abandon the sacred
cause, we would have been ready to fall enveloped in the folds of the banner of our
convictions for truth, for justice, for racial survival. We are happy to record that this Supreme
Court turned an impending failure to a
482
482
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
glorious success, saving our people from a looming catastrophe.
On July 3, 1946, the case of Oh Cho vs. Director of Lands, (43 Off. Gaz., 866), was submitted
for our decision. The case was initiated in the Court of First Instance of Tayabas on January
17, 1940, when an alien, Oh Cho, a citizen of China, applied for title and registration of a
parcel of land located in the residential district of Guinayangan, Tayabas, with a house
thereon. The Director of Lands opposed the application, one of the main grounds being that
"the applicant, being a Chinese, is not qualified to acquire public or private agricultural lands
under the provisions of the Constitution."
On August 15, 1940, Judge P. Magsalin rendered decision granting the application. The
Director of Lands appealed. In the brief filed by Solicitor General Roman Ozaeta, afterwards
Associate Justice of the Supreme Court and now Secretary of Justice, and Assistant Solicitor
General Rafael Amparo, appellant made only two assignments of error, although both raised
but one question, the legal one stated in the first assignment of error as follows:
"The lower court erred in decreeing the registration of the land in question in favor of the
applicant who, according to his own voluntary admission is a citizen of the Chinese Republic."
The brief was accompanied, as Appendix A, by the opinion of Secretary of Justice Jose A.
Santos—who, while Chief Justice of the Supreme Court, suffered heroic martyrdom at the
hands of the Japanese—addressed to the Secretary of Agriculture and Commerce on July 15,
1939, supporting the same theory as the one advanced by the Director of Lands. The same
legal question raised by appellant is discussed, not only in the brief f or the appellee, but also
in the briefs of the several amid curiæ allowed by the Supreme Court to appear in the case.
As a matter of fact, the case has been submitted for final decision of the Supreme Court since
July of 1941, that is, six years ago. It remained undecided when the Pacific
483
VOL. 79, NOVEMBER 15, 1947
483
Krivenko vs. Register of Deeds of Manila
War broke out in December, 1941. After the Supreme Court was reorganized in the middle of
1945, it was found that the case was among those which were destroyed in February, 1945,
during the battle for the liberation of Manila. The case had to be reconstituted upon motion
of the office of the Solicitor General, filed with this Court on January 14,1946, in which it was
also prayed that, after being reconstituted, the case be submitted for final adjudication. The
case was for the second time submitted for decision on July 3, 1946.
After the last submission, it took the Supreme Court many days to deliberate on the case,
especially on the legal question as to whether an alien may, under the Constitution, acquire
private urban lands. An overwhelming majority answered no. But when the decision was
promulgated on August 31, 1946, a majority resolved to ignore the question, notwithstanding
our efforts to have the question, which is vital, pressing and far-reaching, decided once and f
or all, to dispel definitely the uncertainty gnawing the conscience of the people. It has been
our lot to be alone in expressing in unmistakable terms our opinion and decision on the main
11
legal question raised by appellant. The constitutional question was by-passed by the majority
because they were of opinion that it was not necessary to be decided, notwithstanding the
fact that it was the main and only legal question upon which appellant Director of Lands
relied in his appeal, and the question has been almost exhaustively argued in four printed
briefs filed by the parties and the amici curiæ. Assurance was, nevertheless, given that in the
next case in which the same constitutional question is raised, the majority shall make known
their stand on the question,
The next case came when the present one was submitted to us for decision on February 3,
1947. Again, we deliberated on the constitutional question for several days.
On February 24, 1947, the case was submitted for final vote, and the result was that the
constitutional question was decided against petitioner. The majority was also
484
484
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
overwhelming. There were eight of us, more than twothirds of the Supreme Court. Only three
Justices dissented.
While the decision was being drafted, somehow, the way the majority had voted must have
leaked out. On July 10, 1947, appellant Krivenko filed a motion for withdrawal of his appeal,
for the evident purpose of preventing the rendering of the majority decision, which would
settle once and for all the all-important constitutional question as to whether aliens may
acquire urban lots in the Philippines.
Appellant chose to keep silent as to his reason for filing the motion. The Solicitor General's
office gave its conformity to the withdrawal of the appeal. This surprising assent was given
without expressing any ground at all, Would the Supreme Court permit itself to be cheated of
its decision voted since February 24, 1947?
Discussion immediately ensued as to whether the motion should be granted or denied, that
is, whether this Court should abstain from promulgating the decision in accordance with the
result of the vote taken on February 24, 1947, as if, after more than six years during which the
question has been submitted for the decision of the highest tribunal of the land, the same
has failed to form a definite opinion.
After a two-day deliberation, the Chief Justice, Mr. Justice Parás, Mr. Justice Hontiveros, Mr.
Justice Padilla and Mr. Justice Tuason voted to grant the motion for withdrawal. Those who
voted to deny the motion were Mr. Justice Feria, Mr. Justice Pablo, ourselves, Mr. Justice
Hilado and Mr. Justice Bengzon. The vote thus resulted in a tie, 5-5. The deadlock resulting
from the tie should have the effect of denying the motion, as provided by section 2 of Rule 56
to the effect that "where the Court in banc is equally divided in opinion * * * on all incidental
matters, the petition or motion shall be denied." And we proposed that the rule be complied
with, and the denial be promulgated.
Notwithstanding this, as Mr. Justice Briones was then absent, our brethren resolved to give
him the opportunity of casting his vote on the question, although we insisted
485
VOL. 79, NOVEMBER 15, 1947
485
Krivenko vs. Register of Deeds of Manila
that it was unnecessary. Days later, when all the members of the Court were already present,
a new vote was taken. Mr. Justice Briones voted for the denial of the motion, and his vote
would have resulted, as must be expected, in 6 votes for the denial against 5 for granting. But
the final result was different. Seven votes were cast for granting the motion and only four
were cast for its denial.
But then, by providential design or simply by a happy stroke of luck or fate, on the occasion of
the registration by the register of deeds of Manila of land purchases of two aliens, a heated
public polemic flared up in one section of the press, followed by controversial speeches,
broadcast by radio, and culminating in the issuance on August 12, 1947, of Circular No. 128 of
the Secretary of Justice which reads as follows:
"To ALL REGISTER OF DEEDS :
"Paragraph 5 of Circular No. 14, dated August 25, 1945, is hereby amended so as to read as
follows:
" '5 (a). Instruments by which private real property is mortgaged in favor of any individual,
corporation, or association for a period not exceeding five years, renewable for another five
years, may be accepted for registration. (Section 1, Republic Act No. 133.)
12
"'(b). Deeds or documents by which private residential, commercial, industrial or other
classes of urban lands, or any right, title or interest therein is transferred, assigned or
encumbered to an alien, who is not an enemy national, may be registered. Such classes of
land are not deemed included within the purview of the prohibition contained in section 5,
Article XIII of the Constitution against the acquisition or holding of "private agricultural land"
by those who are not qualified to hold or acquire lands of the public domain. This is in
conformity with Opinion No. 284, series of 1941, of the Secretary of Justice and with the
practice consistently followed for nearly ten years since the Constitution took effect on
November 15, 1935.
"'(c). During the effectivity of the Executive Agreement entered into between the Republic of
the Philippines and the Government of the United States on July 4, 1946, in pursuance of the
so-called Parity Amendment to the Constitution, citizens of the United States and
corporations or associations owned or controlled by such citizens are deemed to have the
same rights as citizens of the Philippines and corporations or associations owned or
controlled by citizens of the
486
486
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
Philippines in the acquisition of all classes of lands in the Philippines, whether of private
ownership or pertaining to the public domain.' "
"ROMAN OZAETA
"Secretary of Justice"
Paragraph. 5 of Circular No. 14, dated August 25, 1945, amended by the above is as follows:
"Deeds or other documents by which a real property, or a right, or title thereto, or an interest
therein, is transferred, assigned or encumbered to an alien, who is not an enemy national,
may be entered in the primary entry book; but, the registration of said deeds or other
documents shall be denied—unless and/or until otherwise specifically directed by a final
decision or order of a competent court—and the party in interest shall be advised of such
denial, so that he could avail himself of the right to appeal therefrom, under the provisions of
section 200 of the Revised Administrative Code. The denial of registration shall be predicated
upon the prohibition contained in section 5, Article XIII (formerly Article XII) of the
Constitution of the Philippines, and sections 122 and 123 of Commonwealth Act No. 141, the
former as amended by Commonwealth Act No. 615."
The polemic f found echo even in the Olympic serenity of a cloistered Supreme Court and the
final result of long and tense deliberation which ensued is concisely recorded in the following
resolution adopted on August 29, 1947:
"In Krivenko vs. Register of Deeds, City of Manila, L-630, a case already submitted for
decision, the appellant filed a motion to withdraw his appeal with the conformity of the
adverse party. After full discussion of the matter specially in relation to the Court's discretion
(Rule 52, section 4, and Rule 58), Mr. Justice Parás, Mr. Justice Hilado, Mr. Justice Bengzon,
Mr. Justice Padilla and Mr. Justice Tuazon voted to grant, while the Chief Justice, Mr. Justice
Feria, Mr. Justice Pablo, Mr. Justice Perfecto and Mr. Justice Briones voted to deny it. A
redeliberation was consequently had, with the same result. Thereupon Mr. Justice Parás
proposed that Mr. Justice Hontiveros be asked to sit and break the tie; but in view of the
latter's absence due to illness and petition for retirement, the Court by a vote of seven to
three did not approve the proposition. Therefore, under Rule 56, section 2, the motion to
withdraw is considered denied.
"Mr. Justice Padilla states that in his opinion the tie could not have the effect of overruling the
previous vote of seven against four in favor of the motion to withdraw.
487
VOL. 79, NOVEMBER 15, 487
487
Krivenko vs. Register of Deeds of Manila
"Mr. Justice Parás states: Justice Hontiveros is aware of and conversant with the controversy.
He has voted once on the motion to withdraw the appeal. He is still a member of the Court
and, on a moment's notice, can be present at any session of the Court. Last month, when all
the members were present, the votes on the motion stood 7 to 4. Now, in the absence of one
member, on reconsideration, another changed his vote resulting in a tie. Section 2 of Rule 56
requires that all efforts be exerted to break a deadlock in the votes. I deplore the inability of
the majority to agree to my proposition that Mr. Justice Hontiveros be asked to participate in
the resolution of the motion for withdrawal. I hold it to be fundamental and necessary that
the votes of all the members be taken in cases like this.
"Mr. Justice Perfecto stated, for purposes of completeness of the narration of facts, that when
the petition to withdraw the appeal was submitted for resolution of this Court two days after
13
the petition was filed, five justices voted to grant and five others voted to deny, and
expressed the opinion that since then, according to the rules, the petition should have been
considered denied. Said first vote took place many days before the one alluded to by Mr.
Justice Padilla.
"Mr. Justice Tuason states: The motion to withdraw the appeal was first voted upon with the
result that 5 were granting and 5 for denial Mr. Justice Briones was absent and it was decided
to wait for him. Some time later, the same subject was deliberated upon and a new voting
was had, on which occasion all the 11 justices were present. The voting stood 7 for allowing
the dismissal of the appeal and 4 against. Mr. Justice Perfecto and Mr. Justice Briones
expressed the intention to put in writing their dissents. Before these dissents were filed,
about one month afterwards, without any previous notice the matter was brought up again
and re-voted upon; the result was 5 to 5. Mr. Justice Hontiveros, who was ill but might have
been able to attend if advised of the necessity of his presence, was absent. As the voting thus
stood, Mr. Justice Hontiveros' vote would have changed its result unless he changed his mind,
a fact of which no one is aware. My opinion is that since there was no formal motion for
reconsideration nor a previous notice that this matter would be taken up once more, and
since Mr. Justice Hontiveros had every reason to believe that the matter was over as f ar as he
was concerned. this Justice's vote in the penultimate voting should, if he was not to be given
an opportunity to recast his vote, be counted in favor of the vote for the allowance of the
motion to withdraw. Above all, that opportunity should not have been denied on grounds of
pure technicality never invoked before. I counted that the proceeding; was arbitrary and
illegal."
488
488
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
The resolution does not recite all the reasons why Mr. Justice Hontiveros did not participate in
that last two votings and why it became unnecessary to wait f or him any f further to attend
the sessions of the Court and to cast his vote on the question,
Appellant Krivenko moved for the reconsideration of the denial of his withdrawal of appeal,
alleging that it became moot in view of the ruling made by the Secretary of Justice in circular
No. 128, thus giving us a hint that the latter, wittingly or unwittingly, had the effect of trying
to take away f from the Supreme Court the decision of an important constitutional question,
submitted to us in a pending litigation. We denied the motion for reconsideration. We did not
want to entertain any obstruction to the promulgation of our decision.
If the processes had in this case had been given the publicity suggested by us for all the
official actuations of this Supreme Court, it should have been known by the whole world that
since July, 1946, that is, more than a year ago, the opinion of the members of this Court had
already been crystallized to the effect that under the Constitution, aliens are forbidden from
acquiring urban lands in the Philippines, and it must have known that in this case a great
majority had voted in that sense on February 24, 1947.
The constitutional question involved in this case cannot be left undecided without
jeopardizing public interest. The uncertainty in the public mind should be dispelled without
further delay. While the doubt among the people as to what is the correct answer to the
question remains to be dissipated, there will be uneasiness, undermining public morale and
leading to evils of unpredictable extent. This Supreme Tribunal, by overwhelming majority,
already knows what the correct answer is, and should not withhold and keep it f or itself with
the same zealousness with which the ancient families of the Eumolpides and Keryces were
keeping the Eleusinian mysteries. The oracle of Delphus
489
VOL. 79, NOVEMBER 15, 1947
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Krivenko vs. Register of Deeds of Manila
must speak so that the people may know for their guidance what destiny has in store for
them.
The great question as to whether the land bequeathed to us by our f oref athers should
remain as one of the most cherished treasures of our people and transmitted by inheritance
to unending generations of our race, is not a new one. The long chain of land-grabbing
invasions, conquests, depredations, and colonial imperialism recorded in the darkest and
bloodiest pages of history from the bellicose enterprises of the Hittites in the plains of old
Assyria, irrigated by the waters of the Tigris and Euphrates, and the invasion of Egypt by the
Hyksos, up to the conquests of Hernan Cortes and Pizarro, the achievements of Cecil Rhodes,
and the formation of the Spanish, Portuguese, Dutch, French and German colonial empires,
had many of its iron links forged in our soil since Magellan, the greatest navigator of all
history, had set foot at Limasawa and paid, for his daring enterprises, with his life at the
hands of Lapulapu's men in the battle of Mactan.
Since then, almost four centuries ago, our people have continuously been engaged in an
unrelentless struggle to defend the national patrimony against the aggressive onslaughts of
14
foreigners bent on grabbing our lands. First came the Spanish encomenderos and other
gratuitous concessioners who were granted by the Spanish. crown immense areas of land.
Immediately came the friars and other religious corporations who, notwithstanding their
sacred vow of poverty, felt their greed whetted by the bountiful opportunities for easy and
unscrupulous enrichment. Taking advantage of the uncontrollable religious leadership, on one
side, and of the Christian virtues of obedience, resignation, humility, and credulity of a people
who, after conversion to Catholicism, embraced with tacit faith all its tenets and practiced
them with the loyalty and fidelity of persons still immune from the disappointments and
bitterness caused by the vices of modern civilization, the foreign religious orders set aside all
compunction to acquire by foul means many large estates. Through the practice of confession
490
490
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
and other means of moral intimidation, mostly based on the eternal tortures of hell, they
were able to obtain by donation or by will the lands of many simple and credulous Catholics
who, in order to conquer the eternal bliss of heaven, renounced all their property in f avor of
religious orders and priests, many under the guise of chaplaincies or other apparently
religious purposes, leaving in destitute their descendants and relatives. Thus big religious
landed estates were formed, and under the system unbearable iniquities were committed.
The case of the family of Rizal is just an index of a situation, which, under the moral
leadership of the hero, finally drove our people into a national revolution not only against the
Spanish sovereignty under which the social cancer had grown to unlimited proportions.
Profiting from the lessons of history, the Delegates to our Constitutional Convention felt it
their duty to insert in the fundamental law effective guarantees for conserving the national
patrimony, the wisdom of which cannot be disputed in a world divided into nations and
nationalities. In the same way that scientists and technicians resorted to radars, sonars,
thermistors and other long range detection devices to stave off far-away enemy attacks in
war, said Delegates set the guarantees to ward off open inroads or devious incursions into the
national patrimony as a means of insuring racial safety and survival.
When the ideal of one world should have been translated into reality, those guarantees might
not be needed and our people may eliminate them. But in the meantime, it is our inescapable
devoir, as the ultimate guardians of the Constitution, never to neglect the enforcement of its
provisions whenever our action is called upon in a case, like the one now before us.
One of the fundamental purposes of the government established by our Constitution is, in its
very words, that it "shall conserve and develop the patrimony of the nation." That mandate is
addressed to all departments and branches of our government, without excluding this
Supreme Court.
491
VOL. 79, NOVEMBER 15, 1947
491
Krivenko vs. Register of Deeds of Manila,
To make more specific the mandate, Article XIII has been inserted so as to avoid all doubt that
all the natural resources of the country are reserved to Filipino citizens. Our land is the most
important of our natural resources. That land should be kept in the hands of our people until,
by constitutional amendment, they should decide to renounce that age-long patrimony. Save
by hereditary succession—the only exception allowed by the Constitution—no foreigner may
by any means acquire any land, any kind of land, in the Philippines. That was the
overwhelming sentiment prevailing in the Constitutional Convention, that was the
overpowering desire of the great majority of the Delegates, that was the dominating thought
that was intended to be expressed in the great document, that was what the Committee on
Style—the drafter of the final text—has written in the Constitution, and that was what was
solemnly ratified in the plebiscite by our people, who then were rankling by the sore spot of
illegally Japanized Davao.
The urgency of settling once and forever the constitutional question raised in this case cannot
be overemphasized. If we should decide this question after many urban lots have been
transferred to and registered in the name of alien purchasers, a situation may be created in
which it will be hard to nullify the transfers and the nullification may create complications and
problems highly distasteful to solve. The Georgia case is an objective lesson upon which we
can mirror ourselves. From pages 22 and 23 of the book of Charless P. Curtiss, Jr. entitled
"Lions Under the Throne," we quote the following:
"It is of interest that it seems to have happened chiefly in important cases. Fletcher vs. Peck,
in 1810, is the stock example. That was the first case in which the Court held a state statute
void. It involved a national scandal. The 1795 legislature of Georgia sold its western lands,
most of Alabama and Mississippi, to speculators. Perhaps it was the greatest real estate steal
in our history. The purchase price was only half a million dollars. The next legislature repealed
the statute for fraud, the bribery of legislator, but not
492
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492
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila.
before the land companies had completed the deal and unloaded. By that time, and
increasingly soon afterwards, more and more people had bought, and their title was in issue.
Eleven million of the acres had been bought for eleven cents an acre by leading citizens of
Boston. How could they clear their title? Alexander Hamilton gave an opinion, that the repeal
of the grant was void under the Constitution as an impairment of the obligation of a contract.
"But could they not get a decision from the Supreme Court? Robert Fletcher of Anhirst, New
Hampshire, had bought fifteen thousand acres from John Peck of Boston. He sued Peck, and
he won. Fletcher appealed. Plainly it was a friendly suit. Marshall was nobody's fool. He told
Cranch that the Court was reluctant to decide the case 'as it appeared manifestly made up for
the purpose of getting the Court's judgment.' John Quincy Adams so reports in his diary. Yet
Marshall decided it, and he held the repeal void. just as Hamilton said it was. 'The fact that
Marshall rendered an opinion, under the circumstances,' says Beveridge, 'is one of the finest
proofs of 'his greatness. A weaker man than John Marshall. and one less wise and
courageous, would have dismissed the appeal.' That may be, but it was the act of a stateman,
not of a judge. The Court has always been able to overcome its judicial diffidence on state
occasions."
We see from the above how millions of acres of land were stolen from the people of Georgia
and due to legal technicalities the people were unable to recover the stolen property. But in
the case of Georgia, the lands had fallen into American hands and although the scandal was
of gigantic proportions, no national disaster ensued. In our case if our lands should fall into
foreign hands, although there may not be any scandal at all, the catastrophe sought to be
avoided by the Delegates to our Constitutional Convention will surely be in no remote offing.
We conclude that, under the provisions of the Constitution, aliens are not allowed to acquire
the ownership of urban or residential lands in the Philippines and, as a consequence, all
acquisitions made in contravention of the prohibitions since the fundamental law became
effective are null and void per se and ab initio. As all public officials have sworn, and are duty
bound, to obey and defend the Constitution, all those who, by their f functions, are in charge
of enforcing the prohibition as laid down and interpreted
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VOL. 79, NOVEMBER 15, 1947
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Krivenko vs. Register of Deeds of Manila,
in the decision in this case, should spare no efforts so that any and all violations which may
have taken place should be corrected.
We decide, therefore, that, upon the above premises, appellant Alexander A. Krivenko, not
being a Filipino citizen, could not acquire by purchase the urban or residential lot here in
question, the sale made in his favor by the Magdalena Estate, Inc. being null and void ab
initio, and that the lower court acted correctly in rendering the appealed decision, which we
affirm.
HILADO, J., concurring:
Upon appellant's motion to withdraw his appeal herein with the conformity of the Solicitor
General in behalf of appellee, indulging, at the time, all possible intendments in favor of
another department, I ultimately voted to grant the motion after the matter was finally
deliberated and voted upon. But the votes of the ten Justices participating were evenly
divided, and under Rule 52, section 4, in relation with Rule 56, section 2, the motion was
denied. The resolution to deny was adopted in the exercise of the court's discretion under
Rule 52, section 4, by virtue of which it has discretion to deny the withdrawal of the appeal
even though both appellant and appellee agree upon the withdrawal, when appellee's brief
has been filed. Under the principle that where the necessary number have concurred in an
opinion or resolution, the decision or determination rendered is the decision or
determination of the court (2 C. J. S., 296), the resolution denying the motion to withdraw the
appeal was the resolution of the court. Pursuant to Rule 56, section 2, where the court in
banc is equally divided in opinion, such a motion "shall be denied." As a necessary
consequence, the court as to decide the case upon the merits.
After all, a consistent advocate and defender of the principle of separation of powers in a
government like ours that I have always been, I think that under the circumstances it is well
for all concerned that the Court should
494
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
16
go ahead and decide the constitutional question presented. The very doctrine that the three
coordinate, co-equal and independent departments should be maintained supreme in their
respective legitimate spheres, makes it at once the right and the duty of each to defend and
uphold its own peculiar powers and authority. Public respect f or and confidence in each
department must be striven for and kept, for any lowering of the respect and diminution of
that confidence will in the same measure take away from the very usefulness of the
respective department to the people. For this reason, I believe that we should avert and
avoid any tendency in this direction with respect to this Court.
I am one of those who presume that Circular No. 128, dated August 12, 1947, of the Secretary
of Justice, was issued in good faith. But at the same time, that declaration in sub-paragraph
(b) of paragraph 5 of Circular No. 14, which was already amended, to the effect that private
residential, commercial, industrial or other classes of urban lands "are not deemed included
within the purview of the prohibition contained in section 5, Article XIII, of the Constitution",
made at a time when the self-same question was pending decision of this Court, gives rise to
the serious danger that should this Court refrain from deciding said question and giving its
own interpretation of the constitutional mandate, the people may see in such an attitude an
abandonment by this Court of a bounden duty, peculiarly its own, to decide a question of
such a momentous transcendence, in view of an opinion, given in advance of its own
decision, by an officer of another department. This will naturally detract in no small degree f
from public respect and confidence towards the highest Court of the land. Of course, none of
us—the other governmental departments included—would desire such a situation to ensue.
I have distincly noticed that the decision of the majority is confined to the constitutional
question here presented, namely, "whether or not an alien under our Constitution may
acquire residential land." (Opinion, p. 2.) Leases of residential lands, or acquisition, ownership
or lease of a
495
VOL. 79, NOVEMBER 15, 1947
495
Krivenko vs. Register of Deeds of Manila
house or building thereon, for example, are not covered by the decision.
With these preliminary remarks and the statement of my concurrence in the opinion ably
written by the Chief Justice, I have signed said decision.
BRIONES, M., conforme:
Estoy conforme en un todo con la ponencia, a la cual no se puede añadir ni quitar nada, tal es
su acabada y compacta elaboración. Escribo, sin embargo, esta opinion separada nada mas
que para unas observaciones, particularmente sobre ciertas fases extraordinarias de este
asunto harto singular y extraordinario.
I. Conforme se relata en la concurrencia del Magistrado Sr. Perfecto, después de laboriosas
deliberaciones este asunto se puso finalmente a votación el 24 de Febrero de este año,
confirmándose la sentencia apelada por una buena mayoría. En algunos comentarios
adelantados por cierta parte de la prensa—impaciencia que sólo puede hallar explicación en
un nervioso y excesivo celo en la vigilancia de los intereses públicos, máxime tratándose,
como se trata, de la conservación del patrimonio nacional—se ha hecho la pregunta de por
que se ha demorado la promulgación de la sentencia, habiéndose votado el asunto todavía
desde casi comienzos del año.
A simple vista, la pregunta tiene justrficación; pero bien considerados los hechos se verá que
no ha habido demora en el presente caso, mucho menos una demora desusada, alarmante,
que autorice y justifique una crítica contra los métodos de trabajo de esta corte. El curso
seguido por el asunto ha sido normal, bajo las circunstancias. En realidad, no ya en esta Corte
ahora, sino aún en el pasado, antes de la guerra, hubo más lentitud en casos no tan díficiles ni
tan complicados como el que nos ocupa, en que las cuestiones planteadas y discutidas no
tenían la densidad constitucional y jurídica de las que se discuten en el presente caso. Hay
que tener en cuenta que desde el 24 de Febrero en que se votó finalmente el asunto hasta el
1.° de Abril en que comenzaron las vacaciones judiciales, no habían
496
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
transcurrido más que 34 días; y cuando se reanudaron formalmente las sesiones de esta
Corte en Julio se suscitó un incidente de lo más extraordinario—incidente que prácticamente
vino a impedir, a paralizar la pronta promulgación de la sentencia, Me refiero a la moción que
el 10 de Julio presentaron los abogados del apelante pidiendo permiso para retirar su
apelación. Lo sorprendente de esta moción es que viene redactada escuetamente, sin
explicar el por que de la retirada, ni expresar ningún fundamento. Pero lo más sorprendente
todavía es la conformidad dada por el Procurador General, también escueta e
inceremoniosamente.
17
Digo que es sorprendente la retirada de la apelación porque pocos casos he visto que hayan
sido argüidos con tanta energía, tanto interés y tanto celo por la parte apelante como este
que nos ocupa. Los abogados del apelante no sólo presentaron un alegato concienzudo de 34
páginas, sino que cuando se llamó a vista el asunto informaron verbalmente ante esta Corte
argumentando vigorosa y extensamente sobre el caso. El Procurador General, por su parte,
ha presentado un alegato igualmente denso, de 31 páginas, en que se discuten
acabadamente, hasta el punto máximo de saturación y agotamiento, todos los ángulos de la
formidable cuestión constitutional objeto de este asunto. También informó el Procurador
General verbalmente ante esta Corte, entablando fuerte lid con los abogados del apelante
Con la moción de retirada de la apelación se hubo de retardar necesariamente la
promulgación de la sentencia pues trabajosas deliberaciones fueron necesarias para resolver
la cuestión, dividiéndose casi por igual los miembros de la Corte sobre si debía o no
permitirse la retirada Había unanimidad en que bajo \a regla 52, sección 4, de\ Reglamento
de los Tribunales teníamos absoluta discreción para conceder o denegar la moción, toda vez
que los alegatos estaban sometidos desde hacia tiempo, el asunto estaba votado y no faltaba
más que la firma y promulgación de la decision juntamente con las disidencias. Sin embargo,
algunos Magistrados opinaban que la discreción debía ejerci-
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VOL. 79, NOVEMBER 15, 1947
497
Krivenko vs. Register of Deeds of Manila
tarse en favor de la retirada en virtud de la práctica de evitar la aplicación de la Constitución a
la solución de un litigio siempre que se puede sentenciarlo de otra manera. (Entre los
Magistrados que pensaban de esta manera se incluían algunos que en el fundo del asunto
estaban a favor de la confirmación de la sentencia apelada, es decir, creían que la
Constitución prohibe a los extranjeros la adquisición a título dominical de todo género de
propiedad inmueble, sin excluir los solares residenciales, comerciales e industriales.) Pero
otros Magistrados opinaban que en el estado tan avanzado en que se hallaba el asunto los
dictados del interés público y de la sana discreción requerían imperiosamente que la cuestión
se atacase y decidiese frontalmente; que si una mayoría de esta Corte estaba convencida,
como al parecer lo estaba, de que existía esa interdicción constitucional contra la facultad
adquisitiva de los extranjeros, nuestro claro deber era apresurarnos a dar pleno y positivo
cumplimiento a la Constitución al presentarse la primera oportunidad; que el meollo del
asunto, la lis mota era eso—la interdicción constitucional—; por tanto, no había otra manera
de decidirlo más que aplicando la Constitución; obrar de otra manera sería deserción,
abandono de un deber jurado.
Así estaban las deliberaciones cuando ocurre otro incidente mucho más extraordinario y
sorprendente todavía que la retirada no explicada de la apelación con la insólita conformidad
del Procurador General; algo así como si de un cielo sereno, sin nubes, cayera de pronto un
bólido en medio de nosotros, en medio de la Corte: me refiero a la circular núm. 128 del
Secretario de Justicia expedida el 12 de Agosto próximo pasado, esto es, 32 días después de
presentada la moción de retirada de la apelación. Esa circular se cita comprensivamente en la
ponencia y su texto se copia íntegramente en la concurrencia del Magistrado Sr. Perfecto: así
que me creo excusado de transcribirla in toto. En breves términos, la circular reforma el
párrafo 5 de la circular núm. 14 del mismo Departamento de Justicia de fecha 25 de Agosto,
1945, y levanta la prohibición o inter-
498
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
dicción sobre el registro e inscripción en el registro de la propiedad de las "escrituras o
documentos en virtud de los cuales terrenos privados residenciales, comerciales, industriales
u otras clases de terrenos urbanos, o cualquier derecho, título o interés en ellos, se
transfieren, ceden o gravan a un extranjero que no es nacional enemigo." En otras palabras,
el Secretario de Justicia, por medio de esta circular, dejaba sin efecto la prohibición contenida
en la circular núm. 14 del mismo Departamento—la prohibición que precisamente ataca el
apelante Krivenko en el asunto que tenemos ante Nos—y authorizaba y ordenaba a todos los
Registradores de Títulos en Filipinas para que inscribiesen las escrituras o documentos de
venta, hipoteca o cualquier otro gravamen a favor de extranjeros, siempre que no se tratase
de terrenos públicos o de "terrenos privados agrícolas," es decir, siempre que los terrenos
objeto de la escritura fuesen "residenciales, comerciales e industriales."
La comparación de esa circular con un bólido caído súbitamente en medio de la Corte no es
un simple tropo, no es una mera imagen retórica: refleja una verdadera realidad. Esa circular,
al derogar la prohibición decretada en el párrafo 5 de la circular núm. 14—prohibición que,
como queda dicho, es precisamente el objeto del presente asunto—venía prácticamente a
escamotear la cuestión discutida, la cuestión sub júdice sustrayéndola de la jurisdicción de los
tribunales. Dicho crudamente, el Departamento de Justicia venía a arrebatar el asunto de
nuestras manos, de las manos de esta Corte, anticipándose a resolverlo por si mismo y dando
18
efectividad y vigor inmediatos a su resolución mediante la correspondiente autorización a los
Registradores de Títulos.
A la luz de esa circular queda perfectamente explicada la moción de retirada de la apelación
consentida insólitamente por el Procurador General. ¿Para que esperar la decision de la Corte
Suprema que acaso podría ser adversa? ¿No estaba ya esa circular bajo la cual podían
registrarse ahora las ventas de terrenos residenciales, comerciales o
499
VOL. 79, NOVEMBER 15, 1947
499
Krivenko vs. Register of Deeds of Manila,
industriales a extranjeros? Por eso no es extraño que los abogados del apelante Krivenko, en
su moción de 1.° de Septiembre, 1947, pidiendo la reconsideración de nuestro auto
denegando la retirada de la apelación, dijeran por primera vez como fundamento que la
cuestión ya era simplemente académica ("question is now moot") en vista de esa circular y de
la conformidad del Procurador General con la retirada de la apelación. He aquí las propias
palabras de la moción del apelante Krivenko:
"ln view of Circular No. 128 of the Department of Justice, dated August 12, 1947, which
amends Circular No. 14 by expressly authorizing the registration of the sale of urban lands to
aliens, and in view of the fact that the Solicitor General has joined in the motion for
withdrawal of the appeal, there is no longer a controversy between the parties and the
question is now moot. For this reason the court no longer has jurisdiction to act on the
case."1
Lo menos que se puede decir de esa acción del Departamentro de Justicia atravesándose en
el camino de los tribunales mientras un asunto está sub júdice, es que ello no tiene
precedentes, que yo sepa, en los anales de la administración de justicia en Filipinas en cerca
de medio siglo que llevamos de existencia bajo un gobierno constitucional y sustancialmente
republicano. Ni aún en los llamados días del Imperio, cuando la soberanía americana era más
propensa a manejar el bastón grueso y afirmar vigorosamente los fueros de su poder y
autoridad, se vió jamás a un departamento ejecutivo del gobierno, mucho menos al
Departamento de Justicia o a alguna de sus dependencias entrometerse en el ejercicio
ordenado por los tribunales de su jurisdicción y competencia. Era una tradición firmemente
establecida en las esfersas del Poder Ejecutivo—tradición
_______________
1 En vista de la circular núm. 128 del Departamento de Justicia fechada el 12 de Agosto, 1947,
la cual enmienda la circular núm. 14 en el sentido de autorizar el registro de la venta de
terrenos urbanos a extranjeros, y en vista del hecho de que el Procurador General se ha unido
o la moción para la retirada de la apelación, ya no existe ninguna controversia entre las partes
y la cuestión es ahora académica. Por esta razón, la Corte ya no tiene jurisdicción sobre el
caso (Traducción; las cursivas son nuestras).
500
500
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
inviolada e inviolable—máxime en el Departamento de Justicia y en la Fiscalía General, el
inhibirse de expresar alguna opinion sobre un asunto ya sometido a los tribunales, excepto
cuando venían llamados a hacerlo, en representación del gobierno, en los trámites de un
litigio, civil o criminal, propiamente planteado ante dichos tribunales. Fuera de estos casos, la
inhibición era tradicionalmente absoluta, observada con la devoción y la escrupulosidad de
un rito. Y la razón era muy sencilla: jamás se quería estorbar ni entorpecer la función de los
tribunales de justicia, los cuales, bajo la carta orgánica y las leyes, tenían absoluto derecho a
actuar con máximo desembarazo, libres de toda ingerencia extraña. Esto se hizo bajo la Ley
Cooper; esto se hizo bajo la Ley Jones; y esto se hizo bajo la Ley Tydings-McDuffie, la ley
orgánica del Commonwealth. Creo que el pueblo filipino tiene derecho a que eso mismo se
haga bajo el gobierno de la República, que es suyo, que es de su propia hechura. No faltaba
más que los hombres de su propia raza le nieguen lo que no le negaron gobernantes de otra
raza!
No se niega la facultad de supervision que tiene el Departamento de Justicia sobre las oficinas
y dependencias que caen bajo su jurisdicción, entre ellas las varias oficinas de registro de la
propiedad en Manila y en las provincias. Tampoco se niega la facultad que tiene dicho
Departamento para expedir circulares, ya de carácter puramente administrativo, ya de
carácter semijudicial, dando instrucciones, vgr., a los registradores acerca de cómo deben
desempeñar sus funciones. De hecho la circular núm. 14 de 25 de Agosto, 1945, es de esta
última naturaleza: en ella se instruye y ordena a los registradores de títulos que no registren
ni inscriban ventas de propiedad inmueble a extranjeros, así sean terrenos residenciales,
comerciales o industriales. Pero la facultad llega sólo hasta allí; fuera de esas fronteras el
campo ya es pura y exclusivamente judicial. Cuando una determinada circular del
Departamento a los registradores es combatida o puesta en tela de juicio ante los tribunales,
ora por fundamentos cons-
19
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VOL. 79, NOVEMBER 15, 1947
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Krivenko vs. Register of Deeds of Manila
titucionales, ora por razones meramente legales, ya no es el Departamento el que tiene que
determinar o resolver la disputa, sino que eso compete en absoluto a los tribunales de
justicia. Así lo dispone terminantemente el artículo 200 del Código Administrativo. Según este
artículo, el asunto o disputa debe elevarse en forma de consulta a la Sala Cuarta del Juzgado
de Primera Instancia de Manila. La ley no confiere ninguna facultad al Departamento de
Justicia para enjuiciar y decidir el caso. Y cuando una parte no estuviere conforme con la
decision de la Sala Cuarta, ella puede alzarse de la sentencia para ante la Corte Suprema. He
aquí el texto íntegro del artículo 200 del Código Administrativo:
"SEC. 200. Reference of doubtful matter to judge of fourth branch of Court of First Instance at
Manila.—When the register of deeds is in doubt with regard to the proper step to be taken or
memorandum to be made in pursuance of any deed, mortgage, or other instrument
presented for registration or where any party in interest does not agree with the register of
deeds with reference to any such matter, the question shall be referred to the judge of the
fourth branch of the Court of First Instance of the Ninth Judicial District either on the
certificate of the register of deeds stating the question upon which he is in doubt or upon the
suggestion in writing of the party in interest; and thereupon said judge, upon consideration of
the matter as shown by the record certified to him, and in case of registered lands, after
notice to the parties and hearing, shall enter an order prescribing the step to be taken or
memorandum to be made."
Tal es lo que ha ocurrido en el presente caso. Krivenko presentó su escritura de compraventa
al Registrador de la Propiedad de Manila. Élste denegó la inscripción solicitada en virtud de la
prohibición contenida en la circular núm. 14. ¿Qué hizo Krivenko entonces? Elevó acaso el
asunto al Departamento de Justicia? No. Lo que hicieron sus abogados entonces fué
presentar una demanda el 23 de Noviembre, 1945, contra el Registrador de Títulos ante la
Sala Cuarta del Juzgado de Primera Instancia de Manila, numerándose dicha demanda como
consulta núm. 1289; y cuando esta Sala decidió el asunto confirmando la acción del
Registrador, Krivenko trajo a esta Corte la apelación
502
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
que estamos considerando. Tan elemental es esto que en la misma circular núm. 14 se dice
que la prohibición queda decretada hasta que los tribunales resuelvan lo contrario. He aquí la
fraseología pertinente de dicha circular núm. 14:
" * * * the registration of said deeds or other documents shall be denied,—unless and/or
until otherwise specifically directed by a final decision or order of a competent court—and
the party in interest shall be advised of such denial, so that he could avail himself of the right
to appeal therefrom, under the provisions of section 200 of the Revised Administrative Code."
La posición de la Corte Suprema ante este caso claro y positivo de intromisión (interference)
en sus funciones es de lo más peculiar. Tenemos en el Reglamento de los Tribunales algunas
disposiciones que proveen sanción por desacato para ciertos actos de intromisión en el
ejercicio de las funciones judiciales.1 Pero se preguntará naturalmente: ¿son aplicables estas
disposiciones cuando la intromisión procede de un ramo del poder ejecutivo, el cual, como se
sabe, en la mecánica de los poderes del Estado, es—usando un anglicismo-coigual y
coordinado con el poder judicial, máxime si esa intromisión se ha realizado so capa de un
acto oficial? Cualquiera, pues, puede imaginarse la situación tremendamente embarazosa,
inclusive angustiosa en que esta Corte ha quedado colocada con motivo de esa intromisión
departamental, exponiéndose a chocar con otro poder del Estado. En casos recientes en que
estaban envueltos otros poderes, esta Corte, estimando dudosa su posición constitucional,
prefirió adoptar una actitud de elegante inhibición, de "manos fuera" (hands-off), si bien hay
que hacer constar que con la fuerte disidencia de algunos Magistrados, entre ellos el
opinante.2 Tenemos, por tanto, un caso de verdadera intromisión en que siendo, por
_______________
1 Véase regla 64, sección 3, incisos c y d, Reglamento de los Tribunales.
2 Véase el asunto de Vera contra Avelino (77 Phil., 192); vease también el asunto de Mábanag
contra Lopez Vito (78 Phil., 1).
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VOL. 79, NOVEMBER 15, 1947
503
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Krivenko vs. Register of Deeds of Manila
lo menos, dudosa la facultad de esta Corte para imponer una sanción por desacato de
acuerdo con el Reglamento de los Tribunales, le queda el único recurso decente, ordenado:
registrar su excepción sin ambages ni eufemismos contra la intromisión, y reafirmar con todo
vigor, con toda firmeza su independencia.
Se arguye con tenaz persitencia que debíamos de haber concedido la moción de retirada de la
apelación, por dos razones: (a) porque el Procurador General estaba conforme con dicha
retirada; (b) para evitar la resolución del punto constitucional envuelto, en virtud de la
práctica, según se dice, de soslayar toda cuestión constitucional siempre que se pueda.
Respecto de la primera razón será suficiente decir que el Procurador General es libre de
entrar en cualquiera transacción sobre un asunto en que interviene, pero es evidente que su
acción no ata ni obliga a esta Corte en el ejercicio de la discreción que le confiere la regla 52,
sección 4, del Reglamento de los Tribunales, que reza como sigue:
"Rule 52, SEC. 4—An appeal may be withdrawn as of right at any time before the filing of
appellee's brief. After that brief is filed the withdrawal may be allowed by the court in its
discretion." * * * (Las cursivas son nuestras.)
Como se ve, nuestra discreción es absoluta: no está condicionada por la conformidad o
disconformidad de una de las partes. Y la incondicionalidad de esa discreción es más absoluta
e imperativa allí donde el litigio versa sobre una materia que no afecta sólo a un interés
privado, sino que es de interés público, como el caso presente en que el Procurador General
ha transigido no sobre un asunto suyo personal o de un cliente particular, sino de un cliente
de mucha mayor monta y significación—el pueblo filipino—y siendo materia del litigio la
propiedad del suelo, parte, vitalísima del patrimonio nacional que nuestro pueblo ha
colocado bajo la salvaguardia de la Constitución.
Respecto del segundo fundamento, o sea que debíamos permitir la retirada de la apelación
para no tener que resolver la cuestión constitucional disputada, bastará decir
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que la práctica, principio o doctrina que se invoca, lleva consigo una salvedad o cualificación y
es que el litigio se pueda resolver de otra manera. ¿Podemos soslayar el punto constitucional
discutido en el pleito que nos ocupa? ¿Podemos decidirlo bajo otra ratio decidendi, esto es,
que no sea la constitucionalidad o inconstitucionalidad de la venta del inmueble al apelante
Krivenko, en virtud de su condición de extranjero? Indudablemente que no: la lis mota, la
única, es la misma constitucionalidad de la compraventa de que se trata. Para decidir si al
recurrido apelado, Registrador de Títulos de la Ciudad de Manila, le asiste o no razón para
denegar la inscripción solicitada por el recurrente y apelante, Krivenko, la única disposición
legal que se puede aplicar es el artículo XIII, sección 5, de la Constitución de Filipinas,
invocado por el Registrador como defensa e inserto en el párrafo 5 de la circular núm. 14
como fundamento de la prohibición o interdicción contra el registro de las ventas de terreno
a extranjeros. No hay otra ley para el caso.
EI caso de Oh Cho contra el Director de Terrenos 43 Gac. Of., No. 3, pág. 866), que se cita en
una de las disidencias, es completamente diferente. Es verdad que allí se planteó también la
cuestión constitucional de que se trata, por cierto que el que lo planteaba -en nombre del
Gobierno era el actual Secretario de Justicia que entonces era Procurador General, y lo
planteaba en un sentido absolutamente concorde con la circular núm. 14. Pero esta Corte,
con la disidencia de algunos Magistrados, optó por soslayar el punto constitucional
denegando el registro solicitado por Oh Cho, por el fundamento de que bajo la Ley No. 2874
sobre terrenos de dominio público los extranjeros están excluídos de dichos terrenos; es
decir, que el terreno solicitado se consideró como terreno público. ¿Podemos hacer la misma
evasion en el presente caso, acogiéndonos a la ley No. 2874 o a cualquier otra ley?
Indudablemente que no porque ningún Magistrado de esta Corte, mucho menos los
disidentes, consideran el terreno reclamado por Krivenko como terreno público. Luego todos
los caminos
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están bloqueados para nosotros, menos el camino constitucional. Luego el segundo
fundamento alegado para cubrir la evasiva también debe descartarse totalmente.
Se insinúa que no debíamos darnos prisa en resolver constitucionalmente el presente asunto,
puesto que pueden presentarse otros de igual naturaleza en tiempo no remoto, y en efecto se
cita el caso de Rellosa contra Gaw Chee Hun (49 Off. Gaz., 4345), en que los alegatos de
ambas partes ya están sometidos y se halla ahora pendiente de decision. Es evidente que esto
tampoco arguye en f avor de la evasiva, en primer lugar, porque cuando se le somete un caso
para deliberación y decision esta Corte no tiene el deber de ir averiguando en su Escribanía si
21
hay casos de igual naturaleza, sino que los casos se someten por orden de prelación y
prioridad de tiempo a medida que estén preparados para deliberación y decision; y en
segundo lugar, porque cada caso debe decidirse por sus propios méritos y conforme a la ley
pertinente. La salvedad o cualificación de la doctrina o práctica que se invoca no dice: "hay
que soslayar la cuestión constitucional siempre que se pueda resolver de otra manera,
reservando dicha cuestión constitucional para otro caso; la salvedad es dentro del mismo
caso. De otro modo no sería un simple soslayo legal, sino que sería un subterfugio impropio,
indebido, ilegal. En el presente caso no ha habido ninguna prisa, excesivo celo, como se
insinúa; desde luego no mayor prisa que en otros asuntos. El curso, el ritmo de los trámites
ha sido normal; en realidad, si ha habido algo, ha sido un poco de parsimonia, lentitud.
¿Había justificación para demorar el pronto, rápido pronunciamiento de nuestro veredicto
sobre la formidable cuestión constitucional debatida, por lo menos, tan pronto como fuese
posible? ¿Había alguna razón de interés público para justificar una evasiva? Absolutamente
ninguna. Por el contrario, nuestro deber ineludible, imperioso, era formular y promulgar
inmediatamente ese veredicto. Lo debíamos a nuestras conciencias; lo debíamos, sobre todo,
al país para la tranquilidad y conveniencia de todos—del pueblo filipino y de los extranjeros
residentes o que
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tuvieren voluntad de residir o negociar en estas Islas. Así cada cual podría hacer su
composición de lugar, podría orientarse sin zozobras ni miedo a la incertidumbre. Tanto
nacionales como extranjeros sabrían donde invertir su dinero. Todo lo que necesitábamos era
tener dentro de esta Corte una mayoría firmemente convencida de que la Constitución
provee la interdicción de que se trata. Tuvimos esa mayoría cuando se votó por primera vez
este asunto en Febrero de este año (8 contra 3) ; la tuvimos cuando después de laboriosas
deliberaciones quedó denegada la moción de retirada de la apelación, pues no tengo noticia
de que ninguno de la mayoría haya cambiado de opinion sobre el fondo de la cuestión; la
tenemos ahora naturalmente. Por tanto, nada hace falta ya para que se de la señal de "luz
verde" a la promulgación de la sentencia. Toda evasiva sería negligencia, desidia. Es más: sería
abandono de un deber jurado, como digo en otra parte de esta concurrencia; y la Corte
Suprema naturalmente no ha de permitir que se le pueda proferir el cargo de que ha
abandonado su puesto privilegiado de vigía, de centinela avanzado de la Constitución.
No es que la Corte Suprema, con ésto, pretenda tener "un monopolio de la virtud de sostener
y poner en vigor, o de suplir una deficiencia en la Constitución," o que se crea más hábil y
patriota que los otros departamentos del gobierno, como se insinúa en una de las disidencias.
No hay tal cosa. El principio de la supremacía judicial no es una pretension ni mucho menos
un ademán de inmodestia o arrogancia, sino que es una parte vital de nuestras instituciones,
una condición peculiarísima de nuestro sistema de gobierno en que a la judicatura, como uno
de los tres poderes del Estado, corresponde la facultad exclusiva de disponer de los asuntos
judiciales. Con respecto a los asuntos de registro particularmente esa facultad exclusiva no
sólo se infiere del principio de la supremacía judicial, sino que, como ya se ha dicho en otra
parte de esta concu-
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Krivenko vs. Register of Deeds of Manila
rrencia, se halla específicamente estatuída en el artículo 200 del Código Administrativo
transcrito arriba. Este artículo confiere jurisdicción exclusiva a los tribunales de justicia para
decidir las cuestiones sobre registro, y esto lo ha reconocido el mismo Departamento de
Justicia en su circular núm. 14 al referir tales cuestiones a la determinación o arbitrio judicial
en casos de duda o litigio.
Es injustificada la insinuación de que, al parecer, la mayoría denegó la retirada de la apelación
no tanto para resolver el asunto en su fondo o por sus méritos, como para enervar los efectos
de la circular núm. 128 del Departamento de Justicia, pues Krivenko, el apelante, habría
ganado entonces su pleito no en virtud de una sentencia judicial, sino pasando por la puerta
trasera abierta por esa circular. Tampoco hay tal cosa. Ya repetidas veces se ha dicho que el
presente asunto se había votado mucho antes de que se expidiese esa circular. Lo que más
correctamente podría decirse es que si antes de la expedición de esa desafortunada circular
poderosas razones de interés público aconsejaban que se denegase la retirada de la apelación
y se diese fin al asunto mediante una sentencia en el fondo, después de la expedición esas
razones quedaron centuplicadas. La explicación es sencilla: nuestra aquiescencia a la retirada
hubiera podido interpretarse entonces como que aprobábamos el escamoteo del asunto,
sustrayéndolo de nuestra jurisdicción. Es más: hubiera podido interpretarse como una
abyecta rendición en la pugna por sostener los fueros de cada ramo coigual y coordinado del
gobierno.
Es todavía más injustificada la insinuación de que la denegación de la retirada de la apelación
equivale "a asumir que el solicitante-apelante y el Procurador General se han confabulado
22
con el Departamento de Justicia no sólo para ingerirse en las funciones de esta Corte, sino
para enajenar el patrimonio nacional a los extranjeros." Esto es inconcebible. La Corte
presume que todos han obrado de buena fe, de acuerdo con los dictados de su conciencia.
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Se ha denegado la retirada de la apelación por razones puramente jurídicas y objetivas, sin
consideración a los motivos de nadie.
Por último, estimo que debe rectificarse la aserción de que el Magistrado Hontiveros fué
excluído de la votación que culminó en un empate y que determinó el rechazamiento de la
retirada de la apelación, a tenor de la regla 56, sección 2, Reglamento de los Tribunales. El
Magistrado Hontiveros no estaba presente en la sesión por estar enfermo; pero estaban
presentes 10 Magistrados, es decir, más que el número necesario para formar quorum y para
despachar los asuntos. La rueda de la justicia en la Corte Suprema jamás ha dejado de rodar
por la ausencia de uno o dos miembros, siempre que hubiese quorum. A la votación
precedieron muy laboriosas y vivas deliberaciones. Ningún Magistrado llamó la atención de la
Corte hacia la ausencia del Sr. Hontiveros. Ningún Magistrado pidió que se le esperase o
llamase al Sr. Hontiveros. Todos se conformaron con que se efectuase la votación, no obstante
la ausencia del Sr. Hontiveros. En efecto, se hace la votación y resulta un empate, es decir, 5
contra 5. De acuerdo con la regla 56, quedaba naturalmente denegada la moción de retirada.
¿Dónde está, pues, la "ilegalidad", dónde la "arbitrariedad"?
Algunos días después se presentó una moción de reconsideración, la misma en que ya se
alegaba como f fundamento el hecho de que la cuestión ya era simplemente académica
(moot question) por la conformidad del Procurador General con la retirada y por la circular
núm. 128 del Departamento de Justicia. Tampoco estaba presente el Sr. Hontiveros al
someterse la moción, la cual fué de nuevo denegada. Pregunto otra vez: ¿dónde está la
"arbitrariedad" ? Qué culpa tenía la Corte de que el Sr. Hontiveros no pudiera estar presente
por estar enfermo? ¿lba a detenerse la rueda de la justicia por eso? Conviene, sin embargo,
hacer constar que sobre el fondo de la cuestión el Sr. Hontiveros era uno de los 8 que habían
votado en favor de la confirmación de la sentencia apelada, es decir, en favor del
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Krivenko vs. Register of Deeds of Manila
veredicto de que la Constitución excluye a los extranjeros de la propiedad de bienes raíces en
Filipinas.
II. No queda casi nada por decir sobre el fondo de la cuestión. Todos los ángulos y fases de la
misma están acabadamente tratados y discutidos en la ponencia. Me limitaré, por tanto, a
hacer unas cuantas observaciones, unas sobre hermenéutica legal, y otras sobre historia
nacional contemporánea, aprovechando en este último respecto mis reminiscencias y mi
experiencia como humilde miembro que f fuí de la Asamblea Constituyente que redactó y
aprobó la Constitución de Filipinas.
Toda la cuestión, a mi juicio, se reduce a determinar e interpretar la palabra "agrícola"
(agricultural) usada en el artículo XIII, sección 5, de la Constitución. He aquí el texto completo
de la sección:
"SEC. 5.—Save in cases of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain in the Philippines."
¿lncluye la palabra "agricultural" aquí empleada los terrenos residenciales, comerciales e
industriales? Tal es la cuestión: la mayoría de esta Corte dice que si; los disidentes dicen que
no.
Es indudable que por razones sanas de hermenéutica legal el artículo XIII de que se trata debe
interpretarse como un todo homogéneo, simétrico. En otras palabras, los vocablos allí
empleados deben interpretarse en el sentido de que tienen un mismo significado. Es absurdo
pensar o suponer que en el texto de una ley, sobre todo dentro del estrecho marco de un
artículo, un vocablo tenga dos o más significados distintos, a menos que la misma ley así lo
diga expresamente. La presunción es que el legislador sigue y se atiene a las reglas literarias
elementales.
Ahora bien: el artículo XIII consta de dos partes—la primera, que trata de los terrenos
agrícolas de dominio público, y la segunda, que se refiere a los terrenos agrícolas privados o
particulares.
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PHILIPPINE REPORTS ANNOTATED
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La primera parte se compone de las secciones 1 y 2 que vinculan la propiedad de los terrenos
públicos en el Estado y disponen que sólo se pueden enajenar a favor de ciudadanos filipinos,
o de corporaciones o asociaciones en que el 60 por ciento del capital, por lo menos,
pertenece a tales ciudadanos. En ambas secciones se emplea literalmente la frase "public
agricultural land."
La segunda parte la componen las secciones 3 y 5: Ia sección 3 preceptúa que "the Congress
may determine by law the size of private agricultural land which individuals, corporations, or
associations may acquire and hold, subject to rights existing prior to the enactment of such
law" 1 ; y la sección 5 es la que queda transcrita más arriba y es objeto del presente litigio. En
ambas secciones se emplea literalmente la frase "private agricultural land."
No hay ninguna cuestión de que la frase "public agricultural land" empleada en la primera
parte comprende terrenos residenciales, comerciales e industriales; lo admiten los mismos
abogados del apelante y los Sres, Magistrados disidentes. Y ¿por que lo admiten? Será porque
en la Constitución se define la palabra "agricultural", aplicada a terrenos públicos, en el
sentido de incluir solares residenciales, comerciales e industriales? Indudablemente que no,
porque en ninguna parte de la Constitución se da tal definición. Lo admiten porque en esta
jurisdicción tenemos una serie consistente de sentencias de esta Corte Suprema en que es
jurisprudencia firmemente establecida la doctrina de que la palabra "agricultural" usada en la
Ley del Congreso de los Estados Unidos de 1902 (Ley Cooper) y en nuestras leyes de terrenos
públicos comprende y abarca solares residenciales, comerciales, industriales y
_______________
1 El Congreso puede determinar por ley la extensión del terreno privado agrícola que los
individuos, corporaciones, o asociaciones pueden adquirir y poseer, sujeto a los derechos
existentes antes de la promulgación de dicha ley.
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Krivenko vs. Register of Deeds of Manila
cualquier otra clase de terrenos, excepto forestales y minerales.2Es decir, que se aplica a la
actual Constitución de Filipinas una interpretación clásica, tradicional, embebida en nuestra
jurisprudencia de cerca de medio siglo.
Ahora bien, pregunto: si la palabra "agricultural" empleada en la primera parte del artículo
XIII tiene tal significado—y lo tiene porque la Constitución no da otro diferente—¿por que esa
misma palabra empleada en la segunda parte, unas cuantas líneas más adelante, no ha de
tener el mismo significado? ¿Da acaso la Constitución una definición de la palabra
"agricultural" cuando se refiere a terreno privado? ¿Dónde está esa definición? ¿O es que se
pretende que la diferenciación opera no en virtud de la palabra "agricultural", sino en virtud
del vocablo "public" o "private", según que se trate de terreno público o privado?
Si la intención de la Asamblea Constituyente fuera el dar a la palabra "agricultural" aplicada a
terreno privado un significado distinto de cuando se refiere a terreno público, lo hubiese
hecho constar así expresamente en el mismo texto de la Constitución Si, como se admite, la
Asamblea optó por no definir la palabra "agricultural" aplicada a terreno póblico porque
contaba para ello con la definición clásica establecida en la jurisprudencia, cuando la misma
Asamblea tampoco definió la palabra con relación a terreno privado, es lógico inferir que tuvo
la misma intención, esto es, aplicar la definición de la jurisprudencia a ambos tipos de terreno
—el público y el privado. Pensar de otra manera podría ser ofensivo, insultante; podría
equivaler a decir que aquella Asamblea estaba compuesta
_______________
2 Véanse los siguientes asuntos: Mapa contra Gobierno Insular, 10 Jur. Fil., 178; Montano
contra Gobierno Insular, 12 Jur. Fil, 592; Santiago contra Gobierno Insular, 12 Jur. Fil., 615;
Ibañez de Aldecoa contra Gobierno Insular, 13 Jur. Fil., 163; Ramos contra Director de
Terrenos, 39 Jur. Fil., 184; y Jocson contra Director de Montes, 39 Jur. Fil., 569; Ankron contra
Gobierno de Filipinas, 40 Jur. Fil., 10.
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de miembros ignorantes, desconocedores de las reglas elementales en la técnica de
redacción legislativa.
24
Tuve el honor de pertenecer a aquella Asamblea como uno de los Delegados por Cebú.
También me cupo el honor de pertenecer al llamado Comité de Siete—el comité encargado
finalmente de redactar la ponencia de la Constitución. No digo que aquella Asamblea estaba
compuesta de sabios, pero indudablemente no era inferior a ninguna otra de su tipo en
cualquiera otra parte del mundo. Allí había un plantel de buenos abogados, algunos versados
y especialistas en derecho constitucional. Allí estaba el Presidente de la Universidad de
Filipinas Dr. Rafael Palma; allí estaba el propio Presidente de la Asamblea Constituyente Hon.
Claro M. Recto, con los prestigios de su reconocida cultura jurídica y humanista; allí estaba
también el Dr. Jose P. Laurel, considerado como una de las primeras autoridades en derecho
constitucional y político en nuestro país. En el Comité de Siete o de Ponencia figuraban el
actual Presidente de Filipinas Hon. Manuel Roxas; el ex-Senador de Cebú Hon. Filemon Sotto;
el Hon. Vicente Singson Encarnación, líder de la minoría en la primera Asamblea Filipina, ex-
miembro de la Comisión de Filipinas, ex-Senador y ex-Secretario de Gabinete; el ex-
Magistrado de la Corte Suprema Hon. Norberto Romualdez; el actual Secretario de Hacienda
Hon. Miguel Cuaderno; y el ex-Decano del Colegio de Artes Liberales de la Universidad de
Filipinas, Hon. Conrado Benitez.
No se puede concebir cómo bajo la inspiración y guía de estas personas pudiera redactarse el
texto de un artículo en que un vocablo—el vocablo "agricultural"—tuviera dos acepciones
diferentes: una, aplicada a terrenos públicos; y otra, aplicada a terrenos privados. Menos se
concibe que, si f uese esta la intención, se incurriese en una omisión imperdonable: la
omisión de una definición especifica, diferenciadora, que evitase caos y confusion en la
mente de los abogados y del público. Teniendo en cuenta la innegable competencia de los
Delegados a la Asamblea Constituyente y de sus liders, lo más lógico pensar es que al no
definir la palabra "agricultural" y al no diferenciar
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su aplicación entre terrenos públicos y privados, lo hicieron deliberadamente, esto es, con la
manifiesta intención de dejar enteramente la interpretación de la palabra a la luz de una sola
común definición—la establecida en la jurisprudencia del asunto típico de Mapa contra
Gobierno Insular y otros similares (supra); es decir, que la palabra "agricultural", aplicada a
terrenos privados, incluye también solares residenciales, comerciales, e industriales.
"A word or phrase repeated in a statute will bear the same meaning' throughout the statute,
unless a different intention appears. * * * Where words have been long used in a technical
sense and have been judicially construed to have a certain meaning, and have been adopted
by the legislature as having a certain meaning prior to a particular statute in which they are
used, the rule of construction requires that the words used in such statute should be
construed according to the sense in which they have been so previously used, although that
sense may vary from the strict literal meaning of the words." (II Sutherland, Stat.
Construction, p. 758.)
Pero acaso se diga que la Asamblea Constituyente ha dejado sin definir la palabra
"agricultural" referente a terreno particular, dando a entender con su silencio que endosaba
la definición al diccionario o a la usanza popular. La suposición es igualmente insostenible.
¿Por que en un caso se entrega la definición a la jurisprudencia, y por que en otro al
diccionario, o al habla popular? Aparte de que los miembros y dirigentes de la Asamblea
Constituyente sabían muy bien que esto causaría una tremenda confusion. Ni los
diccionarios, ni mucho menos el lenguaje popular, ofrecen apoyo seguro para una fiel y
autorizada interpretación. Si el texto mismo de la ley, con definiciones específicas y
casuísticas, todavía ofrece dudas a veces ¿cómo no el léxico vulgar, con su infinita variedad de
matices e idiotismos?
Ahora mismo ¿no estamos presenciando una confusion, una perplejidad? ¿Hay acaso
uniformidad en la definición de lo que es un terreno privado agrícola? No; cada cual lo define
a su manera. Uno de los disidentes el Magistrado Sr. Tuason toma su definición de la pala-
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bra "agricultural" del Diccionario Internacional de Webster que dice * * * "of or pertaining to
agricultural connected with, or engaged in, tillage; as, the agricultural class; agricultural
implements, wages, etc." También hace referencia el mismo Magistrado al concepto popular.
Otro disidente el Magistrado Sr. Padilla dice que "the term private agricultural land means
lands privately owned devoted to cultivation, to the raising of agricultural products." El
Magistrado Sr. Parás no da ninguna definición; da por definida la palabra "agricultural", al
parecer, según el concepto popular.
Pero, sobre todo, los abogados del apelante definen el vocablo de una manera distinta. Según
ellos, "land spoken of as 'agricultural' naturally refers to land not only susceptible of
agricultural or cultivation but more valuable for such than for another purpose, say
residential, commercial or educational. * * * The criterion is not mere susceptibility of
25
conversion into a f arm but its greater value when devoted to one or the other purpose". De
modo que, según esta definición, lo que determina la calidad del terreno es su valor relativo,
según que se dedique al cultivo, o a residencia, o al comercio, o a la industria. Los autores de
esta definición indudablemente tienen en cuenta el hecho de que en las af ueras de las
ciudades existen terrenos inmensos que desde tiempo inmemorial se han dedicado a la
agricultura, pero que se han convertido en subdivisiones multiplicándose su valor en mil por
ciento si no más. De hecho esos terrenos son agrícolas; como que todavía se ven allí los
pilápiles y ciertas partes están cultivadas; pero en virtud de su mayor valor para residencia,
comercio e industria se les quiere colocar fuera de la prohibición constitucional. En verdad, el
criterio no puede ser más elástico y convencional, y denota cuán incierta y cuán confusa es la
situación a que da lugar la tesis del apelante y de los que le sostienen.
Si hubiéramos de hacer depender la definición de lo que es un terreno agrícola del concepto
popular y de los diccionarios, así sean los mejores y más cientificamente elaborados ¿qué
normas claras, concretas y definitivas
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de diferenciación podrían establecerse? ¿Podrían trazarse fronteras inconfundibles entre lo
que es agrícola y lo que es residencial, comercial e industrial? ¿Podría hacerse una
clasificación que no fuese arbitraria? Indudablemente que no. El patron más usual de
diferenciación es la naturaleza urbana o rural del terreno; se considera como residencial,
comercial e industrial todo lo que está dentro de una urbe, ciudad o población. Pero
¿resolvería esto Ia dificultad? Proporcionaría un patron exacto, científico, no arbitrario?
Tampoco. Porque dentro de una ciudad o población puede haber y hay terrenos agrícolas.
Como dijo muy bien el Magistrado Sr. Willard en el asunto clásico de Mapa contra, Gobierno
Insular, "uno de los inconvenientes de la adopción de este criterio es que es tan vago e
indeterminado, que sería muy difícil aplicarlo en la práctica. ¿Qué terrenos son agrícolas por
naturaleza? El mismo Fiscal General, en su alegato presentado en este asunto, dice: 'La
montaña más pedregosa y el suelo más pobre son susceptibles de cultivo mediante la mano
del hombre'" (Mapa contra Gobierno Insular, 10 Jur. Fil., 183). Y luego el Sr. Willard añade las
siguientes observaciones sumamente pertinentes e ilustrativas para una correcta resolución
del asunto que nos ocupa, a saber:
"* * * Tales terrenos (agrícolas, quiere decir) se pueden encontrar dentro de los límites de
cualquier ciudad. Hay dentro de la ciudad de Manila, y en la parte densamente poblada de la
misma, una granja experimental. Ésta es por su naturaleza agrícola. Contigua a la Luneta, en
la misma ciudad, hay una gran extension de terreno denominado Camp Wallace, destinada a
sports. El terreno que circunda los muros de la ciudad de Manila, situado entre éstos y el
paseo del Malecón por el Oeste, La Luneta por el Sur, y el paseo de Bagumbayan por el Sur y
Este contiene muchas hectáreas de extension y es de naturaleza agrícola. La Luneta misma
podría en cualquier tiempo destinarse al cultivo"
La dificultad es mayor tratándose de diferenciar un terreno agrícola de un terreno industrial.
En este respecto es preciso tener en cuenta que un terreno industrial no tiene que ser
necesariamente urbano; en realidad, la tendencia moderna es a situar las industrias fuera de
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las ciudades en vastas zonas rurales. Verbigracia; en derredor de la famosa cascada de Maria
Cristina en Lanao existen grandes extensiones de terreno agrícola, algunas de propiedad
particular. Cuando se industrialice aquella formidable fuerza hidráulica bajo el llamado Plan
Beyster ¿qué normas seguras se podrían establecer para poner en vigor la prohibición
constitucional de que se trata? No habría peligro de que la Constitución fuese burlada
enajenándose tierras agrícolas de propiedad privada a favor de extranjeros, ya sean
individuos, ya sean corporaciones o asociaciones, so pretexto de ser industriales?
Resulta evidente de lo expuesto que los redactores de nuestra Constitución no pudieron
haber tenido la idea de que el artículo XIII fuera interpretado a la luz de ese criterio vago e
indeterminado que llama el Sr. Willard, Es más lógico pensar que el criterio que ellos tenían
en la mente era el criterio establecido en la jurisprudencia sentada en el asunto clásico de
Mapa contra Gobierno Insular y otros asuntos concomitantes citados—criterio más firme,
más seguro, menos expuesto a confusion y arbitrariedad, y sobre todo, "que ofrece menos
inconvenientes", parafraseando otra vez al Magistrado Sr. Willard, (supra, p. 185).
Otro serio inconveniente. La sección 3, artículo XIII de la Constitución, dispone que "el
Congreso puede determinar por ley la extension superficial del terreno privado agrícola que
los individuos, corporaciones o asociaciones pueden adquirir y poseer, sujeto a los derechos
existentes antes de la aprobación de dicha ley." Si se interpretase que la frase "private
agricultural land" no incluye terrenos residenciales, comerciales e industriales, entonces estas
últimas clases de terreno quedarían excluídas de la facultad reguladora concedida por la
Constitución al Congreso mediante dicha sección 3. Entonces un individuo o una corporación
26
podrían ser dueños de todos los terrenos de una ciudad; no habría límite a las adquisiciones y
posesiones en lo tocante a terrenos residenciales,
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comerciales e industriales. Esto parece absurdo, pero sería obligada consecuencia de la tesis
sustentada por el apelante.
Se hace hincapié en el argumento de que en el proceso de tamización del artículo XIII durante
las deliberaciones de la Asamblea Constituyente y de los Comités de Ponencia y de Estilo al
principio no figuraba el adjetivo "agrícola" en la sección 5, diciéndose sólo "terreno privado",
y que sólo más tarde se añadió la palabra calificativa "agrícola", redondeándose entonces la
frase "terreno privado agrícola—"private agricultural land". De ésto se quiere inferir que la
adición de la palabra "agricultural" debió de ser por algún motivo, y éste no podía ser más
que el de que se quiso excluir los terrenos residenciales, comerciales e industriales,
limitándose el precepto a los propia o estrictamente agrícolas.
La deducción es incorrecta y sin fundamento. No cabe decir que la adición de la palabra
"agricultural" en este caso equivale a excluir los terrenos residenciales, comerciales e
industriales, por la sencilla razón de que la Constitución no sólo no define lo que es
residencial, comercial e industrial, sino que ni siquiera hace mención de ello. En ninguna
parte de la Constitución se emplean las palabras residencial, comercial e industrial. En
cambio, ya hemos visto que la palabra "agricultural" tiene una significación tradicionalmente
bien establecida en nuestra jurisprudencia y en nuestro vocabulario jurídico: incluye no sólo
terrenos cultivados o susceptibles de cultivo, sino también residenciales, comerciales e
industriales. Se admite por todo el mundo que la palabra tiene tal significación en el artículo
XIII, sección 5, de la Constitución, en cuanto se refiere a terreno público. Ahora bien; ¿qué
diferencia hay, después de todo, entre un terreno público agrícola y un terreno privado
agrícola? En cuanto a la naturaleza, o sea, a la calidad de agrícola, absolutamente ninguna.
Uno no es más o menos agrícola que el otro. La única diferencia se refiere a la propiedad, al
título dominical—en que el uno es del Estado y el otro es de un particular.
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En realidad, creo que la diferencia es más bien psicológica, subjetiva—en que vulgarmente
hablando parece que los conceptos de "agrícola" y "residencial" se repelen. No se debe
menospreciar la influencia del vulgo en algunas cosas; en la misma literatura el vulgo juega su
papel; diga si no la formación popular del romancero. Pero es indudable que ciertas cosas
están por encima del concepto vulgar—una de éstas la interpretación de las leyes, la
hermenéutica legal. Esto no es exagerar la importancia de la técnica, sino que es simplemente
colocar las cosas en su verdadero lugar. La interpretación de la ley es una f unción técnica por
excelencia; por eso que ha sido siempre función de minoría—los abogados. Si no fuera así
¿para que los abogados? ¿Y para que las escuelas de derecho. y para que los exámenes, cada
vez más rígidos, para depurar el alma de la toga, que dijo un gran abogado español? 1 Así que
cuando decimos que el precepto constitucional en cuestión debe interpretarse técnicamente,
a la luz de la jurisprudencia, por ser ello el método más seguro para hallar la verdad judicial,
no importa que ello repugne al concepto vulgar a simple vista, no ponemos, en realidad,
ninguna pica en Flandes, sino que propugnamos una cosa harto elemental por lo sabida.
Por tanto, no es necesario especular o devanarse los sesos tratando de inquirir por que en la
tamización del precepto se añadió el adjetivo "agricultural" a las palabras "private land" en
vez de dejarlas solas, sin cualificación, Algunos dirán que fué por razón de simetría para hacer
"pendant" con la frase "public agricultural land" puesta más arriba. Pero esto no tiene
ninguna importancia. Lo importante es saber que la añadidura, tal como está, sin otro dato en
el texto constitucional, no ha tenido el efecto de cambiar el significado jurídico, tradicional en
esta jurisdicción, de la palabra "agricultural" empleada en dicho texto. Eso es todo: lo demás
creo que es puro bizantinismo.
III. Creo que una examen de los documentos y debates de la Asamblea Constituyente para ver
de inquirir la moti-
_______________
1 Osorio y Gallardo.
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27
vación y finalidad del precepto constitucional que nos ocupa puede ayudar grandemente y
arrojar no poca luz en la interpretación de la letra y espíritu de dicho precepto. Este género
de inquisición es perfectamente propio y permisible en hermenéutica constitucional, y se ha
hecho siempre, según las mejores autoridades sobre la materia. Cooley, en su autorizado
tratado sobre Limitaciones Constitucionales (Contitutional Limitations) dice a este efecto lo
siguiente:
"When the inquiry is directed to ascertaining the mischief designed to be remedied, or the
purpose sought to be accomplished by a particular provision, it may be proper to examine the
proceedings of the convention which framed the instrument. Where the proceedings clearly
point out the purpose of the provision, the aid will be valuable and satisfactory; but where
the question is one of abstract meaning, it will be difficult to derive from this source much
reliable assistance in interpretation." (1 Cooley on Constitutional Limitations [8th ed.], p.
142.)
¿Qué atmósfera prevalecía en la Asamblea sobre el problema de la tierra, en general sobre el
problema capitalísimo de los terrenos naturales? ¿Cuál era la tendencia predominante entre
los Delegados? Y ¿cómo era también el giro de la opinion, del sentimiento público, es decir,
cómo era el pulso del pueblo mismo, del cual la Asamblea, después de todo, no era más que
órgano e intérprete?
Varios discursos sobre el particular se pronunciaron en la Asamblea Constituyente. El tono
predominante en todos ellos era un fuerte, profundo nacionalismo. Tanto dentro como fuera
de la Asamblea Constituyente era evidente, acusado, el afán unánime y decidido de conservar
el patrimonio nacional no sólo para las presentes generaciones filipinas, sino también para la
posteridad. Y patrimonio nacional tenía, en la mente de todos, un significado categórico e
indubitable: significaba no sólo bosques, minas y otros recursos naturales, sino que
significaba asimismo la tierra, el suelo, sin distinción de si es de dominio público o privado.
Muestras típicas y representativas de este tono peculiar y dominante de la ideología
constituyente son ciertas manifestaciones que constan
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en el diario de sesiones, hechas en el curso de los debates o en el proceso de la redacción del
proyecto constitucional por Delegados de palabra autorizada, bien por su significación
personal, bien por el papel particular que desempeñaban en las tareas constituyentes. Por
ejemplo, el Delegado Montilla, por Negros Occidental, conspicuo representante del agro,
usando del privilegio de media hora parlamentaria dijo en parte lo siguiente:
"* * * Con la completa nacionalización de nuestras tierras y recursos naturales debe
entenderse que nuestro patrimonio nacional debe estar vinculado 100 por 100 en manos
filipinas. Tierras y recursos naturales son inmuebles y como tales pueden compararse con los
órganos vitales del cuerpo de una persona: la falta de posesión de los mismos puede causar la
muerte instantánea o el abreviamiento de la vida" (Diario de Sesiones, Asamblea
Constituyente, inédita, "Framing of the Constitution," tít. 2°, pág. 592, Libro del Profesor
Aruego).
Como se ve, el Delegado Montilla habla de tierras sin adjetivación, es decir sin diferenciar
entre propiedad pública y privada.
El Delegado Ledesma, por Iloilo, otro conspicuo representante del agro, presidente del comité
de agricultura de la Asamblea Constituyente, fué más explícito diciendo inequívocamente que
los extranjeros no podían ser dueños de propiedad inmueble (real estate). He aquí sus
mismas palabras:
"La exclusion de los extranjeros del privilegio de adquirir terrenos públicos agrícolas y de
poder ser dueños de propiedades inmuebles (real estate) es una parte necesaria de las leyes
de terrenos públicos de Filipinas para mantener firme la idea de conservar Filipinas para los
filipinos" (Diario de Sesiones, id.; Libro de Aruego, supra, pág. 593.)
Es harto significativo que en el informe del Comité de Nacionalización y Conservación de
Recursos Naturales de la Asamblea Constituyente la palabra tierra (land) se usa
genéricamente, sin cualificación de pública o privada. Dice el Comité:
"Que la tierra, los minerales, los bosques y otros recursos naturales constituyen la herencia
exclusiva de la nación filipina. Deben,
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521
Krivenko vs. Register of Deeds of Manila
por tanto, ser conservados para aquellos que se hallan bajo la autoridad soberana de esa
nación y para su posteridad." (Libro de Aruego, supra, pág. 595.)
28
La conservación y fomento del patrimonio nacional fué una verdadera obsesión en la
Asamblea Constituyente. Sus miembros que todavía viven recordarán la infinita paciencia, el
esmero de orfebrería con que se trabajó el preámbulo de la Constitución. Cada frase, cada
concepto se sometió a un rígido proceso de selección y depuración. Pues bien; de esa labor
benedictina una de las gemas resultantes es la parte pertinente a la conservación y fomento
del patrimonio nacional. He aquí el preámbulo:
"The Filipino people, imploring the aid of Divine Providence, in order to establish a
government that shall embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty, and democracy, do ordain and
promulgate this Constitution."
El espíritu fuertemente nacionalista que saturaba la Asamblea Constituyente con respecto a
la tierra y recursos naturales es de fácil explicación. Estábamos escribiendo una Constitución
no sólo para el Commonwealth, sino también para la república que advendría después de 10
años. Queríamos, pues, asegurar firmemente las bases de nuestra nacionalidad. ¿Qué cosa
mejor, para ello, que blindar por los cuatro costados el cuerpo de la nación, del cual—
parodiando al Delegado Montilla—la tierra y los recursos naturales son como órganos vitales,
cuya pérdida puede causar la muerte instantánea o el abreviamiento de la vida?
Para apreciar el pulso de la nación en aquel momento histórico es preciso tener en cuenta las
circunstancias. Nos dábamos perfecta cuenta de nuestra posición geográfica, así como
también de nuestras limitaciones demográficas. Se trataba, por cierto, de una conciencia
agudamente atormentadora y alarmante. Estábamos rodeados de enormes masas humanas
—centenares de millones—económica y biológicamente agresivas, ávidas de desbordarse por
todas partes, por las areas del Pacífico particularmente,
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en busca de espacios vitales. China, Japón—Japón, sobre todo, que estaba entonces en el
apogeo de su delirio de engrandecimiento económico y militarista. Teníamos apuntado al
mismo corazón, como espada rutilante de Samurai, el pavoroso problema de Davao, donde,
por errores iniciales del Gobierno, Japón tenía el control de la tierra, instituyendo allí una
especie de Japón en miniatura, con todas las amenazas y peligros que ello implicaba para la
integridad de nuestra existencia nacional. Como que Davao ya se llamaba popular y
sarcásticamente Davaoko, en trágica rima con Manchuko.
También nos obsesionaban otras lecciones dolorosas de historia contemporánea. Texas,
Méjico, Cuba y otros países del Mar Caribe y de la América Latina que todavia expiaban, como
una terrible maldición, el error de sus gobernantes al permitir la enajenación del suelo a
extranjeros.
Con el comercio y la industria principalmente en manos no-filipinas, los Delegados a la
Constituyente se hacían cargo también de la vitalísima necesidad de, por lo menos, vincular el
patrimonio nacional, entre otras cosas la tierra, en manos de los filipinos.
Qué de extraño había, pues, que en semejante atmósfera y tales circunstancias se aprobase
un artículo rígida-mente nacionalista como es el Artículo XIII? La motivación y finalidad, como
ya se ha dicho, era triple: (a) conservar el patrimonio nacional para las presentes y futuras
generaciones filipinas; (b) vincular, por lo menos, la propiedad de la tierra y de los recursos
naturales en manos filipinas como la mejor manera de mantener el equilibrio de un sistema
económico dominado principalmente por extranjeros en virtud de su técnica (know-how)
superior y de su abundancia de capitales; (c) prevenir peligros que pudieran comprometer la
defensa y la integridad de la nación, y evitar a la república conflictos y complicaciones
internacionales.
No se concibe que los Delegados tuvieran la intención de excluir del precepto los terrenos
residenciales, comer-
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Krivenko vs. Register of Deeds of Manila
ciales e industriales, pues sabían muy bien que los fines que se trataban de conseguir y los
peligros que se trataban de evitar con la política de nacionalización y conservación rezaban
tanto para una clase de terrenos como para otra. ¿Por que se iba a temer, verbigracia, el
dominio extranjero sobre un terreno estrictamente agrícola, sujeto a cultivo, y no sobre el
terreno en que estuviera instalada una formidable industria o fábrica?
Otro detalle significativo. Era tan vigoroso el sentimiento nacionalista en la Asamblea
Constituyente que, no obstante el natural sentimiento de gratitud que nos obligaba a favor de
los americanos, a éstos no se les concedió ningún privilegio en relación con la tierra y demás
29
recursos naturales, sino que se les colocó en el mismo plano que a los otros extranjeros.
Como que ha habido necesidad de una reforma constitucional—la llamada reforma sobre la
paridad—para equipararlos a los filipinos.
"The mere literal construction of a section in a statute ought not to prevail if it is opposed to
the intention of the legislature apparent by the statute; and if the words are sufficiently
flexible to admit of some other construction it is to be adopted to effectuate that intention.
The intent prevails over the letter, and the letter will, if possible, be so read as to conform to
the spirit of the act. While the intention of the legislature must be ascertained from the
words used to express it, the manifest reason and the obvious purpose of the law should not
be sacrificed to a literal interpretation of such words." (II Sutherland, Stat. Construction, pp.
721, 722.)
IV.—Se insinúa que no debiéramos declarar que la Constitución excluye a los extranjeros de la
propiedad sobre terrenos residenciales, comerciales e industriales, porque ello imposibilitaría
toda acción legislativa en sentido contrario para el caso de que el Congreso llegase alguna vez
a pensar que semejante interdicción debía levantarse. Se dice que es mejor y más
conveniente dejar esta cuestión en manos del Congreso para que haya más elasticidad en las
soluciones de los diferentes problemas sobre la tierra.
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Cometeríamos un grave error si esto hiciéramos. Esta es una cuestión constitucional por
excelencia. Solamente el pueblo puede disponer del patrimonio nacional. Ni el Congreso, ni
mucho menos los tribunales, pueden disponer de ese patrimonio. Lo más que puede hacer el
Congreso es proponer una reforma constitucional mediante los votos de tres cuartas (¾) de
sus miembros; y el pueblo tiene la última palabra que se expresará en una elección o
plebiscito convocado al efecto.
El argumento de que esto costaría dinero es insostenible. Sería una economía mal entendida.
Si no se escatiman gastos para celebrar elecciones ordinarias periódicamente ¿cómo ha de
escatimarse para averiguar la verdadera voluntad del pueblo en un asunto tan vital como es la
disposición del patrimonio nacional, base de su misma existencia? Esto en el supuesto de que
hubiera un serio movimiento para reformar la Constitución, apoyado por tres cuartas (¾) del
Congreso, por lo menos.
En el entretanto el artículo XIII de la Constitución debe quedar tal como es, e interpretarse en
la forma como lo interpretamos en nuestra decision.
Se confirma la sentencia.
PARÁS, J., dissenting:
Section 5 of Article XIII of the Constitution provides that "save in cases of hereditary
succession, no private agricultural land shall be transferred or assigned except to individuals,
corporations, or associations qualified to acquire or hold lands of the public domain in the
Philippines." The important question that arises is whether private residential land is included
in the terms "private agricultural land."
There is no doubt that under section 1 of Article XIII of the Constitution, quoted in the
majority opinion, lands of the public domain are classified into agricultural, timber, or
mineral. There can be no doubt, also, that public lands suitable or actually used for residential
purposes, must of necessity come under any of the three classes.
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But may it be reasonably supposed that lands already of private ownership at the time of the
approval of the Constitution, have the same classifications? An affirmative answer will lead to
the conclusion—which is at once absurd and anomalous—that private timber and mineral
lands may be transferred or assigned to aliens by a mode other than hereditary succession. It
is, however, contended that timber and mineral lands can never be private, and reliance is
placed on section 1, Article XIII, of the Constitution providing that "all agricultural, timber and
mineral lands of the public domain * * * belong to the State," and limiting the alienation of
natural resources only to public agricultural land. The contention is obviously untenable. This
constitutional provision, far from stating that all timber and mineral lands existing at the time
of its approval belong to the State, merely proclaims ownership by the Government of all
such lands as are then of the public domain; and although, after the approval of the
Constitution, no public timber or mineral land may be alienated, it does not follow that
timber or mineral lands theretofore already of private ownership also became part of the
public domain. We have held, quite recently, that lands in the possession of occupants and
their predecessors in interest since time immemorial do not belong to the Government, for
such possession justifies the presumption that said lands had never been part of the public
30
domain or that they had been private properties even before the Spanish conquest. (Oh Cho
vs. Director of Lands, 43 Off. Gaz., 866.) This gives effect to the pronouncement in Cariño vs.
Insular Government (212 U. S., 446; 53 Law. ed., 594), that it could not be supposed that
"every native who had not a paper title is a trespasser." It is easy to imagine that some of
such lands may be timber or mineral. However, if there are absolutely no private timber or
mineral lands, why did the framers of the Constitution bother about speaking of "private
agricultural land" in sections 3 and 5 of Article XIII, and merely of "lands" in section 4?
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"SEC. 3. The Congress may determine by law the size of private agricultural land which
individuals, corporations, or associations may acquire and hold, subject to rights existing prior
to the enactment of such law.
"SEC. 4. The Congress may authorize, upon payment of just compensation, the expropriation
of lands to be subdivided into small lots and conveyed at cost to individuals.
"SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain in the Philippines."
Under section 3, the Congress may determine by law the size of private agricultural land
which individuals, corporations, or associations may acquire and hold, subject to rights
existing prior to the enactment of such law, and under section 4 it may authorize, upon
payment of just compensation, the expropriation of lands to be subdivided into small lots and
conveyed at cost to individuals. The latter section clearly negatives the idea that private lands
can only be agricultural. If the exclusive classification of public lands contained in section 1 is
held applicable to private lands, and, as we have shown, there may be private timber and
mineral lands, there would be neither sense nor justification in authorizing the Congress to
determine the size of private agricultural land only, and in not extending the prohibition of
section 5 to timber and mineral lands.
In my opinion, private lands are not contemplated or controlled by the classification of public
lands, and the term "agricultural" appearing in section 5 was used as it is commonly
understood, namely, as denoting lands devoted to agriculture. In other words, residential or
urban lots are not embraced within the inhibition established in said provision. It is
noteworthy that the original draft referred merely to "private land." This certainty would have
been comprehensive enough to include any kind of land. The insertion of the adjective
"agricultural" is therefore significant. If the Constitution prohibits the alienation to foreigners
of private lands of
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Krivenko vs. Register of Deeds of Manila
any kind, no legislation can ever be enacted with a view to permitting limited areas of land for
residential, commercial, or industrial use, and said prohibition may readily affect any effort
towards the attainment of rapid progress in Philippine economy. On the other hand, should
any danger arise from the absence of such constitutional prohibition, a law may be passed to
remedy the situation, thereby enabling the Government to adopt such elastic policy as may
from time to time be necessary, unhampered by any inconveniences or difficulties in
amending the Constitution. The power of expropriation is, furthermore, a handy safeguard
against undesirable effects of unrestricted alienation to, or ownership by, aliens of urban
properties. The majority argue that the original draft in which the more general terms
"private land" was used, was amended in the same that the adjective "agricultural" was
inserted in order merely "to clarify concepts and avoid uncertainties" and because, as under
section 1, timber and mineral lands can never be private, "the prohibition to transfer the
same, would be superfluous." In answer, it may be stated that section 4 of Article XIII,
referring to the right of expropriation, uses "lands" without any qualification, and it is logical
to believe that the use was made knowingly in contradistinction with the limited term
"private agricultural land" in sections 3 and 5. Following the line of reasoning of the majority,
"lands" in section 4 necessarily implies that what may be expropriated is not only private
agricultural land but also private timber and mineral lands, as well, of course, as private
residential lands. This of course tears apart the majority's contention that there cannot be
any private timber or mineral land,
Any doubt in the matter will be removed when it is borne in mind that no less than Honorable
Filemon Sotto, Chairman of the Sponsorship Committee of the Constitutional Convention, in
supporting section 3 of Article XIII, explained that the same refers to agricultural land, and not
to urban properties, and such explanation is some-
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what confirmed by the statement of another member of the Convention (Delegate Sevilla) to
the effect that said section "is discriminatory and unjust with regard to the agriculturists."
"Sr. SOTTO (F.) Señor Presidente: "Qué hay caballeros de la Convención en el fondo de esta
cuestión al parecer inocente y ordinaria para que tanto revuelo haya metido tanto en la
sesión de ayer como en la de hoy? Qué hay de misterioso en el fondo de este problema, para
que políticos del volumen del caballero por Iloilo y del caballero por Batangas, tomen con
gran interés una moción para reconsiderar lo acordado ayer? Voy a ser frío, señores. Parece
que es mejor tratar estas cuestiones con calma y no con apasionamiento. He prestado
atención, como siempre suelo hacer a todos los argumentos aducidos aquí en contra del
precepto contenido en el draft y a f avor ahora de la' reconsideración y siento decir lo
siguiente; todos son argumentos muy buenos a posteriori. Cuando la Asamblea Nacional se
haya reunido, será la ocasión de ver si procede o no expropiar terrenos o latifundios
existentes ahora o existentes después. En el presente, yo me limito a invitar la atención de la
Convención al hecho de que el precepto no hace otra cosa más que autorizar a la Asamblea
Nacional a que tome las medidas necesarias en tiempo oportuno, cuando el problema del
latifundismo se haya presentado con carácteres tales que el bienestar, interés y orden público
lo requieran. Permítame la Convención que lo discuta en globo las dos partes del artículo 9.
Hay tal engranaje en los dos mandatos que tiene dicho precepto, hay tal eslabón en una u
otra parte que es imposible, que es difícil que quitáramos deslindes si nos limitásemos a
considerar una sola parte. La primera parte autoriza a la Legislatura para fijar el límite
máximo de propiedad agrícola que los ciudadanos particulares pueden tener. Parece que es
un punto que ha pasado desapercibido. No se trata aquí ahora de propiedades urbanas, sino
de propiedades agrícolas, y es por la razón de que con mucha especialidad en las regiones
agrícolas, en las zones rústicas es donde el latifundismo se extiende con facilidad, y desde allí
los tentáculos de las caciques van al cuello de los pobres y de los pequeños propietarios
precisamente para ahogarles y para inutilizarles. Está, pues, a salvo completamente la
cuestión de las propiedades urbanas. Ciertos grandes solares de nuestras ciudades que con
pretexto de tener ciertos edificios, que en realidad no necesitan de tales extensos solares
para su existencia ni para su mantenimiento, puedan dormir tranquilos. No vamos contra esas
propiedades. Por una causa o por otra el pasado nos ha legado ese lastre doloroso. Pero la
region agrícola, la region menos explotada por nuestro pueblo, la re-
529
VOL. 79, NOVEMBER 15, 1947
529
Krivenko vs. Register of Deeds of Manila
gión que necesitamos si queremos vivir por cuenta propia, la región que es el mayor incentivo
no sólo para los grandes capitalistas de fuera sino también para los grandes capitalistas
interiores, esa región merece todos los cuidados del gobierno.
"Voy a pasar ahora a la relación que tiene la segunda parte de la enmienda con la primera.
Una vez demostrado ante la Legislatura, una vez convencida la Asamblea Nacional de que
existe un latifundismo y que este latifundismo puede producir males o está produciendo
daños a la comunidad, es cuando entonces la Legislatura puede acordar la expropiación de
los latifundios. Donde está el mal que los opositores a este precepto pretenden ver
inútilmente ? Prever es gobernar. Este es un postulado que todos conocen. Bien, voy a admitir
para los propósitos del argumento que hoy no existen latifundios, y si los opositores al
precepto quieren más vamos a convenir en que no existirán en el futuro. Pues, entonces,
dónde está el temor de que el hijo de tal no pueda recibir la herencia de cual? Por lo demás,
el ejemplo repetidas veces presentado ayer y hoy en cuanto al heredero y al causahabiente
no es completamente exacto. Vamos a suponer que efectivamente un padre de familia posee
un número tal de hectáreas de terreno, superior o exedente a lo que fija la ley. Creen los
Caballeros, creen los opositores al precepto que la Legislatura, la Asamblea Nacional va a ser
tan imprudente, tan loca que inmediatamente disponga por ley que aquella porción
excedente del terreno que ha de recibir un hijo de su padre no podrá poseerlo, no podrá
tenerlo o recibirlo el heredero.
"Esa es una materia para la Asamblea Nacional. La Asamblea Nacional sabe que no puede
dictar leyes o medidas imposibles de cumplir. Fijará el plazo, fijará la proporción de acuerdo
con las circunstancias del tiempo entonces en que vivamos. Es posible que ahora un número
determinado de hectáreas sea excesivo; es posible que por desenvolvimientos económicos
del país, ese número de hectáreas pueda ser elevado o reducido. Es por esto porque el
Comité precisamente no ha querido fijar desde ahora el número de hectáreas, prefiriendo
dejar a la sabiduría, a la prudencia, al patriotismo y a la justicia de la Asamblea Nacional el
fijar ese número.
"Lo mismo digo de la expropiación. Se habla de que el gobierno no tendrá, dinero; se habla
de que no podrá revender las propiedades. Pero, Caballeros de la Convención, caballeros
opositores del precepto; si la Legislatura, si la Asamblea Nacional estuviera convencida de
que el gobierno no puede hacer una expropiación, va a hacerlo? La Asamblea Nacional
dictará una ley autorizando la expropiación de tal o cual latifundio cuando esté convencida,
primero, de que la existencia de ese latifundio es amenazante para
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
el bienestar público; y, segundo, cuando la Asamblea Nacional esté convencida de que el
gobierno está en disposición para disponer la expropiación.
"Visto, pues, desde este punto el asunto, no es malo autorizar, fijar los límites, ni mucho
menos es malo autorizar a la Legislatura para dictar leyes de expropiación.
"Pero voy a molestaros por un minuto más. Se ha mentado aquí con algún éxito esta mañana
—y digo con éxito porque he oído algunos aplausos—se ha mentado la posibilidad de que los
comunistas hagan un issue de esta disposición que existe en el draft; podrán los comunistas
pedir los votos del electorado para ser ellos los que dicten las leyes fijando el límite del
terreno y ordenen la expropiación? ¿Qué argumento más bonito si tuviera base! Lo más
natural, creo yo, es que el pueblo, el electorado, al ver que no es una Asamblea Constituyente
comunista la que ha puesto esta disposición, otorgue sus votos a esta misma Asamblea
Nacional, o a esos candidatos no comunistas. ¿Quién está en disposición de terminar mejor
una obra, aquel que ha trazado y puesto los primeros pilares, o aquel que viene de gorra al
final de la obra para decir: 'Aquí estoy para poner el tejado?'
"Es sensible, sin embargo, que una cuestión de importancia tan nacional como ésta,
pretendamos ligarla a los votos de los comunistas. El comunismo no ha de venir porque
nosotros fijemos los límites de terreno; no ha de venir porque prohibamos los latifundios
mediante expropiación forzosa, no; ha de venir precisamente por causa de los grandes
propietarios de terreno, y ha de venir, querámoslo o no, porque el mundo está evolucionando
y se va a convencer de que la vida no es solamente para unos cuantos sino para todos,
porque Dios nos la dió, con la libertad, el aire, la luz, la tierra para vivir (Grandes Aplausos), y
por algo se ha dicho que en los comienzos de la vida humana debió haber sido fusilado,
matado, a aquel primero que puso un cerco a un pedazo de tierra reclamando ser suya a
propiedad.
"Por estas razones, señor Presidente, y sintiendo que mi tiempo está para terminar, voy a dar
fin a mi discurso agradeciendo a la Convención." (Speech of Delegate Sotto.)
"I would further add, Mr. President, that this precept by limiting private individuals to holding
and acquiring lands, private agricultural lands * * * is discriminatory and unjust with regard to
the agriculturists. Why not, Mr. President, extend this provision also to those who are
engaged in commerce and industries? Both elements amass wealth. If the purpose of the
Committee, Mr. President, is to distribute the wealth in such a manner that it will not breed
discontent, I see no reason for the dis-
531
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531
Krivenko vs. Register of Deeds of Manila
crimination against the agriculturist. In view of these reasons, Mr. President, I do not want to
speak further and I submit this amendment because many reasons have been given already
yesterday and this morning." (Speech of Delegate Sevilla.)
Delegate Sotto was not interpellated, much less contradicted, on the observation that section
3 of Article XIII does not embrace private urban lands. There is of course every reason to
believe that the sense in which the terms "private agricultural lands" were employed in
section 3 must be the same as that in section 5, if consistency is to be attributed to the
framers of the Constitution.
We should not be concluded by the remarks, cited in the majority opinion, made by Delegate
Ledesma to the effect that "the exclusion of aliens from the privilege of acquiring public
agricultural lands and of owning real estate is a necessary part of the Public Land Laws," and
of the statement of Delegate Montilla regarding "the complete nationalization of our lands
and natural resources," because (1) the remarks of Delegate Ledesma expressly mentions
"public agricultural lands" and the term "real estate" must undoubtedly carry the same
meaning as the preceding words "public agricultural lands" under the principle of "ejusdem
generis"; (2) Delegate Ledesma must have in mind purely "agricultural" land, since he was the
Chairman of the Committee on Agricultural Development and his speech was made in
connection with the national policy on agricultural lands; (3) the general nature of the
explanations of both Delegate Ledesma and Delegate Montilla, cannot control the more
specific clarification of Delegate Sotto that agricultural lands in section S do not include urban
properties. Neither are we bound to give greater force to the view (apparently based on mere
mental recollections) of the Justices who were members of the Constitutional Convention
than to the specific recorded manifestation of Delegate Sotto.
The decision in the case of Mapa vs. Insular Government (10 Phil., 175), invoked by the
majority, is surely
532
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
not controlling, because, first, it dealt with "agricultural public lands" and, secondly, in that
case it was expressly held that the phrase "agricultural land" as used in Act No. 926 "means
those public lands acquired from Spain which are not timber or mineral lands,"—the
definition held to be found in section 13 of the Act of Congress of July 1, 1902.
"We hold that there is to be found in the act of Congress a definition of the phrase
'agricultural public lands,' and after a careful consideration of the question we are satisfied
that the only definition which exists in said act is the definition adopted by the court below.
Section 13 says that the Government shall 'make rules and regulations for the lease, sale, or
other disposition of the public lands other than timber or mineral lands." To our minds that is
the only definition that can be said to be given to agricultural lands. In other words, that the
phrase 'agricultural land' as used in Act No. 926 means those public lands acquired from
Spain which are not timber or mineral lands." (Mapa vs. Insular Government, 10 Phil., 182.)
The majority, in support of their construction, invoke Commonwealth Act No. 141, enacted
after the approval of the Constitution, which prohibits the alienation to foreigners of "land
originally acquired in any manner under the provisions of this Act," (section 122) or "land
originally acquired in any manner under the provisions of any previous Act, ordinance, royal
order, royal decree, or any other provision of law formerly in force in the Philippines with
regard to public lands, terrenos baldíos y realengos, or lands of any other denomination that
were actually or presumptively of the public domain;" (Section 123.) They hold that the
constitutional intent "is made more patent and is strongly implemented by Said Act." The
majority have evidently overlooked the f act that the prohibition contained in said sections
refer to lands originally acquired under said Act or other legal provisions formerly in force in
the Philippines with regard to public lands, which of course do not include lands not originally
of the public domain. The lands that
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VOL. 79, NOVEMBER 15, 1947
533
Krivenko vs. Register of Deeds of Manila
may be acquired under Act No. 141 necessarily have to be public agricultural lands, since they
are the only kinds that are subject to alienation or disposition under the Constitution. Hence,
even if they become private, said lands retained their original agricultural character and may
not therefore be alienated to foreigners. It is only in this sense, I think, that Act No. 141 seeks
to carry out and implement the constitutional objective. In the case before us, however, there
is no pretense that the land bought by the appellant was originally acquired under said Act or
other legal provisions contemplated therein.
The majority is also mistaken in arguing that "prior to the Constitution, under section 24 of
the Public Land Act No. 2874, aliens could acquire public agricultural lands used for industrial
or residential purposes, but after the Constitution and under section 23 of Commonwealth
Act No. 141, the right of aliens to acquire such kind of lands is completely stricken out,
undoubtedly in pursuance of the Constitutional limitation," and that "prior to the
Constitution, under section 57 of the Public Land Act No. 2874, land of the public domain
suitable for residence or industrial purposes could be sold or leased to aliens, but after the
Constitution and under section 60 of Commonwealth Act No. 141, such land may only be
leased, but not sold, to aliens, and the lease granted shall only be valid while the land is used
for the purpose referred to." Section 1 of Article XIII of the Constitution speaks of "public
agricultural lands" and, quite logically, Commonwealth Act No. 141, enacted after the
approval of the Constitution, has to limit the alienation of its subject matter (public
agricultural land, which includes public residential or industrial land) to Filipino citizens. But it
is not correct to consider said Act as a legislation on, or a limitation against, the right of aliens
to acquire residential land that was already of private ownership prior to the approval of the
Constitution.
534
534
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
The sweeping assertion of the majority that "the three great departments of the Government
—Judicial, Legislative and Executive—have always maintained that lands of the public domain
are classified into agricultural, mineral and timber, and that agricultural lands include
residential lots," is rather misleading and not inconsistent with our position. While the
construction mistakenly invoked by the majority refers exclusively to lands of the public
domain, our view is that private residential lands are not embraced within the terms "private
agricultural land" in section 5 of Article XIII. Let us particularize in somewhat chronological
order. We have already pointed out that the leading case of Mapa vs. Insular Government,
supra, only held that agricultural public lands are those public lands acquired from Spain
34
which are neither timber nor mineral lands. The opinion of the Secretary of Justice dated July
15, 1939, quoted in the majority opinion, limited itself in affirming that "residential,
commercial or industrial lots forming part of the public domain * * * must be classified as
agricultural." Indeed, the limited scope of said opinion is clearly pointed out in the following
subsequent opinion of the Secretary of Justice dated September 25, 1941, expressly holding
that "in cases involving the prohibition in section 5 of Article XIII (formerly Article XII)
regarding transfer or assignment of private agricultural lands to foreigners, the opinion that
residential lots are not agricultural lands is applicable/'
"This is with reference to your first indorsement dated July 30, 1941, forwarding the request
of the Register of Deeds of Oriental Misamis for an opinion as to whether Opinion No. 130,
dated July 15, 1939, of this Department quoted in its Circular No. 28, dated May 13, 1941,
holding among others, that the phrase 'public agricultural land' in section 1, Article XIII
(formerly article XII) of the Constitution of the Philippines, includes residential, commercial or
industrial lots for purposes of their disposition, amends or supersedes a decision or order of
the fourth branch of the Court of First Instance of the City of Manila rendered pursuant to
section 200 of the Administrative Code which holds that a residential lot is not an agricultural
land. and, therefore,
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VOL. 79, NOVEMBER 15, 1947
535
Krivenko vs. Register of Deeds of Manila
the prohibition in section 5, Article XIII (formerly Article XII) of the Constitution of the
Philippines does not apply. "There is no conflict between the two opinions.
"Section 1, Article XIII (formerly article XII of the Constitution of the Philippines, speaks of
public agricultural lands while section 5 of the same article treats of private agricultural lands,
A holding, therefore, that a residential lot is not private agricultural land within the meaning
of that phrase as found in section 5 of Article XIII (formerly Article XII) does not conflict with
an opinion that residential, commercial or industrial lots forming part of the public domain
are included within the phrase 'public agricultural land' found in section 1, Article XIII
(formerly Article XII) of the Constitution of the Philippines. In cases involving the prohibition
in section 5 of Article XIII (formerly Article XII) regarding transfer or assignment of private
agricultural lands to foreigners, the opinion that residential lots are not agricultural lands is
applicable. In cases involving the prohibition in section 1 of Article XIII (formerly Article XII)
regarding disposition in favor of, and exploitation, development or utilization by, foreigners of
public agricultural lands, the opinion that residential, commercial or industrial lots forming
part of the public domain are included within the phrase 'public agricultural land' found in
said section 1 of Article XIII (formerly Article XII) governs."
Commonwealth Act No. 141, passed after the approval of the Constitution, limited its
restriction against transfers in favor of aliens to public agricultural lands or to lands originally
acquired under said Act or other legal provisions formerly in force in the Philippines with
regard to public lands, which necessarily have to be public agricultural lands. On November
29, 1943, the Court of Appeals rendered a decision affirming that of the Court of First
Instance of Tarlac in a case in which it was held that private residential lots are not included in
the prohibition in section 5 of Article XIII. (CA-G. R. No. 29,) During the Japanese occupation,
the Constitution of the then Republic of the Philippines contained an almost verbatim
reproduction of said section 5 of Article XIII; and the then National Assembly passed an Act
providing that "no natural or juridical person who is not a Filipino citizen shall acquire directly
or indirectly any title to private
536
536
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
lands (which are not agricultural lands) including buildings and other improvements thereon
or leasehold rights on said lands, except by legal succession of proper cases, unless
authorized by the President of the Republic of the Philippines." (Off. Gaz., Vol. I, p. 497,
February, 1944,) It is true that the Secretary of Justice in 1945 appears to have rendered an
opinion on the matter, but it cannot have any persuasive force because it merely suspended
the effect of the previous opinion of his Department pending judicial determination of the
question. Very recently, the Secretary of Justice issued a circular adopting in effect the
opinion of his Department rendered in 1941. Last but not least, since the approval of the
Constitution, numerous transactions involving transfers of private residential lots to aliens
had been allowed to be registered without any opposition on the part of the Government. It
will thus be seen that, contrary to what the majority believe, our Government has constantly
adopted the view that private residential lands do not fall under the limitation contained in
section 5 of Article XIII of the Constitution.
I do not question or doubt the nationalistic spirit permeating the Constitution, but I will not
permit myself to be blinded by any sentimental feelings or conjectural considerations to such
a degree as to attribute to any of its provisions a construction not justified by or beyond what
the plain written words purport to convey. We need not express any unnecessary concern
over the possibility that entire towns and cities may come to the hands of aliens, as long as
35
we have faith in our independence and in our power to supply any deficiency in the
Constitution either by its amendment or by Congressional action.
There should really have been. no occasion for writing this dissent, because the appellant,
with the conformity of the appellee, had filed a motion for the withdrawal of the appeal and
the same should have been granted outright. In Co Chiong vs. Dinglasan (p. 122, ante),
decided only a few days ago, we reiterated the well-set
537
VOL. 79, NOVEMBER 15, 1947
537
Krivenko vs. Register of Deeds of Manila
tled rule that "a court should not pass upon a constitutional question and decide a law to be
unconstitutional or invalid unless such question is raised by the parties, and that when it is
raised, if the record also presents some other ground upon which the court may rest its
judgment, that course will be adopted and the constitutional question will be left for
consideration until a case arises in which a decision upon such question will be unavoidable."
In other words, a court will always avoid a constitutional question, if possible. In the present
case, that course of action was not only possible but absolutely imperative, If appellant's
motion for withdrawal had been opposed by the appellee, there might be some reasons for
its denial, in view of section 4 of Rule 52 which provides that after the filing of appellee's
brief, "the withdrawal may be allowed by the court in its discretion." At any rate, this
discretion should always be exercised in favor of a withdrawal where a constitutional question
will thereby be avoided.
In this connection, let us describe the proceedings (called "arbitrary and illegal" by Mr. Justice
Tuason) that led to the denial of the motion for withdrawal. During the deliberation in which
all the eleven members were present, seven voted to allow and four to deny. Subsequently,
without any previous notice and when Mr. Justice Hontiveros was absent, the matter was
again submitted to a vote, and one Justice (who previously was in favor of the withdrawal)
reversed his stand, with the result that the votes were five to five. This result was officially
released and the motion. denied under the technicality provided in Rule of Court No. 56,
section 2. It is very interesting to observe that Mr. Justice Hontiveros, who was still a member
of the Court and could have attended the later deliberation, if notified and requested,
previously voted for the granting of the motion. The real explanation for excluding Mr. Justice
Hontiveros, against my objection, and for the reversal of the vote of one Justice
538
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila,
who originally was in favor of the withdrawal is found in the confession made in the majority
opinion to the effect that the circular of the Department of Justice instructing all registers of
deeds to accept for registration transfers of residential lots to aliens, was an "interference
with the regular and complete exercise by this Court of its constitutional functions," and that
"if we grant the withdrawal, the result is that petitioner-appellant Alexander A. Krivenko wins
his case, not by a decision of this Court, but by the decision or circular of the Department of
Justice issued while this case was pending before this Court." The zealousness thus shown in
denying the motion for withdrawal is open to question. The denial of course is another way of
assuming that the petitionerappellant and the Solicitor General had connived with the
Department of Justice in a scheme not only to interfere with the functions of this Court but to
dispose of the national patrimony in favor of aliens.
In the absence of any injunction from this Court, we should recognize the right of the
Department of Justice to issue any circular it may deem legal and proper on any subject, and
the corollary right of the appellant to take advantage thereof. What is most regrettable is the
implication that the Department of Justice, as a part of the Executive Department, cannot be
as patriotic and able as this Court in defending the Constitution. If the circular in question is
objectionable, the same can be said of the opinion of the Secretary of Justice in 1945 in effect
prohibiting the registration of transfers of private residential lots in favor of aliens,
notwithstanding the pendency in this Court of the case of Oh Cho vs. Director of Lands (43
Off. Gaz., 866), wherein, according to the appellant, the only question raised was whether or
not "an alien can acquire a residential lot and register it in his name," and notwithstanding
the f act that in said case the appealed decision was in favor of the alien applicant and that,
as hereinbefore stated, the Court of Appeals in another case (CA-G. R. No. 29) had rendered
in 1943 a decision
539
VOL. 79, NOVEMBER 15, 1947
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Krivenko vs. Register of Deeds of Manila
36
holding that private residential lots are not included in the prohibition in section 5 of Article
XIII of the Constitution. And yet this Court, failing to consider said opinion as an
"interference," chose to evade the only issue raised by the appellant and squarely met by the
appellee in the Oh Cho case which already required a decision on the constitutional question
resolved in the case at bar against, so to say, the will of the parties litigant. In other words,
the majority did not allow the withdrawal of the present appeal not so much as to dispose of
it on the merits, but to annul the circular of the Department of Justice which is, needless to
say, not involved in this case. I cannot accept the shallow excuse of the majority that the
denial of the motion f or withdrawal was prompted by the fear that "our indifference of today
might signify a permanent offense to the Constitution," because it carries the rather
immodest implication that this Court has a monopoly of the virtue of upholding and
enforcing, or supplying any deficiency in, the Constitution. Indeed, the fallacy of the
implication is made glaring when Senator Francisco lost no time in introducing a bill that
would clarify the constitutional provision in question in the sense desired by the majority.
Upon the other hand, the majority should not worry about the remoteness of the
opportunity that will enable this Court to pass upon this constitutional question, because we
can take advance notice of the fact that in Rellosa vs. Gaw Chee Hun (49 Off. Gaz., 4345), in
which the parties have already submitted their briefs, that question is again squarely
presented. But even disregarding said case, I am sure that, in view of the recent newspaper
discussion which naturally reached the length and breadth of the country, there will be those
who will dispute their sales of residential lots in favor of aliens and invoke the constitutional
prohibition.
BENGZON, J., dissenting:
It is unnecessary to deliver at this time any opinion about the extent of the constitutional
prohibition. Both
540
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
parties having agreed to write finis to the litigation, there is no obligation to hold forth on the
issue. It is not our mission to give advice to other persons who might be interested to know
the validity or invalidity of their sales or purchases. That is the work of lawyers and
jurisconsults.
There is much to what Mr. Justice Padilla explains regarding any eagerness to solve the
constitutional problem. It must be remembered that the other departments of the
Government are not prevented from passing on constitutional questions arising in the
exercise of their official powers. (Cooley, Constitutional Limitations, 8th ed., p. 101.) This
Tribunal was not established, nor is it expected to play the role of an overseer to supervise
the other Government departments, with the obligation to seize any opportunity to correct
what we may believe to be erroneous application of the constitutional mandate. I cannot
agree to the suggestion that the way the incumbent Secretary of Justice has interpreted the
fundamental law, no case will ever arise before the courts, because the registers of deeds
under his command, will transfer on their books all sales to aliens. It is easy to perceive
several probabilities: (1) a new secretary may entertain opposite views; (2) parties legally
affected—like heirs or creditors of the seller—may wish to avoid the conveyance to aliens,
invoking the constitutional inhibition. Then, in a truly contested case, with opposing litigants
actively arguing their sides we shall be in a position to do full justice. It is not enough that
briefs—as in this case—have been filed; it is desirable, perhaps essential, to make sure that in
a motion for reconsideration, or in a re-hearing in case of tie, our attention shall be invited to
points inadequately touched or improperly considered.
It is stated that sales to aliens of residential lots are currently being effected. No matter.
Those sales will be subject to the final decision we shall reach in a properly submitted
litigation. To spell necessity out of the existence of such conveyances, might amount to
begging the
541
VOL. 79, NOVEMBER 15, 1947
541
Krivenko vs. Register of Deeds of Manila
issue, with the assumption that such transfers are obviously barred by the Organic Law. And
yet sales to foreigners of residential lots have taken place since our Constitution was
approved in 1935, and no one questioned their validity in Court until nine years later in 1945,
after the Japanese authorities had shown distaste for such transfers.
The Court should have, I submit, ample time to discuss this all-important point, and reflect
upon the conflictting politico-economic philosophies of those who advocate national isolation
against international cooperation, and vice-versa. We could also delve into several aspects
necessarily involved, to wit:
37
(a) Whether the prohibition in the Constitution operated to curtail the freedom to dispose of
landowners at the time of its adoption; or whether it merely affected the rights of those who
should become landowners after the approval of the Constitution ;1
(b) What consequences would a ruling adverse to aliens have upon our position and
commitments in the United Nations Organization, and upon our treaty-making negotiations
with other nations of the world; and
(c) When in 1941 Krivenko acquired this land he was a Russian citizen. Under the treaties
between the United States and Russia, were Russian nationals allowed to acquire residential
lots in places under the jurisdiction of the United States? If so, did our Constitution have the
effect of modifying such treaty, during the existence of the Commonwealth Government?
The foregoing views and doubts induced me to vote for dismissal of the appeal as requested
by the parties, and for withholding of any ruling on the constitutional prohibition. However, I
am now ready to cast my vote. I am convinced that the organic law bans the sales of
agricultural lands as they are popularly understood—not including residential, commercial,
industrial or urban lots.
_______________
1 Cf. Buchanan vs. Worley, 245 U. S. 60, 38 S. Ct. 16.
542
542
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
This belief is founded on the reasons ably expounded by Mr. Justice Parás, Mr. Justice Padilla
and Mr. Justice Tuason. I am particularly moved by the consideration that a restricted
interpretation of the prohibition, if erroneous or contrary to the people's desire, may be
remedied by legislation amplifying it; whereas a liberal and wide application, if erroneous,
would need the cumbersome and highly expensive process of a constitutional amendment.
PADILLA, J., dissenting:
The question submitted for decision is whether a parcel of land of private ownership suitable
or intended for residence may be alienated or sold to an alien.
Section 5, Article XIII, of the Constitution provides:
Save in cases of hereditary succession, no private agricultural land shall be transferred or
assigned except to individuals, corporations, or associations qualified to acquire or hold lands
of the public domain in the Philippines.
The majority holds that a parcel of land of private ownership suitable or intended or used for
residence is included in the term "private agricultural land" and comes within the prohibition
of the Constitution. In support of the opinion that lands of private ownership suitable for
residence are included in the term "private agricultural land" and cannot be alienated or sold
to aliens, the majority invokes the decision of this Court in Mapa vs. Insular Government (10
Phil., 175), which holds that urban lands of the public domain are included in the term "public
agricultural land." But the opinion of the majority overlooks the fact that the inclusion by this
Court of public lands suitable for residence in the term "public agricultural land" was due to
the classification made by the Congress of the United States in the Act of 1 July 1.902,
commonly known as the Philippine Bill. In said Act, lands of the public domain were classified
into agricultural, timber and mineral. The only alienable or disposable lands of the public
domain were those belonging to the first class. Hence a parcel of land of the
543
VOL. 79, NOVEMBER 15, 1947
543
Krivenko vs. Register of Deeds of Manila,
public domain suitable for residence, which was neither timber nor mineral, could not be
disposed of or alienated unless classified as public agricultural land. The susceptibility of a
residential lot of the public domain of being cultivated is not the real reason for the inclusion
of such lot in the classification of public agricultural land, for there are lands, such as
foreshore lands, which would hardly be susceptible of cultivation (Ibañez de Aldecoa vs.
Insular Government, 13 Phil., 159, 167-168), and yet the same come under the classification
of public agricultural land. The fact, therefore, that parcels of land of the public domain
suitable for residence are included in the clasification of public agricultural land, is not a safe
guide or index of what the framers of the Constitution intended to mean by the term "private
agricultural land." It is contrary to the rules of statutory construction to attach technical
meaning to terms or phrases that have a common or ordinary meaning as understood by the
average citizen.
At the time of the adoption of the Constitution (8 February 1935), the Public Land Act in force
was Act No. 2874. Under this Act, only citizens of the Philippine Islands or of the United
States and corporations or associations described in section 23 thereof, and citizens of
countries the laws of which grant to citizens of the Philippine Islands the same right to
38
acquire public land as to their own citizens, could acquire by purchase agricultural land of the
public domain (section 23, Act No, 2874). This was the general rule. There was an exception.
Section 24 of the Act provides:
No person, corporation, association or partnership other than those mentioned in the last
preceding section may acquire or own agricultural public land or land of any other
denomination or classification, not used for industrial or residence purposes, that is at the
time or was originally, really or presumptively, of the public domain, or any permanent
improvement thereon, or any real right on such land and improvement: Provided, however,,
That persons, corporations, associations, or partnerships which,, at the date upon which this
Act shall take effect, hold agricultural
544
544
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
public lands or land of any other denomination not used for industrial or residence purposes,
that belonged originally, really or presumptively, to the public domain, or permanent
improvements on such lands, or a real right upon such lands and improvements, having
acquired the same under the laws and regulations in force at the date of such acquisition,
shall be authorized to continue holding the same as if such persons, corporations,
associations, or partnerships were qualified under the last preceding section; but they shall
not encumber, convey, or alienate the same to persons, corporations, associations or
partnerships not included in section twenty-three of this Act, except by reason of hereditary
succession, duly legalized and acknowledged by competent Courts. (Italics supplied.)
Section 57 of the Act, dealing with lands of the public domain suitable for residential,
commercial, industrial, or other productive purposes other than agricultural, provides:
Any tract of land comprised under this title may be leased or sold, as the case may be, to any
person, corporation, or association authorized to purchase or lease public lands for
agricultural purposes. * * * Provided further, That any person, corporation, association, or
partnership disqualified from purchasing public land for agricultural purposes under the
provisions of this Act, may purchase or lease land included under this title suitable for
industrial or residence purposes, but the title or lease granted shall only be valid while such
land is used for the purposes referred to. (Italics supplied.)
Section 121 of the Act provides:
"No land originally acquired in any manner under the provisions of the former Public Land Act
or of any other Act, ordinance, royal order, royal decree, or any other provision of law
formerly in force in the Philippine Islands with regard to public lands, terrenos baldíos y
realengos, or lands of any other denomination that were actually or presumptively of the
public domain, or by royal grant or in any other form, nor any permanent improvement on
such land, shall be encumbered, alienated, or conveyed, except to persons, corporations, or
associations who may acquire land of the public domain under this Act; * * * Provided,
however, That this prohibition shall not be applicable to the conveyance or acquisition by
reason of hereditary succession duly acknowledged and legalized by competent Courts, nor to
lands
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VOL. 79, NOVEMBER 15, 1947
545
Krivenko vs. Register of Deeds of Manila
and improvements acquired or held for industrial or residence purposes, while used for such
purposes: * * * (Italics supplied.)
Under and pursuant to the above quoted provisions of Act No. 2874, lands of the public
domain, that were neither timber nor mineral, held for industrial or residence purposes,
could be acquired by aliens disqualified from acquiring by purchase or lease public
agricultural lands (sections 24, 57, 121, Act No. 2874). The delegates to the Constituent
Assembly were familiar with the provisions of the Public Land Act referred to. The prohibition
to alienate public agricultural lands to disqualified persons, corporations or associations did
not apply to "lands and improvements acquired or held for industrial or residence purposes,
while used for such purposes." Even under the provisions of Act No. 926, the first Public Land
Act, lots for townsites could be acquired by any person irrespective of citizenship, pursuant to
section 47 of the said Act. In spite of the nationalistic spirit that pervades all the provisions of
Act No. 2874, the Philippine Legislature did not deem it necessary to exclude aliens from
acquiring and owning lands of the public domain suitable for industrial or residence
purposes. It adopted the policy of excluding aliens from acquiring agricultural lands of the
public domain not "suitable for residential, commercial, industrial, or other productive
purposes," which, together with timber, mineral and private agricultural lands, constitute the
mainstay of the nation, Act No. 2874 was in force for nearly sixteen years—from 1919 to
1935. There is nothing recorded in the journals of proceedings of the Constituent Assembly
regarding the matter which would have justified a departure from the policy theretofore
adopted.
39
If under the law in force at the time of the adoption of the Constitution, aliens could acquire
by purchase or lease lands of the public domain, that were neither timber
546
546
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
nor mineral, held for industrial or residence purposes, how can it be presumed that the
framers of the Constitution intended to exclude such aliens from acquiring by purchase
private lands suitable for industrial or residence purposes? If pursuant to the law in force at
the time of the adoption of the Constitution, lands of the public domain and improvements
thereon acquired or held for industrial or residence purposes were not Included in the
prohibition found in section 121 of Act No. 2874, there is every reason for believing that the
framers of the Constitution, who were familiar with the law then in force, did not have the
intention of applying the prohibition contained in section 5, Article XIII, of the Constitution to
lands of private ownership suitable or intended or used for residence, there being 110thing
recorded in the journals of proceedings of the Constituent Assembly regarding the matter
which, as above stated, would have justified a departure from the policy then existing. If the
term "private agricultural land" comprehends lands of private ownership suitable or intended
or used for residence, as held by the majority, there was no need of implementing a self-
executory prohibition found in the Constitution. The prohibition to alienate such lands found
in section 123 of Commonwealth Act No. 141 is a clear indication and proof that section 5,
Article XIII, of the Constitution does not apply to lands of private ownership suitable or
intended or used for residence. The term "private agricultural land" means privately owned
lands devoted to cultivation. to the raising of agricultural products, and does not include
urban lands of private ownership suitable for industrial or residence purposes. The use of the
adjective "agricultural" has the effect of excluding all other private lands that are not
agricultural. Timber and mineral lands are not, however, included among the excluded,
because these lands could not and can never become private lands. From the land grants
known as caballerías
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547
Krivenko vs. Register of Deeds of Manila
and peonias under the Laws of Indies down to those under the Royal Decrees of 25 June 1880
and 18 February 1894, the Philippine Bill, Act No. 926, the Jones Law, Act No. 2874, the
Constitution, and Commonwealth Act No. 141, timber and mineral lands have always been
excluded from alienation. The repeal by sections 23, 60, 123 of Commonwealth Act No. 141
of the exception provided for in sections 24, 57, 121 of Act No. 2874, did not change the
meaning of the term "private agricultural land," as intended by the framers of the
Constitution and understood by the people that adopted it.
The next question is whether the court below was justified under the law in confirming the
refusal of the Register of Deeds of Manila to record the sale of the private land for residence
purposes to the appellant who is an alien.
There is no evidence to show the kind of land, the deed of sale of which is sought to be
recorded by the appellant—whether it is one of those described in section 123 of
Commonwealth Act No. 141; or a private land that had never been a part of the public
domain (Cariño vs. Insular Government, 212 U. S., 449; Oh Cho vs. Director of Lands, 43 Off.
Gaz., 866). If it is the latter, the prohibition of section 123 of Commonwealth Act No. 141 does
not apply. If it is the former, section 123 of Commonwealth Act No. 141, which provides that
—
No land originally acquired in any manner under the provisions of any previous Act,
ordinance, royal order, royal decree, or any other provision of law formerly in force in the
Philippines with regard to public lands, terrenos baldíos y realengos, or lands of any other
denomination that were actually or presumptively of the public domain, or by royal grant or
in any other form, nor any permanent improvement on such land, shall be encumbered,
alienated, or conveyed, except to persons, corporations or associations who may acquire land
of the public
548
548
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila,
domain under this Act or to corporate bodies organized in the Philippines whose charters
authorize them to do so: * * *
40
is similar in nature to section 121 of Act No. 2874. This Court held the last mentioned section
unconstitutional, for it violates section 3 of the Act of Congress of 29 August 1916, commonly
known as the Jones Law (Central Capiz vs. Ramirez, 40 Phil., 883). Section 123 of
Commonwealth Act No. 141, following the rule laid down in the aforecited case, must also be
declared unconstitutional, for it violates section 21 (1), Article VI, of the Constitution, which is
exactly the same as the one infringed upon by section 121 of Act No. 2874. This does not
mean that a law may not be passed by Congress to prohibit alienation to foreigners of urban
lands of private ownership; but in so doing, it must avoid offending against the constitutional
provision referred to above. Before closing, I cannot help but comment on the action taken by
the Court in considering the merits of the case, despite the withdrawal of the appeal by the
appellant, consented to by the appellee. If discretion was to be exercised, this Court did not
exercise it wisely. Courts of last resort generally avoid passing upon constitutional questions if
the case where such questions are raised may be decided on other grounds. Courts of last
resort do not express their opinion on a constitutional question except when it is the very lis
mota (Yangco vs. Board of Public Utility Commissioners, 36 Phil., 116, 120; Co Chiong vs.
Dinglasan, p. 122, ante). Moreover, the interpretation of the provisions of the Constitution is
no exclusive of the courts. The other coordinate branches of the government may interpret
such provisions acting on matters coming within their jurisdiction. And although such
interpretation is only persuasive and not binding upon the courts, nevertheless they cannot
be deprived of such power. Of course, the final say on
549
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549
Krivenko vs. Register of Deeds of Manila
what is the correct interpretation of a constitutional provision must come from and be made
by this Court in an appropriate action submitted to it for decision. The correct interpretation
of a constitutional provision is that which gives effect to the intent of its framers and primarily
to the understanding of such provision by the people that adopted it. This Court is only an
interpreter of the instrument which embodies what its framers had in mind and especially
what the people understood it to be when they adopted it The eagerness of this Court to
express its opinion on the constitutional provision involved in this case, notwithstanding the
withdrawal of the appeal, is unusual for a Court of last resort. It seems as if it were afraid to
be deprived by the other coordinate branches of the government of its prerogative to pass
upon the constitutional question herein involved. If all the members of the Court were
unanimous in the interpretation of the constitutional provision under scrutiny, that eagerness
might be justified, but when some members of the Court do not agree to the interpretation
placed upon such provision, that eagerness becomes recklessness. The interpretation thus
placed by the majority of the Court upon the constitutional provision referred to will be
binding upon the other coordinate branches of the government. If, in the course of time, such
opinion should turn out to be erroneous and against the welfare of the country, an
amendment to the Constitution—a costly process—would have to be proposed and adopted.
But, if the Court had granted the motion for the withdrawal of the appeal, it would not have
to express its opinion upon the constitutional provision in question. It would let the other
coordinate branches of the Government act according to their wisdom, foresight and
patriotism. They, too, possess those qualities and virtues. These are not of the exclusive
possession of the members of this Court.
550
550
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
The end sought to be accomplished by the decision of this Court may be carried out by the
enactment of a law, And if the law should turn out to be against the wellbeing of the people,
its amendment or repeal would not be as costly a process as a constitutional amendment
In view of the denial by this Court of the motion to dismiss the appeal, as prayed for by the
appellant and consented to by the appellee, I am constrained to record my opinion that, for
the reasons hereinbefore set forth, the judgment under review should be reversed,
TUASON, J., dissenting:
The decision concludes with the assertion that there is no choice. "We are construing" it says,
"the Constitution as we see it and not as we may wish it to be. If this is the solemn mandate
of the Constitution, we cannot compromise it even in the name of equity." We wish deep in
our heart that we were given the light to see as the majority do and could share their
opinion. As it is, we perceive things the other way around. As we see it, the decision by-
passed what according to .our humble understanding is the plain intent of the Constitution
and groped out of its way in search of' the idea! result. The denial by this Court of the motion
to withdraw the appeal to which the Solicitor General -gave his conformity collides with the
professed sorrow that the decision cannot be helped.
Section 5, Article XIII, of the Constitution reads:
41
"5. Save in cases of hereditary succession, no private agricultural land shall be transferred or
assigned except to individuals, corporations, or associations qualified to acquire or hold lands
of the public domain in the Philippines."
The sole and simple question at issue is, what is the meaning of the term "agricultural land"
as used in this section? Before answering the question, it is convenient to refresh our
memory of the pertinent rule in the inter-
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Krivenko vs. Register of Deeds of Manila
pretation of constitutions as expounded in decisions of courts of last resort and by law
authors.
"It is a cardinal rule in the interpretation of constitutions that the instrument must be as
construed so to give effect to the intention of the people who adopted it This intention is to
be sought in the constitution itself, and the apparent meaning of the words employed is to be
taken as expressing it, except in cases where the assumption would lead to absurdity,
ambiguity, or contradiction." Black on Interpretation of Laws, 2d ed., p. 20.)
"Every word employed in the constitution is to be expounded in its plain, obvious, and
common sense, unless the context furnishes some ground to control, qualify, or enlarge it.
Constitutions are not designed for metaphysical or logical subtleties, for niceties of
expression, for critical propriety, for elaborate shades of meaning, or for the exercise of
philosophical acuteness or judicial research. They are instruments of a practical nature
founded on the common business of human life adapted to common wants, designed for
common use, and fitted for common understandings. The people make them, the people
adopt them, the people must be supposed to read them with the help of common sense, and
cannot be presumed to admit in them any recondite meaning or any extraordinary gloss." (1
Story, Const. sec. 451.)
Marshall, Ch. J., says:
"The framers of the Constitution, and the people who adopted it, 'must be understood to
have employed words in their natural sense, and to have intended what they have said."
(Gibbons vs. Ogdon, 9 Wheat, 1, 188; 6 Law. ed., 23)
"Questions as to the wisdom, expediency, or justice of constitutional provisions afford no
basis for construction where the intent to adopt such provisions is expressed in clear and
unmistakable terms, Nor can construction read into the provisions of a constitution some
unexpressed general policy or spirit, supposed to underline and pervade the instrument and
to render it consonant to the genius of the institutions of the state. The courts are not at
liberty to declare an act void because they deem it opposed to the spirit of the Constitution."
(12 C. J., 702-703.)
There is no obscurity or ambiguity in the section of the Constitution above quoted, nor does a
literal interpretation of the words "agricultural land" lead to any un-
552
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
the majority opinion, the phrase has no technical meaning, and the same could not have
been used in any sense other than that in which it is understood by the men in the street.
That there are lands of private ownership will not be denied, in spite of the fiction that all
lands proceed from the sovereign. And, that lands of private ownership are known as
agricultural, residential, commercial and industrial, is another truth which no one can
successfully dispute. In prohibiting the alienation of private agricultural land to aliens, the
Constitution, by necessary implication, authorizes the alienation of other kinds of private
property. The express mention of one thing excludes all others of the same kind.
Let us then ascertain the meaning of the word "agricultural" so that by process of elimination
we can see what lands do not fall within the purview of the constitutional inhibition.
Webster's New International Dictionary defines this word as "of or pertaining to agriculture
connected with, or engaged in, tillage; as, the agricultural class; agricultural implements,
wages, etc." According to this definition and according to the popular conception of the word,
lands in cities and towns intended or used for buildings or other kinds of structure are never
understood to mean agricultural lands. They are either residential, commercial, or industrial
lands. In all city plannings, communities are divided into residential, commercial and
industrial sections. It would be extremely out of the ordinary, not to say ridiculous, to imagine
that the Constitutional Convention considered a lot on the Escolta with its improvement as
agricultural land.
42
If extrinsic evidence is needed, a reference to the history of the constitutional provision under
consideration will dispel all doubts that urban lands were in the minds of the framers of the
Constitution as properties that may be assigned to foreigners.
553
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Krivenko vs. Register of Deeds of Manila
Dean Aruego, himself a member of the Constitutional Convention, is authority for the
statement that the committee on nationalization and preservation of lands and other natural
resources in its report recommended the incorporation into the Constitution of the following
provision:
"SEC. 4. Save in cases of hereditary succession, no land of private ownership shall be
transferred or assigned by the owner thereof except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the Philippine Islands;
and the Government shall regulate the transfer or assignment of land now owned by persons,
or corporations, or associations not qualified under the provisions of this Constitution to
acquire or hold lands in the Philippine Islands."
In Article XIII, entitled "General Provisions," of the first draft of the Constitution, the sub-
committee of seven embodied the following provision which had been recommended in the
reports of the committee on agricultural development, national defense, industry, and
nationalization of public utilities, and of the committee or the nationalization and
preservation of lands and other natural resources:
"SEC. 16. Save in cases of hereditary succession, no land of private ownership shall be
transferred or assigned by the owner thereof except to individuals, corporations, or
associations qualified to acquire 01- hold lands of the public domain in the Philippines."
But on January 22, 1935, the sub-committee of seven submitted to the Convention a revised
draft of the article on General Provisions of the first draft, which revised draft had been
prepared by the committee in consultation with President Quezon. The revised draft as it
touches private lands provides as follows:
"Save in cases of hereditary succession, no agricultural land of private ownership shall be
transferred or assigned by the owner thereof except to individuals, corporations, or
associations qualified to acquire or hold lands, of the public domain in the Philippine
554
554
PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
Islands." (2 The Framing of the Philippine Constitution, Aruego. 595-599.)
The last-quoted proposal became section 5 of Article XIII of the Constitution in its final form
with slight alteration in the phraseology.
It will thus be seen that two committees in their reports and the sub-committee of seven in
its first draft of the Constitution all proposed to prescribe the transfer to non-Filipino citizens
of any land of private ownership without regard to its nature or use, but that the last
mentioned sub-committee later amended that proposal by putting the word "agricultural"
before the word "land." What are we to conclude from this modification? Its self-evident
purpose was to confine the prohibition to agricultural lands, allowing the ownership by
foreigners of private lands that do not partake of agricultural character. The insertion of the
word "agricultural" was studied and deliberated, thereby eliminating any possibility that its
implication was not comprehended.
In the following paragraphs we shall, in our inadequate way, attempt to show that the
conclusions in this Court's decision are erroneous either because the premises are wrong or
because the conclusions do not follow the premises.
According to the decision, the insertion of the word "agricultural" was not intended to change
the scope of the provision. It says that "the wording of the first draft was amended for no
other purpose than to clarify concepts and avoid uncertainties."
If this was the intention of the Constitutional Assembly, that body could not have devised a
better way of messing up and obscuring the meaning of the provision than what it did. If the
purpose was "to clarify concepts and avoid uncertainties," the insertion of the word
"agricultural" before the word "land" produced the exact opposite of the result which the
change was expected to
555
VOL. 79, NOVEMBER 15, 1947
43
555
Krivenko vs. Register of Deeds of Manila
accomplish—as witness the present sharp and bitter controversy which would not have
arisen had they let well enough alone.
But the assumption is untenable. To brush aside the introduction of the word "agricultural"
into the final draft as "merely one of words" is utterly unsupported by evidence, by the text of
the Constitution, or by sound principles of construction. There is absolutely no warrant for
the statement that the Constitutional Convention, which was guided by wise men, men of
ability and experience in different fields of endeavor, used the term after mature deliberation
and reflection and after consultation with the President, without intending to give it its
natural signification and connotation. "We are not at liberty to presume that the framers of
the Constitution, or the people who adopted it, did not understand the force of language."
(People vs. Rathbone, 32 N. Y. S., 108.), The Constitution will be scanned in vain for any
reasonable indication that its authors made the change with intention that it should not
operate according to the rules of grammar and the ordinary process of drawing logical
inferences. The theory is against the presumption, based on human experience, that the
framers of a constitution "have expressed themselves in careful and measured terms,
corresponding with the immense importance of the powers delegated, leaving as little as
possible to implication." (1 Cooley's Constitutional Limitations, 8th ed., 128, 129.) "As men,
whose intention require no concealment, generally employ the words which most directly
and aptly express the ideas they intend to convey, the enlightened patriots who framed our
constitution, and the people who adopted it, must be understood to have employed words in
their natural sense and to have intended what they have said." (Gibbons vs. Ogden, ante.)
When instead of prohibiting the acquisition of private land of any kind by foreigners, as
originally proposed,
556
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
the prohibition was changed to private agricutural lands, the average man's faculty of
reasoning tells him that other lands may be acquired. The elementary rules of speech with
which men of average intelligence and, above all, the members of the Constitutional
Assembly were familiar, inform us that the object of a descriptive adjective is to specify a
thing as distinct from another. It is from this process of reasoning that the maxim expressio
unius est exclusio alterius stems; a familiar rule of interpretation often quoted, and admitted
as agreeable to natural reason.
If then a foreigner may acquire private lands that are not agricultural, what lands are they?
Timber land or mineral land, or both? As the decision itself says these lands are not
susceptible of private ownership, the answer can only be residential, commercial, industrial
or other lands that are not agricultural. Whether a property is more suitable and profitable to
the owner as residential, commercial or industrial than if he devotes it to the cultivation of
crops is a matter that has to be decided according to the value of the property, its size, and
other attending circumstances.
The main burden of this Court's argument is that, as lands of the public domain which are
suitable for home building are considered agricultural land, the Constitution intended that
private residential, commercial or industrial lands should be considered also agricultural
lands. The Court says that "what the members of the Constitutional Convention had in mind
when they drafted the Constitution was this well-known classification (timber, mineral and
agricultural) and its technical meaning then prevailing."
As far as private lands are concerned, there is no factual or legal basis for this assumption.
The classification of public lands was used for one purpose not contemplated in the
classification of private lands. At the outset, it should be distinctly made clear that it was
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Krivenko vs. Register of Deeds of Manila
this Court's previous decisions and not an act of Congress which declared that public lands
which were not forest or mineral were agricultural lands. Little reflection on the background
of this Court's decisions and the nature of the question presented in relation to the peculiar
provisions of the enactments which came up for construction, will bring into relief the error
of applying to private lands the classification of public lands.
In the first place, we cannot classify private lands in the same manner as public lands for the
very simple and manifest reason that only lands pertaining to one of the three groups of
public lands—agricultural—can find their way into the hands of private persons. Forest lands
and mineral lands are preserved by the State for itself and for posterity. Granting what is
possible, that there are here and there forest lands and mineral lands to which private
44
persons have obtained patents or titles, it would be pointless to suppose that such properties
are the ones which section 5 of Article XIII of the Constitution wants to distinguish from
private agricultural lands as lienable. The majority themselves will not admit that the
Constitution which forbids the alienation of private agricultural lands allows the conveyance
of private forests and mines.
In the second place, public lands are classified under special conditions and with a different
object in view. Classification of public lands was and is made for purposes of administration;
for the purpose principally of segregating lands that may be sold from lands that should be
conserved. The Act of July 1, 1902, of the United States Congress designated what lands of
the public domain might be alienated and what should be kept by the State. Public lands are
divided into three classes to the end that natural resources may be used without waste.
Subject to some exceptions and limitation, agricultural lands may be disposed of by the
Government. Preservation of forest and mineral lands was and is a
558
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
dominant preoccupation. These are important parts of the country's natural resources.
Private non-agricultural land does not come within the category of natural resources. Natural
resources are defined in Webster's Standard Dictionary as materials supplied or produced by
nature. The United States Congress evinced very little if any concern with private lands.
It should also be distinctly kept in mind that the Act of Congress of the United States above
mentioned was an organic law and dealt with vast tracts of untouched public lands. It was
enacted by a Congress whose members were not closely familiar with local conditions
affecting lands. Under the circumstances, it was natural that the Congress employed "words
in a comprehensive sense as expressive of general ideas rather than of finer shades of
thought or of narrow distinctions." The United States Congress was content with laying down
a broad outline governing the administration. exploitation and disposition of the public
wealth, leaving the details to be worked out by the local authorities and courts entrusted
with the enforcement and interpretation of the law.
It was as a result of this broad classification that questions crept for a definition of the status
of scattered small parcels of public lands that were neither forest, mineral, nor agricultural,
and with which. the Congress had not bothered itself to mention separately or specifically.
This Court, forced by the nature of its duty to decide legal controversies, ruled that public
lands that were fit for residential purposes, public swamps and other public lands that were
neither forest nor mineral, were to be regarded as agricultural lands. In other words, there
was an apparent void, often inevitable in a law or constitution, and this Court merely filled
that void. It should be noted that this Court did not say that agricultural lands and residential
lands are the same or alike in their character and use. It merely said
559
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Krivenko vs. Register of Deeds of Manila
that for the purpose of judging their alienability, residential, commercial or industrial lands
should be brought under the class of agricultural lands.
On the other hand, section 5 of Article XIII of the Constitution treats of private lands with a
different aim. This Court is not now confronted with any problem for which there is no
specific provision, such as faced it when the question of determining the character of public
residential land came up for decision. This Court is not called to rule whether a private
residential land is forest, mineral or agricultural. This Court is not, in regard to private lands,
In the position where it found itself with reference to public lands, compelled by the limited
field of its choice for a name to call public residential lands, agricultural lands. When it comes
to determining the character of private non-agricultural lands, the Court's task is not to
compare it with forests, mines and agricultural lands, to see which of these bears the closest
resembrance to the land in question. Since there are no private timber or mineral lands, and
if there were, they could not be transferred to foreigners,, and since the object of section 5 of
Article XIII of the Constitution is radically at variance with that of? the laws covering public
lands, we have to have different standards of comparison and have to look of the intent of
this constitutional provision from a different angle and perspective. When a private
nonagricultural land demands to know where it stands, we do not inquire, is it mineral, forest
or agricultural ? We only ask, is it agricultural ? to ascertain whether it is within the inhibition
of section 5 of Article XIII.
The last question in turn resolves itself into what is understood by agricultural land. Stripped
of the special considerations which dictated the classification of public lands into three
general groups, there is no alternative but to take the term "agricultural land" in its natural
and popular signification; and thus regarded, it
560
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Krivenko vs. Register of Deeds of Manila
imports a distinct connotation which involves no absurdity and no contradiction between
different parts of the organic law. Its meaning is that agricultural land is specified in section 5
of Article XIII to differentiate it from lands that are used or are more suitable for purposes
other than agriculture.
It would profit us to take notice of the admonition of two of the most revered writers on
constitutional law, Justice Story and Professor Cooley:
"As a general thing, it is to be supposed that the same word is used in the same sense
wherever it occurs in a constitution. Here again, however, great caution must be observed in
applying an arbitrary rule; for, as Mr. Justice Story has well observed: 'lt does not follow,
either logically or grammatically, that because a word is found in one connection in the
Constitution with a definite sense, therefore the same sense is to be adopted in every other
connection in which it occurs. This would be to suppose that the framers weighed only the
force of single words, as philologists or critics, and not whole clauses and objects, as
statesmen and practical reasoners. And yet nothing has been more common than to subject
the Constitution to this narrow and mischievous criticism. Men of ingenious and subtle
minds, who seek for symmetry and harmony in language, having found in the Constitution a
word used in some sense which falls in with their favorite theory of interpreting it, have made
that the standard by which to measure its use in every other part of the instrument. They
have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning when it
seemed too large for their purposes, and extending it when it seemed too short. They have
thus distorted it to the most unnatural shapes, and crippled where they have sought only to
adjust its proportions according to their own opinions.' And he gives many instances where,
in the national Constitution, it is very manifest the same word is employed in dif-
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Krivenko vs. Register of Deeds of Manila
ferent meanings. So that, while the rule may be sound as one of presumption merely, its force
is but slight, and it must readily give way to a different intent appearing in the instrument." (1
Cooley's Constitutional Limitations, 8th ed., 135.)
As to the proposition that the words "agricultural lands" have been given a technical meaning
and that the Constitution has employed them in that sense, it can only be accepted in
reference to public lands. If a technical import has been affixed to the term, it can not be
extended to private lands if we are not to be led to an absurdity and if we are to avoid the
charge that we are resorting to subtle and ingenious refinement to force from the
Constitution a meaning which its framers never held,. While in the construction of a
constitution words must be given the technical meaning which they have acquired, the rule is
limited to the "well-understood meaning" "which the people must be supposed to have had
in view in adopting them." To give an example. "When the constitution speaks of an ex post
facto law, it means a law technically known by that designation; the meaning of the phrase
having become definite in the history of constitutional law, and being so familiar to the
people that it is: not necessary to employ language of a more popular character to designate
it." In reality, this is not a departure from the general rule that the language used is to be
taken in the sense it conveys to the popular mind, "for the technical sense in these cases is
the sense popularly understood, because that is the sense fixed upon the words in legal and
constitutional history where they have been employed for the protection of popular rights."
(1 Cooley's Constitutional Limitations, 8th ed., 132-133.) Viewed from this angle, "agricultural
land" does not possess the quality of a technical term. Even as applied to public lands, and
even among lawyers and judges, how many are familiar with the decisions of this Court which
hold that public swamps
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Krivenko vs. Register of Deeds of Manila
and public lands more appropriate for buildings and other structures than for agriculture are
agricultural lands? The same can be truthfully said of members of the Constitutional
Assembly,
The speeches of delegates Montilla and Ledesma cannot serve as a means of interpretation.
The sentiments expressed in those speeches, like the first drafts of section 5 of Article XIII,
may have reflected the sentiments of the Convention in the first stages of the deliberation or
down to its close. If they were, those sentiments were relaxed and not given full sway for
reasons on which we need not speculate. Speeches in support of a project can be a valuable
46
criterion for judging the intention of a law or constitution only if no changes were afterward
effected. If anything, the change in section 5 of Article XIII wrought in the face of a strong
advocacy for complete and absolute nationalization of all lands, without exception, offers
itself as the best proof that to the framers of the Constitution the change was not "merely
one of words" but represented something real and substantial. Firm and resolute convictions
are expressed in a document in strong, unequivocal and unqualified language. This is specially
true when the Instrument is a constitution, "the most solemn and deliberate of human
writings, always carefully drawn, and calculated for permanent endurance."
The decision quotes from the Framing of the Constitution by Dean Aruego a sentence which
says that one of the principles underlying the provision of Article XIII of the Constitution is
"that lands, minerals, forests and other natural resources constitute the exclusive heritage of
the Filipino Nation." In underlying the word lands the Court wants to insinuate that all lands
without exceptions are included. This is nothing to be enthusiastic over. It is hyperbole, "a
figure of speech in which the statement expresses more than the truth" but "is accepted as a
legal form of expression." It is
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Krivenko vs. Register of Deeds of Manila
an expression that "lies but does not deceive." When we say men must fight we do not mean
all men, and every one knows we don't.
The decision says.:
"It is true that in section 9 of said Commonwealth Act No. 141, alienable or disposable public
lands' which are the same as 'public agricultural lands' under the Constitution, are classified
into agricultural, residential, commercial, industrial and for other purposes. This simply
means that the term 'public agricultural lands' has both a broad and a particular meaning.
Under its broad or general meaning, as used in the Constitution, it embraces all lands that are
neither timber nor mineral. This broad meaning is particularized in section 9 of
Commonwealth Act No. 141 which classifies 'public agricultural lands' for purposes of
alienation or disposition, into lands that are strictly agricultural or actually devoted to
cultivation for agricultural purposes; lands that are residential; commercial; industrial; or
lands for other purposes. The fact that these lands are made alienable or disposable under
Commonwealth Act No. 141, in favor of Filipino citizens, is a conclusive indication of their
character as public agricultural lands under said statute and under the Constitution."
If I am not mistaken in my understanding of the line of reasoning in the foregoing passage, my
humble opinion is that there is no logical connection between the premise and the
conclusion. What to me seems clearly to emerge from it is that Commonwealth Act No. 141,
so far from sustaining the Court's theory, actually pulls down its case which. it has built upon
the foundation of parallel classification of public and private lands into forest, mineral and
agricultural lands, and the inexistence of such things as residential, industrial or commercial
lands. It is to be noted that Act No. 141, section 9, classifies disposable lands into agricultural,
industrial, residential, commercial, etc. And these are lands of the public domain.
The fact that the provisions regarding alienation of private lands happens to be included in
Article XIII, which is entitled "Conservation and Utilization of Natural Resources," is no ground
for treating public lands and
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Krivenko vs. Register of Deeds of Manila
private lands on the same footing. The inference should rather be the exact reverse.
Agricultural lands, whether public or private, are natural resources. But residential,
commercial, and industrial lands, as we have seen, are not natural resources either in the
sense these words convey to the popular mind or as defined in the dictionary. This fact may
have been one factor which prompted the elimination of private non-agricultural lands from
the range of the prohibition, along with reasons of foreign policy, economics and politics.
From the opinion of Secretary of Justice Jose A. Santos in 1939, the majority can not derive
any comfort unless we cling to the specious argument that as public lands go so go private
lands. In that opinion the question propounded was whether a piece of public land which was
more profitable as a homesite might not be sold and considered as agricultural. The
illustrious Secretary answered yes, which was correct. But the classification of private lands
was not directly or indirectly involved. It is the opinion of the present Secretary of Justice that
is to the point. If the construction placed by the law-officer of the government on a
constitutional provision may properly be invoked, as the majority say but which 1 doubt, as
representing the true intent of the instrument, this Court, if it is to be consistent, should
adopt Secretary Ozaeta's view. If the Solicitor General's attitude as interested counsel for the
government in a judicial action is—as the decision also suggests but which, I think, is still
more incorrect both in theory and' in practice—then this Court should have given heed to the
47
motion for withdrawal of the present appeal, which had been concurred in by the Solicitor
General in line presumably with the opinion of the head of his department.
The Court fears that "this constitutional purpose of conserving agricultural resources in the
hands of Filipino citizens may easily be defeated by the Filipino citizens themselves who may
alienate their agricultural lands in favor of aliens." It reasons that "it would
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Krivenko vs. Register of Deeds of Manila
certainly be futile to prohibit the alienation of public agricultural lands to aliens if, after all,
they may be freely so alienated upon their becoming private agricultural lands in the hands of
Filipino citizens." Sections 122 and 123 of Act No. 141 should banish this fear. These sections,
quoted and relied upon in the majority opinion, prevent private lands that have been
acquired under any of the public land laws from falling into alien possession in fee simple.
Without this law, the fear would be well-founded if we adopt the majority's theory, which we
precisely reject, that agricultural and residential lands are synonymous, be they public or
private. The fear would not materialize under our theory, that only lands which are not
agricultural may be owned by persons other than Filipino citizens.
Act No. 141, by the way, supplies the best argument against the majority's interpretation of
section 5 of Article XIII. Prohibiting the acquisition by foreigners of any lands originally
acquired in any manner under its provisions or under the provisions of any previous law,
ordinance, royal order, royal decree, or any other law formerly enforced in the Philippines
with regard to public lands, etc., it is a mute and eloquent testimony that in the minds of the
legislature, whose interpretation the majority correctly say should be looked to as
authoritative, the Constitution did not carry such prohibition. For if the Constitution already
barred the alienation of lands of any kind in favor of aliens, the provisions of sections 122 and
123 of Commonwealth Act No. 141 would have been superfluous.
The decision says that "if under Article XIV section 8, of the Constitution, an alien may not
even operate a small jeepney for hire, it is certainly not hard to understand that neither is he
allowed to own a piece of land." There is no similitude between owning a lot for a home or a
factory or a store and operating a jeepney for hire. It is not the ownership of a jeepney that is
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PHILIPPINE REPORTS ANNOTATED
Krivenko vs. Register of Deeds of Manila
forbidden; it is the use of it for public service that is not allowed. A foreigner is not barred
from owning the costliest motor cars, steamships or airplanes in any number, for his private
use or that of his friends and relatives. He can not use a jeepney for hire because the
operation of public utilities is reserved to Filipino nationals, and the operation of a jeepney
happens to be within this policy. The use of a jeepney for hire may be insignificant in itself but
it falls within a class of industry that performs a vital function in the country's economic life,
closely associated with its advancing civilization, supplying needs so fundamental for
communal living and for the development of the country's economy. that the government
finds need of subjecting them to some measure of control and the Constitution deems it
necessary to limit their operation by Filipino citizens. The importance of using a jeepney for
hire cannot be sneered at or minimized just as a vote for public office by a single foreign
citizen can not be looked at with a shrug of the shoulder on the theory that it would not
cause a ripple in the political complexion or scene of the nation.
This Court quotes with approval from the Solicitor General's brief this passage: "If the term
'private agricultural lands' is to be construed as not including residential lots or lands of
similar nature, the result will be that aliens may freely acquire and possess not only
residential lots and houses for themselves but entire subdivisions and whole towns and cities,
and that they may validly buy and hold in their names lands of any area for building homes,
factories, industrial plants, fisheries, hatcheries, schools, health and vacation resorts,
markets, golf-courses, playgrounds, airfields and a host of other uses and purposes that are
not, in appellant's words, strictly agricultural." Arguments like this have no place where there
is no ambiguity in the constitution or law. The courts are not at liberty to disregard a
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Krivenko vs. Register of Deeds of Manila
provision that is clear and certain simply because its enforcement would work inconvenience
or hardship or lead to what they believe pernicious results. Courts have nothing to do with
inconvenience or consequences. This rôle is founded on sound principles of constitutional
government and is so well known as to make citations of authorities presumptuous.
48

Granting the possibility or probability of the consequences which this Court and the Solicitor
General dread, we should not overlook the fact that there is the Congress standing guard to
curtail or stop such excesses or abuses if and when the menace should show its head. The
fact that the Constitution has not prohibited, as we contend, the transfer of private non-
agricultural lands to aliens does not prevent the Congress from passing legislation to regulate
or prohibit such transfer, to define the size of private lands a foreigner may possess in fee
simple, or to specify the uses for which lands may be dedicated, in order to prevent aliens
from conducting fisheries, hatcheries, vacation resorts, markets, golf-courses, cemeteries. The
Congress could, if it wants, go so far as to exclude foreigners from entering the country or
settling here. If I may be permitted to guess, the alteration. in the original draft of section 5 of
Article XIII may have been prompted precisely by the thought that it is the better policy to
leave to the political departments of the Government the regulation or absolute prohibition
of all land ownership by foreigners, as the changed, changing and ever-changing conditions
demand. The Commonwealth Legislature did that with respect to lands that were originally
public lands, through Commonwealth Act No. 141, and the Legislative Assembly during the
Japanese occupation extended the prohibition to all private lands, as Mr. Justice Parás has
pointed out. In the present Congress, at least two bills have been introduced proposing
Congressional legislation in the same direction. All of which is an infallible sign that the

568

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PHILIPPINE REPORTS ANNOTATED

People vs. Pardo

Constitution does not carry such prohibition, in the opinion of three legislatures, an opinion
which, we entirely agree with the majority, should be given serious consideration by the
courts (if indeed there were any doubt), both as a matter of policy, and also because it may
be presumed to represent the true intent of the instrument. (12 C. J., 714.) In truth, the
decision lays special emphasis on the fact that "many members of the National Assembly who
approved the new Act (No. 141) had been members of the Constitutional Convention." May I
add that Senator Francisco, who is the author of one of the bills I have referred to, in the G.R. No. 159310. February 24, 2009.*
Senate, was a leading, active and influential member of the Constitutional Convention?
CAMILO F. BORROMEO, petitioner, vs. ANTONIETTA O. DESCALLAR, respondent.
Judgment affirmed. Krivenko vs. Register of Deeds of Manila, 79 Phil. 461, No. L-630
November 15, 1947 Civil Law; Co-ownership; Co-ownership applies to a man and a woman living exclusively with
each other as husband and wife without the benefit of marriage, but are otherwise
capacitated to marry each other, does not apply. In the instant case, respondent was still
legally married to another when she and Jambrich lived together. In such an adulterous
49
relationship, no co-ownership exists between the parties. It is necessary for each of the
partners to prove his or her actual contribution to the acquisition of property in order to be
able to lay claim to any portion of it. Presumptions of co-ownership and equal contribution do
not apply.—The fact that the disputed properties were acquired during the couple’s
cohabitation also does not help respondent. The rule that co-ownership applies to a man and
a woman living exclusively with each other as husband and wife without the benefit of
marriage, but are otherwise capacitated to marry each other, does not apply. In the instant
case, respondent was still legally married to another when she and Jambrich lived together. In
such an adulterous relationship, no co-ownership exists between the parties. It is necessary
for each of the partners to prove his or her actual contribution to the acquisition of property
in order to be able to lay claim to any portion of it. Presumptions of co-ownership and equal
contribution do not apply.
* FIRST DIVISION.
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SUPREME COURT REPORTS ANNOTATED
Borromeo vs. Descallar
Land Titles; Registration is not a mode of acquiring ownership. It is only a means of
confirming the fact of its existence with notice to the world at large. Certificates of title are
not a source of right. The mere possession of a title does not make one the true owner of the
property. Thus, the mere fact that respondent has the titles of the disputed properties in her
name does not necessarily, conclusively and absolutely make her the owner. The rule on
indefeasibility of title likewise does not apply to respondent. A certificate of title implies that
the title is quiet, and that it is perfect, absolute and indefeasible. However, there are well-
defined exceptions to this rule, as when the transferee is not a holder in good faith and did
not acquire the subject properties for a valuable consideration.—It is settled that registration
is not a mode of acquiring ownership. It is only a means of confirming the fact of its existence
with notice to the world at large. Certificates of title are not a source of right. The mere
possession of a title does not make one the true owner of the property. Thus, the mere fact
that respondent has the titles of the disputed properties in her name does not necessarily,
conclusively and absolutely make her the owner. The rule on indefeasibility of title likewise
does not apply to respondent. A certificate of title implies that the title is quiet, and that it is
perfect, absolute and indefeasible. However, there are well-defined exceptions to this rule, as
when the transferee is not a holder in good faith and did not acquire the subject properties
for a valuable consideration. This is the situation in the instant case. Respondent did not
contribute a single centavo in the acquisition of the properties. She had no income of her
own at that time, nor did she have any savings. She and her two sons were then fully
supported by Jambrich.
Constitutional Law; Aliens; The ban on aliens is intended to preserve the nation’s land for
future generations of Filipinos. As the property in dispute is already in the hands of a qualified
person, a Filipino citizen, there would be no more public policy to be protected. The objective
of the constitutional provision to keep our lands in Filipino hands has been achieved.—The
rationale behind the Court’s ruling in United Church Board for World Ministries, as reiterated
in subsequent cases, is this—since the ban on aliens is intended to preserve the nation’s land
for future generations of Filipinos, that aim is achieved by making lawful the acquisition of
real estate by aliens who became Filipino citizens by naturalization or those transfers made by
aliens to Filipino citizens. As the property in dispute is
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Borromeo vs. Descallar
already in the hands of a qualified person, a Filipino citizen, there would be no more public
policy to be protected. The objective of the constitutional provision to keep our lands in
Filipino hands has been achieved.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Florido & Largo Law Offices for petitioner.
Gilberto Alfafara for respondent.
PUNO, C.J.:
What are the rights of an alien (and his successor-in-interest) who acquired real properties in
the country as against his former Filipina girlfriend in whose sole name the properties were
registered under the Torrens system?
The facts are as follows:
Wilhelm Jambrich, an Austrian, arrived in the Philippines in 1983 after he was assigned by his
employer, Simmering-Graz Panker A.G., an Austrian company, to work at a project in
Mindoro. In 1984, he transferred to Cebu and worked at the Naga II Project of the National
Power Corporation. There, he met respondent Antonietta Opalla-Descallar, a separated
mother of two boys who was working as a waitress at St. Moritz Hotel. Jambrich befriended
respondent and asked her to tutor him in English. In dire need of additional income to
support her children, respondent agreed. The tutorials were held in Antonietta’s residence at
a squatters’ area in Gorordo Avenue.
50
Jambrich and respondent fell in love and decided to live together in a rented house in Hernan
Cortes, Mandaue City. Later, they transferred to their own house and lots at Agro-Macro
Subdivision, Cabancalan, Mandaue City. In the Con-
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Borromeo vs. Descallar
tracts to Sell dated November 18, 19851 and March 10, 19862 covering the properties,
Jambrich and respondent were referred to as the buyers. A Deed of Absolute Sale dated
November 16, 19873 was likewise issued in their favor. However, when the Deed of Absolute
Sale was presented for registration before the Register of Deeds, registration was refused on
the ground that Jambrich was an alien and could not acquire alienable lands of the public
domain. Consequently, Jambrich’s name was erased from the document. But it could be
noted that his signature remained on the left hand margin of page 1, beside respondent’s
signature as buyer on page 3, and at the bottom of page 4 which is the last page. Transfer
Certificate of Title (TCT) Nos. 24790, 24791 and 24792 over the properties were issued in
respondent’s name alone.
Jambrich also formally adopted respondent’s two sons in Sp. Proc. No. 39-MAN,4 and per
Decision of the Regional Trial Court of Mandaue City dated May 5, 1988.5
However, the idyll lasted only until April 1991. By then, respondent found a new boyfriend
while Jambrich began to live with another woman in Danao City. Jambrich supported
respondent’s sons for only two months after the break up.
Jambrich met petitioner Camilo F. Borromeo sometime in 1986. Petitioner was engaged in the
real estate business. He also built and repaired speedboats as a hobby. In 1989, Jambrich
purchased an engine and some accessories for his boat from petitioner, for which he became
indebted to the latter for about P150,000.00. To pay for his debt, he sold his rights and
interests in the Agro-Macro properties to petitioner for P250,000, as evidenced by a “Deed of
Absolute Sale/As-signment.”6 On July 26, 1991, when petitioner sought to regis-
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Borromeo vs. Descallar
ter the deed of assignment, he discovered that titles to the three lots have been transferred
in the name of respondent, and that the subject property has already been mortgaged.
On August 2, 1991, petitioner filed a complaint against respondent for recovery of real
property before the Regional Trial Court of Mandaue City. Petitioner alleged that the
Contracts to Sell dated November 18, 1985 and March 10, 1986 and the Deed of Absolute
Sale dated November 16, 1987 over the properties which identified both Jambrich and
respondent as buyers do not reflect the true agreement of the parties since respondent did
not pay a single centavo of the purchase price and was not in fact a buyer; that it was
Jambrich alone who paid for the properties using his exclusive funds; that Jambrich was the
real and absolute owner of the properties; and, that petitioner acquired absolute ownership
by virtue of the Deed of Absolute Sale/Assignment dated July 11, 1991 which Jambrich
executed in his favor.
In her Answer, respondent belied the allegation that she did not pay a single centavo of the
purchase price. On the contrary, she claimed that she “solely and exclusively used her own
personal funds to defray and pay for the purchase price of the subject lots in question,” and
that Jambrich, being an alien, was prohibited to acquire or own real property in the
Philippines.
At the trial, respondent presented evidence showing her alleged financial capacity to buy the
disputed property with money from a supposed copra business. Petitioner, in turn, presented
Jambrich as his witness and documentary evidence showing the substantial salaries which
Jambrich received while still employed by the Austrian company, Simmering-Graz Panker A.G.
In its decision, the court a quo found—
“Evidence on hand clearly show that at the time of the purchase and acquisition of [the]
properties under litigation that Wilhelm Jambrich was still working and earning much. This
fact of
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SUPREME COURT REPORTS ANNOTATED
Borromeo vs. Descallar
Jambrich earning much is not only supported by documentary evidence but also by the
admission made by the defendant Antoniet[t]a Opalla. So that, Jambrich’s financial capacity
to acquire and purchase the properties . . . is not disputed.7
51
xxx
On the other hand, evidence . . . clearly show that before defendant met Jambrich sometime
in the latter part of 1984, she was only working as a waitress at the St. Moritz Hotel with an
income of P1,000.00 a month and was . . . renting and living only in . . . [a] room at . . . [a]
squatter area at Gorordo Ave., Cebu City; that Jambrich took pity of her and the situation of
her children that he offered her a better life which she readily accepted. In fact, this miserable
financial situation of hers and her two children . . . are all stated and reflected in the Child
Study Report dated April 20, 1983 (Exhs. “G” and “G-1”) which facts she supplied to the Social
Worker who prepared the same when she was personally interviewed by her in connection
with the adoption of her two children by Wilhelm Jambrich. So that, if such facts were not
true because these are now denied by her . . . and if it was also true that during this time she
was already earning as much as P8,000.00 to P9,000.00 as profit per month from her copra
business, it would be highly unbelievable and impossible for her to be living only in such a
miserable condition since it is the observation of this Court that she is not only an extravagant
but also an expensive person and not thrifty as she wanted to impress this Court in order to
have a big saving as clearly shown by her actuation when she was already cohabiting and
living with Jambrich that according to her . . . the allowance given . . . by him in the amount of
$500.00 a month is not enough to maintain the education and maintenance of her children.8
This being the case, it is highly improbable and impossible that she could acquire the
properties under litigation or could contribute any amount for their acquisition which
according to her is worth more than P700,000.00 when while she was working as [a] waitress
at St. Moritz Hotel earning P1,000.00 a month as salary and tips of more or less P2,000.00 she
could not even provide [for] the daily needs of her family so much so that it is safe to
conclude that she was really in
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Borromeo vs. Descallar
financial distress when she met and accepted the offer of Jambrich to come and live with him
because that was a big financial opportunity for her and her children who were already
abandoned by her husband.9
xxx
The only probable and possible reason why her name appeared and was included in [the
contracts to sell dated November 18, 1985 and March 10, 1986 and finally, the deed of
absolute sale dated November 16, 1987] as buyer is because as observed by the Court, she
being a scheming and exploitive woman, she has taken advantage of the goodness of
Jambrich who at that time was still bewitched by her beauty, sweetness, and good attitude
shown by her to him since he could still very well provide for everything she needs, he being
earning (sic) much yet at that time. In fact, as observed by this Court, the acquisition of these
properties under litigation was at the time when their relationship was still going smoothly
and harmoniously.”10 [Emphasis supplied.]
The dispositive portion of the Decision states:
“WHEREFORE, . . . Decision is hereby rendered in favor of the plaintiff and against the
defendant Antoniet[t]a Opalla by:
1) Declaring plaintiff as the owner in fee simple over the residential house of strong
materials and three parcels of land designated as Lot Nos. 1, 3 and 5 which are covered by
TCT Nos. 24790, 24791 and 24792 issued by the Register of Deeds of Mandaue City;
2) Declaring as null and void TCT Nos. 24790, 24791 and 24792 issued in the name of
defendant Antoniet[t]a Descallar by the Register of Deeds of Mandaue City;
3) Ordering the Register of Deeds of Mandaue City to cancel TCT Nos. 24790, 24791 and
24792 in the name of defendant Antoniet[t]a Descallar and to issue new ones in the name of
plaintiff Camilo F. Borromeo;
4) Declaring the contracts now marked as Exhibits “I,” “K” and “L” as avoided insofar as they
appear to convey rights and inter-
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SUPREME COURT REPORTS ANNOTATED
Borromeo vs. Descallar
ests over the properties in question to the defendant Antoniet[t]a Descallar;
5) Ordering the defendant to pay plaintiff attorney’s fees in the amount of P25,000.00 and
litigation expenses in the amount of P10,000.00; and,
6) To pay the costs.”11
52
Respondent appealed to the Court of Appeals. In a Decision dated April 10, 2002,12 the
appellate court reversed the decision of the trial court. In ruling for the respondent, the Court
of Appeals held:
“We disagree with the lower court’s conclusion. The circumstances involved in the case cited
by the lower court and similar cases decided on by the Supreme Court which upheld the
validity of the title of the subsequent Filipino purchasers are absent in the case at bar. It
should be noted that in said cases, the title to the subject property has been issued in the
name of the alien transferee (Godinez et al., vs. Fong Pak Luen et al., 120 SCRA 223 citing
Krivenko vs. Register of Deeds of Manila, 79 Phils. 461; United Church Board for World
Ministries vs. Sebastian, 159 SCRA 446, citing the case of Sarsosa Vda. De Barsobia vs. Cuenco,
113 SCRA 547; Tejido vs. Zamacoma, 138 SCRA 78). In the case at bar, the title of the subject
property is not in the name of Jambrich but in the name of defendant-appellant. Thus,
Jambrich could not have transferred a property he has no title thereto.”13
Petitioner’s motion for reconsideration was denied.
Hence, this petition for review.
Petitioner assigns the following errors:
I. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING
RESPONDENT’S JUDICIAL ADMISSION AND OTHER OVERWHELMING EVIDENCE ESTABLISHING
JAMBRICH’S PARTICIPATION, INTEREST AND OWNER-
_______________
183
Borromeo vs. Descallar
SHIP OF THE PROPERTIES IN QUESTION AS FOUND BY THE HONORABLE TRIAL COURT.
II. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT JAMBRICH
HAS NO TITLE TO THE PROPERTIES IN QUESTION AND MAY NOT THEREFORE TRANSFER AND
ASSIGN ANY RIGHTS AND INTERESTS IN FAVOR OF PETITIONER.
III. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN REVERSING THE WELL-
REASONED DECISION OF THE TRIAL COURT AND IN IMPOSING DOUBLE COSTS AGAINST
HEREIN PETITIONER (THEN, PLAINTIFF-APPELLEE).14
First, who purchased the subject properties?
The evidence clearly shows, as pointed out by the trial court, who between respondent and
Jambrich possesses the financial capacity to acquire the properties in dispute. At the time of
the acquisition of the properties in 1985 to 1986, Jambrich was gainfully employed at
Simmering-Graz Panker A.G., an Austrian company. He was earning an estimated monthly
salary of P50,000.00. Then, Jambrich was assigned to Syria for almost one year where his
monthly salary was approximately P90,000.00.
On the other hand, respondent was employed as a waitress from 1984 to 1985 with a
monthly salary of not more than P1,000.00. In 1986, when the parcels of land were acquired,
she was unemployed, as admitted by her during the pre-trial conference. Her allegations of
income from a copra business were unsubstantiated. The supposed copra business was
actually the business of her mother and their family, with ten siblings. She has no license to
sell copra, and had not filed any income tax return. All the motorized bancas of her mother
were lost to fire, and the last one left standing was already scrap. Further, the Child Study
Report15 submitted by
_______________
184
SUPREME COURT REPORTS ANNOTATED
Borromeo vs. Descallar
the Department of Social Welfare and Development (DSWD) in the adoption proceedings of
respondent’s two sons by Jambrich disclosed that:
“Antonietta tried all types of job to support the children until she was accepted as a waitress
at St. Moritz Restaurant in 1984. At first she had no problem with money because most of the
customers of St. Moritz are (sic) foreigners and they gave good tips but towards the end of
1984 there were no more foreigners coming because of the situation in the Philippines at that
time. Her financial problem started then. She was even renting a small room in a squatters
area in Gorordo Ave., Cebu City. It was during her time of great financial distress that she met
Wilhelm Jambrich who later offered her a decent place for herself and her children.”16
The DSWD Home Study Report17 further disclosed that:
“[Jambrich] was then at the Restaurant of St. Moritz when he saw Antonietta Descallar, one of
the waitresses of the said Restaurants. He made friends with the girl and asked her to tutor
him in [the] English language. Antonietta accepted the offer because she was in need of
additional income to support [her] 2 young children who were abandoned by their father.
Their session was agreed to be scheduled every afternoon at the residence of Antonietta in
the squatters area in Gorordo Avenue, Cebu City. The Austrian was observing the situation of
53
the family particularly the children who were malnourished. After a few months sessions, Mr.
Jambrich offered to transfer the family into a decent place. He told Antonietta that the place
is not good for the children. Antonietta who was miserable and financially distressed at that
time accepted the offer for the sake of the children.”18
Further, the following additional pieces of evidence point to Jambrich as the source of fund
used to purchase the three parcels of land, and to construct the house thereon:
_______________
185
Borromeo vs. Descallar
(1) Respondent Descallar herself affirmed under oath, during her re-direct examination and
during the proceedings for the adoption of her minor children, that Jambrich was the owner
of the properties in question, but that his name was deleted in the Deed of Absolute Sale
because of legal constraints. Nonetheless, his signature remained in the deed of sale, where
he signed as buyer.
(2) The money used to pay the subject parcels of land in installments was in postdated
checks issued by Jambrich. Respondent has never opened any account with any bank.
Receipts of the installment payments were also in the name of Jambrich and respondent.
(3) In 1986-1987, respondent lived in Syria with Jambrich and her two children for ten
months, where she was completely under the support of Jambrich.
(4) Jambrich executed a Last Will and Testament, where he, as owner, bequeathed the
subject properties to respondent.
Thus, Jambrich has all authority to transfer all his rights, interests and participation over the
subject properties to petitioner by virtue of the Deed of Assignment he executed on July 11,
1991.
Well-settled is the rule that this Court is not a trier of facts. The findings of fact of the trial
court are accorded great weight and respect, if not finality by this Court, subject to a number
of exceptions. In the instant case, we find no reason to disturb the factual findings of the trial
court. Even the appellate court did not controvert the factual findings of the trial court. They
differed only in their conclusions of law.
Further, the fact that the disputed properties were acquired during the couple’s cohabitation
also does not help respondent. The rule that co-ownership applies to a man and a woman
living exclusively with each other as husband and wife without the benefit of marriage, but
are otherwise ca-
186
SUPREME COURT REPORTS ANNOTATED
Borromeo vs. Descallar
pacitated to marry each other, does not apply.19 In the instant case, respondent was still
legally married to another when she and Jambrich lived together. In such an adulterous
relationship, no co-ownership exists between the parties. It is necessary for each of the
partners to prove his or her actual contribution to the acquisition of property in order to be
able to lay claim to any portion of it. Presumptions of co-ownership and equal contribution do
not apply.20
Second, we dispose of the issue of registration of the properties in the name of respondent
alone. Having found that the true buyer of the disputed house and lots was the Austrian
Wilhelm Jambrich, what now is the effect of registration of the properties in the name of
respondent?
It is settled that registration is not a mode of acquiring ownership.21 It is only a means of
confirming the fact of its existence with notice to the world at large.22 Certificates of title are
not a source of right. The mere possession of a title does not make one the true owner of the
property. Thus, the mere fact that respondent has the titles of the disputed properties in her
name does not necessarily, conclusively and absolutely make her the owner. The rule on
indefeasibility of title likewise does not apply to respondent. A certificate of title implies that
the title is quiet,23 and that it is perfect, absolute and indefeasible.24 However, there are
well-defined exceptions to this rule, as when the transferee is not a holder in good faith and
did not acquire the subject properties for a
_______________
187
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187
Borromeo vs. Descallar
54
valuable consideration.25 This is the situation in the instant case. Respondent did not
contribute a single centavo in the acquisition of the properties. She had no income of her
own at that time, nor did she have any savings. She and her two sons were then fully
supported by Jambrich.
Respondent argued that aliens are prohibited from acquiring private land. This is embodied in
Section 7, Article XII of the 1987 Constitution,26 which is basically a reproduction of Section
5, Article XIII of the 1935 Constitution,27 and Section 14, Article XIV of the 1973
Constitution.28 The capacity to acquire private land is dependent on the capacity “to acquire
or hold lands of the public domain.” Private land may be transferred only to individuals or
entities “qualified to acquire or hold lands of the public domain.” Only Filipino citizens or
corporations at least 60% of the capital of which is owned by Filipinos are qualified to acquire
or hold lands of the public domain. Thus, as the rule now stands, the fundamental law
explicitly prohibits non-Filipinos from acquiring or holding title to private lands, except only
by way of legal succession or if the acquisition was made by a former natural-born citizen.29
_______________
25 Ignacio v. Chua Beng, 52 Phil. 940 (1929); Acosta v. Gomez, 52 Phil. 744 (1929); Cruz v.
Fabie, 35 Phil. 144 (1916).
26 SECTION 7. Save in cases of hereditary succession, no private lands shall be transferred
or conveyed except to individuals, corporations, or associations qualified to acquire or hold
lands of the public domain.
27 SECTION 5. Save in cases of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain in the Philippines.
28  SECTION 14. Save in cases of hereditary succession, no private land shall be transferred
or conveyed except to individuals, corporations, or associations qualified to acquire or hold
lands of the public domain.
29 1987 Constitution, Art. XII, Sec. 8. Notwithstanding the provisions of Section 7 of this
Article, a natural-born citizen of the
188
SUPREME COURT REPORTS ANNOTATED
Borromeo vs. Descallar
Therefore, in the instant case, the transfer of land from Agro-Macro Development
Corporation to Jambrich, who is an Austrian, would have been declared invalid if challenged,
had not Jambrich conveyed the properties to petitioner who is a Filipino citizen. In United
Church Board for World Ministries v. Sebastian,30 the Court reiterated the consistent ruling in
a number of cases31 that if land is invalidly transferred to an alien who subsequently
becomes a Filipino citizen or transfers it to a Filipino, the flaw in the original transaction is
considered cured and the title of the transferee is rendered valid. Applying United Church
Board for World Ministries, the trial court ruled in favor of petitioner, viz.:
“[W]hile the acquisition and the purchase of (sic) Wilhelm Jambrich of the properties under
litigation [were] void ab initio since [they were] contrary to the Constitution of the
Philippines, he being a foreigner, yet, the acquisition of these properties by plaintiff who is a
Filipino citizen from him, has cured the flaw in the original transaction and the title of the
transferee is valid.”
The trial court upheld the sale by Jambrich in favor of petitioner and ordered the cancellation
of the TCTs in the name of respondent. It declared petitioner as owner in fee simple of the
residential house of strong materials and three parcels of land designated as Lot Nos. 1, 3 and
5, and ordered the Register of Deeds of Mandaue City to issue new certificates of title in his
name. The trial court likewise ordered respondent to
_______________
Philippines who has lost his Philippine citizenship may be a transferee of private lands,
subject to limitations provided by law.
30 G.R. No. L-34672, March 30, 1988, 159 SCRA 446.
31 Sarsosa Vda. de Barsobia v. Cuenco, G.R. No. L-33048, April 16, 1982, 113 SCRA 547;
Godinez v. Pak Luen, G.R. No. L-36731, January 27, 1983, 120 SCRA 223; Vasquez v. Li Seng
Giap & Sons, 96 Phil. 447 (1955); Herrera v. Luy King Guan, G.R. No. L-17043, January 31,
1961, 1 SCRA 406; Yap v. Maravillas, G.R. No. L-31606, March 28, 1983, 121 SCRA 244; and De
Castro v. Tan, G.R. No. L-31956, April 30, 1984, 129 SCRA 85.
189
VOL. 580, FEBRUARY 24, 2009
189
Borromeo vs. Descallar
55

pay petitioner P25,000 as attorney’s fees and P10,000 as litigation expenses, as well as the
costs of suit.

We affirm the Regional Trial Court.

The rationale behind the Court’s ruling in United Church Board for World Ministries, as
reiterated in subsequent cases,32 is this—since the ban on aliens is intended to preserve the
nation’s land for future generations of Filipinos, that aim is achieved by making lawful the
acquisition of real estate by aliens who became Filipino citizens by naturalization or those
transfers made by aliens to Filipino citizens. As the property in dispute is already in the hands
of a qualified person, a Filipino citizen, there would be no more public policy to be protected.
The objective of the constitutional provision to keep our lands in Filipino hands has been
achieved.

IN VIEW WHEREOF, the petition is GRANTED. The Decision of the Court of Appeals in C.A. G.R.
CV No. 42929 dated April 10, 2002 and its Resolution dated July 8, 2003 are REVERSED and
SET ASIDE. The Decision of the Regional Trial Court of Mandaue City in Civil Case No. MAN-
1148 is REINSTATED.

SO ORDERED.

Carpio, Corona, Leonardo-De Castro and Brion, JJ., concur.

Petition granted, judgment and resolution reversed and set aside. That of Regional Trial Court
of Mandaue City reinstated.

Note.—Since foreigners are proscribed under the Constitution from acquiring and owning
real property, it is unequivocal that the Contract to Sell involving a residential unit en-

_______________ G.R. No. 149615. August 29, 2006.*

32 Hko Ah Pao v. Ting, G.R. No. 153476, September 27, 2006, 503 SCRA 551; Muller v. Muller,
G.R. No. 149615, August 29, 2006, 500 SCRA 65; Lee v. Republic, G.R. No. 128195, October 3,
2001, 366 SCRA 524. Borromeo vs. Descallar, 580 SCRA 175, G.R. No. 159310 February 24,
2009
IN RE: PETITION FOR SEPARATION OF PROPERTY ELENA BUENAVENTURA MULLER, petitioner,
vs. HELMUT MULLER, respondent.
National Patrimony; Aliens; The primary purpose of the constitutional provision disqualifying
aliens from acquiring lands of the public domain and private lands is the conservation of the
national economy.—Section 7, Article XII of the 1987 Constitution states: Save in cases of
hereditary succession, no private lands shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold lands of the public domain. Aliens,
whether individuals or corporations, are disqualified from acquiring lands of the public
domain. Hence, they are also disqualified from acquiring private lands. The primary purpose
of the constitutional provision is the conservation of the national patrimony.
56
Same; Same; Trusts; Save for the exception provided in cases of hereditary succession, an
alien’s disqualification from owning lands in the Philippines is absolute—not even an
ownership in trust is allowed; Where the purchase is made in violation of an existing statute
and in evasion of its express provision, no trust can result in favor of the party who is guilty of
the fraud.—Respondent was aware of the constitutional prohibition and expressly admitted
his knowledge thereof to this Court. He declared that he had the Antipolo property titled in
the name of petitioner because of the said prohibition. His attempt at subsequently asserting
or claiming a right on the said property cannot be sustained. The Court of Appeals erred in
holding that an implied trust was created and resulted by operation of law in view of
petitioner’s marriage to respondent. Save for the exception provided in cases of hereditary
succession, respondent’s disqualification from owning lands in the Philippines is absolute. Not
even an ownership in trust is allowed. Besides, where the purchase is made in violation of an
existing statute and in evasion of its express provision, no trust can result in favor of the party
who is guilty of the fraud. To hold otherwise would allow circumvention of the constitutional
prohibition.
_______________
* FIRST DIVISION.
66
66
SUPREME COURT REPORTS ANNOTATED
Muller vs. Muller
Equity; It has been held that equity as a rule will follow the law and will not permit that to be
done indirectly which, because of public policy, cannot be done directly—he who seeks
equity must do equity, and he who comes into equity must come with clean hands.—Invoking
the principle that a court is not only a court of law but also a court of equity, is likewise
misplaced. It has been held that equity as a rule will follow the law and will not permit that to
be done indirectly which, because of public policy, cannot be done directly. He who seeks
equity must do equity, and he who comes into equity must come with clean hands. The latter
is a frequently stated maxim which is also expressed in the principle that he who has done
inequity shall not have equity. It signifies that a litigant may be denied relief by a court of
equity on the ground that his conduct has been inequitable, unfair and dishonest, or
fraudulent, or deceitful as to the controversy in issue. Thus, in the instant case, respondent
cannot seek reimbursement on the ground of equity where it is clear that he willingly and
knowingly bought the property despite the constitutional prohibition.
National Patrimony; Aliens; The distinction made between transfer of ownership as opposed
to recovery of funds is a futile exercise on alien spouse’s part—to allow reimbursement would
in effect permit respondent to enjoy the fruits of a property which he is not allowed to own.
—The distinction made between transfer of ownership as opposed to recovery of funds is a
futile exercise on respondent’s part. To allow reimbursement would in effect permit
respondent to enjoy the fruits of a property which he is not allowed to own. Thus, it is
likewise proscribed by law. As expressly held in Cheesman v. Intermediate Appellate Court,
193 SCRA 93 (1991): Finally, the fundamental law prohibits the sale to aliens of residential
land. Section 14, Article XIV of the 1973 Constitution ordains that, “Save in cases of hereditary
succession, no private land shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold lands of the public domain.”
Petitioner Thomas Cheesman was, of course, charged with knowledge of this prohibition.
Thus, assuming that it was his intention that the lot in question be purchased by him and his
wife, he acquired no right whatever over the property by virtue of that purchase; and in
attempting to acquire a right or interest in land, vicariously and clandestinely, he knowingly
violated the Constitution; the sale as to him was null and void. In any event, he had and has
no capacity or personality to
67
Muller vs. Muller
question the subsequent sale of the same property by his wife on the theory that in so doing
he is merely exercising the prerogative of a husband in respect of conjugal property. To
sustain such a theory would permit indirect controversion of the constitutional prohibition. If
the property were to be declared conjugal, this would accord to the alien husband a not
insubstantial interest and right over land, as he would then have a decisive vote as to its
transfer or disposition. This is a right that the Constitution does not permit him to have.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
King, Capuchino, Tan & Associates for petitioner.
Bernardo Q. Cuaresma for respondent.
YNARES-SANTIAGO, J.:
This petition for review on certiorari1 assails the February 26, 2001 Decision2 of the Court of
Appeals in CA-G.R. CV No. 59321 affirming with modification the August 12, 1996 Decision3
57
of the Regional Trial Court of Quezon City, Branch 86 in Civil Case No. Q-94-21862, which
terminated the regime of absolute community of property between petitioner and
respondent, as well as the Resolution4 dated August 13, 2001 denying the motion for
reconsideration.
The facts are as follows:
Petitioner Elena Buenaventura Muller and respondent Helmut Muller were married in
Hamburg, Germany on September 22, 1989. The couple resided in Germany at a house
owned by respondent’s parents but decided to move and re-
68
SUPREME COURT REPORTS ANNOTATED
Muller vs. Muller
side permanently in the Philippines in 1992. By this time, respondent had inherited the house
in Germany from his parents which he sold and used the proceeds for the purchase of a
parcel of land in Antipolo, Rizal at the cost of P528,000.00 and the construction of a house
amounting to P2,300,000.00. The Antipolo property was registered in the name of petitioner
under Transfer Certificate of Title No. 2194385 of the Register of Deeds of Marikina, Metro
Manila.
Due to incompatibilities and respondent’s alleged womanizing, drinking, and maltreatment,
the spouses eventually separated. On September 26, 1994, respondent filed a petition6 for
separation of properties before the Regional Trial Court of Quezon City.
On August 12, 1996, the trial court rendered a decision which terminated the regime of
absolute community of property between the petitioner and respondent. It also decreed the
separation of properties between them and ordered the equal partition of personal
properties located within the country, excluding those acquired by gratuitous title during the
marriage. With regard to the Antipolo property, the court held that it was acquired using
paraphernal funds of the respondent. However, it ruled that respondent cannot recover his
funds because the property was purchased in violation of Section 7, Article XII of the
Constitution. Thus—
“However, pursuant to Article 92 of the Family Code, properties acquired by gratuitous title
by either spouse during the marriage shall be excluded from the community property. The
real property, therefore, inherited by petitioner in Germany is excluded from the absolute
community of property of the herein spouses. Necessarily, the proceeds of the sale of said
real property as well as the personal properties purchased thereby, belong exclusively to the
petitioner. However, the part of that inheritance used by the petitioner for acquiring the
house and lot in this country cannot be recovered by the petitioner, its acquisition being a
violation of Section 7, Arti-
69
Muller vs. Muller
cle XII of the Constitution which provides that “save in cases of hereditary succession, no
private lands shall be transferred or conveyed except to individuals, corporations or
associations qualified to acquire or hold lands of the public domain.” The law will leave the
parties in the situation where they are in without prejudice to a voluntary partition by the
parties of the said real property. x x x
xxxx
As regards the property covered by Transfer Certificate of Title No. 219438 of the Registry of
Deeds of Marikina, Metro Manila, situated in Antipolo, Rizal and the improvements thereon,
the Court shall not make any pronouncement on constitutional grounds.”7
Respondent appealed to the Court of Appeals which rendered the assailed decision modifying
the trial court’s Decision. It held that respondent merely prayed for reimbursement for the
purchase of the Antipolo property, and not acquisition or transfer of ownership to him. It also
considered petitioner’s ownership over the property in trust for the respondent. As regards
the house, the Court of Appeals ruled that there is nothing in the Constitution which prohibits
respondent from acquiring the same. The dispositive portion of the assailed decision reads:
“WHEREFORE, in view of the foregoing, the Decision of the lower court dated August 12,
1996 is hereby MODIFIED. Respondent Elena Buenaventura Muller is hereby ordered to
REIMBURSE the petitioner the amount of P528,000.00 for the acquisition of the land and the
amount of P2,300,000.00 for the construction of the house situated in Antipolo, Rizal,
deducting therefrom the amount respondent spent for the preservation, maintenance and
development of the aforesaid real property including the depreciation cost of the house or in
the alternative to SELL the house and lot in the event respondent does not have the means to
reimburse the petitioner out of her own money and from the proceeds thereof, reimburse
the petitioner of the cost of the land and the house deducting the expenses for its
maintenance and preservation spent by the respondent. Should there be profit, the same
shall be divided in
70
SUPREME COURT REPORTS ANNOTATED
58
Muller vs. Muller
proportion to the equity each has over the property. The case is REMANDED to the lower
court for reception of evidence as to the amount claimed by the respondents for the
preservation and maintenance of the property.
SO ORDERED.”8
Hence, the instant petition for review raising the following issues:
I Aliens, whether individuals or corporations, are disqualified from acquiring lands of the public
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE RESPONDENT
HEREIN IS ENTITLED TO REIMBURSEMENT OF THE AMOUNT USED TO PURCHASE THE LAND
AS WELL AS THE COSTS FOR THE CONSTRUCTION OF THE HOUSE, FOR IN SO RULING, IT
INDIRECTLY ALLOWED AN ACT DONE WHICH OTHERWISE COULD NOT BE DIRECTLY x x x
DONE, WITHOUT DOING VIOLENCE TO THE CONSTITUTIONAL PROSCRIPTION THAT AN ALIEN
IS PROHIBITED FROM ACQUIRING OWNERSHIP OF REAL PROPERTIES LOCATED IN THE
PHILIPPINES.
II
THE COURT OF APPEALS GRAVELY ERRED IN SUSTAINING RESPONDENT’S CAUSE OF ACTION
WHICH IS ACTUALLY A DESPERATE ATTEMPT TO OBTAIN OWNERSHIP OVER THE LOT IN
QUESTION, CLOTHED UNDER THE GUISE OF CLAIMING REIMBURSEMENT.
Petitioner contends that respondent, being an alien, is disqualified to own private lands in the
Philippines; that respondent was aware of the constitutional prohibition but circumvented
the same; and that respondent’s purpose for filing an action for separation of property is to
obtain exclusive possession, control and disposition of the Antipolo property.
Respondent claims that he is not praying for transfer of ownership of the Antipolo property
but merely reimbursement; that the funds paid by him for the said property were in
71
Muller vs. Muller
consideration of his marriage to petitioner; that the funds were given to petitioner in trust;
and that equity demands that respondent should be reimbursed of his personal funds.
The issue for resolution is whether respondent is entitled to reimbursement of the funds used
for the acquisition of the Antipolo property.
The petition has merit.
Section 7, Article XII of the 1987 Constitution states:
“Save in cases of hereditary succession, no private lands shall be transferred or conveyed
except to individuals, corporations, or associations qualified to acquire or hold lands of the
public domain.”
domain. Hence, they are also disqualified from acquiring private lands.9 The primary purpose
of the constitutional provision is the conservation of the national patrimony. In the case of
Krivenko v. Register of Deeds,10 the Court held:
“Under section 1 of Article XIII of the Constitution, “natural resources, with the exception of
public agricultural land, shall not be alienated,” and with respect to public agricultural lands,
their alienation is limited to Filipino citizens. But this constitutional purpose conserving
agricultural resources in the hands of Filipino citizens may easily be defeated by the Filipino
citizens themselves who may alienate their agricultural lands in favor of aliens. It is partly to
prevent this result that section 5 is included in Article XIII, and it reads as follows:
“Sec. 5. Save in cases of hereditary succession, no private agricultural land will be transferred
or assigned except to individuals, corporations, or associations qualified to acquire or hold
lands of the public domain in the Philippines.”
72
Muller vs. Muller
This constitutional provision closes the only remaining avenue through which agricultural
resources may leak into aliens’ hands. It would certainly be futile to prohibit the alienation of
public agricultural lands to aliens if, after all, they may be freely so alienated upon their
becoming private agricultural lands in the hands of Filipino citizens. x x x
xxxx
If the term “private agricultural lands” is to be construed as not including residential lots or
lands not strictly agricultural, the result would be that “aliens may freely acquire and possess
not only residential lots and houses for themselves but entire subdivisions, and whole towns
and cities,” and that “they may validly buy and hold in their names lands of any area for
building homes, factories, industrial plants, fisheries, hatcheries, schools, health and vacation
59
resorts, markets, golf courses, playgrounds, airfields, and a host of other uses and purposes
that are not, in appellant’s words, strictly agricultural.” (Solicitor General’s Brief, p. 6.) That
this is obnoxious to the conservative spirit of the Constitution is beyond question.”
Respondent was aware of the constitutional prohibition and expressly admitted his
knowledge thereof to this Court.11 He declared that he had the Antipolo property titled in
the name of petitioner because of the said prohibition.12 His attempt at subsequently
asserting or claiming a right on the said property cannot be sustained.
The Court of Appeals erred in holding that an implied trust was created and resulted by
operation of law in view of petitioner’s marriage to respondent. Save for the exception
provided in cases of hereditary succession, respondent’s disqualification from owning lands in
the Philippines is absolute. Not even an ownership in trust is allowed. Besides, where the
purchase is made in violation of an existing statute and in evasion of its express provision, no
trust can result in favor of
73
Muller vs. Muller
the party who is guilty of the fraud.13 To hold otherwise would allow circumvention of the
constitutional prohibition.
Invoking the principle that a court is not only a court of law but also a court of equity, is
likewise misplaced. It has been held that equity as a rule will follow the law and will not
permit that to be done indirectly which, because of public policy, cannot be done directly.14
He who seeks equity must do equity, and he who comes into equity must come with clean
hands. The latter is a frequently stated maxim which is also expressed in the principle that he
who has done inequity shall not have equity. It signifies that a litigant may be denied relief by
a court of equity on the ground that his conduct has been inequitable, unfair and dishonest,
or fraudulent, or deceitful as to the controversy in issue.15
Thus, in the instant case, respondent cannot seek reimbursement on the ground of equity
where it is clear that he willingly and knowingly bought the property despite the
constitutional prohibition.
Further, the distinction made between transfer of ownership as opposed to recovery of funds
is a futile exercise on respondent’s part. To allow reimbursement would in effect permit
respondent to enjoy the fruits of a property which he is not allowed to own. Thus, it is
likewise proscribed by law. As expressly held in Cheesman v. Intermediate Appellate Court:16
“Finally, the fundamental law prohibits the sale to aliens of residential land. Section 14,
Article XIV of the 1973 Constitution ordains that, “Save in cases of hereditary succession, no
private land shall be transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public do-
13 Morales v. Court of Appeals, G.R. No. 117228, June 19, 1997, 274 SCRA 282, 299.
14 Frenzel v. Catito, 453 Phil. 885, 905; 406 SCRA 55, 70 (2003).
15 University of the Philippines v. Catungal, Jr., 338 Phil. 728, 743-744; 272 SCRA 221, 237
(1997).
74
SUPREME COURT REPORTS ANNOTATED
Muller vs. Muller
main.” Petitioner Thomas Cheesman was, of course, charged with knowledge of this
prohibition. Thus, assuming that it was his intention that the lot in question be purchased by
him and his wife, he acquired no right whatever over the property by virtue of that purchase;
and in attempting to acquire a right or interest in land, vicariously and clandestinely, he
knowingly violated the Constitution; the sale as to him was null and void. In any event, he had
and has no capacity or personality to question the subsequent sale of the same property by
his wife on the theory that in so doing he is merely exercising the prerogative of a husband in
respect of conjugal property. To sustain such a theory would permit indirect controversion of
the constitutional prohibition. If the property were to be declared conjugal, this would accord
to the alien husband a not insubstantial interest and right over land, as he would then have a
decisive vote as to its transfer or disposition. This is a right that the Constitution does not
permit him to have.
As already observed, the finding that his wife had used her own money to purchase the
property cannot, and will not, at this stage of the proceedings be reviewed and overturned.
But even if it were a fact that said wife had used conjugal funds to make the acquisition, the
considerations just set out to militate, on high constitutional grounds, against his recovering
and holding the property so acquired, or any part thereof. And whether in such an event, he
may recover from his wife any share of the money used for the purchase or charge her with
unauthorized disposition or expenditure of conjugal funds is not now inquired into; that
would be, in the premises, a purely academic exercise.” (Emphasis added)
WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The Decision dated
February 26, 2001 of the Court of Appeals in CA-G.R. CV No. 59321 ordering petitioner Elena
Buenaventura Muller to reimburse respondent Helmut Muller the amount of P528,000 for
60

the acquisition of the land and the amount of P2,300,000 for the construction of the house in
Antipolo City, and the Resolution dated August 13, 2001 denying reconsideration thereof, are
REVERSED and SET ASIDE. The August 12, 1996 Decision of the Regional Trial Court of Quezon
City, Branch 86 in Civil Case No. Q-94-21862 terminating the regime of absolute commu-

75

Muller vs. Muller

nity between the petitioner and respondent, decreeing a separation of property between
them and ordering the partition of the personal properties located in the Philippines equally,
is REINSTATED.

SO ORDERED.

Panganiban (C.J., Chairperson), Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.

Petition granted, judgment and resolution reversed and set aside. That of the trial court
reinstated.

Notes.—If an alien gave or donated his money to a citizen of the Philippines so that the latter
could invest it in the purchase of private agricultural lands, or purchased private agricultural
lands for a citizen of the Philippines, such acts, provided they are in good faith, do not violate
our laws. (Chan Sui Bi vs. Court of Appeals, 341 SCRA 364 [2000])

In the absence of any finding of irregularity from appropriate government agencies to deal
with concerns such as the alleged falsification of the Articles of Incorporation of a taxi service
entity and the misdeed in securing a certificate of public convenience for operating taxi
services when said entity was allegedly a dummy corporation for two foreign nationals, courts
must defer to the presumption that these agencies had performed their functions regularly.
(G & S Transport Corporation vs. Court of Appeals, 382 SCRA 262 [2002])
——o0o—— Muller vs. Muller, 500 SCRA 65, G.R. No. 149615 August 29, 2006
G.R. No. 199310. February 19, 2014.*
REPUBLIC OF THE PHILIPPINES, petitioner, vs. REMMAN ENTERPRISES, INC., represented by
RONNIE P. INOCENCIO, respondent.
Remedial Law; Civil Procedure; Appeals; It is a long-standing policy of the Supreme Court that
the findings of facts of the Regional Trial Court (RTC) which were adopted and affirmed by the
Court of Appeals (CA) are generally deemed conclusive and binding.—That the elevations of
the subject properties are above the reglementary level of 12.50 m is a finding of fact by the
lower courts, which this

_______________
* FIRST DIVISION.

172
Court, generally may not disregard. It is a long-standing policy of this Court that the findings
of facts of the RTC which were adopted and affirmed by the CA are generally deemed
61
conclusive and binding. This Court is not a trier of facts and will not disturb the factual
findings of the lower courts unless there are substantial reasons for doing so.
Civil Law; Property; Land Registration; Public Domain; That the subject properties are not part
of the bed of Laguna Lake, does not necessarily mean that they already form part of the
alienable and disposable lands of the public domain.—That the subject properties are not
part of the bed of Laguna Lake, however, does not necessarily mean that they already form
part of the alienable and disposable lands of the public domain. It is still incumbent upon the
respondent to prove, with well-nigh incontrovertible evidence, that the subject properties are
indeed part of the alienable and disposable lands of the public domain. While deference is
due to the lower courts’ finding that the elevations of the subject properties are above the
reglementary level of 12.50 m and, hence, no longer part of the bed of Laguna Lake pursuant
to Section 41(11) of R.A. No. 4850, the Court nevertheless finds that the respondent failed to
substantiate its entitlement to registration of title to the subject properties.
Same; Same; Same; Same; Regalian Doctrine; Under the Regalian Doctrine, which is
embodied in our Constitution, all lands of the public domain belong to the State, which is the
source of any asserted right to any ownership of land.—Under the Regalian Doctrine, which is
embodied in our Constitution, all lands of the public domain belong to the State, which is the
source of any asserted right to any ownership of land. All lands not appearing to be clearly
within private ownership are presumed to belong to the State. Accordingly, public lands not
shown to have been reclassified or released as alienable agricultural land, or alienated to a
private person by the State, remain part of the inalienable public domain. The burden of
proof in overcoming the presumption of State ownership of the lands of the public domain is
on the person applying for registration, who must prove that the land subject of the
application is alienable or disposable. To overcome this presumption, incontrovertible
evidence must be presented to establish that the land subject of the application is alienable
or disposable.
173
Same; Same; Same; Property Registration Decree (P.D. No. 1529); Judicial Confirmation of
Imperfect Titles; Section 14(1) of P.D. No. 1529 refers to the judicial confirmation of imperfect
or incomplete titles to public land acquired under Section 48(b) of Commonwealth Act (C.A.)
No. 141, or the Public Land Act, as amended by P.D. No. 1073.—Section 14(1) of P.D. No. 1529
refers to the judicial confirmation of imperfect or incomplete titles to public land acquired
under Section 48(b) of Commonwealth Act (C.A.) No. 141, or the Public Land Act, as amended
by P.D. No. 1073. Under Section 14(1) of P.D. No. 1529, applicants for registration of title must
sufficiently establish: first, that the subject land forms part of the disposable and alienable
lands of the public domain; second, that the applicant and his predecessors-in-interest have
been in open, continuous, exclusive, and notorious possession and occupation of the same;
and third, that it is under a bona fide claim of ownership since June 12, 1945, or earlier.
Same; Same; Same; Public Domain; In addition to the certification issued by the proper
government agency that a parcel of land is alienable and disposable, applicants for land
registration must prove that the Department of Environment and Natural Resources (DENR)
Secretary had approved the land classification and released the land of public domain as
alienable and disposable.—In Republic of the Philippines v. T.A.N. Properties, Inc., 555 SCRA
477 (2008), the Court clarified that, in addition to the certification issued by the proper
government agency that a parcel of land is alienable and disposable, applicants for land
registration must prove that the DENR Secretary had approved the land classification and
released the land of public domain as alienable and disposable. They must present a copy of
the original classification approved by the DENR Secretary and certified as true copy by the
legal custodian of the records. Thus: Further, it is not enough for the PENRO or CENRO to
certify that a land is alienable and disposable. The applicant for land registration must prove
that the DENR Secretary had approved the land classification and released the land of the
public domain as alienable and disposable, and that the land subject of the application for
registration falls within the approved area per verification through survey by the PENRO or
CENRO. In addition, the applicant for land registration must present a copy of the original
classification approved by the DENR Secretary and certified as a true copy by the legal
custodian of the official records.
174
These facts must be established to prove that the land is alienable and disposable.
Respondent failed to do so because the certifications presented by respondent do not, by
themselves, prove that the land is alienable and disposable.
Same; Statutory Construction; It is elementary that the interpretation of a law by the
Supreme Court constitutes part of that law from the date it was originally passed, since this
Court’s construction merely establishes the contemporaneous legislative intent that the
interpreted law carried into effect.—It is elementary that the interpretation of a law by this
Court constitutes part of that law from the date it was originally passed, since this Court’s
construction merely establishes the contemporaneous legislative intent that the interpreted
law carried into effect. “Such judicial doctrine does not amount to the passage of a new law,
but consists merely of a construction or interpretation of a pre-existing one.”
Same; Property; Land Registration; Property Registration Decree (P.D. No. 1529); For purposes
of land registration under Section 14(1) of P.D. No. 1529, proof of specific acts of ownership
must be presented to substantiate the claim of open, continuous, exclusive, and notorious
possession and occupation of the land subject of the application.—For purposes of land
registration under Section 14(1) of P.D. No. 1529, proof of specific acts of ownership must be
presented to substantiate the claim of open, continuous, exclusive, and notorious possession
and occupation of the land subject of the application. Applicants for land registration cannot
just offer general statements which are mere conclusions of law rather than factual evidence
62
of possession. Actual possession consists in the manifestation of acts of dominion over it of
such a nature as a party would actually exercise over his own property.
Same; Same; Same; A mere casual cultivation of portions of the land by the claimant does not
constitute possession under claim of ownership.—“A mere casual cultivation of portions of
the land by the claimant does not constitute possession under claim of ownership. For him,
possession is not exclusive and notorious so as to give rise to a presumptive grant from the
state. The possession of public land, however long the period thereof may have extended,
never confers title thereto upon the possessor because the statute of limitations with regard
to public land does not operate against the state, unless
175
the occupant can prove possession and occupation of the same under claim of ownership for
the required number of years.”
Same; Same; Tax Declarations; Ownership; While tax declarations are not conclusive evidence
of ownership, they constitute proof of claim of ownership.—“While tax declarations are not
conclusive evidence of ownership, they constitute proof of claim of ownership.” That the
subject properties were declared for taxation purposes only in 2002 gives rise to the
presumption that the respondent claimed ownership or possession of the subject properties
starting that year. Likewise, no improvement or plantings were declared or noted in the said
tax declarations. This fact belies the claim that the respondent and its predecessors-in-
interest, contrary to Cerquena’s testimony, have been in possession and occupation of the
subject properties in the manner required by law.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Alvarez, Ballega, Zamora for respondent.
REYES, J.:
Before this Court is a petition for review on certiorari[1] under Rule 45 of the Rules of Court
seeking to annul and set aside the Decision[2] dated November 10, 2011 of the Court of
Appeals (CA) in CA-G.R. CV No. 90503. The CA affirmed the Decision[3] dated May 16, 2007 of
the Regional Trial Court (RTC) of Pasig City, Branch 69, in Land Registration Case No. N-11465.
_______________
[1] Rollo, pp. 7-30.
[2] Penned by Associate Justice Agnes Reyes-Carpio, with Associate Justices Fernanda Lampas
Peralta and Normandie B. Pizarro, concurring; id., at pp. 33-50.
[3] Issued by Judge Lorifel Lacap Pahimna; id., at pp. 64-75.
176
The Facts
On December 3, 2001, Remman Enterprises, Inc. (respondent), filed an application[4] with
the RTC for judicial confirmation of title over two parcels of land situated in Barangay
Napindan, Taguig, Metro Manila, identified as Lot Nos. 3068 and 3077, Mcadm-590-D, Taguig
Cadastre, with an area of 29,945 square meters and 20,357 sq m, respectively.
On December 13, 2001, the RTC issued the Order[5] finding the respondent’s application for
registration sufficient in form and substance and setting it for initial hearing on February 21,
2002. The scheduled initial hearing was later reset to May 30, 2002.[6] The Notice of Initial
Hearing was published in the Official Gazette, April 1, 2002 issue, Volume 98, No. 13, pages
1631-1633[7] and in the March 21, 2002 issue of People’s Balita,[8] a newspaper of general
circulation in the Philippines. The Notice of Initial Hearing was likewise posted in a
conspicuous place on Lot Nos. 3068 and 3077, as well as in a conspicuous place on the
bulletin board of the City hall of Taguig, Metro Manila.[9]
On May 30, 2002, when the RTC called the case for initial hearing, only the Laguna Lake
Development Authority (LLDA) appeared as oppositor. Hence, the RTC issued an order of
general default except LLDA, which was given 15 days to submit its comment/opposition to
the respondent’s application for registration.[10]
On June 4, 2002, the LLDA filed its Opposition[11] to the respondent’s application for
registration, asserting that Lot
_______________
[4] Id., at pp. 51-55.
[5] Records, p. 15.
[6] Id., at p. 19.
[7] Id., at pp. 111-112.
63
[8] Id., at p. 118.
[9] Id., at p. 36.
[10] Id., at pp. 50-51.
[11] Id., at pp. 126-130.
177
Nos. 3068 and 3077 are not part of the alienable and disposable lands of the public domain.
On the other hand, the Republic of the Philippines (petitioner), on July 16, 2002, likewise filed
its Opposition,[12] alleging that the respondent failed to prove that it and its predecessors-in-
interest have been in open, continuous, exclusive, and notorious possession of the subject
parcels of land since June 12, 1945 or earlier.
Trial on the merits of the respondent’s application ensued thereafter.
The respondent presented four witnesses: Teresita Villaroya, the respondent’s corporate
secretary; Ronnie Inocencio, an employee of the respondent and the one authorized by it to
file the application for registration with the RTC; Cenon Cerquena (Cerquena), the caretaker
of the subject properties since 1957; and Engineer Mariano Flotildes (Engr. Flotildes), a
geodetic engineer hired by the respondent to conduct a topographic survey of the subject
properties.
For its part, the LLDA presented the testimonies of Engineers Ramon Magalonga (Engr.
Magalonga) and Christopher A. Pedrezuela (Engr. Pedrezuela), who are both geodetic
engineers employed by the LLDA.
Essentially, the testimonies of the respondent’s witnesses showed that the respondent and its
predecessors-in-interest have been in open, continuous, exclusive, and notorious possession
of the said parcels of land long before June 12, 1945. The respondent purchased Lot Nos.
3068 and 3077 from Conrado Salvador (Salvador) and Bella Mijares (Mijares), respectively, in
1989. The subject properties were originally owned and possessed by Veronica Jaime (Jaime),
who cultivated and planted different kinds of crops in the said lots, through her caretaker and
hired farmers, since 1943. Sometime in 1975, Jaime sold the said parcels of land to Salvador
and Mijares,
178
who continued to cultivate the lots until the same were purchased by the respondent in
1989.
The respondent likewise alleged that the subject properties are within the alienable and
disposable lands of the public domain, as evidenced by the certifications issued by the
Department of Environment and Natural Resources (DENR).
In support of its application, the respondent, inter alia,
presented the following documents: (1) Deed of Absolute Sale dated August 28, 1989
executed by Salvador and Mijares in favor of the respondent;[13] (2) survey plans of the
subject
properties;[14] (3) technical descriptions of the subject properties;[15] (4) Geodetic
Engineer’s Certificate;[16] (5) tax declarations of Lot Nos. 3068 and 3077 for 2002;[17] and (6)
certifications dated December 17, 2002, issued by Corazon D. Calamno (Calamno), Senior
Forest Management Specialist of the DENR, attesting that Lot Nos. 3068 and 3077 form part
of the alienable and disposable lands of the public domain.[18]
On the other hand, the LLDA alleged that the respondent’s application for registration should
be denied since the subject parcels of land are not part of the alienable and disposable lands
of the public domain; it pointed out that pursuant to Section 41(11) of Republic Act No.
4850[19] (R.A. No. 4850), lands, surrounding the Laguna de Bay, located at and below the
reglementary elevation of 12.50 meters are public lands which form part of the bed of the
said lake. Engr. Magalonga, testifying for the oppositor LLDA, claimed that, upon preliminary
evaluation of the subject properties, based on the
[19] An Act Creating the Laguna Lake Development Authority, Prescribing its Powers,
Functions and Duties, Providing Funds Therefor, and for Other Purposes.
179
topographic map of Taguig, which was prepared using an aerial survey conducted by the then
Department of National Defense-Bureau of Coast in April 1966, he found out that the
elevations of Lot Nos. 3068 and 3077 are below 12.50 m. That upon actual area verification of
the subject properties on September 25, 2002, Engr. Magalonga confirmed that the elevations
of the subject properties range from 11.33 m to 11.77 m.
On rebuttal, the respondent presented Engr. Flotildes, who claimed that, based on the actual
topographic survey of the subject properties he conducted upon the request of the
respondent, the elevations of the subject properties, contrary to LLDA’s claim, are above
12.50 m. Particularly, Engr. Flotildes claimed that Lot No. 3068 has an elevation ranging from
12.60 m to 15 m while the elevation of Lot No. 3077 ranges from 12.60 m to 14.80 m.
The RTC Ruling
64
On May 16, 2007, the RTC rendered a Decision,[20] which granted the respondent’s
application for registration of title to the subject properties, viz.:
WHEREFORE, premises considered, judgment is rendered confirming the title of the applicant
Remman Enterprises Incorporated over a parcels of land [sic] consisting of 29,945 square
meters (Lot 3068) and 20,357 (Lot 3077) both situated in Brgy. Napindan, Taguig, Taguig,
Metro Manila more particularly described in the Technical Descriptions Ap-04-003103 and
Swo-00-001769 respectively and ordering their registration under the Property Registration
Decree in the name of Remman Enterprises Incorporated.
SO ORDERED.[21]
_______________
[20] Rollo, pp. 64-75.
[21] Id., at pp. 74-75.
180
The RTC found that the respondent was able to prove that the subject properties form part of
the alienable and disposable lands of the public domain. The RTC opined that the elevations
of the subject properties are very much higher than the reglementary elevation of 12.50 m
and, thus, not part of the bed of Laguna Lake. The RTC pointed out that LLDA’s claim that the
elevation of the subject properties is below 12.50 m is hearsay since the same was merely
based on the topographic map that was prepared using an aerial survey on March 2, 1966;
that nobody was presented to prove that an aerial survey was indeed conducted on March 2,
1966 for purposes of gathering data for the preparation of the topographic map.
Further, the RTC posited that the elevation of a parcel of land does not always remain the
same; that the elevations of the subject properties may have already changed since 1966
when the supposed aerial survey, from which the topographic map used by LLDA was based,
was conducted. The RTC likewise faulted the method used by Engr. Magalonga in measuring
the elevations of the subject properties, pointing out that:
Further, in finding that the elevation of the subject lots are below 12.5 meters, oppositor’s
witness merely compared their elevation to the elevation of the particular portion of the lake
dike which he used as his [benchmark] or reference point in determining the elevation of the
subject lots. Also, the elevation of the said portion of the lake dike that was then under the
construction by FF Cruz was allegedly 12.79 meters and after finding that the elevation of the
subject lots are lower than the said [benchmark] or reference point, said witness suddenly
jumped to a conclusion that the elevation was below 12.5 meters. x x x.
Moreover, the finding of LLDA’s witness was based on hearsay as said witness admitted that it
was DPWH or the FF Cruz who determined the elevation of the portion of the lake dike which
he used as the [benchmark] or reference point in determining the elevation of the sub-
181
ject lots and that he has no personal knowledge as to how the DPWH and FF Cruz determined
the elevation of the said [benchmark] or reference point and he only learn[ed] that its
elevation is 12.79 meters from the information he got from FF Cruz.[22]
Even supposing that the elevations of the subject properties are indeed below 12.50 m, the
RTC opined that the same could not be considered part of the bed of Laguna Lake. The RTC
held that, under Section 41(11) of R.A. No. 4850, Laguna Lake extends only to those areas
that can be covered by the lake water when it is at the average annual maximum lake level of
12.50 m. Hence, the RTC averred, only those parcels of land that are adjacent to and near the
shoreline of Laguna Lake form part of its bed and not those that are already far from it, which
could not be reached by the lake water. The RTC pointed out that the subject properties are
more than a kilometer away from the shoreline of Laguna Lake; that they are dry and
waterless even when the waters of Laguna Lake is at its maximum level. The RTC likewise
found that the respondent was able to prove that it and its predecessors-in-interest have
been in open, continuous, exclusive, and notorious possession of the subject properties as
early as 1943.
The petitioner appealed the RTC Decision dated May 16, 2007 to the CA.
The CA Ruling
On November 10, 2011, the CA, by way of the assailed Decision,[23] affirmed the RTC
Decision dated May 16, 2007. The CA found that the respondent was able to establish that
the subject properties are part of the alienable and disposable lands of the public domain;
that the same are not part of the bed of Laguna Lake, as claimed by the petitioner. Thus:
_______________
[22] Id., at pp. 71-72.
[23] Id., at pp. 33-50.
182
65
The evidence submitted by the appellee is sufficient to warrant registration of the subject
lands in its name. Appellee’s witness Engr. Mariano Flotildes, who conducted an actual area
verification of the subject lots, ably proved that the elevation of the lowest portion of Lot No.
3068 is 12.6 meters and the elevation of its highest portion is 15 meters. As to the other lot, it
was found [out] that the elevation of the lowest portion of Lot No. 3077 is also 12.6 meters
and the elevation of its highest portion is 15 meters. Said elevations are higher than the
reglementary elevation of 12.5 meters as provided for under paragraph 11, Section 41 of R.A.
No. 4850, as amended.
In opposing the instant application for registration, appellant relies merely on the
Topographic Map dated March 2, 1966, prepared by Commodore Pathfinder, which allegedly
shows that the subject parcels of land are so situated in the submerge[d] [lake water] of
Laguna Lake. The said data was gathered through aerial photography over the area of Taguig
conducted on March 2, 1966. However, nobody testified on the due execution and
authenticity of the said document. As regards the testimony of the witness for LLDA, Engr.
Ramon Magalonga, that the subject parcels of land are below the 12.5 meter elevation, the
same can be considered inaccurate aside from being hearsay considering his admission that
his findings were based merely on the evaluation conducted by DPWH and FF Cruz. x x x.[24]
(Citations omitted)
The CA likewise pointed out that the respondent was able to present certifications issued by
the DENR, attesting that the subject properties form part of the alienable and disposable
lands of the public domain, which was not disputed by the petitioner. The CA further ruled
that the respondent was able to prove, through the testimonies of its witnesses, that it and
its predecessors-in-interest have been in open, continuous, exclusive, and notorious
possession of the subject properties prior to June 12, 1945.
_______________
[24] Id., at pp. 41-42.
183
Hence, the instant petition.
The Issue
The sole issue to be resolved by the Court is whether the CA erred in affirming the RTC
Decision dated May 16, 2007, which granted the application for registration filed by the
respondent.
The Court’s Ruling
The petition is meritorious.
The petitioner maintains that the lower courts erred in granting the respondent’s application
for registration since the subject properties do not form part of the alienable and disposable
lands of the public domain. The petitioner insists that the elevations of the subject properties
are below the reglementary level of 12.50 m and, pursuant to Section 41(11) of R.A. No.
4850, are considered part of the bed of Laguna Lake.
That the elevations of the subject properties are above the reglementary level of 12.50 m is a
finding of fact by the lower courts, which this Court, generally may not disregard. It is a long-
standing policy of this Court that the findings of facts of the RTC which were adopted and
affirmed by the CA are generally deemed conclusive and binding. This Court is not a trier of
facts and will not disturb the factual findings of the lower courts unless there are substantial
reasons for doing so.[25]
That the subject properties are not part of the bed of Laguna Lake, however, does not
necessarily mean that they already form part of the alienable and disposable lands of the
public domain. It is still incumbent upon the respondent to
_______________
[25] Padilla v. Velasco, G.R. No. 169956, January 19, 2009, 576 SCRA 219, 227.
184
prove, with well-nigh incontrovertible evidence, that the subject properties are indeed part of
the alienable and disposable lands of the public domain. While deference is due to the lower
courts’ finding that the elevations of the subject properties are above the reglementary level
of 12.50 m and, hence, no longer part of the bed of Laguna Lake pursuant to Section 41(11) of
R.A. No. 4850, the Court nevertheless finds that the respondent failed to substantiate its
entitlement to registration of title to the subject properties.
“Under the Regalian Doctrine, which is embodied in our Constitution, all lands of the public
domain belong to the State, which is the source of any asserted right to any ownership of
land. All lands not appearing to be clearly within private ownership are presumed to belong
to the State. Accordingly, public lands not shown to have been reclassified or released as
66
alienable agricultural land, or alienated to a private person by the State, remain part of the
inalienable public domain. The burden of proof in overcoming the presumption of State
ownership of the lands of the public domain is on the person applying for registration, who
must prove that the land subject of the application is alienable or disposable. To overcome
this presumption, incontrovertible evidence must be presented to establish that the land
subject of the application is alienable or disposable.”[26]
The respondent filed its application for registration of title to the subject properties under
Section 14(1) of Presidential Decree (P.D.) No. 1529,[27] which provides that:
Sec. 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:
_______________
[26] Republic v. Medida, G.R. No. 195097, August 13, 2012, 678 SCRA 317, 325-326, citing
Republic v. Dela Paz, G.R. No. 171631, November 15, 2010, 634 SCRA 610, 621-622.
[27] The Property Registration Decree.
185
(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.
xxxx
Section 14(1) of P.D. No. 1529 refers to the judicial confirmation of imperfect or incomplete
titles to public land acquired under Section 48(b) of Commonwealth Act (C.A.) No. 141, or the
Public Land Act, as amended by P.D. No. 1073.[28] Under Section 14(1) of P.D. No. 1529,
applicants for registration of title must sufficiently establish: first, that the subject land forms
part of the disposable and alienable lands of the public domain; second, that the applicant
and his predecessors-in-interest have been in open, continuous, exclusive, and
_______________
[28] Sec. 48(b) of the Public Land Act, as amended by P.D. No. 1073, provides that:
Sec. 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:
xxxx
(b) 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 acquisition or ownership, since June
12, 1945, or earlier, immediately preceding the filing of the application for confirmation of
title 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.
186
notorious possession and occupation of the same; and third, that it is under a bona fide claim
of ownership since June 12, 1945, or earlier.[29]
The first requirement was not satisfied in this case. To prove that the subject property forms
part of the alienable and disposable lands of the public domain, the respondent presented
two certifications[30] issued by Calamno, attesting that Lot Nos. 3068 and 3077 form part of
the alienable and disposable lands of the public domain “under Project No. 27-B of Taguig,
Metro Manila as per LC Map 2623, approved on January 3, 1968.”
However, the said certifications presented by the respondent are insufficient to prove that
the subject properties are alienable and disposable. In Republic of the Philippines v. T.A.N.
Properties, Inc.,[31] the Court clarified that, in addition to the certification issued by the
proper government agency that a parcel of land is alienable and disposable, applicants for
land registration must prove that the DENR Secretary had approved the land classification and
released the land of public domain as alienable and disposable. They must present a copy of
the original classification approved by the DENR Secretary and certified as true copy by the
legal custodian of the records. Thus:
Further, it is not enough for the PENRO or CENRO to certify that a land is alienable and
disposable. The applicant for land registration must prove that the DENR Secretary had
approved the land classification and released the land of the public domain as alienable and
disposable, and that the land subject of the application for registration falls within the
approved area per verification through survey by the PENRO or CENRO. In ad-
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67
[29] See Republic v. Rizalvo, Jr., G.R. No. 172011, March 7, 2011, 644 SCRA 516, 523.
[30] Records, pp. 291A-292.
[31] 578 Phil. 441; 555 SCRA 477 (2008).
187
dition, the applicant for land registration must present a copy of the original classification
approved by the DENR Secretary and certified as a true copy by the legal custodian of the
official records. These facts must be established to prove that the land is alienable and
disposable. Respondent failed to do so because the certifications presented by respondent do
not, by themselves, prove that the land is alienable and disposable.[32] (Emphasis ours)
In Republic v. Roche,[33] the Court deemed it appropriate to reiterate the ruling in T.A.N.
Properties, viz.:
Respecting the third requirement, the applicant bears the burden of proving the status of the
land. In this connection, the Court has held that he must present a certificate of land
classification status issued by the Community Environment and Natural Resources Office
(CENRO) or the Provincial Environment and Natural Resources Office (PENRO) of the DENR.
He must also prove that the DENR Secretary had approved the land classification and released
the land as alienable and disposable, and that it is within the approved area per verification
through survey by the CENRO or PENRO. Further, the applicant must present a copy of the
original classification approved by the DENR Secretary and certified as true copy by the legal
custodian of the official records. These facts must be established by the applicant to prove
that the land is alienable and disposable.
Here, Roche did not present evidence that the land she applied for has been classified as
alienable or disposable land of the public domain. She submitted only the survey map and
technical description of the land which bears no information regarding the land’s
classification.
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[32] Id., at pp. 452-453; p. 489.
[33] G.R. No. 175846, July 6, 2010, 624 SCRA 116.
188
She did not bother to establish the status of the land by any certification from the
appropriate government agency. Thus, it cannot be said that she complied with all requisites
for registration of title under Section 14(1) of P.D. 1529.[34] (Citations omitted and emphasis
ours)
The DENR certifications that were presented by the respondent in support of its application
for registration are thus not sufficient to prove that the subject properties are indeed
classified by the DENR Secretary as alienable and disposable. It is still imperative for the
respondent to present a copy of the original classification approved by the DENR Secretary,
which must be certified by the legal custodian thereof as a true copy. Accordingly, the lower
courts erred in granting the application for registration in spite of the failure of the
respondent to prove by well-nigh incontrovertible evidence that the subject properties are
alienable and disposable.
Nevertheless, the respondent claims that the Court’s ruling in T.A.N. Properties, which was
promulgated on June 26, 2008, must be applied prospectively, asserting that decisions of this
Court form part of the law of the land and, pursuant to Article 4 of the Civil Code, laws shall
have no retroactive effect. The respondent points out that its application for registration of
title to the subject properties was filed and was granted by the RTC prior to the Court’s
promulgation of its ruling in T.A.N. Properties. Accordingly, that it failed to present a copy of
the original classification covering the subject properties approved by the DENR Secretary and
certified by the legal custodian thereof as a true copy, the respondent claims, would not
warrant the denial of its application for registration.
The Court does not agree.
Notwithstanding that the respondent’s application for registration was filed and granted by
RTC prior to the Court’s
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[34] Id., at pp. 121-122.
189
ruling in T.A.N. Properties, the pronouncements in that case may be applied to the present
case; it is not antithetical to the rule of non-retroactivity of laws pursuant to Article 4 of the
Civil Code. It is elementary that the interpretation of a law by this Court constitutes part of
that law from the date it was originally passed, since this Court’s construction merely
establishes the contemporaneous legislative intent that the interpreted law carried into
effect.[35] “Such judicial doctrine does not amount to the passage of a new law, but consists
merely of a construction or interpretation of a pre-existing one.”[36]
Verily, the ruling in T.A.N. Properties was applied by the Court in subsequent cases
notwithstanding that the applications for registration were filed and granted by the lower
courts prior to the promulgation of T.A.N. Properties.
68
In Republic v. Medida,[37] the application for registration of the subject properties therein
was filed on October 22, 2004 and was granted by the trial court on June 21, 2006. Similarly,
in Republic v. Jaralve,[38] the application for registration of the subject property therein was
filed on October 22, 1996 and was granted by the trial court on November 15, 2002. In the
foregoing cases, notwithstanding that the applications for registration were filed and granted
by the trial courts prior to the promulgation of T.A.N. Properties, this Court applied the
pronouncements in T.A.N. Properties and denied the applications for registration on the
ground, inter alia, that the applicants therein failed to present a copy of the original
classification approved by the DENR Secretary and certified by the legal custodian thereof as
a true copy.
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[35] Accenture, Inc. v. Commissioner of Internal Revenue, G.R. No. 190102, July 11, 2012, 676
SCRA 325, 339; Senarillos v. Hermosisima, 100 Phil. 501, 504 (1956).
[36] Eagle Realty Corporation v. Republic, G.R. No. 151424, July 31, 2009, 594 SCRA 555, 558,
citing Senarillos v. Hermosisima, id.
[37] G.R. No. 195097, August 13, 2012, 678 SCRA 317.
[38] G.R. No. 175177, October 24, 2012, 684 SCRA 495.
190
Anent the second and third requirements, the Court finds that the respondent failed to
present sufficient evidence to prove that it and its predecessors-in-interest have been in
open, continuous, exclusive, and notorious possession and occupation of the subject
properties since June 12, 1945, or earlier.
To prove that it and its predecessors-in-interest have been in possession and occupation of
the subject properties since 1943, the respondent presented the testimony of Cerquena.
Cerquena testified that the subject properties were originally owned by Jaime who
supposedly possessed and cultivated the same since 1943; that sometime in 1975, Jaime sold
the subject properties to Salvador and Mijares who, in turn, sold the same to the respondent
in 1989.
The foregoing are but unsubstantiated and self-serving assertions of the possession and
occupation of the subject properties by the respondent and its predecessors-in-interest; they
do not constitute the well-nigh incontrovertible evidence of possession and occupation of the
subject properties required by Section 14(1) of P.D. No. 1529. Indeed, other than the
testimony of Cerquena, the respondent failed to present any other evidence to prove the
character of the possession and occupation by it and its predecessors-in-interest of the
subject properties.
For purposes of land registration under Section 14(1) of P.D. No. 1529, proof of specific acts of
ownership must be presented to substantiate the claim of open, continuous, exclusive, and
notorious possession and occupation of the land subject of the application. Applicants for
land registration cannot just offer general statements which are mere conclusions of law
rather than factual evidence of possession. Actual possession consists in the manifestation of
acts of dominion
191
over it of such a nature as a party would actually exercise over his own property.[39]
Although Cerquena testified that the respondent and its predecessors-in-interest cultivated
the subject properties, by planting different crops thereon, his testimony is bereft of any
specificity as to the nature of such cultivation as to warrant the conclusion that they have
been indeed in possession and occupation of the subject properties in the manner required
by law. There was no showing as to the number of crops that are planted in the subject
properties or to the volume of
the produce harvested from the crops supposedly planted thereon.
Further, assuming ex gratia argumenti that the respondent and its predecessors-in-interest
have indeed planted crops on the subject properties, it does not necessarily follow that the
subject properties have been possessed and occupied by them in the manner contemplated
by law. The supposed planting of crops in the subject properties may only have amounted to
mere casual cultivation, which is not the possession and occupation required by law.
“A mere casual cultivation of portions of the land by the claimant does not constitute
possession under claim of ownership. For him, possession is not exclusive and notorious so as
to give rise to a presumptive grant from the state. The possession of public land, however
long the period thereof may have extended, never confers title thereto upon the possessor
because the statute of limitations with regard to public land does not operate against the
state, unless the occupant can prove possession and occupation of the same under claim of
ownership for the required number of years.”[40]
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[39] See Valiao v. Republic, G.R. No. 170757, November 28, 2011, 661 SCRA 299, 308-309.
[40] Del Rosario v. Republic of the Philippines, 432 Phil. 824, 838; 383 SCRA 262, 273 (2002).
192
69

Further, the Court notes that the tax declarations over the subject properties presented by national wealth, in this case, for the conversion of military reservations in the country to
the respondent were only for 2002. The respondent failed to explain why, despite its claim productive civilian uses. (Dream Village Neighborhood Association, Inc. vs. Bases Conversion
that it acquired the subject properties as early as 1989, and that its predecessors-in-interest Development Authority, 702 SCRA 222 [2013])
have been in possession of the subject property since 1943, it was only in 2002 that it started
to declare the same for purposes of taxation. “While tax declarations are not conclusive ——o0o—— Republic vs. Remman Enterprises, Inc., 717 SCRA 171, G.R. No. 199310 February
evidence of ownership, they constitute proof of claim of ownership.”[41] That the subject 19, 2014
properties were declared for taxation purposes only in 2002 gives rise to the presumption
that the respondent claimed ownership or possession of the subject properties starting that
year. Likewise, no improvement or plantings were declared or noted in the said tax
declarations. This fact belies the claim that the respondent and its predecessors-in-interest,
contrary to Cerquena’s testimony, have been in possession and occupation of the subject
properties in the manner required by law.

Having failed to prove that the subject properties form part of the alienable and disposable
lands of the public domain and that it and its predecessors-in-interest have been in open,
continuous, exclusive, and notorious possession and occupation of the same since June 12,
1945, or earlier, the respondent’s application for registration should be denied.

WHEREFORE, in consideration of the foregoing disquisitions, the instant petition is GRANTED.

The Decision dated November 10, 2011 of the Court of Appeals in CA-G.R. CV No. 90503,
which affirmed the Decision dated May 16, 2007 of the Regional Trial Court of Pasig City,
Branch 69, in Land Registration Case No. N-11465 is hereby REVERSED and SET ASIDE. The
Application for Registration of Remman Enterprises, Inc. in Land Registration Case No. N-
11465 is DENIED for lack of merit.

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[41] Alde v. Bernal, G.R. No. 169336, March 18, 2010, 616 SCRA 60, 69.

193

SO ORDERED.

Sereno (CJ., Chairperson), Leonardo-De Castro, Bersamin and Villarama, Jr., JJ., concur.

Petition granted, judgment reversed and set aside.

Notes.—Presidential Decree No. 1529 (P.D. No. 1529),

otherwise known as the “Property Registration Decree,” is a codification of all the laws
relative to the registration of property. (Tan vs. Republic, 669 SCRA 499 [2012])

Fort Bonifacio remains property of public dominion of the State, because although declared
alienable and disposable, it is reserved for some public service or for the development of the