G. R. No. 179987 – HEIRS OF MARIO MALABANAN, petitioners,
versus THE REPUBLICOF THE PHILIPPINES, respondent
 
 
Promulgated: April 29, 2009
 
--------------------------------------------------------------------------------------------
 
 
                 CONCURRING AND DISSENTING OPINION
 
 
BRION, J.:
 
I concur with the ponencia’s modified positions on the application of
prescription under Section 14(2) of the Property Registration Decree (PRD), and
on the denial of the petition of the Heirs of Mario Malabanan. 
 
I dissent in the strongest terms from the ruling that the classification of a
public land as alienable and disposable can be made after June 12, 1945, in
accordance with this Court’s ruling in Republic v. Court of Appeals and
Naguit (Naguit).[1]  Effectively, what results from this decision is a new law,
crafted by this Court, going beyond what the Constitution ordains and beyond the
law that the Legislature passed.  Because the majority has not used the standards
set by the Constitution and the Public Land Act (PLA),[2]  its conclusions are based
on a determination on what the law ought to be – an exercise in policy formulation
that is beyond the Court’s authority to make.
 
          The discussions of these grounds for dissent follow, not necessarily in the
order these grounds are posed above.
 
 
 
Prefatory Statement
         
Critical to the position taken in this Dissent is the reading of the hierarchy of
laws that govern public lands to fully understand and appreciate the grounds for
dissent.
 
In the area of public law, foremost in this hierarchy is the Philippine
Constitution, whose Article XII (entitled National Economy and Patrimony)
establishes and fully embraces the regalian doctrine as a first and overriding
principle.[3] This doctrine postulates that all lands belong to the State,[4] and that no
public land can be acquired by private persons without any grant, express or
implied, from the State.[5]
 
In the statutory realm, the PLA (Public Land Act) governs the classification,
grant, and disposition of alienable and disposable lands of the public domain and,
other than the Constitution, is the country’s primary law on the matter.  Section
7 of the PLA delegates to the President the authority to administer and dispose of
alienable public lands. Section 8 sets out the public lands open to disposition or
concession, and the requirement that they should be officially delimited and
classified and, when practicable, surveyed. Section 11, a very significant section,
states that –
 
Public lands suitable for agricultural purposes can be disposed of only as follows
and not otherwise: 
(1)   For homestead settlement;
(2)   By sale;
(3)   By lease;
(4)   By confirmation of imperfect or incomplete title;
(5)   By judicial legalization;
(6)   By administrative legalization (free patent)
 
 
Section 48 covers confirmation of imperfect title, and embodies a grant of title to
the qualified occupant or possessor of an alienable public land.  This section
provides:
 
SECTION 48. The following described citizens of the Philippines,
occupying lands of the public domain or claiming to own any such lands or an
interest therein, but whose titles have not been perfected or completed, may apply
to the Court of First Instance of the province where the land is located for
confirmation of their claims and the issuance of a certificate of title therefor,
under the Land Registration Act, to wit:
 
(a)        Those who prior to the transfer of sovereignty from Spain to
the United States have applied for the purchase, composition or other form of
grant of lands of the public domain under the laws and royal decrees then in force
and have instituted and prosecuted the proceedings in connection therewith, but
have, with or without default upon their part, or for any other cause, not received
title therefor, if such applicants or grantees and their heirs have occupied and
cultivated said lands continuously since the filing of their applications.
 
(b)        Those who by themselves or through their predecessors in interest
have been in the open, continuous, exclusive, and notorious possession and
occupation of agricultural lands of the public domain, under a bona fide claim of
acquisition or ownership, except as against the Government, since July twenty-
sixth, eighteen hundred and ninety-four, except when prevented by war or force
majeure. These shall be conclusively presumed to have performed all the
conditions essential to a Government grant and shall be entitled to a certificate of
title under the provisions of this chapter.
 
 
Significantly, subsection (a) has now been deleted, while subsection (b) has been
amended by PD 1073as follows:
 
SECTION 4.   The provisions of Section 48(b) and Section 48(c), Chapter
VIII of the Public Land Act are hereby amended in the sense that these provisions
shall apply only to alienable and disposable lands of the public domain which
have been in open, continuous, exclusive and notorious possession and
occupation by the applicant himself or thru his predecessor-in-interest, under a
bona fide claim of acquisition of ownership, since June 12, 1945.
 
 
Complementing the PLA is the PRD (Property Registration Decree).[6] It was
enacted to codify the various laws  relating  to property   registration.    It governs
the registration of  lands  under  the  Torrens System,
as  well  as unregistered              lands, including chattel mortgages. Section 14 of
the PRD provides:
 
SECTION 14. Who May Apply. — The following persons may file in the
proper Court of First Instance an application for registration of title to land,
whether personally or through their duly authorized representatives:
 
(1)        Those who by themselves or through their predecessors-in-interest
have been in open, continuous, exclusive and notorious possession and
occupation of alienable and disposable lands of the public domain
under a bona fide claim of ownership since June 12, 1945, or earlier.
 
(2)        Those who have acquired ownership of private lands by prescription
under the provisions of existing laws.
 
(3)        Those who have acquired ownership of private lands or abandoned river
beds by right of accession or accretion under the existing laws.
 

Right of Accession

Coming into possession of a right or office; increase; augmentation; addition.

The right to all that one's own property produces, whether that property be movable or immovable; and
the right to that which is united to it by accession, either naturally or artificially. The right to own things
that become a part of something already owned.

A principle derived from the Civil Law, by which the owner of property becomes entitled to all that it
produces, and to all that is added or united to it, either naturally or artificially (that is, by the labor or skill
of another) even where such addition extends to a change of form or materials; and by which, on the
other hand, the possessor of property becomes entitled to it, as against the original owner, where the
addition made to it by skill and labor is of greater value than the property itself, or where the change
effected in its form is so great as to render it impossible to restore it to its original shape.

Generally, accession signifies acquisition of title to Personal Property by bestowing labor on it that

converts it into an entirely different thing or by incorporation of property into a union with other property.

The commencement or inauguration of a sovereign's reign.

For example, a person who owns property along a river also takes ownership of any additional land that
builds up along the riverbank. This right may extend to additions that result from the work or skill of
another person. The buyer of a car who fails to make scheduled payments cannot get back his new spark
plugs after the car is repossessed because they have become a part of the whole car. The principle of
accession does not necessarily apply, however, where the addition has substantially improved the value
and changed the character of the property, as when by mistake someone else's grapes were made into
wine or someone else's clay made into bricks. In such cases, the original owner might recover only the
value of the raw material rather than take ownership of the finished product.
 In the context of a treaty, accession may be gained in either of two ways: (1) the new member nation may
be formally accepted by all the nations already parties to the treaty; or (2) the new nation may simply bind
itself to the obligations already existing in the treaty. Frequently, a treaty will expressly provide that certain
nations or categories of nations may accede. In some cases, the parties to a treaty will invite one or more
nations to accede to the treaty.

Accretion:

ac·cre·tion  
/əˈkrēSHən/

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

Synonyms
increase - increment - growth - augmentation - gain

(4)               Those who have acquired ownership of land in any other manner

provided for by law.
 
 
Subsection (1) of Section 14 is a copy of, and appears to have been lifted from,
Section 48(b) of the PLA.  The two provisions, however, differ in intent and legal
effect based on the purpose of the law that contains them. The PLA is a
substantive law that classifies and provides for the disposition of alienable
lands of the public domain. The PRD, on the other hand, specifically refers to
the manner of bringing registerable lands, among them alienable public lands,
within the coverage of the Torrens system. Thus, the first is a substantive law,
while the other is essentially procedural, so that in terms of substantive content, the
PLA should prevail.[7]
 
Significantly bearing on the matter of lands in general is the Civil Code and
its provisions on Property[8] and Prescription.[9]  The law on property assumes
importance because land, whether public or private, is property.  Prescription, on
the other hand, is a mode of acquiring ownership of land, although it is not one of
the modes of disposition mentioned in the PLA.
 
Chapter 3, Title I of Book II of the Civil Code is entitled “Property in
Relation to the Person to Whom it Belongs.”  On this basis, Article 419 classifies
property to be property of public dominion or of private ownership.  Article 420
proceeds to further classify property of public dominion into those intended for
public use, for public service, and for the development of the national
wealth.  Article 421 states that all other properties of the State not falling under
Article 420 are patrimonial property of the State, and Article 422 adds that
property of public dominion, no longer intended for public use or for public
service, shall form part of the patrimonial property of the State.  Under Article 425,
property of private ownership, besides patrimonial property of the State, provinces,
cities and municipalities, consists of all property belonging to private persons,
either individually or collectively.
 
          Prescription is essentially a civil law term and is not mentioned as one of the
modes of acquiring alienable public land under the PLA, (Significantly, the PLA –
under its Section 48 – provides for its system of how possession can ripen into
ownership; the PLA does not refer to this as acquisitive prescription but as basis
for confirmation of title.)  Section 14(2) of the PRD, however, specifies that
“[t]hose who have acquired ownership of private lands by prescription under the
provisions of existing laws” as among those who may apply for land
registration.  Thus, prescription was introduced into the land registration scheme
(the PRD), but not into the special law governing lands of the public domain (the
PLA).   
 
          A starting point in considering prescription in relation with public lands is
Article 1108 of the Civil Code, which states that prescription does not run against
the State and its subdivisions.  At the same time, Article 1113 provides that “all
things which are within the commerce of men are susceptible of prescription,
unless otherwise provided; property of the State or any of its subdivisions not
patrimonial in character shall not be the object of prescription.”  The provisions of
Articles 1128 to 1131 may also come into play in the application of prescription to
real properties.
 
 
In light of our established hierarchy of laws, particularly the supremacy
of the Philippine Constitution, any consideration of lands of the public domain
should start with the Constitution and its Regalian doctrine; all lands belong
to the State, and he who claims ownership carries the burden of proving his
claim.[10]  Next in the hierarchy is the PLA for purposes of the terms of the
grant, alienation and disposition of the lands of the public domain, and the
PRD for the registration of lands.  The PLA and the PRD are special laws
supreme in their respective spheres, subject only to the Constitution.  The
Civil Code, for its part, is the general law on property and prescription and
should be accorded respect as such.  In more concrete terms, where alienable
and disposable lands of the public domain are involved, the PLA is the
primary law that should govern, and the Civil Code provisions on property
and prescription must yield in case of conflict.[11] 
 
The Public Land Act
 
 
At  the  risk  of  repetition,  I  start  the  discussion  of  the  PLA  with
a reiteration of the first principle that under the regalian doctrine, all lands of the
public domain belong to the State, and the State is the source of any asserted right
to ownership in land and charged with the conservation of such patrimony.
Otherwise expressed, all lands not otherwise appearing to be clearly within private
ownership are presumed to belong to the State.[12]  Thus, all lands that have not
been acquired from the government, either by purchase or by grant, belong to
the State as part of the inalienable public domain. [13]  We should never lose
sight of the impact of this first principle where a private ownership claim is being
asserted against the State.
 
          The PLA has undergone many revisions and changes over time, starting
from the first PLA, Act No. 926; the second public land law that followed, Act No.
2874; and the present CA 141 and its amendments.  Act No. 926 was described in
the following terms:
 
The law governed the disposition of lands of the public domain.  It
prescribed rules and regulations for the homesteading, selling and leasing of
portions of the public domain of the Philippine Islands, and prescribed the terms
and conditions to enable persons to perfect their titles to public lands in
the Islands.  It also provided for the “issuance of patents to certain native settlers
upon public lands,” for the establishment of town sites and sale of lots therein, for
the completion of imperfect titles, and for the cancellation or confirmation of
Spanish concessions and grants in the Islands.”  In short, the Public Land Act
operated on the assumption that title to public lands in the Philippine Islands
remained in the government; and that the government’s title to public
land  sprung from the Treaty of Paris   and other subsequent treaties between
Spain and the United States.  The term “public land” referred to all lands of the
public domain whose title still remained in the government and are thrown open
to private appropriation and settlement, and excluded the patrimonial property of
the government and the friar lands.[14]   
 
 
This basic essence of the law has not changed and has been carried over to
the present PLA and its amendments. Another basic feature, the requirement for
open, continuous, exclusive, and notorious possession and occupation of the
alienable and disposable public land under a bona fide claim of ownership also
never changed.  Still another consistent public land feature is the concept that once
a person has complied with the requisite possession and occupation in the manner
provided by law, he is automatically given a State grant that may be asserted
against State ownership; the land, in other words,ipso jure becomes private land.
[15]
  The application for judicial confirmation of imperfect title shall then follow,
based on the procedure for land registration.[16]  It is in this manner that the PLA
ties up with the PRD.    
 
A feature that has changed over time has been the period for reckoning the
required occupation or possession.  In the first PLA, the required
occupation/possession to qualify for judicial confirmation of imperfect title was 10
years preceding the effectivity of Act No. 926 –     July 26, 1904 (or since July 26,
1894 or earlier). This was retained up to CA 141, until this law was amended by
Republic Act (RA) No. 1942 (enacted on June 22, 1957),[17] which provided for a
simple 30-year prescriptive period for judicial confirmation of imperfect title.  This
period did not last; on January 25, 1977, Presidential Decree No. 1073 (PD
1073) [18] changed the required 30-year possession and occupation period
provision, to possession and occupation of the land applied for since June 12,
1945, or earlier.  PD 1073 likewise changed the lands subject of imperfect title ,
from agricultural lands of the public domain to alienable and disposable lands of
the public domain.  PD 1073 also extended the period for applications for free
patents and judicial confirmation of imperfect titles to December 31, 1987. 
    
          The significance of the date “June 12, 1945” appears to have been lost to
history.  A major concern raised against this date is that the country was at this
time under Japanese occupation, and for some years after, was suffering from the
uncertainties and instabilities that World War II brought. Questions were raised on
how one could possibly comply with the June 12, 1945 or earlier
occupation/possession requirement of PD 1073 when the then prevailing situation
did not legally or physically permit it. 
 
Without the benefit of congressional records, as the enactment of the law (a
Presidential Decree) was solely through the President’s lawmaking powers under a
regime that permitted it, the most logical reason or explanation for the date is the
possible impact of the interplay between the old law and the amendatory
law.  When PD 1073 was enacted, the utmost concern, in all probability, was how
the law would affect the application of the old law which provided for a thirty-year
possession period. Counting 30 years backwards from the enactment of PD 1073
on January 25, 1977,      PD 1073 should have provided for a January 24, 1947 cut-
off date, but it did not.  Instead, it provided, for unknown reasons, the date June 12,
1945. 
 
The June 12, 1945 cut-off date raised legal concerns; vested rights acquired
under the old law (CA 141, as amended by RA 1942) providing for a 30-year
possession period could not be impaired by the PD 1073 amendment.  We
recognized this legal dilemna in Abejaron v. Nabasa,[19] when we said:
 
However, as petitioner Abejaron’s 30-year period of possession and
occupation required by the Public Land Act, as amended by R.A. 1942 ran
from 1945 to 1975, prior to the effectivity of P.D. No. 1073 in 1977, the
requirement of said P.D. that occupation and possession should have started
on June 12, 1945 or earlier, does not apply to him.   As the Susi doctrine holds
that the grant of title by virtue of Sec. 48(b) takes place by operation of law, then
upon Abejaron’s satisfaction of the requirements of this law, he would have
already gained title over the disputed land in 1975.  This follows the doctrine
laid down in Director of Lands v. Intermediate Appellate Court, et al., that
the law cannot impair vested rights such as a land grant.  More clearly
stated, "Filipino citizens who by themselves or their predecessors-in-interest
have been, prior to the effectivity of P.D. 1073 on January 25, 1977, in open,
continuous, exclusive and notorious possession and occupation of
agricultural lands of the public domain, under a bona fide claim of
acquisition of ownership, for at least 30 years, or at least since January 24,
1947" may apply for judicial confirmation of their imperfect or incomplete
title under Sec. 48(b) of the Public Land Act.
 
 
 From this perspective, PD 1073 should have thus provided January 24,
1947 and not June 12, 1945 as its cut-off date, yet the latter date is the express
legal reality. The reconciliation, as properly defined by jurisprudence, is that
where an applicant has satisfied the requirements of Section 48 (b) of CA 141, as
amended by RA 1942, prior to the effectivity of PD 1073, the applicant is entitled
to perfect his or her title, even if possession and occupation does not date back
to June 12, 1945. For purposes of the present case, a discussion of the cut-off
date has been fully made to highlight that it is a date whose significance and
import cannot be minimized nor glossed over by mere judicial interpretation
or by judicial social policy concerns; the full legislative intent must be
respected. 
 
 
In considering the PLA, it should be noted that its amendments were not
confined to RA 1942 and PD 1073.  These decrees were complemented
by Presidential Decree No. 892 (PD 892)[20] - issued on February 16, 1976 -
which limited to six months the use of Spanish titles as evidence in land
registration proceedings.[21]  Thereafter, the recording of all unregistered
lands shall be governed by Section 194 of the Revised Administrative Code, as
amended by Act No. 3344. Section 3 of PD 1073 totally disallowed the judicial
confirmation of incomplete titles to public land based on unperfected Spanish
grants.
 
Subsequently, RA 6940[22] extended the period for filing applications for free
patent and judicial confirmation of imperfect title to December 31, 2000.  The law
now also allows the issuance of free patents for lands not in excess of 12 hectares
to any natural-born citizen of the Philippines who is not the owner of more than 12
hectares and who, for at least 30 years prior to the effectivity of the amendatory
Act, has continuously occupied and cultivated, either by himself or through his
predecessors-in-interest, a tract or tracts of agricultural public lands subject to
disposition.
               
 

Congress recently extended the period for filing applications for judicial
confirmation of imperfect and incomplete titles to alienable and disposable lands of
the public domain under RA 9176 from December 31, 2000 under RA 6940
to December 31, 2020.[23]
 
Read together with Section 11 of the PLA (which defines the
administrative grant of title to alienable and disposable lands of the public
domain through homestead settlement and sale, among others), RA 6940 and
RA 9176 signify that despite the cut-off date of June 12, 1945 that the
Legislature has provided, ample opportunities exist under the law for the
grant of alienable lands of the public domain to deserving beneficiaries.
 
Presidential Decree No. 1529 or the
Property Registration Decree
 
 
As heretofore mentioned, PD 1529 amended Act No. 496 on June 11,
1978 to codify the various laws relative to registration of property.  Its Section 14
describes the applicants who may avail of registration under the Decree, among
them -
 
(1)               Those who by themselves or through their predecessors-in-interest have
been in open, continuous, exclusive and notorious possession and occupation of
alienable and disposable lands of the public domain under a bona fide claim of
ownership since June 12, 1945, or earlier.
 
(2)               Those who have acquired ownership of private lands by prescription
under the provision of existing laws

 
These subsections and their impact on the present case are separately discussed
below.
 

Section 14(1)
 
Section 14(1) merely repeated PD 1073 which sets a cut-off date of June 12,
1945 and which, under the conditions discussed above, may be read to be January
24, 1947. 
 

The ponencia discussed Section 48(b) of the PLA in relation with Section

14(1) of the PRD and, noted among others, that “under the current state of the law,
the substantive right granted under Section 48(b) may be availed of only
until December 31, 2020.”  This is in light of RA 9176, passed in 2002,[24] limiting
the filing of an application for judicial confirmation of imperfect title to December
31, 2020.  The amendatory law apparently refers only to the use of Section 14(1) of
the PRD as a mode of registration.  Where ownership right or title has already
vested in the possessor-occupant of the land that Section 48(b) of the PLA grants
by operation of law, Section 14(2) of the PRD continuous to be open for purposes
of registration of a “private land” since compliance with Section 48(b) of the PLA
vests title to the occupant/possessor and renders the land private in character. 
 
The ponencia likewise rules against the position of the Office of the
Solicitor General that the public land to be registered must have been classified as
alienable and disposable as of the cut-off date for possession stated in Section
48(b) - June 12, 1945.  In doing this, it cites and reiterates its continuing support
for the ruling in Republic v. Court of Appeals and Naguit that held:[25]
 
 
Petitioner suggests an interpretation that the alienable and disposable
character of the land should have already been established since June 12, 1945 or
earlier. This is not borne out by the plain meaning of Section 14(1). “Since June
 12, 1945,” as used in the provision, qualifies its antecedent phrase “under a
bonafide claim of ownership.” Generally speaking, qualifying words restrict or
modify only the words or phrases to which they are immediately associated, and
not those distantly or remotely located. Ad proximum antecedents fiat relation
nisi impediatur sentencia.
 
Besides, we are mindful of the absurdity that would result if we adopt
petitioner’s position. Absent a legislative amendment, the rule would be, adopting
the OSG’s view, that all lands of the public domain which were not declared
alienable or disposable before June 12, 1945 would not be susceptible to original
registration, no matter the length of unchallenged possession by the occupant.
Such interpretation renders paragraph (1) of Section 14 virtually inoperative and
even precludes the government from giving it effect even as it decides to
reclassify public agricultural lands as alienable and disposable.  The
unreasonableness of the situation would even be aggravated considering that
before June 12, 1945, the Philippines was not yet even considered an independent
state.
 
Instead, the more reasonable interpretation of Section 14(1) is that it
merely requires the property sought to be registered as already alienable and
disposable at the time the application for registration of title is filed. If the
State, at the time the application is made, has not yet deemed it proper to release
the property for alienation or disposition, the presumption is that the government
is still reserving the right to utilize the property; hence, the need to preserve its
ownership in the State irrespective of the length of adverse possession even if in
good faith. However, if the property has already been classified as alienable and
disposable, as it is in this case, then there is already an intention on the part of the
State to abdicate its exclusive prerogative over the property.
 
xxx
 
This case is distinguishable from Bracewell v. Court of Appeals,
wherein the Court noted that while the claimant had been in possession since
1908, it was only in 1972 that the lands in question were classified as
alienable and disposable.  Thus, the bid at registration therein did not
succeed.  InBracewell, the claimant had filed his application in 1963, or nine
(9) years before the property was declared alienable and disposable.  Thus, in
this case, where the application was made years after the property had been
certified as alienable and disposable, the Bracewell ruling does not apply.
      
 
As it did in Naguit, the present ponencia as well discredits Bracewell.  It
does the same withRepublic v. Herbieto[26] that came after Naguit and should have
therefore overtaken the Naguitruling. In the process, the ponencia cites with
approval the ruling in Republic v. Ceniza,[27] penned by the same ponente who
wrote Bracewell.
 
While the ponencia takes pains to compare these cases, it however
completely misses the point from the perspective of whether possession of public
lands classified as alienable and disposable afterJune 12, 1945 should be credited
for purposes of a grant under Section 48(b) of the PLA, and of registration under
Section 14(1) of the PRD.  These cases, as analyzed by the ponencia, merely
granted or denied registration on the basis of whether the public land has been
classified as alienable and disposable at the time the petition for registration was
filed.  Thus, except for Naguit, these cases can be cited only as instances when
registration was denied or granted despite the classification of the land as alienable
after June 12, 1945.
 
The ruling in Naguit is excepted because, as shown in the quotation above,
this is one case that explained why possession prior to the classification of public
land as alienable should be credited in favor of the possessor who filed his or her
application for registration after the classification of the land as alienable and
disposable, but where such classification occurred after June 12, 1945.
 
Closely analyzed, the rulings in Naguit that the ponencia relied upon are its
statutory construction interpretation of Section 48(b) of the PLA and the observed
ABSURDITY of using June 12, 1945 as the cut-off point for the classification.   
 
Five very basic reasons compel me to strongly disagree with Naguit and its
reasons.
 
First. The constitutional and statutory reasons. The Constitution classifies
public lands into agricultural, mineral, and timber.  Of these, only agricultural
lands can be alienated.[28]  Without the requisite classification, there can be no basis
to determine which lands of the public domain are alienable and which are not;
hence, classification is a constitutionally-required step whose importance
should be given full legal recognition and effect. Otherwise stated, without
classification into disposable agricultural land, the land forms part of the mass of
the public domain that, not being agricultural, must be mineral or timber land that
are completely inalienable and as such cannot be possessed with legal effects.  To
allow effective possession is to do violence to the regalian doctrine; the ownership
and control that the doctrine denotes will be less than full if the possession that
should be with the State as owner, but is elsewhere without any authority, can
anyway be recognized.
 
From the perspective of the PLA under which grant can be claimed
under its Section 48(b), it is very important to note that this law does not
apply until a classification into alienable and disposable land of the public
domain is made.  If the PLA does not apply prior to a public land’s classification
as alienable and disposable, how can possession under its Section 48(b) be claimed
prior such classification?  There can simply be no imperfect title to be confirmed
over lands not yet classified as disposable or alienable because, in the absence of
such classification, the land remains unclassified public land that fully belongs to
the State.  This is fully supported by Sections 6, 7, 8, 9, and 10 of CA 141.[29]  If the
land is either mineral or timber and can never be the subject of administration and
disposition, it defies legal logic to allow the possession of these unclassified lands
to produce legal effect. Thus, the classification of public land as alienable and
disposable is inextricably linked to effective possession that can ripen into a claim
under Section 48(b) of the PLA.
 
Second.  The Civil Code reason. Possession is essentially a civil law term
that can best be understood in terms of the Civil Code in the absence of any
specific definition in the PLA other than in terms of time of possession. [30] Article
530 of the Civil Code provides that “[O]nly things and rights which are
susceptible of being appropriated may be the object of possession.” Prior to the
declaration of alienability, a land of the public domain cannot be appropriated;
hence, any claimed possession cannot have legal effects.   This perspective fully
complements what has been said above under the constitutional and PLA
reasons.  It confirms, too, that the critical difference the ponenciasaw in
the Bracewell and Naguit situations does not really exist. Whether an application
for registration is filed before or after the declaration of alienability becomes
immaterial if, in one as in the other, no effective possession can be recognized
prior to the declaration of alienability.
 
Third.  Statutory construction and the cut-off date – June 12,
1945. The ponencia assumes, based on its statutory construction reasoning and its
reading of Section 48(b) of the PLA, that all that the law requires is possession
from June 12, 1945 and that it suffices if the land has been classified as alienable at
the time of application for registration. As heretofore discussed, this cut-off date
was painstakingly set by law and should be given full significance.  Its full import
appears from PD 1073 that amended Section 48(b), whose exact wordings state:   
 
SECTION 4.   The provisions of Section 48(b) and Section 48(c), Chapter
VIII of the Public Land Act are hereby amended in the sense that these provisions
shall apply only to alienable and disposable lands of the public domain which
have been in open, continuous, exclusive and notorious possession and
occupation by the applicant himself or thru his predecessor-in-interest, under a
bona fide claim of acquisition of ownership, since June 12, 1945.
 
 
Under this formulation, it appears clear that PD 1073 did not expressly state
what Section 48(b) should provide under the amendment PD 1073 introduced in
terms of the exact wording of the amended Section 48(b).  But under the PD 1073
formulation, the intent to count the alienability toJune 12, 1945 appears very
clear.  The provision applies only to alienable and disposable lands of the public
domain that is described in terms of the character of the possession required
since June 12, 1945.  This intent – seen in the direct, continuous and seamless
linking of the alienable and disposable lands of the public domain to June 12,
1945 under the wording of the Decree – is clear and should be respected.
 
Fourth.  Other Modes of Acquisition of lands under the
PLA. Naguit’s absurdity argument that the ponencia effectively adopted is more
apparent than real, since the use of June 12, 1945 as cut-off date for the declaration
of alienability will not render the grant of alienable public lands out of reach.  The
acquisition of ownership and title may still be obtained by other modes under the
PLA. Among other laws, RA 6940, mentioned above, now allows the use of free
patents.[31] It was approved on March 28, 1990; hence, counting 30 years
backwards, possession since April 1960 or thereabouts may qualify a possessor to
apply for a free patent.  The administrative modes provided under Section 11 of the
PLA are also open, particularly, homestead settlement and sales.
 
Fifth. Addressing the wisdom – the absurdity – of the law.   This Court
acts beyond the limits of the constitutionally-mandated separation of powers in
giving Section 48(b), as amended by PD 1073, an interpretation beyond its plain
wording.  Even this Court cannot read into the law an intent that is not there even
your purpose is to avoid an absurd situation.  If we feel that a law already has
absurd effects because of the passage of time, our role under the principle of
separation of powers is not to give the law an interpretation that is not there in
order to avoid the perceived absurdity.  We thereby dip into the realm of policy – a
role delegated by the Constitution to the Legislature.  If only for this reason, we
should avoid expanding – through Naguit and the present ponencia – the plain
meaning of Section 48(b) of the PLA, as amended by PD 1073.
 
In standing by Naguit, the ponencia pointedly discredits the ruling
in Herbieto; it is, allegedly, either an incorrect ruling or an obiter dictum.  As to
legal correctness, Herbieto is in full accord with what we have stated above; hence,
it cannot be dismissed off-hand as an incorrect ruling. Likewise, its ruling on the
lack of effective legal possession prior to the classification of a public land as
alienable and disposable cannot strictly be obiter because it responded to an issue
directly raised by the parties. Admittedly, its ruling on jurisdictional grounds could
have fully resolved the case, but it cannot be faulted if it went beyond this
threshold issue into the merits of the claim of effective possession prior to the
classification of the land as alienable and disposable. 
 
To be sure, Herbieto has more to it than the Naguit ruling that
the ponencia passes off as the established and definitive rule on possession under
Section 14(1) of the PRD.  There, too, is the undeniable reason that no
definitive ruling touching on Section 14(1) can be deemed to have been
established in the present case since the applicant Heirs could only prove
possession up to 1948. For this reason, the ponencia falls back on and
examines Section 14(2) of the PRD. In short, if there is a perfect example of a
ruling that is not necessary for the resolution of a case, that unnecessary
ruling is the ponencia’s ruling that Naguit is now the established rule.
 
 
 
Section 14(2)
 
Section 14(2), by its express terms, applies only to private lands.  Thus,
on plain reading, it does not apply to alienable and disposable lands of the
public domain that Section 14(1) covers.  This is the difference between
Sections 14(1) and 14(2). 
 
The ponencia, as originally formulated, saw a way of expanding the
coverage of Section 14(2)via the Civil Code by directly applying civil
law  provisions on prescription on alienable and disposable lands of the public
domain. To quote the obiter dictum in Naguit that the ponencia wishes to enshrine
as the definitive rule and leading case on Sections 14(1) and 14(2):[32]
 
Prescription is one of the modes of acquiring ownership under the Civil
Code.  There is a consistent jurisprudential rule that properties classified as
alienable public land may be converted into private property by reason of open,
continuous and exclusive possession of at least thirty (30) years.  With such
conversion, such property may now fall within the contemplation of “private
lands” under Section 14(2), and thus susceptible to registration by those who have
acquired ownership through prescription.  Thus, even if possession of the
alienable public land commenced on a date later than June 12, 1945, and such
possession being open, continuous and exclusive, then the possessor may have the
right to register the land by virtue of Section 14(2) of the Property Registration
Decree.
 
 
The ponencia then posits that Article 1113 of the Civil Code should be considered
in the interpretation of Section 14(2).  Article 1113 of the Civil Code provides:
 
 
          All things which are within the commerce of men are susceptible of
prescription, unless otherwise provided.  Property of the State or any of its
subdivisions not patrimonial in character shall not be the object of prescription.
 
 
The application of Article 1113 assumes, of course, that (1) the Civil Code fully
applies to alienable and disposable lands of the public domain; (2) assuming that
the Civil Code fully applies, these properties are patrimonial and are therefore
“private property”; and (3) assuming that the Civil Code fully applies, that these
properties are within the commerce of men and can be acquired through
prescription.
         
I find the Naguit obiter to be questionable because of the above assumptions
and its direct application of prescription under Section 14(2) to alienable or
disposable lands of the public domain. This Section becomes relevant only once
the ownership of an alienable and disposable land of the public domain vests
in the occupant or possessor pursuant to the terms of Section 48(b) of the
PLA, with or without judicial confirmation of title, so that the land has
become a private land.  At that point, Section 14(2) becomes fully
operational on what had once been an alienable and disposable land of the
public domain.
 
Hierarchy of Law in Reading PRD’s Section
14(2)
 
 
The hierarchy of laws governing the lands of the public domain is clear from
Article XII, Section 3 of the Constitution.  There are matters that the Constitution
itself provides for, and some that are left for Congress to deal with.  Thus, under
Section 3, the Constitution took it upon itself to classify lands of the public
domain, and to state that only agricultural lands may be alienable lands of the
public domain.  It also laid down the terms under which lands of the public domain
may be leased by corporations and individuals.  At the same time, it delegated to
Congress the authority to classify agricultural lands of the public domain according
to the uses to which they may be devoted.  Congress likewise determines, by law,
the size of the lands of the public domain that may be acquired, developed, held or
leased, and the conditions therefor.
 
In acting on the delegation, Congress is given the choice on how it will act,
specifically, whether it will pass a general or a special law.  On alienable and
disposable lands of the public domain, Congress has, from the very
beginning, acted through the medium of a special law, specifically, through the
Public Land Act that by its terms “shall apply to the lands of the public domain;
but timber and mineral lands shall be governed by special laws.” Notably, the Act
goes on to provide that nothing in it “shall be understood or construed to change or
modify the administration and disposition of the lands commonly called ‘friar
lands’ and those which, being privately owned, have reverted to or become
property of the Commonwealth of the Philippines, which administration and
disposition shall be governed by laws at present in force or which may hereafter be
enacted.”[33]  Under these terms, the PLA can be seen to be a very specific act
whose coverage extends only to lands of the public domain; in this sense, it is a
special law on that subject. 
 
In contrast, the Civil Code is a general law that covers general rules on the
effect and application of laws and human relations; persons and family relations;
property and property relations; the different modes of acquiring ownership; and
obligations and contracts.[34]  Its general nature is best appreciated when in its
Article 18, it provides that: “In matters which are governed by the Code of
Commerce and special laws, their deficiency shall be supplied by the provisions of
this Code.” 
 
The Civil Code has the same relationship with the PRD with respect to the
latter’s special focus – land registration – and fully applies civil law provisions in
so far only as they are allowed by the PRD.  One such case where the Civil Code is
expressly allowed to apply is in the case of Section 14(2) of the PRD which calls
for the application of prescription under existing laws.
 
As already explained above, the PLA and the PRD have their own specific
purposes and are supreme within their own spheres, subject only to what the higher
Constitution provides.  Thus, the PRD must defer to what the PLA provides when
the matter to be registered is an alienable and disposable land of the public domain.
 
Application of the Civil Code     
 
In its Book II, the Civil Code has very clear rules on property, including
State property.  It classifies property as either of public dominion or of private
ownership,[35] and property for public use, public service and those for the
development of the national wealth as property of the public dominion.[36] All
property not so characterized are patrimonial property of the State[37] which are
susceptible to private ownership,[38] against which prescription will run.[39] 
 
In reading all these provisions, it should not be overlooked that they refer to
the properties of the State in general, i.e., to both movable and immovable
properties.[40]  Thus, the Civil Code provisions on property do not refer to land
alone, much less do they refer solely to alienable and disposable lands of the
public domain.  For this specie of land, the PLA is the special governing law
and, under the Civil Code itself, the Civil Code provisions shall apply only in
case of deficiency.[41]
 
This conclusion gives rise to the question – can alienable and disposable
lands of the public domain at the same time be patrimonial property of the State
because they are not for public use, public purpose, and for the development of
national wealth?
 
The answer to this question can be found, among others, in the interaction
discussed above between the PLA and PRD, on the one hand, and the Civil Code,
on the other, and will depend on the purpose for which an answer is necessary. 
 
If, as in the present case, the purpose is to determine whether a grant or
disposition of an alienable and disposable land of the public domain has been
made, then the PLA primarily applies and the Civil Code applies only
suppletorily.  The possession and occupation that the PLA recognizes is based on
its Section 48(b) and, until the requirements of this Section are satisfied, the
alienable and disposable land of the public domain remains a State property that
can be disposed only under the terms of Section 11 of the PLA. In the face of this
legal reality, the question of whether – for purposes of prescription – an alienable
and disposable land of the public domain is patrimonial or not becomes
immaterial; a public land, even if alienable and disposable, is State property and
prescription does not run against the State.[42]  In other words, there is no room
for any hairsplitting that would allow the inapplicable concept of prescription
under the Civil Code to be directly applied to an alienable and disposable land
of the public domain before this land satisfies the terms of a grant under
Section 48(b) of the PLA.
 
Given this conclusion, any further discussion of the patrimonial character of
alienable and disposable public lands under the norms of the Civil Code is
rendered moot and academic. 
 
From the prism of the overriding regalian doctrine that all lands of the public
domain are owned by the State, an applicant for land registration invoking Section
14(2) of the PRD to support his claim must first clearly show that the land has been
withdrawn from the public domain through an express and positive act of the
government.[43]
 
A clear express governmental grant or act withdrawing a particular land
from the mass of the public domain is provided both in the old and the prevailing
Public Land Acts.  These laws invariably provide that compliance with the
required possession of agricultural public land (under the first and second PLAs) or
alienable and disposable land of the public domain (under the prevailing PLA) in
the manner and duration provided by law is equivalent to a government
grant.  Thus, the land ipso jurebecomes private land.  It is only at that point that the
“private land” requirement of Section 14(2) materializes.[44]           
 
Prescription
 
In my original Dissent (in response to the original ponencia), I discussed
ordinary acquisitive prescription as an academic exercise to leave no stone
unturned in rejecting the ponencia’s original conclusion that prescription directly
applies to alienable and disposable lands of the public domain under Section 14(2)
of the PRD.  I am happy to note that the present ponencia has adopted, albeit
without any attribution, part of my original academic discussion on the application
of the Civil Code, particularly on the subjects of patrimonial property of the State
and prescription. 
 
Specifically, I posited – assuming arguendo that the Civil Code applies –
that the classification of a public land as alienable and disposable does not per
se signify that the land is patrimonial under the Civil Code since property, to be
patrimonial, must not be for public use, for public purpose or for the development
of national wealth.  Something more must be done or shown beyond the fact of
classification. The ponencia now concedes that “[T]here must also be an express
government manifestation that the property is already patrimonial or no longer
retained for public use or the development of the national wealth, under Article
422 of the Civil Code.  And only when the property has become patrimonial can
the prescriptive period for the acquisition of property of the public domain begin
to run.”
 
I agree with this statement as it describes a clear case when the property has
become private by the government’s own declaration so that prescription under the
Civil Code can run.  Note in this regard that there is no inconsistency between this
conclusion and the hierarchy of laws on lands of the public domain that I
expounded on.  To reiterate, the PLA applies as a special and primary law
when a public land is classified as alienable and disposable, and remains fully
and exclusively applicable until the State itself expressly declares that the land
now qualifies as a patrimonial property.  At that point, the application of the
Civil Code and its law on prescription are triggered.  The application of
Section 14(2) of the PRD follows.
 
 To summarize, I submit in this Concurring and Dissenting Opinion that:
 
1.  The hierarchy of laws on public domain must be given full application in
considering lands of the public domain.  Top consideration should be accorded to
the Philippine Constitution, particularly its Article XII, followed by the
consideration of applicable special laws – the PLA and the PRD, insofar as this
Decree applies to lands of the public domain.  The Civil Code and other general
laws apply to the extent expressly called for by the primary laws or to supply any
of the latter’s deficiencies.
 
2.  The ruling in this ponencia and in Naguit that the classification of public
lands as alienable and disposable does not need to date back to June 12, 1945 at the
latest, is wrong because:
 
a. Under the Constitution’s regalian doctrine, classification is a
required step whose full import should be given full effect and recognition;
giving legal effect to possession prior to classification runs counter to the
regalian doctrine.
 
b.  The Public Land Act applies only from the time a public land is
classified as alienable and disposable;  thus, Section 48(b) of this law and
the possession it requires cannot be recognized prior to any classification.
 
c. Under the Civil Code, “[O]nly things and rights which are
susceptible of being appropriated may be the object of possession.” Prior to
the classification of a public land as alienable and disposable, a land of the
public domain cannot be appropriated; hence, any claimed possession cannot
have legal effects.
 
 d. There are other modes of acquiring alienable and disposable lands
of the public domain under the Public Land Act; this legal reality renders
the ponencia’s absurdity argument misplaced.
 
e. The alleged absurdity of the law addresses the wisdom of the law
and is a matter for the Legislature, not for this Court, to address.
 
Consequently, Naguit must be abandoned and rejected for being based on legally-
flawed premises and for being an aberration in land registration jurisprudence. At
the very least, the present ponencia cannot be viewed as an authority on the
effective possession prior to classification since this ruling, by theponencia’s own
admission, is not necessary for the resolution of the present case. 
         
 
                                                                             ARTURO D. BRION
                                                                                          Associate Justice
 

[1]
 G.R. No. 144507, January 17, 2005, 442 SCRA 445.
[2]
  Commonwealth Act No. 141, as amended (CA 141).
[3]
 See Collado v. Court of Appeals, G. R. No. 107764, October 4, 2002, 390 SCRA 343.
[4]
 CONSTITUTION, Article XII, Section 2.
[5]
 See Republic v. Herbieto, G. R. No. 156117, May 26, 2005, 459 SCRA 182.
[6]
 Presidential Decree (PD) No. 1529, amending Act No. 496 that originally brought the Torrens system into
the Philippines in 1903.
[7]
 Substantive law is that which creates, defines and regulates rights, or which regulates the rights and duties which
give rise to a cause of action, that part of the law which courts are established to administer, as opposed to
adjective or remedial law, which prescribes the method of enforcing rights or obtain redress for their invasion
(Primicias v. Ocampo, 93 Phil. 446.)  It is the nature and the purpose of the law which determines whether it is
substantive or procedural, and not its place in the statute, or its inclusion in a code (Regalado, Remedial Law
Compendium, Volume I [Ninth Revised Edition], p. 19).  Note that Section 55 of the PLA refers to the Land
Registration Act (the predecessor law of the PRD) on how the Torrens title may be obtained.      
[8]
 CIVIL CODE, Book II (Property, Ownership and its Modifications), Articles 415-711.
[9]
 CIVIL CODE, Book III (Different Modes of Acquiring Ownership), Articles 1106-1155.
[10]
 See the consolidated cases of The Secretary of the Department of Environment and Natural Resources v. Yap,
G.R. No. 167707 and Sacay v. The Secretary of the Department of Environment and Natural Resources, G.R. No.
173775, jointly decided on October 8, 2008 (the Boracay cases).
[11]
  CIVIL CODE, Article 18.
[12]
   Director of Lands and Director of Forest Development v. Intermediate Appellate Court and  J. Antonio
Araneta, G.R. No. 73246, March 2, 1993, 219 SCRA 339.
[13]
  See the Boracay cases, supra note 8.
[14]
 See the opinion of Justice Reynato S. Puno (now Chief Justice) in Cruz v. Secretary of the Department of
Environment and Natural Resources (G.R. No. 135385, December 6, 2000, 347 SCRA 128) quoted
in Collado (supra note 2).
[15]
  Enunciated in the old case of Susi v. Razon and Director of Lands, 48 Phil. 424 (1925); See Abejaron v. Nabasa,
cited on p. 10 of this Dissent.
[16]
 PLA, Sections 49-56; the reference to the Land Registration Act (Act No. 496) should now be understood to
mean the PRD which repealed Act 496.
[17]
  An Act to Amend Subsection (b) of Section Forty Eight of Commonwealth Act Numbered One Hundred Forty
One, otherwise known as the The Public Land Act.
[18]
  Extending the Period of Filing Applications for Administrative Legislation (Free Patent) and Judicial
Confirmation of Imperfect and Incomplete Titles to Alienable and Disposable Lands in the Public Domain
Under Chapter VII and Chapter VIII of Commonwealth Act No. 141, As Amended, For Eleven (11) Years
Commencing January 1, 1977.
[19]
   G.R. No.  84831, June 20, 2001, 359 SCRA 47.
[20]
  Discontinuance of the Spanish Mortgage System of Registration and of the Use of Spanish Titles as Evidence in
Land Registration Proceedings.
[21]
   Section 1of PD 892 states:
SECTION 1. The system of registration under the Spanish Mortgage Law is
discontinued, and all lands recorded under said system which are not yet covered by Torrens title
shall be considered as unregistered lands.
 
All holders of Spanish titles or grants should apply for registration of their lands under
Act No. 496, otherwise known as the Land Registration Act, within six (6) months from the
effectivity of this decree. Thereafter, Spanish titles cannot be used as evidence of land ownership
in any registration proceedings under the Torrens system.
 
Hereafter, all instruments affecting lands originally registered under the Spanish
Mortgage Law may be recorded under Section 194 of the Revised Administrative Code, as
amended by Act. 3344. 
[22]
  An Act Granting a Period ending on December 31, 2000 for Filing Applications for Free Patent and Judicial
Confirmation of Imperfect Title to Alienable and Disposable Lands of the Public Domain under Chapters VII
and VIII of the Public Land Act (CA 141, as amended).
[23]
  R.A. No. 9176, Section 2.
[24]
  See pp. 14-15 of the ponencia.
[25]
  Supra note 1.
[26]
  G.R. No. 156117, May 26, 2005, 459 SCRA 183, 201-202.
[27]
  440 Phil. 697 (2002); penned by Mme. Justice Consuelo Ynares-Santiago.
[28]
  CONSTITUTION, Article XII, Section 2.
[29]
             SECTION 6. The President, upon the recommendation of the Secretary of Agriculture and Commerce,
shall from time to time classify the lands of the public domain into —

          (a) Alienable or disposable,

                (b) Timber, and
                (c) Mineral lands,

and may at any time and in a like manner transfer such lands from one class to another, for the purposes of
their administration and disposition.
 
                SECTION 7. For the purposes of the administration and disposition of alienable or disposable
public lands, the President, upon recommendation by the Secretary of Agriculture and Commerce, shall
from time to time declare what lands are open to disposition or concession under this Act.
 
                SECTION 8. Only those lands shall be declared open to disposition or concession which have been
officially delimited and classified and, when practicable, surveyed, and which have not been reserved for public
or quasi-public uses, nor appropriated by the Government, nor in any manner become private property, nor those
on which a private right authorized and recognized by this Act or any other valid law may be claimed, or which,
having been reserved or appropriated, have ceased to be so. However, the President may, for reasons of public
interest, declare lands of the public domain open to disposition before the same have had their boundaries
established or been surveyed, or may, for the same reason, suspend their concession or disposition until they are
again declared open to concession or disposition by proclamation duly published or by Act of the National
Assembly.
 
                SECTION 9. For the purpose of their administration and disposition, the lands of the public domain
alienable or open to disposition shall be classified, according to the use or purposes to which such lands are
destined, as follows:

(a) Agricultural;
(b) Residential, commercial, industrial, or for similar productive purposes;
(c) Educational, charitable, or other similar purposes;
(d) Reservations for town sites and for public and quasi-public uses.
 
                The President, upon recommendation by the Secretary of Agriculture and Commerce, shall from time to
time make the classifications provided for in this section, and may, at any time and in a similar manner, transfer
lands from one class to another.
 
SECTION 10. The words "alienation," "disposition," or "concession" as used in this Act, shall mean
any of the methods authorized by this Act for the acquisition, lease, use, or benefit of the lands of the
public domain other than timber or mineral lands.
[30]
 See: Article 18, Civil Code.
[31]
 See: pp. 10-11 of this Dissent.
[32]
 See p. 20 of the ponencia.
[33]
  CA 141, Section 2.
[34]
  These are the Introductory Chapters and Books I to IV of the Civil Code.
[35]
  CIVIL CODE, Article 419.
[36]
  Id.., Article 420.
[37]
  Id.., Article 421.
[38]
  Id.., Article 425.
[39]
  Id.., Article 1108.
[40]
  Article 415 of the Civil Code defines immovable property, while Article 416 defines movable property.
[41]
  CIVIL CODE, Article 18.
[42]
  Id.., Article 1108.
[43]
  Supra note 10, Director of Lands v. Intermediate Appellate Court.
[44]
  At this point, prescription can be invoked, not by the occupant/possessor who now owns the land in his private
capacity, but against the new owner by whomsoever shall then occupy the land and comply with the ordinary or
extraordinary prescription that the Civil Code ordains.  This assumes that the new owner has not placed the land
under the Torrens system; otherwise, indefeasibility and imprescriptibility would set in.