Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2468

July 16, 1906

MAGDALENA CANSINO, ET AL., plaintiffs-appellees,

vs.
GERVASIO VALDEZ, ET AL., defendants-appellants.
Wade H. Kitchens, for appellants.
Isabelo Artacho, for appellees.
WILLARD, J.:
The decision in this case was announced on the 30th of April, 1906. The grounds of that decision
are as follows: The case is almost identical with the case of Valenton vs. Murciano1 (2 Off Gaz.,
434), decided on the 30th of March, 1904. The similarity extends even to the dates and to the
location of the land, for we judge from the description of the property involved in this suit and the
description of the property involved in the case of Valenton vs. Murciano that they are two
adjoining tracts of land, one situated in the Province of Pangasinan and the other in the Province
of Tarlac, the boundary line between the two tracts of land.
In the case of Valenton vs. Murciano, the defendant bought the land from the Spanish Government
by a deed dated the 14th of July, 1892. In this case the plaintiff, Magdalena Cansino, bought the
property in question, as public lands of the State from the Spanish Government and received a
deed therefor on the 27th of October, 1893. In the former case the plaintiffs went into possession
of the land in 1860 and claimed ownership thereof by the extraordinary prescription of thirty years.
In this case some of the defendants testified that they went into possession in 1862 and they
claimed the ownership of this land by the same extraordinary prescription. In either one of the
cases did the occupants have any written title to the land.
In Valenton vs. Murciano we decided that title to lands such as were involved in that case could
not be acquired by prescription while they were the property of the State. The decision in that case
governs and controls this case and upon its authority judgment in this case was affirmed.
Arellano, C.J., Torres and Carson, JJ., concur.

G.R. No. L-19535

July 10, 1967

HEIRS OF PELAGIO ZARA; PIO, CLEMENTE, SERAFIA, PORFIRIO and ESTEBAN, all
surnamed MINDANAO; MARIA and GLICERIA, both surnamed SEDARIA; DULCE
CORDERO, VICTORIA DE LOS REYES and JOSE GARCIA, applicants-appellants,
vs.
DIRECTOR OF LANDS, DIRECTOR OF FORESTRY, Government oppositor-appellees.
VICENTE V. DE VILLA, JR., and VICENTE S. DE VILLA, SR., private oppositors-appellees.
Jose L. Matias and H. A. Jambora for applicants-appellants.
Francisco Villanueva, Jr. and Gregorio L. Oquitania for private oppositors-appellees.
Manuel Reyes Castro for oppositor-appellee Director of Forestry.
MAKALINTAL, J.:
Appeal from an order of the Court of First Instance of Batangas (Lipa City) dismissing appellants'
"application for registration of the parcel of land consisting of 107 hectares, more or less, situated
in the barrio of Sampiro, Municipality of San Juan, Province of Batangas, and designated in
amended plan PSU-103696 as Lot A."
The proceedings in the court a quo are not disputed.
On August 4, 1960 appellants filed an application for registration of the land above described
pursuant to the provisions of Act 496. They alleged that the land had been inherited by them from
their grandfather, Pelagio Zara, who in turn acquired the same under a Spanish grant known as
"Composicion de Terrenos Realengos" issued in 1888. Alternatively, should the provisions of the
Land Registration Act be not applicable, applicants invoke the benefits of the provisions of Chapter
VIII, Section 48, subsection (b) of C.A. 141 as amended, on the ground that they and their
predecessor-in-interest had been in continuous and adverse possession of the land in concept of
owner for more than 30 years immediately preceding the application.
Oppositions were filed by the Director of Lands, the Director of Forestry and by Vicente V. de Villa,
Jr. The latter's opposition recites:
x x x that the parcel of land sought to be registered by the applicants consisting of 107 hectares,
more or less, was included in the area of the parcel of land applied for registration by Vicente S.
de Villa, Sr. in Civil Case No. 26, L.R. Case No. 601 in this Court, which was decided by this same
Court through the then incumbent Judge, the Honorable Juan P. Enriquez, on September 30,
1949; that the parcel sought to be registered by the applicants was declared public land in said
decision; that they (the oppositors Vicente V. de Villa, Jr. and Vicente S. de Villa, Sr.) have an
interest over the land in question because for a period more than sixty (60) years, the de Villas
have been in possession, and which possession, according to them, was open continuous,
notorious and under the claim of ownership; that the proceeding being in rem, the failure of the
applicants to appear at the case No. 26, L.R. Case No. 601 to prove their imperfect and
incomplete title over the property, barred them from raising the same issue in another case; and
that as far as the decision in Civil Case No. 26, L.R. Case No. 601 which was affirmed in the
appellate court in CA-G.R. No. 5847-R is concerned, there is already "res-adjudicata" in other
words, the cause of action of the applicant is now barred by prior judgment; and that this Court has
no more jurisdiction over the subject matter, the decision of the Court in said case having
transferred to the Director of Lands.
On November 15, 1960 the De Villas (De Villa, Sr. was subsequently included as oppositor) filed a
motion to dismiss, invoking the same grounds alleged in its opposition, but principally the fact that
the land applied for had already been declared public land by the judgment in the former
registration case.
The trial court, over the objection of the applicants, granted the motion to dismiss by order dated

January 27, 1961, holding, inter alia, that "once a parcel of land is declared or adjudged public
land by the court having jurisdiction x x x it cannot be the subject anymore of another land
registration proceeding x x x (that) it is only the Director of Lands who can dispose of the same by
sale, by lease, by free patent or by homestead."
In the present appeal from the order of dismissal neither the Director of Lands nor the Director of
Forestry filed a brief as appellee. The decisive issue posed by applicants-appellants is whether the
1949 judgment in the previous case, denying the application of Vicente S. de Villa, Sr., and
declaring the 107 hectares in question to be public land, precludes a subsequent application by an
alleged possessor for judicial confirmation of title on the basis of continuous possession for at
least thirty years, pursuant to Section 48, subsection (b) of the Public Land Law, C.A. 141, as
amended. This provision reads as follows:
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:
xxx

xxx

xxx

(b) Those who by themselves or through their predecessors in interest have been 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 thirty years 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.1wph1.t
The right to file an application under the foregoing provision has been extended by Republic Act
No. 2061 to December 31, 1968.
It should be noted that appellants' application is in the alternative: for registration of their title of
ownership under Act 496 or for judicial confirmation of their "imperfect" title or claim based on
adverse and continuous possession for at least thirty years. It may be that although they were not
actual parties in that previous case the judgment therein is a bar to their claim as owners under
the first alternative, since the proceeding was in rem, of which they and their predecessor had
constructive notice by publication. Even so this is a defense that properly pertains to the
Government, in view of the fact that the judgment declared the land in question to be public land.
In any case, appellants' imperfect possessory title was not disturbed or foreclosed by such
declaration, for precisely the proceeding contemplated in the aforecited provision of
Commonwealth Act 141 presupposes that the land is public. The basis of the decree of judicial
confirmation authorized therein is not that the land is already privately owned and hence no longer
part of the public domain, but rather that by reason of the claimant's possession for thirty years he
is conclusively presumed to have performed all the conditions essential to a Government grant.
On the question of whether or not the private oppositors-appellees have the necessary personality
to file an opposition, we find in their favor, considering that they also claim to be in possession of
the land, and have furthermore applied for its purchase from the Bureau of Lands.1wph1.t
Wherefore, the order appealed from is set aside and the case is remanded to the Court a quo for
trial and judgment on the merits, with costs against the private oppositors-appellees.
Reyes, J.B.L., Bengzon, J.P., Zaldivar, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J. and Dizon, J., took no part.

G.R. No. L-13756

January 30, 1919

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, ET AL., petitioners.

VICENTE JOCSON, ET AL., appellants,
vs.
THE DIRECTOR OF FORESTRY, objector-appellee.
Mariano Locsin Rama and J. E. Blanco for appellants.
Attorney-General Paredes for appellee.
MOIR, J.:
In the cadastral land registration for the town of Hinigaran, Occidental Negros, the appellants
sought to register the three lots or parcels of land involved in this appeal, which registration was
opposed by the Director of Forestry.
The trial court found that lot 1104 was almost entirely "forestry" land, that a small portion of lot
1154 and all of lots 1158 were "forestry" lands, to which appellants had no title, and declared the
lots public lands, and refused registration of the parts of these lots to which opposition had been
filed by the Forestry Bureau. The claimants excepted and perfected their bill of exceptions and
brought the case to this court for review, setting up the following assignments of error:
1.
The court erred in not holding to have been proven the facts that the lots 1104, 1154, and
1158 of the cadastral survey of Hinigaran were possessed by Bibiano Jocson as owner during his
lifetime and from a time prior to the year 1880, and, after his death, by his heirs, on which lots nipa
plants were planted and now exists and that these latter are not spontaneous plants utilized by
said heirs.
2.
The court erred in not holding to have been proven the a part of lot No. 1158 is rice and
pasture land that was possessed as owner by Bibiano Jocson during his lifetime and peaceably
long before 1880, a possession continued by his heirs who still enjoy the use of the land up to the
present time.
3.
The court erred in not holding to have been proven that on that same lot 1158, there has
existed since the year 1890, and still exists, a fish hatchery which has been possessed and
enjoyed by the heirs of Bibiano Jocson, as owners, for more than 27 years, not counting the prior
possession of their predecessor in interest.
4.
The court erred in holding that lot No. 1158 and part of lots 1104 and 1154 are forest land,
finding this fact as sufficiently proven by the sole and absurd testimony of the ranger to the effect
that nipa is a plant of spontaneous growth and in not planted; and , as the photographs only refer
to small portions of the area of the lot, the court also erred in holding that the whole lot was
covered with firewood trees, while in fact but a very small portion of it is covered with trees which
protect the nipa plants and the fish hatchery, it having been proven that a large part of the lot was
sown with rice and used as pasture land.
5.
The court erred in not holding that the parts of lots 1104, 1154 and 1158, covered by
mangrove swamps, are agricultural land, and in not holding to have been proven that these
swamp are not available, inasmuch as they are drained at low tide; errors committed with manifest
violation of law and disregard of the jurisprudence established by the Honorable Supreme Court of
the Philippine.
6.
The court erred in not holding that the claimants and appellants, by their peaceable, public,
and continuous possession for more than forty years, as owners, including that held by their
predecessors in interests, had acquired by prescription lots 1104, 1154, and 1158, in conformity
with act No. 190, section 41, which, without exception, is applicable to the State as well as to
private parties, and by extraordinary prescription of thirty years.

7.
The court erred in not adjudicating said lots to the claimants and appellants, in consideration
of the possession they have had for more than forty years, form the time of their predecessor in
interest to the present time, thus violating the legal provision whereby the holders of land who
have been in its possession for ten years prior to the enactment of the land law, Act No. 926, by
the United States Philippine Commission, are to be deemed the absolute owners of such land, and
to be presumed to have applied for the same and to have complied with the Spanish laws and all
the proceedings required by the Royal Decrees on the composition of titles; and, therefore,
pursuant to said Act now in force, the land in question should be adjudicated to the possessors
thereof.
8.
The court erred in not granting the new trial requested by the appellants, the motion therefor
being based on the ground that his findings of facts, if there are any, are openly and manifestly
contrary to the weight of the evidence.
It is not necessary to consider all these assignments of error, for the main question involved is
whether manglares [mangroves] are agricultural lands or timber lands. If they are timber lands the
claimants cannot acquire them by mere occupation for ten years prior to July 26, 1904; if not, they
can so acquire them under the Public Land Act, and no grant or title is necessary.
This being a cadastral case there are no findings of fact, but the trial court states that lot 1104 was
in possession of claimants and their ancestors for more than thirty years and lot 1154 for more
than twenty-five years. Lot 1158 is declared to be wholly "forestal." The are of the lots does not
appear.
The evidence fully sustains the contention of the claimants that they have been in possession of
all of those lots quietly, adversely and continuously under a claim of ownership for more than thirty
years prior to the hearing in the trial court. There is not a word of proof in the whole record to the
contrary. They set up no documentary title. They do claim the parts of the lands denied registration
are "mangles" with nipa and various other kinds of aquatic bushes or trees growing on them, and
that in 1890 on lot 1158 they constructed a fishpond (vivero de peces) which was later abandoned
as unprofitable, and that part of this lot is pasture land, part palay and part "mangles."
The attorney-General contends in his brief that the parts of the lands denied registration are public
forest and cannot be acquired by occupation, and that all "manglares are public forests."
In the Act of Congress of July 1st, 1902, there is a classification of all public lands of the Philippine
Islands, and in mentioning forestry land the Act of Congress used the words "timber land." These
words are always translated in the Spanish translation of that Act as "terrenos forestales." We
think there is an error in this translation and that a better translation would be "terrenos
madereros." Timber land in English means land with trees growing on it. The manglar plant would
never be called a tree in English but a bush, and land which has only bushes, shrubs or aquatic
plants growing on it can not be called "timber land."
The photographs filed by the Government as exhibits in this case show that at two places there
were trees growing on this land, but the forester who testified for the Government always calls
these lots "mangles," and he says the trees which are growing on the lands are of no value except
for firewood. The fact that there are a few trees growing in a manglar or nipa swamp does not
change the general character of the land from manglar to timber land.
That manglares are not forestry lands within the meaning of the words "Timber lands" in the Act of
Congress has been definitely decided by this Court in the case of Montano vs. Insular Government
(12 Phil. Rep., 572). In that case the court said:
Although argued at different times, five of these cases have been presented substantially together,
all being covered by one brief of the late Attorney-General in behalf of the Government in which,
with many interesting historical and graphic citations he described that part of the marginal
seashore of the Philippine Islands known as manglares, with their characteristic vegetation. In

brief, it may be said that they are mud flats, alternately washed and exposed by the tide, in which
grow various kindered plants which will not live except when watered by the sea, extending their
roots deep into the mud and casting their seeds, which also germinate there. These constitute the
mangrove flats of the tropics, which exists naturally, but which are also, to some extent, cultivated
by man for the sake of the combustible wood of the mangrove, like trees, as well as for the useful
nipa palm propagated thereon. Although these flats are literally tidal lands, yet we are of the
opinion that they can not be so regarded in the sense in which the term is used in the cases cited
or in general American jurisprudence. The waters flowing over them are not available for purpose
of navigation, and they "may be disposed of without impairment of the public interest in what
remains."

While we hold that manglares as well as nipa lands are subject to private acquisition and
ownership when it is fully proved that the possession has been actual, complete and adverse, we
deem it proper to declare that each case must stand on its own merits.
One cannot acquire ownership of a mangrove swamp by merely cutting a few loads of firewood
from the lands occasionally. The possession must be more complete than would be required for
other agricultural lands.

The court on page 573 further said:

The appellants were in actual possession of the lots in question from 18821, and their ancestors
before that date, and they should have been declared the owners and title should have been
issued to them.

It is a kindred case to Cirilo Mapa vs. The Insular Government . . . (10 Phil. Rep., 175).

There is no need to consider the other points raised on appeal.

As some discussion has arisen as to the scope of that decision, it appears opportune to reaffirm
the principle there laid down. The issue was, whether lands used as a fishery, for the growth of
nipa, and as salt deposits, inland some desistance from the sea, and asserted, thought not clearly
proved, to be overflowed at high tide, could be registered as private property on the strength of ten
years' occupation, under paragraph 6 of section 54 of Act No. 926 of the Philippine Commission.
The point decided was that such land within the meaning of the Act of Congress of July 1, 1902,
was agricultural, the reasoning leading up to that conclusion being that Congress having divided
all the public lands of the Islands into three classes it must be included in tone of the three, and
being clearly neither forest nor mineral, it must of necessity fall into the division of agricultural land.

The judgment of the lower court is reversed and the case is returned to the lower court, with
instruction to enter a decree in conformity with this decision. So ordered.

In the case of Mapa vs. Insular Government (10 Phil. Rep., 175), this court said that the phrase
"agricultural lands" as used in Act No. 926 means those public lands acquired from Spain which
are not timber or mineral lands.
Whatever may have been the meaning of the term "forestry" under the Spanish law, the Act of
Congress of July 1st, 1902, classified the public lands in the Philippine Islands as timber, mineral
or agricultural lands, and all public lands that are not timber or mineral lands are necessarily
agricultural public lands, whether they are used as nipa swamps, manglares, fisheries or ordinary
farm lands.
The definition of forestry as including manglares found in the Administrative Code of 1917 cannot
affect rights which vested prior to its enactment.
These lands being neither timber nor mineral lands the trial court should have considered them
agricultural lands. If they are agricultural lands then the rights of appellants are fully established by
Act No. 926.
Paragraph 6 of section 54 of that Act provides as follows:
All persons who by themselves or their predecessors in interest have been in the open,
continuous, exclusive, and notorious possession and occupation of agricultural public lands, as
defined by said Act of Congress of July first, nineteen hundred and two, under a bona fide claim of
ownership except as against the Government, for a period of ten years next preceding the taking
effect of this Act, except when prevented by war of force majuere, shall be conclusively presumed
to have performed all the conditions essential to a government grant and to have received the
same, and shall be entitled to a certificate of title to such land under the provisions of this chapter.
xxx

xxx

xxx

This Act went into effect July 26th, 1904. Therefore, all persons who were in possession of
agricultural public lands under the conditions mentioned in the above section of Act No. 926 on the
26th of July, 1894, are conclusively presumed to have a grant to such lands and are entitled to
have a certificate of title issued to them. (Pamintuan vs. Insular Government, 8 Phil., Rep., 485.)

Arellano, C.J., Torres, Johnson, Street, Araullo and Avancea, JJ., concur.

G.R. No. L-630

November 15, 1947

ALEXANDER A. KRIVENKO, petitioner-appellant,

vs.
THE REGISTER OF DEEDS, CITY OF MANILA, respondent and appellee.
Gibbs, Gibbs, Chuidian and Quasha of petitioner-appellant.
First Assistant Solicitor General Reyes and Solicitor Carreon for respondent-appellee.
Marcelino Lontok appeared as amicus curies.

circumstance that perhaps the constitutional question may never come up again before this court,
because both vendors and 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 thse circumstances were thoroughly considered and weighted 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, the constitutional question
becomes unavoidable. We shall then proceed to decide that question.
Article XIII, section 1, of the Constitutional is as follows:

MORAN, C.J.:

Article XIII. Conservation and utilization of natural resources.

Alenxander A. Kriventor 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.

SECTION 1.
All agricultural, timber, and mineral lands of the public domain, water, 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, 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 inaguration of the Government established uunder this
Constitution. Natural resources, with the exception of public agricultural land, shall not be
alienated, and no licence, 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.

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 appeal 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 confusion 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 prensented, 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 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 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
patromony. For it is but natural that the new circular be taken full advantage of by many, with the

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 for timber lands." This definition has
been followed in long line of decisions of this Court. (See Montano vs. Insular Government, 12
Phil., 593; Ibaez 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 Ibaez 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 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
classification, 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 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, p. 683.) 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., 1918 E, 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 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 so 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 the same "public agriculture lands" under the Constitution, are classified into
agricultural, residential, commercial, industrial and for other puposes. 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
stricly agricultural or actually devoted to cultivation for agricultural puposes; 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
puposes, 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.
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 crystalclear 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, 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 case. . . .
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
and 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 Secratary 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, Framing of the Philippine Constitution, p. 598.) And the
opinion of the Quezon administration was reiterated by the Secretary of Justice under the Osmea
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 aliented," 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.

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.

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 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 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.

One of the fundamental principles underlying the provision of Article XIII of the Constitution and
which was embodied in the report of the Committee on 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." (Emphasis 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 antionalize 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?" (Emphasis ours.) Professor Aruego says 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 pieace of land.

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 superflous 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.
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

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 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 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
pemanent 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 pharase "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 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
persons, corporations, associations, or partnerships who may acquire lands of the public domain
under this Act or to corporations organized in the Philippines authorized thereof 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 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 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.

whatever its origin might have been.

And, finally, on 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 residental 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 Philippines 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.
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.
Separate Opinion
PERFECTO, J., concurring:

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.

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 of 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 prefered heroic defeat to inglorious desertion. Rather than abandon the
sacred 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 glorious success, saving our
people from a looming catastrophe.

It is said that the lot 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, diciding the instant case under the
provisions of the Public Land Act, which have to refer to land that had been formerly of the public
domain, otherwise their constitutionality may be doubtful. 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 alien of any private agricultural land including residential land

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 declaring 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 for the appellee, but also in the
briefs of the several amici curiae 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 War broke out in
December, 1941. After the Supreme Court was recognized 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 for all, to dispel definitely
the uncertainty gnawing the conscience of the people. It has been out lot to be alone in expressing
in unmistakable terms our opinion and decision on the main legal question raised by the 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 curiae.
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 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 overwhelming. There
were eight of us, more than two-thirds 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 Paras, Mr. Justice Hontiveros, Mr.
Justice Padilla and 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 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. 138.)
"(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 socalled 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 such are deemed to
have the same rights as citizens of the Philippines and corporations or associations owned or
controlled by citizens of the 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 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 of 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 the
Commonwealth Act No. 615.
The polemic 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 Paras, 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 Paras 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.
Mr. Justice Paras 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 this
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 far 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.
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 for him any 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
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 forbidded 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 for itself with the same zealousness with
which the ancient families of the Eumolpides and Keryces were keeping the Eleusinian mysteries.
The oracle of Delphus 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 forefathers 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
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 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 favor of religious orders and priests, many under the guise of chaplaincies or other
apparently religious purposes, leaving in destitute their decendants 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 the 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 radar, 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. 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:

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 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 functions, are in charge of enforcing the prohibition
as laid down and interpreted 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 that 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.

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 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.

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 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 duty of
each to defend and uphold its own peculiar powers and authority. Public respect for 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.

But could they not get a decision from the Supreme Court? Robert Fletcher of Anhirst, New

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 transcedence, 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 from public respect and confidence towards the highest Court
of land. Of course, none of us the other governmental departments included would desire
such a situation to ensue.
I have distinctively 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
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 e puede aadir ni quitar nada, tal es su
acabada y compacta elaboracion. 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, despues de laboriosas
deliberaciones este asunto se puso finalmente a votacion el 24 de Febrero de este ao,
confirmandose la sentencia apelada por una buena mayoria. En algunos comentarios adelantados
por cierta parte de la prensa impaciencia que solo puede hallar explicacion en un nervioso y
excesivo celo en la vigilancia de los intereses publicos, maxime tratandose, como se trata, de la
conservacion del patrimonio nacional se ha hecho la pregunta de por que se ha demorado la
promulgacion de la sentencia, habiendose votado el asunto todavia desde case comienzos del
ao.
A simple vista, la pregunta tiene justificacion; pero bien considerados los hechos se vera que no
ha habido demora en el presente caso, mucho menos una demora desusada, alarmante, que
autorice y justifique una critica contra los metodos de trabajo de esta corte. El curso seguido por
el asunto ha sido normal, bajo las circunstancias. En realidad, no yan en esta Corte ahora, sino
aun en el pasado, antes de la guerra, hubo mas lentitud en casos no tan dificiles ni tan
complicados como el que nos ocupa, en que las cuestiones planteadas y discutidas no tenian la
densidad constitucional y juridica de las que se discuten en el presente caso. Hay que tener en
cuenta que desde el 24 de Febrero en que se voto finalmente el asunto hasta el 1.0 de Abril en
que comenzaron las vacaciones judiciales, no habian transcurrido mas que 34 dias; y cuando se
reanudaron formalmente las sesiones de esta Corte en Julio se suscito un incidente de lo mas
extraordinario incidente que practicamente vino a impedir, a paralizar la pronta promulgacion
de la sentencia. Me refiero a la mocion que el 10 de Julio persentaron los abogados del apelante
pidiendo permiso para retirar su apelacion. Lo sorpredente de esta mocion es que viene
redactada escuetamente, sin explicar el por que de la retirada, ni expresar ningun fundamento.
Pero lo mas sorpredente todavia es la conformidad dada por el Procurador General, tambien
escueta e inceremoniosamente.
Digo que es sorprendente la retirada de la apelacion porque pocos casos he visto que hayan sido
arguidos con tanta energiaa, tanto interes y tanto celo por la parte apelante como este que nos
ocupa. Los abogados del apelante no solo presentaron un alegato concienzudo de 34 paginas,
sino que cuando se llamo 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 paginas, en que se discuten acabadamente, hasta el punto
maximo de saturacion y agotamiento, todos los angulos de la formidable cuestion constitutional
objeto de este asunto. Tambien informo el Procurador General verbalmente ante esta Corte,
entablando fuerte lid con los abogados del apelante.
Con la mocion de retirada de la apelacion se hubo de retardar necesariamente la promulgacion de
la sentencia, pues trabajosas deliberaciones fueron necesarias para resolver la cuestion,
dividiendose casi por igual los miembros de la Corte sobre si debia o no permitirse la retirada.
Habia unanimidad en que bajo la regla 52, seccion 4, del Reglamento de los Tribunales teniamos
absoluta discrecion para conceder o denegar la mocion, toda vez que los alegatos estaban
sometidos desde hacia tiempo, el asunto estaba votado y no faltaba mas que la firma y
promulgacion de la decision juntamente con las disidencias. Sin embargo, algunos Magistrados
opinaban que la discrecion debia ejercitarse en favor de la retirada en virtud de la practica de
evitar la aplicacion de la Constitucion a la solucion de un litigio siempre que se puede sentenciarlo
de otra manera. (Entre los Magistrados que pensaban de esta manera se incluian algunos que en
el fundo del asunto estaban a favor de la confirmacion de la sentencia apelada, es decir, creian
que la Constitucion prohibe a los extranjeros la adquisicion a titulo dominical de todo genero 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
interes publico y de la sana discrecion requerian imperiosamente que la cuestion se atacase y
decidiese frontalmente; que si una mayoria de esta Corte estaba convencida, como al parecer lo
estaba, de que existia esa interdiccion constitucional contra la facultad adquisitiva de los
extranjeros, nuestro claro deber era apresurarnos a dar pleno y positivo cumplimiento a la
Constitucion al presentarse la primera oportunidad; que el meollo del asunto, la lis mota era eso
la interdiccion constitucional ; por tanto, no habia otra manera de decidirlo mas que
aplicando la Constitucion; obrar de otra manera seria desercion, abandono de un deber jurado.
Asi estaban las deliberaciones cuando ocurre otro incidente mucho mas extraordinario y
sorprendente todavia que la retirada no explicada de la apelacion con la insolita conformidad del
Procurador General; algo asi como si de un cielo sereno, sin nubes, cayera de pronto un bolido en
medio de nosotros, en medio de la Corte: me refiero a la circular num. 128 del Secretario de
Justicia expedida el 12 de Agosto proximo pasado, esto es, 32 dias despues de presentada la
mocion de retirada de la apelacion. Esa circular se cita comprensivamente en la ponencia y su
texto se copia integramente en la concurrencia del Magistrado Sr. Perfecto; asi que me creo
excusado de transcibirla in toto. En breves terminos, la circular reforma el parrafo 5 de la circular
num. 14 del mismo Departamento de Justicia de fecha 25 de Agosto, 1945, y levanta la
prohibicion o interdiccion sobre el registro e inscripcion en el registro de la propiedad de las
"escrituras o documentos en virtud de los cuales terrenos privados residencias, comerciales,
industriales u otras clases de terrenos urbanos, o cualquier derecho, titulo o interes 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 prohibicion contenida en
lacircular num. 14 del mismo Departamento la prohibicion que precisamente ataca el apelante
Krivenko en el asunto que tenemos ante Nos y authorizaba y ordenaba a todoslos
Registradores de Titulos 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
publicos o de "terrenos privados agricolas," es decir, siempre que los terrenos objeto de la
escritura fuesen "residenciales, comerciales e industriales."
La comparacion de esa circular con un bolido caido subitamenteen medio de la Corte no es un
simple tropo, no esuna mera imagen retorica; refleja una verdadera realidad.Esa circular, al
derogar la prohibicion decretada en elparrafo 5 de la circular num. 14 prohibicion que,
comoqueda dicho, es precisamente el objeto del presente asunto venia practicamente a
escamotear la cuestion discutida, lacuestion sub judice sustrayendola de la jurisdiccion de
lostribunales. Dicho crudamente, el Departamento de Justiciavenia a arrebatar el asunto de
nuestras manos, delas manos de esta Corte, anticipandose a resolverlo por simismo y dando
efectividad y vigor inmediatos a su resolucionmediante la correspondiente autorizacion a los
Registradoresde Titulos.

A la luz de esa circular queda perfectamente explicadala mocion de retirada de la apelacion

consentida insolitamentepor el Procurador General. Para que esperar ladecision de la Corte
Suprema que acaso podria ser adversa? No estaba ya esa circular bajo la cual podian
registrarseahora la ventas de terrenos residenciales, comerciales oindustriales a extranjeros? Por
eso no es extrao quelos abogados del apelante Krivenko, en su mocion de 1.0 de Septiembre,
1947, pidiendo la reconsideracion de nuestroauto denegando la retirada de la apelacion, dijeran
porprimera vez como fundamento que la cuestion ya era simplemente academica ("question is
now moot") en vista deesa circular y de la conformidad del Procurador Generalcon la retirada de
la apelacion. He aqui las propias palabras de la mocion del apelante Krivenko:
In 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 accion del Departamentode Justicia atravesandose en el
camino de los tribunalesmientras un asunto esta sub judice, es que ello no tieneprecedentes, que
yo sepa, en los anales de la administracionde justicia en Filipinas en cerca de medio siglo que
llevamosde existencia bajo un gobierno constitucional y sustancialmente republicano. Ni aun en
los llamados dias del Imperio, cuando la soberania americana era mas propensa a manejar el
baston grueso y afirmar vigorosamente losfueros de su poder y autoridad, se vio jamas a un
departamento de Justicia o a alguna de sus dependencias entrometerseen el ejercicio ordenado
por los tribunales de sujurisdiccion y competencia. Era una tradicion firmamenteestablecida en las
esfersas del Poder Ejecutivo tradicioninviolada e inviolable maxime en el Departamento de
Justicia y en la Fiscalia General, el inhibirse de expresar algunaopinion sobre un asunto ya
sometido a los tribunales, excepto cuando venian llamados a hacerlo, en representaciondel
gobierno, en los tramites de un litigio, civil o criminal,propiamente planteado ante dichos
tribunales. Fuera deestos casos, la inhibicion era tradicionalmente absoluta,observada con la
devocion y la escrupulosidad de un rito.Y la razon era muy sencilla: hamas se queria estorbar
nientorpecer la funcion de los tribunales de justicia, loscuales, bajo la carta organica y las leyes,
tenian absolutoderecho a actuar con maximo desembarazo, libres de todaingerencia extraa.
Esto se hizo bajo la Ley Cooper; estose hizo bajo la Ley Jones; y esto se hizo bajo la Ley
Tydings-McDuffie, la ley organica del Commonwealth. Creo que el pueblo filipino tiene derecho a
que eso mismo se haga bajo el gobierno de la Republica, que es suyo, que es de su propia
hechura. No faltaba mas que los hombres de su propia raza le nieguen lo que no le negaron
gobernantesde otra raza!
No se niega la facultad de supervision que tiene el Departamento de Justicia sobre las oficinas y
dependenciasque caen bajo su jurisdiccion, entre ellas las varias oficinasde registro de la
propiedad en Manila y en las provincias.Tampoco se niega la facultad que tiene dicho
Departamentopara expedir circulares, ya de caracter puramente administrativo,ya de caracter
semijudicial, dando instrucciones,vgr., a los registradores acerca de como deben desempenarsus
funciones. De hecho la circular num. 14 de 25 deAgosto, 1945, es de esta ultima naturaleza: en
ella seinstruye y ordena a los registradores de titulos que noregistren ni inscriban ventas de
propiedad inmueble aextranjeros, asi sean terrenos residenciales, comerciales oindustriales. Pero
la facultad llega solo hasta alli; fuerade esas fronteras el campo ya es pura y
exclusivamentejudicial. Cuando una determinada circular del Departamentoa los registradores es
combatida o puesta en telade juicio ante los tribunales, ora por fundamentosconstitucionales, ora
por razones meramente legales, ya no esel Departamento el que tiene que determinar o
resolverla disputa, sino que eso compete en absoluto a los tribunalesde justicia. Asi lo dispone
terminantemente el articulo200 del Codigo Administrativo. Segun este articulo, elasunto 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 deJusticia para enjuiciar y decidir el
caso. Y cuando unaparte no estuviere conforme con la decision de la SalaCuarta, ella puede
alzarse de la sentencia para ante laCorte Suprema. He aqui el texto integro del articulo 200 del
Codigo 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. Krivenkopresento su escritura de compraventa al
Registrador de laPropiedad de Manila. Este denego la inscripcion solicitadaen virtud de la
prohibicion contenida en la circular num.14. Que hizo Krivenko entonces? Elevo acaso el
asuntoal Departamento de Justicia? No. Lo que hicieron susabogados entonces fue presentar una
demanda el 23 de Noviembre, 1945, contra el Registrador de Titulos ante laSala Cuarta del
Juzgado de Primera Instancia de Manila,numerandose dicha demanda como consulta num. 1289;
ycuando esta Sala decidio el asunto confirmando la acciondel Registrador, Krivenko trajo a esta
Corte la apelacionque estamos considerando. Tan elemental es esto que enla misma circular
num. 14 se dice que la prohibicion quedadecretada hasta que los tribunales resuelvan lo
contrario. He aqui la fraseologia pertinente de dicha circularnum. 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 posicion de la Corte Suprema ante este caso claro ypositivo de intromision (interference) en
sus funciones esde lo mas peculiar. Tenemos en el Reglamento de losTribunales algunas
disposiciones que proveen sancion pordesacato para ciertos actos de intromision en el ejercicio
de lasfunciones judiciales.2 Pero se preguntara naturalmente;son aplicables estas disposiciones
cuando la intromisionprocede de un ramo del poder ejecutivo, el cual, como sesabe, en la
mecanica de los poderes del Estado, es usandoun anglicismo-coigual y coordinado con el
poder judicial,maxime si esa intromision se ha realizado so capa de unacto oficial? Cualquiera,
pues, puede imaginarse la situaciontremendamente embarazosa, inclusive angustiosa enque esta
Corte ha quedado colocada con motivo de esa intromision departamental, exponiendose a chocar
con otropoder del Estado. En casos recientes en que estaban envueltos otros poderes, esta
Corte, estimando dudosa suposicion constitucional, prefirio adoptar una actitud deelegante
inhibicion, de "manos fuera" (hands-off), si bienhay que hacer constar que con la fuerte disidencia
dealgunos Magistrados, entre ellos el opinante.3 Tenemos, portanto, un caso de verdadera
intromision en que siendo, porlo menos, dudosa la facultad de esta Corte para imponeruna
sancion por desacato de acuerdo con el Reglamento delos Tribunales, le queda el unico recurso
decente, ordenado:registrar su excepcion sin ambages ni eufemismos contrala intromision, y
reafirmar con todo vigor, con toda firmezasu independencia.
Se arguye con tenaz persitencia que debiamos de haberconcedido la mocion de retirada de la
apelacion, por dosrazones: (a) porque el Procurador General estaba conformecon dicha retirada;
(b) para evitar la resolucion delpunto constitucional envuelto, en virtud de la practica,segun se
dice, de soslayar toda cuestion constitucionalsiempre que se pueda. Respecto de la primera
razon serasuficiente decir que el Procurador General es libre de entraren cualquiera transaccion
sobre un asunto en que interviene,pero es evidente que su accion no ata no obliga aesta Corte en
el ejercicio de la discrecion que le confierela regla, 52, seccion 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
appelle'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 discrecion es absoluta:no estacondicionada por la conformidad o

disconformidad de una delas partes. Y la incondicionalidad de esa discrecion es masabsoluta e
imperativa alli donde el litigio versa sobre unamateria queno afecta solo a un interes privado, sino
quees de interes publico, como el caso presente en que el Procurador General ha transigido no
sobre un asunto suyopersonal o de un cliente particular, sino de un cliente demucha mayor monta
y significacion el pueblo filipino ysiendo materia del litigio la propiedad del suelo, parte,
vitalisima del patrimonio nacional que nuestro pueblo hacolocado bajo la salvaguardia de la
Constitucion.
Respecto del segundo fundamento, o se que debiamospermitir la retirada dela apelacion para no
tener queresolver la cuestion constitucional disputada, bastara decirque la practica, prinsipio o
doctrina que se invoca, llevaconsigo una salvedad o cualificacion y es que el litigio se pueda
resolver de otra maera. Podemos soslayar elpunto constitucional discutido en el pleito que nos
ocupa? Podemos decidirlo bajo otra ratio decidendi, esto es, queno sea la constitucionalidad o
inconstitucionalidad de laventa del inmueble al apelante Krivenko, en virtud desucondicion de
extranjero? Indudablemente que no: la lis mota, la unica, es la misma constitucionalidad de la
compraventa de que se trata. Para decidir si al recurrido apelado, Registrador de Titulos de la
Ciudad de Manila,le asiste o no razon para denegar la inscripcion solicitada por el recurrente y
apelante, Krivenko, la unica disposicionlegal que se puede aplicar es el articulo XIII, seccion 5,
dela Constitucion de Filipinas, invocado por el Registrador como defensa e inserto en el parrafo 5
de la circular num.14 como fundamento de la prohibicion o interdiccion contrael registro de las
ventas de terreno a extranjeros. Nohay otra ley para el caso.
El caso de Oh Cho contra el Director de Terrenos43 Gac. Of., No. 3 pag. 866), que se cita en
unade las disidencias, es completamente diferente. Es verdadque alli se planteo tambien la
cuestion constitucional de quese trata, por cierto que el que lo planteaba en nombre delGobierno
era el actual Secretario de Justicia que entoncesera Procurador General, y lo pleantaba en un
sentido absolumente concorde con la circular num. 14. Pero esta Corte, con la disidencia de
algunos Magistrados, opto porsoslayar el punot constitucional denegando el registro solicitadopor
Oh Cho, por fundamento de que bajo la LeyNo. 2874 sobre terrenos de dominio publico los
extranjerosestan excluidos de dichos terrenos; es decir, que el terrenosolicitado se considero
como terreno publico. Podemos hacer la misma evasion en el presente caso, acogiendonosa la
ley No. 2874 o a cualquier otra ley? Indudablemente que no porque ningun Magistrado de esta
Corte, muchomenos los disidentes, consideran el terreno reclamado por Krivenko como terreno
publico. Luego todos los caminosestan bloqueados para nosotros, menos el camino
constitucional.Luego el segundo fundamento alegado paracubrir la evasiva tambien debe
descartarse totalmente.
Se insinua que no debiamos darnos prisa en resolver constitucionalmente el presente asunto,
puesto que puedenpresentarse 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
partesya estan sometidos y se halla ahora pendiente de decision.Es evidente que esto tampoco
arguye en favor de la evasiva,en primer lugar, porque cuando se le somete el deber de
iraveriguando en su Escribania si hay casos de igual naturaleza, sino que los casos se someten
por orden de prelaciony prioridad de tiempo a medida que esten preparados paracaso debe
decidirse por sus propios meritos y conforme ala ley pertinente. La salvedad o cualificacion de la
doctrinao practica que se invoca no dice: "hay qoe soslayar la cuestionconstitucional siempre que
se pueda resolver de otra manera, reservando dicha cuestion constitucional para otro caso; la
salvedad es dentro del mismo caso. De otro modono seria un simple soslayo legal, sino que seria
unsub terfugio impropio, indebido, ilegal. En el presente caso no ha habido ninguna prisa,
excesivo celo, como se insinua;desde luego no mayor prisa que en otros asuntos. Elcurso, el
ritmo de los tramites ha sido normal; en realidad,si ha habido algo, ha sido un poco de
parsimonia, lentitud.
Habia justificacion para demorar el pronto, rapido pronunciamento de nuestro veredicto sobre la
formidablecuestion constitucional debatida, por lo menos, tan pronto como fuese posible? Habia
alguna razon de interespublico para justificar una evasiva? Absolutamenteninguna. Por el

contrario, nuestro deber ineludible, imperioso,era formular y promulgar inmediatamente ese

veredicto. Lo debiamos a nuestras conciencias; lo debiamos, sobretodo, al pais para la
tranquilidad y conveniencia de todos del pueblo filipino y de los extranjeros residentes o
quetuvieren voluntad de residir o negociar en estas Islas. Asicada cual podria hacer su
composicion de lugar, podriaorientarse sin zozobras ni miedo a la incertidumbre. Tantonacionales
como extranjeros sabrian donde invertir sudinero. Todo lo que necesitabamos era tener dentro de
esta Corte una provee la interdiccion de que se trata. Tuvimosesa mayoria cunado se voto por
primera vez este asuntoen Febrero de este ao (8 contra 3); la tuvimos cuandodespues de
laboriosas deliberaciones quedo denegada lamocion de retirada de la mayoria haya cambiado de
opinionsobre el fondo de la cuestion; la tenemos ahora naturalmente.Por tanto, nada hace falta ya
para que se de lasenal de "luz verde" a la promulgacion de la sentencia.Toda evasiva seira
neglignecia, desidia. Es mas: seriaabandono de un deber jurado, como digo en otra parte deesta
concurrencia; y la Corte Suprema naturalmente npha de permitir que se la pueda proferir el cargo
de queha abandonado su puesto privilegiado de vigia, de centinela avanzado de la Constitucion.
No es que la Corte Suprema, con esto, pretenda tener"un monopolio de la virtud de sostener y
poner en vigor,o de suplir una deficiencia en la Constitucion," o que segobierno, como se insinua
en una de las disidencias. Nohay tal cosa. El principio de la supremacia judicial no esuna
pretension ni mucho menos un ademan de inmodestiao arrogancia, sino que es una parte vital de
nuestrasinstutuciones, una condicion peculiarisima de nuestro sistema de gobierno en que la
judicatura, como uno de lostres poderes del Estado, corresponde la facultad exclusivade disponer
de los asuntos judiciales. Con respecto a losasuntos de registro particularmente esa facultad
exclusivano solo se infiere del principio de la supremacia judicial, sino que, como ya se ha dicho
en otra parte de esta concurrencia,se halla especificamente estutuida en el articulo 200del Codigo
Administrativo transcrito arriba. Este articuloconfiere jurisdiccion exclusiva a los tribunales de
justiciapara decidir las cuestiones sobre registro, y esto lo ha reconocido el mismo Departamento
de Justicia en su circularnum. 14 al referir tales cuestiones a la determinacion oarbitrio judicial en
casos de duda o litigio.
Es injustificada la insinuacion de que, al parecer, la mayoria denego la retirada de la apelacion no
tanto para resolver el asunto en su fondo o por sus meritos, como paraenrvar los efectos de la
circular num. !28 del Departamentode Justicia, pues Krivenko, el apelante, habriaganado
entonces su pleito no en virtud de una sentenciajudicial, sino pasando por la puerta trasera
abierta por esacircular. Tampoco hay tal cosa. Ya repetidas veces seha dicho que el presente
asunto se habia votado muchoantes de que se expidiese esa circular. Lo que mascorrectamente
podria decirse es que antes de la expedicion deesa desafortunada circular poderosas razones de
interespublico aconsejaban que se denegase la retirada de la apelacion y se diese fin al asunto
mediante una sentencia enel fondo, despues de la expidicion esas razones
quedaroncentuplicadas. La explicacion es sencilla: nuestra aquiescenciaa la reirada hubiera
podico interpretarse entoncescomo que nuestra jurisdiccion. Es mas: hubiera podidointerpretarse
como una abyecta rendicion en la pugna porsostener los fueros de cada ramo coigual y
coordinado del gobierno.
Es todavia mas injustificada la insinuacion de que ladenegacion de la retirada de la apelacion
equivale "a asumir queel solicitante-apelante y el Procurador General sehan confabulado con el
Departamento de Justicia no solopara ingerirse en las funciones de esta Corte, sino paraenajenar
el patrimonio nacional a los extranjeros." Estoes inconcebible. La corte presume que todos han
obradode buena fe, de acuerdo con los dictados de su conciencia.Se ha denegado la retirada de
la apelacion por razonespuramente juridicas y objectivas, sin consideracion a losmotivos de
nadie.
Por ultimo, estimo que debe rectificarse la asercion de queel Magistrado Hontiveros fue excluido
de la votacion queculmino en un emmpate y que determino el rechazamientode la retirada de la
apelacion, a tenor de la regla 56, seccion2, Reglamento de los Tribunales. El Magistrado
Hontiverosno estaba presente en la sesion por estar enfermo;pero estaban presentes 10
Magistrados, es decir, mas queel numero necesario para formar quorum y para despacharlos
asuntos. La rueda de la justicia en la Corte Supremajamas ha dejado de rodar por la ausencia de
uno o dosmiembros, siempre que hubiese quorum. A la votacionprecedieron muy laboriosas y

vivas deliberaciones. Ningun Magistrado Ilamo la atencion de la Corte hacia la ausencia del Sr.
Hontiveros. Ningun Magistrado pidio que se leesperase o llamase al Sr. Hontiveros. Todos se
conformaroncon que se efectuase la votacion, no obstante la ausencia del Sr. Hontiveros. En
efecto, se hace la votaciony resulta un empate, es decir, 5 contra 5. De acuerdo conla regla 56,
quedaba naturalmente denegrada la mocion deretirada. Donde esta, pues, la "ilegalidad", donde
la"arbitrariedad"?
Algunos dias despues se presento una mocion de reconsideracion,la misma en que ya se alegaba
como ndamentoel hecho de que la cuestion era simplemente academica (moot question) por la
conformidad del Procurador Generalcon la retirada y por la circular num. !28 del Departamento de
Justicia. Tampoco estaba presente el Sr. Hontiverosal someterse la mocion, la cual fue de nuevo
denegada.Pregunto otra vez: donde esta la "arbitrariedad"? Queculpa tenia la Corte de que el
Sr. Hontiveros no pudieraestar presente por estar enfermo? Iba a detenerse larueda de la
justicia por eso? Conviene, sin embargo, hacerconstar que sobre el fondo de la cuestion el Sr.
Hontiverosera uno de los 8 que habian votado en favor de la confirmacion de la sentencia
apelada, es decir, en favor delveredicto de que la Contitucion excluye a los extrajerosde la
propiedad de bienes raices en Filipinas.
II.
No queda casi nada decir sobre el fondo de lacuestion. Todos los angulos y fases de la
misma estanacabadamente tratados y discutidos en la ponencia. Melimitare, por tanto, a hacer
unas cuantas observaciones,unas sobre hermeneutica legal, y otra sobre historia
nacionalcontemporanea, aprovachando en este ultimo respectomis reminiscencias y mi
experiencia como humilde miembroque fui de la Asamblea Constituyente que redacto y arobola
Constitucion de Filipinas.
Toda la cuestion, a mi juicio, se reduce a determinar einterpretar la palabra "agricola" (agricultural)
usada enel articulo XIII, seccion 5, de la Constitucion. He aqui eltexto completo de la seccion:
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.
Incluye la palabra "agricultural" aqui empleada los terrenosresidenciales, comerciales e
industriales? Tal es lacuestion: la mayoria de esta Corte que si; los disidentesdicen que no.
Es indudable que por razones sanas de hermenuetica legalel articulo XIII de que se trata debe
interpretarse como untodo homogeneo, simetrico. En otras palabras, los cocablosalli empleados
deben interpretarse en el sentido de quetienen un mismo significado. Es absurdo pensar o
suponerque en el texto de una ley, sobre todo dentro del estrechomarco de un articulo, un vocablo
tenga dos o mas significadosdistintos, a menos que la misma ley asi to diga expresamente.
Lapresuncion es que el legislador sigue y seatiene a las reglas literarias elementales.
Ahora bien: el articulo XIII consta de dos partes laprimera, que trata de los terrenos agricolas
de dominiopublico, y la segunda, que se a los terrenos agricolaprivados o partuculares.
La primera parte se compone de las secciones 1 y 2que vinculanla propiedad de los terrenos
publicos enel Estado y disponen que solo se pueden enajenar a favorde ciudadanos filipinos, o de
corporaciones o asociacionesen que el 60 por ciento del cacital, por lo menos, pertenecea tales
ciudadanos. En secciones se emplea literalmentela frase "public agricultural land."
La segunda parte la componen las secciones 3 y 5: laseccion 3 perceptua que "the Congress may
determine bylaw the size of private agricultural land which individuals,coporations, or associations
may acquire and hold, subjectto rights existing prior to the enactment of such law"4 ;y la seccion 5
es la que queda transcrita mas arriba y esobjeto del presente litigio. En ambas secciones se
emplealiteralmente la frase "private agricultural land."
No hay ninguna cuestion de que la frase "public agriculturalland" empleada en la primera parte
comprende terrenosresidenciales, comerciales e industriales; lo admitenlos mismos abogados del

apelante y los Sres. Magistradosdisidentes. Y por que lo admiten? Sera porque en

laConstitucion se define la palabra "agricultural" aplicadaa terrenos publicos, en el sentido de
incluir solaresresidenciales, comerciales e industriales? Indudablementeque no, porque en
ninguna parte de la Constitucion se datal definicion. Lo admiten porque en esta
jurisdicciontenemos una serie consistente de sentencias de esta CorteSuprema en que es
jurisprudencia firmamente establecidala doctrina de que la palabra "agricultural" usada en laLey
del Congreso de los Estados Unidos de 1902 (LeyCooper) y en nuestras leyes de terrenos
publicos comprendey abarca solares residenciales, comerciales, industriales yqualquier otra clase
de terrenos, excepto forestales yminerales.5 Es decir, que se aplica a la actual Constitucion
deFilipinas una interpretacion clasica, tradicional, embebidaen nuestra jurisprudencia de cerca de
medio siglo.
Ahora bien, pregunto: si la palabra "agricultural" empleadaen la primera parte del articulo XIII tiene
talsignificado y lo tiene porque la Constitucion no da otrodiferente por que esa misma
palabra empleada en lasegunda parte, unas cuantas lineas mas adelante, no hade tener el mismo
significado? Da acaso la Constitucionuna definicion de la palabra "agricultural" cuandose refiere
a terreno privado? Donde esta esa definicion? O es que se pretende que la diferenciacion
opera no envirtud de la palabra "agricultural", sino en virtud delvocablo "public" o "private", segun
que se trate de terrenopublico o privado?
Si la intencion de la Asemblea Constituyente fuera eldar a la palabra "agricultural" aplicada a
terreno privadoun significado distinto de cuando se refiere a terreno publico, lo hubiese hecho
constar asi expresamente en elmismo texto de la Constitucion Si, como se admite, laAsemblea
opto por no definir la palabra "agricultural"aplicada a terreno poblico porque contaba para ello con
ladefinicion clasica establecida en la jurisprudencia, cuandola misma Asemblea tampoco definio la
palabra con relaciona terreno privado, es logico inferir que tuvo la mismaintencion, esto es, aplicar
la definicion de la jurisprudenciaa ambos tipos de terreno el publico y el privado. Pensarde otra
manera podria ser ofensivo, insultante; podriaequivaler a decir que aquella Asemblea estaba
compuestade miembros ignorantes, desconocederos de las reglas elementalesen la tecnica de
redaccion legislativa.
Tuve el honor de partenecer a aquella Asemblea comouno de los Delegados por Cebu. Tambien
me cupo elhonor de partenecer al llamado Comite de Siete elcomite encargado finalmente de
redactar la ponencia dela Constitucion. No digo que aquella Asemblea estabacompuesta de
sabios, pero indudablemente no era inferiora ninguna otra de su tipo en cualquiera otra partedel
mundo. Alli habia un plantel de buenos abogados,algunos versados y especialistas en derecho
constitucional.Alli estaba el Presidente de la Universidad de FilipinasDr. Rafael Palma; alli estaba
el propio Presidentede la Asemblea Constituyente Hon. Claro M. Recto, conlos prestigios de su
reconocida cultura juridica y humanista; alli estaba tambien el Dr. Jose P. Laurel, considerado
comouna de las primeras autoridades en derecho constitucionaly politico en nuestro pais. En el
Comite de Siete o dePonencia figuraban el actual Presidente de Filipinas Hon.Manuel Roxas; el
ex-Senador de Cebu Hon. Filemon Sotto;el Hon. Vicente Singson Encarnacion, lider de la minoria
en la primera Asemblea Filipina, ex-miembro de la Comisionde FIlipinas, ex-Senador y exSecretario de Gabinete;el ex-Magistrado de la Corte Suprema Hon. NorbertoRomualdez; el actual
Secretario de Hacienda Hon. MiguelCuaderno; y el ex-Decano del Colegio de Artes Liberalesde la
Universidad de Filipinas, Hon. Conrado Benitez.
No se puede concebir como bajo la inspiracion y guiade estas personas pudiera redactarse el
texto de un articuloenque un vocablo el vocablo "agricultural" tuviera dosacepciones
diferentes: una, aplicada a terrenos publicos;y otra, aplicada a terrenos privados. Menos se
concibeque, si fuese esta la intencion, se incurriese en una comisionimperdonable: la omision de
una definicion especifica, diferenciadora, que evitase caos y confusion en la mente delos
abogados y del publico. Teniendo en cuenta la innegablecompetencia de los Delegados a la
Asemblea Constituyentey de sus liders, lo mas logico pensar es que alno definir la palabra
"agricultural" y al no diferenciarsu aplicacion entre terrenos publicos y privados, lo
hicierondeliberamente, esto es, conla manifiesta intencion dedejar enteramente la interpretacion
de la palabra a la luzde una sola comun definicin la establecida en la jurisprudenciadel asunto
tipico de Mapa contra Gobierno Insular y otrossimilares (supra); es decir, que la palabra

"agricultural",aplicada a terrenos privados, incluye tambien solaresresidenciales, 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 Asemblea Constituyente hadejado sin definir la palabra "agricultural"
referente aterreno particular, dando a entendar con su silencio queendosaba la definicion al
diccionario o a la usanza popular.La suposicion es igualmente insostenible. ?Por queen un caso
se entrega la definicion a la jurisprudencia,y por que en otro al diccionario, o al habla popular?
Aparte de que los miembros y dirigentes de la AsembleaConstituyente sabian muy bien que esto
causaria unatremenda confusion. Ni los diccionarios, ni mucho menosel lenguaje popular, ofrecen
apoyo seguro para una fiely autorizada interpretacion. Si el texto mismo de la ley,con definiciones
especificas y casuisticas, todavia ofrecedudas a veces como no el lexico vulgar, con su
infinitavariedad de matices e idiotismos?
Ahora mismo no estamos presenciando una confusionn,una perplejidad? Hay acaso
uniformidad en la definicionde lo que es un terreno privado agricola? No; cadacual lo define a su
manera. Uno de los disidentesel Magistrado Sr. Tuason toma su definicion de la palabra
"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." Tambien hacereferncia el mismo Magistrado al concepto popular. Otrodisidente el Magistrado
Sr. Padilla dice que "the termprivate agricultural land means lands privately owneddevoted to
cultivation, to the raising of agriculturalproducts." El Magistrado Sr Paras no da ninguna
definicion;da por definida la palabra "agricultural", al parecer, segunel concepto popular.
Pero, sobre todo, los abogados del apelante definen elvocablo de una manera distinta. Segun
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 notmere susceptibility of conversion into a farm but its greater
value when devoted to one or the other purpose." Demode que, segun esta definicion, lo que
determina la calidaddel terreno es su valor relativo, segun que se dedique alcultivo, o a
residencia, o al comercio, o a la industria.Los autores de esta definicion indudablemente tienen
encuenta el hecho de que en las afueras de las ciudades existenterrenos immensos que desde
tiempo inmemorial se handedicado a la agricultura, pero que se han convertido ensubdivisiones
multiplicandose su valor en mil por cientosi no mas. De hecho esos terrenos son agricolas;
comoque todavia se ven alli los pilapiles y ciertas partes estancultivadas; pero en virtud de su
mayor valor para residencia,comercio e industria se les aquiere colocar fuera dela prohibicion
constitucional. En verdad, el criterio nopuede ser mas elastico y convencional, y denota
cuanincierta y cuan confusa es la situacion a que da lugar latesis del apelante y de los que le
sostienen.
Si hubieramos de hacer depender la definicion de loque es un terreno agricola del concepto
popular y de losdiccionarios, asi sean los mejores y mas cientificamente elaborados que normas
claras, concretas y definitivasde diferenciacion podrian establecerse? Podrian trazarsefronteras
inconfundibles entre lo que es agricola y lo quees residencial, comercial e industrial? Podria
hacerseuna clasificacion que no fuese arbitraria? Indudablementeque no. El patron mas usual de
diferenciacion es lanaturaleza urbana o rural del terreno; se considera comoresidencial, comercial
e industrial todo lo que esta dentrode una urbe, ciudad o poblacion. Pero resolveria esto la
dificultad? Proporcionaria un patron exacto, cientifico,no arbitrario? Tampoco. Por que dentro de
una ciudado poblacio puede haber y hay terrenos agricolas. Comodijo muy bien el Magistrado Sr.
Willard en el asunto clasico de Mapa contra Gobierno Insular, "uno de los inconvenientes de la
adopcion de este criterio es que es tanvago e indeterminado, que seria muy dificil aplicarlo enla

practica. Que terrenos son agricolas por naturaleza? l mismo Fiscal General, en su alegato
presentado en este asunto, dice: 'La montaa mas pedregosa y el suelo mas pobre son
susceptible de cultivo mediante la mano del hombre'" (Mapa contra Insular, 10 Jur. Fil.,183). Y
Luego el Sr. Willard aade las siguietes observacionessumamente petinentes e ilustratives para
una correctare solucion del asunto que nos ocupa, a saber:
. . . Tales terrenos (agricolas, quiere decir) se pueden encontrar dentro de los limites de cualquier
ciudad. Hay dentrode la ciudad de Manila, y en la parte densamente poblada de lamisma, una
granja experimental. Esta es por su naturaleza agricola. Contigua a la Luneta, en la misma
ciudad, hay una gran extension de terreno denominado Camp Wallace, destinada a sports. El
terreno que circuda los muros de la ciudad de Manila, situado entre estos y el paseo del Malecon
por el Sur y Este contiene muchas hectareas de extension y es de naturaleza agricola. La Luneta
misma podria en cualquier tiempo destinarse al cultivo.
La dificultad es mayor tratanndose de diferenciar unterreno agricola de un terreno industrial. En
este respectoes preciso tener en cuenta que un terreno industiralno tienee que ser
necesariamente urbano; en realidad,la tendencia moderna es a situar las industrias fuera deas
ciudades en vastas zonas rurales. Verbigracia; anpredor de la famosa cascada de Maria Cristina
en Lanao existen grandes extensiones de terreno agricola, algunasde propiedad particular.
Cuando, se industrialice aquellaformidable fuerza hidraulica bajo el llamado Plan Beyster que
normas segfuras se podrian establecer para poner envigor la prohibicion constitucional fuese
burlada enajenandosetierras agricolas de propiedad privada a favorde extranjeros, ya sean
individuos, ya sean corporacioneso asociaciones, so pretexto de ser industriales?
Resulta evidence de lo expueto que los redactores denuetra Constitucion no pudienron haber
tenido la idea deque el articulo XIII fuera interpretado a la luz de ese criterio vago e indeterminado
que llama el Sr. Willard. Es mas logico pensar que el criterio que ellos tenian enla mente era el
criterio establicido en la jurisprudencia sentada en el asunto clasico de Mapa contra Gobierno y
otros asuntos concomitantes citados criterio mas frime, mas 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 seccion 3, articulo XIIIde;la Constitucion, dispone que "el Congreso
puedo determinarpor ley l;a eextension superficial del terrenoprivado agricola que los individous,
corporaciones o asociaciones pueden adquirir y poseer, sujeto a los derechos existentes antes de
la aprobacion de dicha ley." Si seinterpretase que la frase "private agricultural land" noincluye
terrenos residenciales, comerciales e industriales,entonces estas ultimas clases de yterreno
quedarian excluidas de la facultad reguladora concedida por la Constitucion al Congreso
mediante dicha seccion 3. Entoncesun individuo o una corporacion podrian ser dueos de
todoslos terrenos de una ciudad; no habria limite a las adquisicionesy posesiones en lo tocante a
terrenos residenciales,comerciales e industriles. Esto parece absurdo, peroseria obligada
consecuencia de la tesis sustentada por elapelante.
Se hace hincapie en el argumento de que el el procesode tamizacion del articulo XIII durante las
deliberacionesde la Asamblea Constituyente y de los Comites de Ponnnnenciay de estilo al
principio no figuraba el adjetivo "agricola"en la seccion 5, diciendose solo "terreno privado" y
quesolo mas trade se aadio la palabra calificativa agricola"private agricultural land" De este se
quiere inferir quela adicion de la palabra "agricultural" debio de ser poralgun motivo y este no
podia ser mas que el de que sequiso excluir los terrenos residenciales comerciales e industriales,
limitandose el precepto a los propia o estrictamenteagricolas.
La deduccion es incorrecta y sin fundamento. No cabedecir que la adicion de la plabra
"agricultural" en estecaso equivale a excuir los terrenos residenciales, comercialese industriales,
por la sencilla razon de que la Constitucion no solo no define lo que es residencial comercial e
industrial, comercial e industrial. En cambio ya hemosvisto que la palabra "agricultral" tiene una
significaciontradicionalmente bien establecida en nuestra jurisprudenciay en nuestro vocabulario
juridico: incluye no solo terrenoscultivados o susceptibles fe cultivo, sino tambien
residencialescomerciales e industriales. Se admite por todo elmundo que la palabra tiene tal

significacion en el articuloXIII, seccion 5, de la Constitucion, en cuanto se refierea terreno publico.

Ahora bien; que diferencia hay, despuesde todo, entire un terreno publico agricolo y uno sea a la
calidad de agricola, absolutamente ninguna.Uno no es mas menois agricola que el otro. La
unicadiferencia se refiere a la propiedad, al titulo dominical en que el uno es del Estado y el
otro es de un particular.
En realidad, creo que la diferencia es mas bien psicologica,subjetiva en que vulgarmente
hablando pareceque los conceptos de "agricola" y "residencial" se repelen.No se debe
menospreciar la influencia del vulgo en algunascosas; en la misma literatura el vulgo juega su
papel; digasi no la formacion popular del romancero. Pero es indudable que cietas cosas estan
por encima del conceptovulgar una de estae la interpretacion de la leyes, lahermeneutica legal.
Esto no es exagerar la importancia de la tecnica sino que es simplemente colocar las cosasensu
verdadero lugar. La interpretacion de la ley es unafuncion de minoria los abogados. Si no fuera
asi paraque los abogados? Y para que las escuelas de dercho,y para que los exmenes, cada
vez mas rigidos, para de purar el alma de la toga, que dijo un gran abogado espaol?6 Asi que
cuando decimos que el precepto constitucional en cuestion debe interpretatarse tecnicamente, a
la luz de la jurisprudencia, por ser ello el metodo mas seguro para hallar la verdad judicial, no
importa que ello repugne al concepto vulgar a simple vista, no ponemos,en realidad, nionguna
pica en Flandes, sino que propugnamos una cosa harto elememntal por lo sabida.
Por tanto no es necesario especular o devanarse lossesos tratando de inquirir por que en la
tamizacion delprecepto se aadio el adjetivo 'agricultural" a las palabras"private land" en vez de
dejarlas solas sin cualificacion.Algunos diran que fue por razon de simentria para hacer"pendant
diran que fue por razon de simetria para hacer"pendant" con la frase "public agricultural land"
puestamas arriba. Pero esto np tiene ninguna importancia. Loimportante es saber que la
aadidura, tal como esta jurisdiccion, de la palbra "agricultural" empleada en dicho texto. Eso es
todo; lo demas creo que es puro bizantinis mo.
III.
Cero que una examen de los documentos y debatesde la Asamblea Constituyente para ver
de inquirir la motivacion y finalidad del precepto constitucional que nos ocupapuede ayudar
grandemente y arrojar no poca luz en lainterpretacion de la letra y espiritu de dicho precepto.Este
genero de inquisicion es perfectamente propio y permisible en hermeneutica constitucional, y se
ha hechosiempre, segun las majores autoridades sobre la materia. Cooley, en su authorizado
tratado sobre Limitaciones Constitucionales (Constitutional Limitations) dice a este efectolo
sigiuente:
When the inquiry is directedto 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.)

bein por el papel particula que desempeaban en las treas constituyentes. Por ejemplo el
Delegado Montilla por Negros Occidental, conspicuo representante del agro, usando del privilegio
de madia horaparlamentaria dijo en parte lo siguinte:
. . . Con la completa nacionnalization de nuestras tierras y recursos natural debe entenderse que
nuetro patrimonio nacional debe estar vinculado 100 por 100 en manos filipinas. Tierras y
recursos naturales son inm,uebles y como tales pueden compararse con los organos vitales del
cuerpo de una persona: la falta de posesion de los mismo puede caussar la muete instantannea o
el abreviamiento de la vida (Diario de Sesiones Asamblea Constituyente, inedita, "Framing of the
Constitution," tit. 2 0 pag. 592 Libro del Profesor Aruego).
Como se ve el Delegado Montilla habla de tierras sin adjetivacion, es decir sin difenciar entre
propiedad publica y privada.
El Delgado Ledesma, por Iloilo, otro conspicuo representante del agro presidente del comte de
agricultura de la Asamblea que los extramnjeros no podian ser mismas palabras:
La exclusion de los extranjeros del privilegio de adquirir terrenos publicos agricolas y de poder se
dueos de propiedades inmuebles (real estate) es una parte necesaria de las leyes de terrenos
publicos de Filipinas para mantener firme la idea de conservar Filipinaspara los filipos' (Diario de
Sesiones, id.; Libro de Aruego, supra, pag. 593.)
Es harto significtativo que en el informe del Colite de Nacionalizacion y Conservacion de
Recursos Naturales de la Asamblea Constituyente la plabra tierra (land) se usa generricamente
sin cualificacion de publica o privada. Dice el Comite:
Que la tierra, los minerales los bosques y otros recursos naturalesconstituyen la herencia
exclusiva de la nacion filipina. Deben,por tanto, ser conservados para aquellos que se halian bajo
la autoridad soberana de esa nacion y para su posteridad. (Libro de Aruego, supra, pag. 595.)
La conservacion y fomento del patrimonio nacional fue una verdadera obsesion en la Asamblea
Constituyente. Sus mienbros que todavia viven recordaran l;a infinita paciencia, el esmero de orfe
breria con que se trabajo el preambulo de la Constitucion. Cada frase, cada concepto se sometio
a un rigido proceso de seleccion y las gemas resultans es la labor benedictina una de las gemas
redel patrimonio nacional. He aqui el preambulo:
The Filipino people, imploring the aid of Divene Providence,in order to establish a government that
shall enbody their ideals, conserve and develop the patrimony of the nation, promote the general
welfare, and secure to themslves and their posterity the blessings of independence under a
regime of justice, liberty, and democracy, do ordain and promulgate this Constitution.

Que atmosfera prevalecia en la Asamblea sobre elproblema de la tierra en general sobre el

problema capitalismo de los terrenos naturales? Cual era la tendenciapredominante entre los
Delegados? Y como era tambienel giro de la opinion, del sentimiento publico es decir comoera el
pulso del pueblo mismo del cual la Asamblea despuesde todo no era mas que organo e
interprete?

El espiritu fuertemente nacionalista que saturaba la Asamblea Constituyente con respecto a la

tierre y recursosnaturales es de facil explicacion. Estabamos escribiendouna Constitucion no solo
para el Commonwealth, sino tambien para la republica que advendria despues de10 aos.
Querianos, puesd asegurar firmemente las basesde nuestra nacionalidad. Que cosa major para
ello quebildar por los cuatro costrados el cuerpo dela mnacion delcual parodiando al Delegado
Montilla la tierra y losresoursos naturales son como organos vitales cuya perdidapuede causar
la muerte instantanea o el abreviamiento dela vida?

Varios discursos sobre el particular se pronounciaronen la Asamblea Constituyente. El tono

predomionante entodos ellos era un fuerte, profundo nacionalismo. Tanto dentro como fuera de la
Asamblea Constituyente era evidente, acusado, el afan unanime y decidido de conservar el
patrimonio nacional no solo para las presentes generaciones filipinas, sino tambien para la
posteridad. Y patrimonio nacional tenia, en la mente de todos un significadocategorio e
indubitable; significion de si es dedominio publico o privado. Muestras tipicas y representativas de
este tono pecular y dominantes de la ideologiaconstituyente son ciertas m,anifestaciones que
constanen el diario de serines has en el curso de los debateso en el proceso de la redaccion del
proyecto constitucionalpor Delegados de palabra autorizadam bien por su significacion personal

Para aprociar el pulso de la nacion en aquel memontohistorico es preciso tener en cuenta las
cirucmstancias.Nos debamos perfecta cuenta de nuetra posicion geografica,asi como tambien de
nuestras limitaciones demograficas.Se
trataba,
por
ciento
de
una conciencia
agudamenteatormentadora y alarmante. Estabamos roodeadosde enormes mesas humanas
centenares de milliones economica y biologicamente agresivas, avidad de desbordarsepor
tadas partes, poir las areas del Pafico particularmente,en busca de espacio vitales. China, JaponJapon, sobretodo que estaba entonces en el apogeo de su delirio deengrandecimiento economico
y militarista. Teniamos apantadoal mismo corazon, como espada rutilante de Samurrai,el
pavoroso problema de Davao, donde, por errores incialesdel Gobierno, Japon tenia el control de

la tierra, instituyendos alli una especie de Japon en miniatura, con todaslas amenasas y peligros
que ello implicaba para la integridadde nuestra existancia nacional. Como que Davaoya se
llamaba popular y sarcasticamente Davaoko, entragica rima con Manchuko.

en un asunto tan vital como es la disposicion del patrimonio nacional, base de su

mismaexistencia? para reformar la Constitucion, apoyado portres cuartas (3/4) del Congreso, por
lo menos.

Tambien nos obsesionaban otras lecciones dolorosas dehistoria contemporanea. Texas, Mejico,
Cuba y otraspaises del Mar Caribe y de la America Latina que todaviaexpiaban, como una terrible
maldicion el error de susgobernantes al permitir la enajenacion del suelo a extranjeros.

En el entretanto el articulo XIII de la Constitucion debequedar tal como es, e interpretarse en la

forma como lo interpretamos en nuestra decision.
Se confirma la sentencia.

Con el commercio y la industria principalmente en manosno-filipinas, los Delegados a la

Constituyente se haciancargo tambien de la vitalisima necesidad de, por lo menos,vincular el
apatrimonio nacional, entre otras cosas la tierra, en manos de los filipinos.
Que de extrao habia, pues, que en semejante atmosfera y tales circumstancias se aprobase un
articulo rigidamentenacionalismta como es el Article XIII? La motivacion y finalidad, como ya se ha
dicho, era triple: (a)consetvar el patrimonio nacional para las presentes yfuturas 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 elequilibrio de un sistema economico dominado
principalmente por extranjeros en virtud de su tecnica (know-how) superior y de su abudancia de
capitales: (c) prefictos y complicaciones internacionales.
No se concibe que los Delegados tuvieran la intercionde excluir del precepto los terrenos
residenciales comercialese industrial, pues sabian muy bien que los finesque se trataban de
conseguir y los peligros quie se trataban de evitar con la politica de nacionalizacion y
conservacionrezaban tanto para una clase de terrenos como para otra. Por que se iba a temer,
verbigracia, el dominio extranjero sobre un terreno estrictamente, agricola, sujeto a cultivo, y no
sobre el terreno en que estuviera instalada unaformidable industria o fabrica?
Otro detalle significativo. Era tan vigoroso el sentimiento nacionalista en la Asamblea
Constituyente que, noobstante el natural sentimiento de gratitud que nos obligabaa favor de los
americanos., a estos no se les concedioningun privilegio en relacion con la tierra y demas
recusosnaturales, sino que se les coloco en el mismo plano que alos otros extranjeros. Como que
ha habido necesidad deuna reforma constitucional la llmada reforma sobre laparidad 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 latter 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 insinua que no debieramos declarar que laConstitucion excluye a loc extranjeros de la
propiedadsobre terrenos residenciales e industriales,porque ello imposibilitaria toda accion
legislativa en sentidocontrario para el caso de que el Congreso Ilegagealguna vez a pensar que
semejante interdiccio debialevantarse. Se dice que es majes y mas conveniente dejaresta
cuestion en manos del Congreso para que haya maselasticidad en las soluciones de los
diferentes problemassobre la tierra.
Cometeriamos un grave error si esto hicieramos. Estaes una cuestion constitucional por
excelencia. Solamenteel pueblo puede disponer del patrimonio nacional. Ni el Congreso, ni
mucho menos los tribunales, pueden disponerde ese patrimonio. Lo mas que puede hecer el
Congreso es proponer una reforma constitucional mediante los votosde tres cuartas (3/4) de sus
miembros; y el pueblo tienela ultima palabra que se expresara en una eleccion oplebiscito
convocado al efecto.
El argumento de que esto costaria dinero es insostenible. Seria una economia mal entendida. Si
no se escatiman gastos para celebrar elctiones ordinarias periodicamente como ha del pueblo

PARAS, 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.
But may it be reasonably supposed that lands already of private ownership at the time of the
approval of the Constitution, have the same classification? 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 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 Cario 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. 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?
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 enactmentof 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, subbject 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 may 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 agricultural. 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
included 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 and 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 undersirable 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 contradistinctions with the limited term "private
agricultural land" in section 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 the Article XIII, explained that the same refers to agricultural land, and not
to urban properties, and such explanation is somewhat 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) Seor Presidente: "Que hay caballeros de laConvencion en el fondo de esta
cuestion al parecer inocente yordinaria para que tanto revuelo haya metido tanto en la sesion de
ayer como en la de hoy? Que hay de misterios en el fondo de este problem, para que politicos del
volumen del caballero por Iloilo y del caballero por Batangas, tomen con gran interes una macion
para reconsiderar lo acordado ayer? Voy a ser frio, seores. Parece que es meyor tratar estas
cuestiones con calma y no apasionamiento. He prestado atencion, como siempre suelo hacer a
todos los argumentos aqui en contra del precepto contenido en el draft y a favor ahora de la
reconsideracion y siento decir lo siguiente; todos son argumentos muy buenos a posteriori.
Cuando la Asamble Nacional se haya reunido, sera la ocasion de ver si procede o no expropiar
terrenos o latifundios existentes ahorao existentes despues. En el presente, yo me limito a invitar
la atencion de la Convencion al hecho de que el procepto no tome las medidas necesarias en
tiempo oportuno, cuando el problema del latifundismo se haya presentado con caracterres tales
que el beinestar, interes y orden publico lo requieran. Permitame la Convencion que lo discuta en
globo las dos pates del articulo 9. Hay tal engranaje en los dos mandatos que tiene dicho
precepto, hay tral eslabon en una u otra parte que es imposible, que es dificil que quitaramos

deslindes si nos limitasemos a considerar una sola parte. La primera parte autoriza a la legislatura
para fijar el limite maximo de propiedad agricola que los ciudadanos particulares puede tener.
Parece que es un punto que ha pasado desapercibido. No se trata aqui ahora de propiedades
urbanas, sino de propiedades agricolas, y es por la razon de que con mucha especialidad en las
regiones agricolas, en las zones rusticas es donde el latifundismo se extiende con facilidad, y
desde alli los pequeos propietariou precisamente para ahogarles y para intilizarles. Esta pues, a
salvo completamente la cuestion de las propiedades urbans. Cietos grandes soleres de nuestras
ciudaes que con pretexto de tener cietos eficios, que en realidad no necesitan de tales extensos
solares para su existencia ni para su mantenimineto, puedan dormir transquilos. No Vamos contra
esas propiedades. Por una causa o por otra el pasado nos legardo ese lastre doloroso. Pero la
region agricola, la region menos explotada por nuetro pueblo, la region que necesitamos si
queremos vivir cuenta propia la region que es el mayor incentivo no para solo para los grandes
capitalistas de fuera merece todos los ciudados del gobierno.
Voy a pasar ahora a la relacion que tiene la seggunda parte de la enmiendad con la primera. Una
vez demostrado ante la Lehgislatura, una vez convencida la Asamblea Nacional de que existe un
latifundismo y que este laitifundismo puede producir males e esta produciendo daos a la
comunidad, es cuando entonces la Legislatura puede acordar la expropiacion de los latifundios.
Donde esta el mal que los opositores a este es un postulado que todos conocen. Bien, voy a
admitir para los propositos del argumento que hoy no existen laifundios, y si los opostores al
precepto quieren mas vamos a convenir en que no existrian en el futuro. Pues, entonces, donde
este el temor de que el hijo de tal no pueda recibir la herencia de cual? Por lo demas el ejemplo
repetidas veces presentado ayer yhoy en cuanto al herdero y al causahabiente no es
completamente exacto. Vamos a suponer que efectivamente un padre de familia posee un
numero tal de hectareas de terreno, superior o exedente a lo que fija la ley. Creen los Caballeros,
creen los opositorees al precepto que la Legislatura, la Asamblea Nacional va a ser tan
imprudente, tan loca que inmediatemente disponga por ley que aquella porcion excedente del
terreno que ha de recibir un hijo de su padre no podra poseerlo, no podra 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. Fijara el plazo, fijara la proporcion de acuedo con las
circunstancias del tiempo entonces en que vivamos. Es posible que ahora un numero
determinado de hectereas sea excesivo; es posible que por desenvolvimientos economics del
paius ese numero de hectareas puede ser elevado o reducido. Es por esto porque el Comite
precisamente no ha querido fijar desde ahora el numero de hectareas presamente no ha querido
fijar desde ahora el numero de hectareas, prefireindo dejar a la sabiduria, a la prudencia, al
patriotismo y a la justicia de la Asambela Nacional el fijar ese numero.
Lomismo digo de la expropiacion. Se habla de que el gobierno no tendra dinero; se hablqa de que
no podra revender las propieedades. Pero, Caballeros de la Convencion, caballeros opositores
del precepto; si la Legislatura, si la AsambleaNacional estuviera convencida de que el gobierno no
puede hecer una exporpiacion, va a hecerlo? La Asamblea Nacional dictara una ley autorizando la
expropiacion de tal a cual latifundio cuando este convencida, primero, de que la existencia de ese
latifundio es amenazante para el publico; y segundo, cuando la asamblea Nacional este
convencida de que el gobierno esta disposicion para disponer la expropiacion.
Visto, pues, desde este punto el asunto, no es malo autorizar,fijar los limites, ni macho menos es
malo autorizar a la Legislatura para dictar leyes de expropiacion.
Pero voy a molestaros por un minuto mas. Se ha mentado aquicon algun exito esta maana y
digo con exito porque he oidoalgunos aplausos se ha mentado la posibilidad de que los
comunistas hagan un issue de esta disposicion que existe en el draft; podran los comunistas pedir
los votos del electorado para ser elloslos que dicten las leyes fijando el limite del terreno y
ordenen la expropriacion? Que argumento mas bonito si tuviera base! Lo mas natural, creo yo,
es que el pueblo, el electorado, al ver queno es una Asamblea Constituyente comunista la que ha
puestoesta disposicion, otorgue sus votors a esta misma Asamblea Nacional, o a esos condidatos
no comunistas. Quien esta en disposicion de terminar mejor una obra aquel que trazado y

puesto los primeros pilares, o aquel que viene de gorra al final de la obra para decir: "Aqui estoy
poner el tejado?"
Es sensible, sin embargo, que una cuetion de importancia tannacional como este, pretendamos
ligarla a los votos de los comulites de terreno; no ha de venir porque nosotros fijemos loslimites
de terreno; no ha de venir porque prohibamos los latifundiosmediante expropiacion forzosa, no;
ha de venir precisamentepor causa de los grandes propietarios de terreno, y ha de
venir,queramoslo o no, porque el mundo esta evolucionando y se va aconvencer de que la vida no
es solamente para unos cuantos sinopara todos , porque Dios no la dio, con la libertad, el aire, la
luz,la tierra para vivir (Grandes Aplausosz), y por algo se ha dichoque en los comienzos de la vida
himana debio haber sido fusilado,matado, a aquel primero que puso un cerco a un pedazo de
tierrareclamando ser suya a propiedad.
Por estas razones, seor Presidente, y sintiendo que mi tiempoesta para terminar, voy a dar fin a
mi discurso agradeciendo a la Convencion. (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 no breed discontent, I see no
reason for the discrimination against the agricultural. 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 te remarks, cited in the majority opinion, made by Delegate
Ledesma to the effect that "the exclusion of aleins from the private 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 terms "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" lands, sicne 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 3
do not include urban propeties. Neither are we bound to give reater force to the view (apparently
based on mere mental recollections) of the Justices who were members of the Constitutional
Convention than tot he 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 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 found in the act of Congress a definition of the phrase "agricultural public
lands," and after a carefully 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 accquired 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, enected 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 baldios
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 fact that the
prohibition contained in said sections refer to lands originally acquired under said sections referto
land originally acqured under said Act or otherlegal provisions lands, which of course do not
include lands not originally of the public domain. The lands that 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
pursuanceof 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.
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 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
hoding 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 supersedeas 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, 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, Artcile 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 the 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 alien 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. On
November 29, 1943, the Court of Appeals rendered a decision affirming that of the Court of First
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. (CAG. R. No. 29.) During theJapanese 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 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 in1941. 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 feeling 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 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-settled 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

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 teh 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 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 wuthdrawal is open to question. The denial of course is another way of
assuming that the petitioner-appellant 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 tha 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), wherin 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 fact 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 renderd in 1943 a decision 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 for withdrawal was promted 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 impliation is made glaring when Senator Franscisco 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 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 parties having agreed to writer finis to the litigation, there is no obligation to hold
forth on the issue. It is not our mission to give advice to other person who might be interested 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 juriscounsults.
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 question 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 court,
because the registers of deeds under his command, will transfer on thier 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 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 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 conflicting 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:
(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;7
(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 worlds; 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 view 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. This
belief is founded on the reasons ably expounded by Mr. Justice Paras, 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 poeple'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 privateownership 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 1902, 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 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 (Ibaez 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 classification 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 he 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 acquire the 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 24of 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 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. (Emphasis 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 issued for the purposes referred to.
(Emphasis 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 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 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 and improvements acquired or held for industrial or residence
purposes, while used for such purposes: . . . (Emphasis 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.
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 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 ActNo. 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 nothing 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 ands are not,
however, included among the excluded, because these lands could not and can never become
private lands. From the land grants known as caballerias and peonias under the Laws of Indies
down to those under the Royal Decrees of 25 June 1880 and 13 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 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 (Carino 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 providesthat
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 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 public domain under this Act or
to corporate bodies organized in the Philippines whose charters authorize them to do so: . . .
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 appellants, 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
consitutional 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 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 poeple 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 of the withdrawal of the appeal, is unusualf or 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. 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 well-being 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 ideal 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:
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 interpretation 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 a 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, 2nd 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 meaningor
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-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, inspite of the fiction tha 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.
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.
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 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 or 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 articleo n 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 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
sligh 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 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 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 or the
statement that the Constitutional Convention, which was guided by wise men, men of ability and
experience in different fields of endeavor, used the termafter 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, the prohibition was changed to private agricultural 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 owners 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 distinctively made clear that it was 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 peculia rprovisions 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 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 or 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 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 distinctively 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 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 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 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 nonagricultural 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 nor 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 withthat 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
non-agricultural land demands to know where it stands, we do not acquire, 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 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; `It 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 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 different 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 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
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 criterion for judging the
intention of a law or constitution only if no changes were afterward affected. 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
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.

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.

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 Citizen, 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 that 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 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 serious 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 I 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 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 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." Sections122 and 123 of

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, ordinace, royal order,
royal decree, or any other law formerly enforced in the Philippines with regard to public lands, etc.,
it is a mute 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 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 maybe 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 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 role is founded on sound
principles of constitutional government and is so well known as to make citations of authorities
presumptuous.
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 Paras 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
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 needed
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 Senate, was a leading, active and
influential member of the Constitutional Convention?

Alexander A. Krivenko v. The Register of Deeds, City of Manila (1947)

[1] was a landmark case decided by the Philippine Supreme Court, which further solidified the
prohibition of the Philippine Constitution that aliens may not acquire private or public agricultural
lands, including residential lands.
This was the outcome of the petition by Alexander Krivenko, an alien, who bought a residential
land in Manila, Philippines on December 1941. However, he failed to register the same due to
Japans declaration of war. [1]
Later on in May 1945, he again sought the registration of the same land but the herein respondent,
Register of Deeds, denied the application because as an alien, Krivenko was disqualified to own
land pursuant to the laws of the Philippine jurisdiction. Krivenko brought the case to the Court of
First Instance of Manila which sustained the refusal of the Register of Deeds of Manila. He then
appealed to the Supreme Court.[1]
During the pendency of the appeal, a new circular by the Department of Justice was released,
instructing all registers of deeds to accept for registration all transfers of residential lots to aliens.
With the effect of the circular swaying in his favor, Krivenko thereafter filed a motion to withdraw
his appeal. However, the Supreme Court deemed it best to exercise its discretionary powers and
denied Krivenkos appeal, in order to tackle the more pressing constitutional issue; and in the
process, established itself as a landmark case with regard to foreign ownership of lands in the
Philippines

into five (5) lots (Lots 2-A to 2-E). TCT No. T-1369 was cancelled and TCT Nos. 11865, 11866,
11867, and 11869 were issued to De Valencia. TCT No. 11 868, corresponding to the portion
previously sold to the Province of Zambales, was issued to the Republic of the Philippines. In
1970, De Valencia sold the lots covered by TCT Nos. 11865 and 11866 to petitioner Sta. Monica
Industrial and Development Corporation. TCT Nos. 11865 and 11866 were cancelled and TCT
Nos. T-12054 and T-12055 were issued to petitioner. Petitioner consolidated the two (2) parcels of
land and subdivided them into five hundred thirty-six (536) residential lots which it sold to
individual buyers.
In 1985, respondent Republic of the Philippines, through the Solicitor General, filed with the Court
of Appeals a complaint for the annulment of the decree in LRC No. 6431, OCT No. 48 (issued to
De Perio), TCT No. T-1369 (issued to De Valencia) and TCT No. T-7696 (issued to Baloy).
Respondent alleged that the decree in LRC No. 6431 was null and void for lack of jurisdiction
because the land was inside the U.S. naval reservation and that it was still within the forest zone in
1912, having been released therefrom only in 1961, and hence cannot be the subject of
disposition or alienation as private property. Named defendants were De Valencia and her
husband, Baloy and his wife and the Register of Deeds of Zambales. The case was docketed as
CA-G.R. SP No. 06259.
The Baloy spouses filed their answer to the complaint.
With leave of court, petitioner intervened and filed an answer-in-intervention. Later, petitioner filed
its first motion for preliminary hearing on the affirmative defense of res judicata, which the Court of
Appeals denied. Petitioner did not seek reconsideration thereof.

THIRD DIVISION
G.R. No. 83290 September 21, 1990
STA. MONICA INDUSTRIAL AND DEVELOPMENT CORPORATION, petitioner,
vs.
THE COURT OF APPEALS AND THE REPUBLIC OF THE PHILIPPINES, respondents.

Trial on the merits ensued. The Republic offered its evidence, consisting of a land classification
map prepared by the Director of Forestry in 1961 to prove that the land became alienable and
disposable only in 1961, and rested its case. Petitioner then proceeded to present its evidence.
This was, however, cut short when the Republic moved to amend its complaint to include as party
defendants all the other transferees of the land and, thereafter, filed its amended complaint.
Petitioner again moved for a preliminary hearing on its affirmative defense of res judicata in an
effort to shorten the proceedings.
The Court of Appeals, holding that res judicata cannot be invoked as a bar to an action for
annulment of judgment on the ground of lack of jurisdiction, denied the motion. Petitioner's motion
for reconsideration was also denied, hence this petition.
After the comment and reply were filed, the Court gave due course to the petition and, as required,
the parties filed their respective memoranda.

Ocampo, Dizon & Domingo for petitioner.

CORTES, J.:
This case arose from proceedings to annul a 1912 decision of the land registration court.
In 1912, the Tribuna del Registro de la Propiedad (Court of Land Registration) of Zambales,
through Judge James Ostrand, in Land Registration Case (LRC) No. 6431, confirmed the title of
Justo de Perio over two (2) parcels of land in Zambales. On August 28, 1912, Decree No. 9328
was issued by the court ordering the registration of the two (2) parcels of land in the name of De
Perio. On December 6, 1912, Original Certificate of Title No. 48 of the Registry of Deeds of
Zambales was issued to De Perio. Parcel No. 1 consists of an area of eleven thousand six
hundred ninety-seven square meters (11,697 sq.m.) while Parcel No. 2 consists of three hundred
forty thousand eight hundred twenty square meters (340,820 sq.m.). In 1936, a portion consisting
of ten thousand four hundred square meters (10,400 sq.m.) of Parcel No. 2 was sold to the
Province of Zambales. The sale was annotated at the back of OCT No. 48. In 1954, OCT No. 48
was cancelled and TCT No. T-1369 was issued to Mercedes de Valencia pursuant to an
extrajudicial settlement of De Perio's estate. In 1962, De Valencia sold Parcel No. 1 to Ricardo
Baloy. Baloy was issued TCT No. T-7696 in 1966. In 1967, De Valencia subdivided Parcel No. 2

On April 2, 1990, the Court set the case for hearing on May 7, 1990 because, as stated in the
resolution:
...after deliberating extensively on it, the Court finds the need to hear the oral arguments of the
parties on issues which are considered determinative of the case, including the following:
1.
the nature and classification, under the pertinent laws traced back to the turn of the century,
of the two parcels of land decreed and originally titled in 1912 to De Perio; and
2.
the legal considerations that compelled the Government to seek the annulment of the decree
of the Court of Land Registration issued in favor of De Perio, his title, and the titles of his
successors-in-interest.
The parties were heard in oral argument and thereafter they were required to submit their
memoranda in amplification of their arguments.
The question presented before the Court is whether or not respondent CA committed reversible
error of law in denying petitioner's motion for preliminary hearing on its affirmative defense of res

judicata.

Memorandum, p. 3; Rollo, p. 230].

As iterated in a long line of cases, the following requisites must concur for a prior judgment to
constitute a bar to a subsequent case: (1) the judgment must be final; (2) the judgment must have
been rendered by a court having jurisdiction over the subject matter and the parties; (3) the
judgment must be on the merits; and (4) there must be between the first and second actions,
Identity of parties, of subject matter, and of causes of action [San Diego v. Cardona, 70 Phil. 281
(1940); Ipekdjian Merchandising Co., Inc. v. Court of Tax Appeals, G.R. No. L-15430, September
30, 1963, 9 SCRA 72; Yusingco v. Ong Hing Lian, G. R. No. L-26523, December 24, 1971, 42
SCRA 589; Aroc v. People's Homesite and Housing Corporation, G.R. No. L-39674, January 31,
1978, 81 SCRA 350; Republic v. Alagad, G.R. No. 66807, January 26, 1989, 169 SCRA 455;
Vencilao v. Vano G.R. No.
L-25660, February 23, 1990].

Public respondent then reiterated that "[a]t the time Original Certificate of Title No. 48 was issued
on December 9, 1912, the parcel of land covered by the title was still within the forest zone and it
was not until January 31, 1961 that said land was released by the Bureau of Forest Development
as alienable and disposable under Land Classification Map No. 2427" [Ibid].

In contending that the judgment in LRC No. 6431 should be annulled because the land registration
court had no jurisdiction over the subject matter of the case, the respondent Republic puts in issue
the presence of the second requisite. Therefore, the ultimate issue before the Court is whether or
not the land registration court had jurisdiction over the two (2) parcels of land claimed by De Perio,
the predecessor-in-interest of the petitioner herein.
Necessarily, the resolution of this issue requires an inquiry into the nature of the subject parcels of
land in light of the laws prevailing at the time the judgment in the land registration case was
rendered.
Petitioner's primary argument, as summarized in its memorandum, was as follows:
17. It must, therefore, be presumed that in LRC Case No. 6431, the court found from the evidence
adduced by the parties that (1) the two parcels of land in question were agricultural lands as the
phrase is used in Act No. 926, (2) Justo de Perio had been in the open, continuous, exclusive and
notorious possession thereof for at least 10 years, before July 26, 1912, and (3) his possession of
the said parcels of land was in the concept of owner; and thus the court confirmed Justo de Perio's
title thereto and ordered their registration in his name. If the Attorney General, the Director of
Forestry, the Director of Lands and the Director of Public Works opposed the application, then it
must be presumed that the court declared the said two parcels of land to be agricultural lands over
their opposition. If they did not oppose, then it must be presumed that they agreed with the court
that the said lands were really agricultural lands. It must be pointed out that the question as to
whether the two parcels of land in question are agricultural lands and not timber lands is a
question of fact and the finding of Judge Ostrand that they are agricultural can not be reviewed by
this Honorable Court at this point in time [Petitioner's Memorandum, pp. 8-9; Rollo, pp. 211-212].
Additionally, petitioner argued that the boundaries of the two parcels of land, as described in
Decree No. 9328, debunk the contention that they are forest lands. The parcels of land were
bounded by privately owned property. Moreover, they were described in the notice published in the
March 1912 issue of the Official Gazette, pp. 766-767 as "lying within the Civil Reservation, town
site of Olongapo, situated in the municipality of Olongapo, Province of Zambales, P. I." [Annex "A"
of Petitioner's Memorandum; Rollo, pp. 222-223].

It also added that "Land Classification Map No. 665 dated June 7, 1927 ... shows that the parcels
of land covered by OCT No. 48 were still part of the unclassified public forest at the time of the
registration" [Public Respondent's Memorandum, p. 4; Rollo, p. 231].
Weighing the arguments raised by the parties, we find that the Republic has failed to make out a
convincing case for the annulment of the decree in Land Registration Case No. 6431. It has been
established that the land registration court had jurisdiction over the two (2) parcels of land, and
that OCT No. 48 and the Transfer Certificates of Title (TCT) derived from OCT No. 48 are valid.
Act No. 926, known as the Public Land Act, which was enacted into law on October 7, 1903 but
which took effect on July 26, 1904, was the law applicable to De Perio's petition for confirmation of
his title to the two (2) parcels of land. It provided:
SEC. 54. The following-described persons or their legal successors in right, occupying public
lands in the Philippine Islands, or claiming to own any such lands or an interest therein, but whose
titles to such lands have not been perfected, may apply to the Court of Land Registration of the
Philippine Islands for confirmation of their claims and the issuance of a certificate of title therefor to
wit:
xxx

xxx

xxx

6.
All persons who by themselves or their predecessors in interest have been in the open,
continuous, exclusive, and notorious possession and occupation of agricultural public lands, as
defined by said act of Congress of July first, nineteen hundred and two, under a bona fide claim of
ownership except as against the Government, for a period of ten years next preceding the taking
effect of this Act, except when prevented by war or force majeure shall be conclusively presumed
to have performed all the conditions essential to a government grant and to have received the
same, and shall be entitled to a certificate of title to such land under the provisions of this chapter.
xxx

xxx

xxx

In other words, a person who had been in open, continuous, exclusive and notorious session and
occupation of public agricultural land for a period of at least ten (10) years prior to July 24, 1904
could petition for the confirmation of his title over the land he had so possessed and occupied.
The land registration court confirmed De Perio's title to the two (2) parcels of land after due notice
and hearing. From this, the following conclusions may be derived:
1.
that the two (2) parcels of land are agricultural as defined by law, i.e., that they are neither
timber land nor mineral land [Mapa v. Insular Government, 10 Phil. 175 (1908)];

On the other hand, the public respondent, through the Office of the Solicitor General, contended:
Records disclose that by virtue of Proclamation dated November 11, 1908, then Governor-General
James F. Smith reserved for naval purposes certain lands of the public domain in Subic, Zambales
which included the parcels of land embraced under Original Certificate of Title (OCT) No. 48
secured by De Perio in 1912. It was only in 1961 that such Proclamation was revoked by a
subsequent issuance, Proclamation No. 731, issued by then President Garcia on February 2, 1961
and such portions already classified as alienable and disposable and not needed for government
purposes were declared open for disposition under R.A. No. 274, in relation to C.A. 141 and Act
No. 3038. This means that the lands, subject matter of the case, were portions of the U.S. naval
reservation and were declared open for disposition only on February 2, 1961 [Public Respondent's

2.
that De Perio had been in open, continuous, exclusive and notorious possession and
occupation of the two (2) parcels of land for at least ten (10) years prior to 1904;
3.

that his possession and occupancy was under a bona fide claim of ownership; and

4.
that under the law De Perio had title to the land as of 1904, although it was confirmed only
later in 1912.
These conclusions serve as premises to arrive at other conclusions determinative of the case.

If the land is agricultural as defined by law, and as confirmed by Judge Ostrand, it could not have
been forest land as claimed by public respondent, the subsequent land classification map
notwithstanding. This conclusion is supported by the fact that the two (2) parcels of land were in
the Olongapo townsite and were bounded by privately-owned land.
If De Perio had title to the land in 1904, although still imperfect, then it could not have been
prejudiced by the proclamation of Governor-General Smith in 1908 which reserved for naval
purposes land in Subic, Zambales. Said proclamation recognized the existence of private rights,
thus:
xxx

xxx

xxx

...por la presente exceptuo de venta o colonizacion hasta nueva orden y separo para reserva
naval, salvo los derechos privados, todos y cada uno de los terrenos publicos comprendidos
dentro de los siguientes limites, a saber: [Proclamation del Gobernador General de las Islas
Filipinos, 11 Noviembre 1908, para. 2, 6 O.G. 1885 (2 December 1908)].
Public respondent has also failed to explain the Republic's sudden interest in the annulment of the
decree and the certificate of title issued to De Perio and the subsequent titles issued to his
successors after some seventy-three (73) years of inaction and after a portion of the land has
been developed by petitioner into a subdivision and hundreds of residences have been built
thereon. At this point in time, that portion of land developed into a subdivision cannot, by any
stretch of imagination, be conceived as forest land. Anyway, the area wherein the two (2) parcels
of land are found, were released from the unclassified public forest and the territory comprising the
Subic naval reservation way back in 1961.
Moreover, it is now almost thirty (30) years since the land was released in 1961. In a few more
months, the possessors of the land would acquire title to the portions they adversely possess
through acquisitive prescription, without need of title or of good faith, pursuant to the Civil Code
[Art. 1137].
Finally, we find the need to emphasize that in an action to annul a judgment, the burden of proving
the judgment's nullity rests upon the petitioner. The petitioner must establish by clear and
convincing evidence that the judgment is fatally defective. When the proceedings were originally
filed by the Republic before the Court of Appeals, the petitioner contended that when the decree in
favor of De Perio was issued by Judge Ostrand in 1912 the parcels of land were still part of the
inalienable public forests. However, petitioner's case rested solely on land classification maps
drawn several years after the issuance of the decree in 1912. These maps fail to conclusively
establish the actual classification of the land in 1912 and the years prior to that. Before this Court,
petitioner reiterates said 'contention and refers, for the first time, to a 1908 proclamation reserving
the land in Zambales as a naval reservation and alleging that the subject parcels of land are parts
thereof. These, for reasons discussed earlier, are insufficient to overcome the legal presumption in
favor of the decree's regularity, more so when we consider that notice of the application for
registration and the date of hearing thereof, addressed to the Attorney General, the Director of
Lands, the Director of Public Works and the Director of Forestry, among others, was published in
the Official Gazette and that Governor General Smith's Proclamation of 1908 itself recognizes
private rights.
WHEREFORE, the petition is granted and the Court of Appeals is ordered to DISMISS CA-G.R.
SP No. 06259.
SO ORDERED.
Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
Fernan, C.J., is on leave.

32910 dated June 3, 1935, duly registered in the provincial register of deeds as original certificate
of title No. 2736. (2) On March 23, 1936, Florentino Pascua acquired said homestead by
inheritance, a transfer certificate of title No. 11253 having been issued to him. (3) On August 2,
1940, Florentino Pascua (herein plaintiff) sold the above-mentioned land to Jose Talens (the
defendant) for the sum of P1,180.00 (4) In 1943, plaintiff demanded reconveyance of the land
pursuant to section 117 of Act No. 2874. The defendant having refused, this action was interposed
in the Court of First Instance of Nueva Ecija. (5) That court found for the plaintiff and rendered
appropriate orders. Hence this appeal by defendant, who has all the time maintained that section
117 is not applicable to the situation.
We are not advised of any previous ruling of this Court on the matter. However, the solution of the
question is not hard to seek, if the notice is carefully analyzed in the light of the purposes of the
Public Land Act.
It is well-known that the homestead laws were designed to distribute disposable agricultural lots of
the State to land-destitute citizens for their home and cultivation. Pursuant to such benevolent
intention the State prohibits the sale or encumbrance of the homestead (Section 116) within five
years after the grant of the patent. After that five-year period the law impliedly permits alienation of
the homestead; but in line with the primordial purpose to favor the homesteader and his family the
statute provides that such alienation or conveyance (Section 117) shall be subject to the right of
repurchase by the homesteader, his widow or heirs within five years. This section 117 is
undoubtedly a complement of section 116. It aims to preserve and keep in the family of the
homesteader that portion of public land which the State had gratuitously given to him. It would,
therefore, be in keeping with this fundamental idea to hold, as we hold, that the right to repurchase
exists not only when the original homesteader makes the conveyance, but also when it is made by
his widow or heirs. This construction is clearly deducible from the terms of the statute.
Wherefore, the appealed decision will be affirmed, with costs against the appellant. So ordered.
Feria, Pablo, Perfecto, and Tuason, JJ., concur.

G.R. No. L-348

April 30, 1948

FLORENTINO PASCUA, plaintiff-appellee,

vs.
JOSE TALENS, defendant-appellant.
Juan M. Ladaw and Mauricio Pimentel for appellant.
Benedicto Q. Bringas for appellee.
BENGZON, J.:
This litigation calls for application or interpretation of section 117 of Act No. 2874, which for
convenience is herein quoted:
Every conveyance of land acquired under the free patent or homestead provisions, when proper,
shall be subject to repurchase by the applicant, his widow, or legal heirs, for a period of five years
from the date of the conveyance.
When a legal heir of the homesteader acquires title to the homestead, and subsequently sells it,
may the said heir invoke the above section to establish his right to repurchase such homestead?
That is the question squarely raised in this expediente.
The facts are these: (1) Under the provisions of Act no. 2874, Sinforoso Pascua obtained
ownership of a homestead of about twenty-two hectares in Bongabon, Nueva Ecija by Patent No.

Benzonan.
Respondent Pe is a businessman in General Santos City who owns extensive commercial and
agricultural properties. He is the proprietor of the firm "Dadiangas B.P. Trading." One of the
properties he acquired through free patents and miscellaneous sales from the Bureau of Lands is
a 26,064 square meters parcel covered by Free Patent No. 46128 issued on October 29, 1969.
OCT No. P-2404 was issued on November 24, 1969.
On February 24, 1970 or barely three months after he acquired the land, the respondent
mortgaged the lot in question, together with another lot covered by TCT No. 3614 and some
chattels to secure a commercial loan of P978,920.00 from the DBP. The lot was developed into a
commercial-industrial complex with ricemill and warehouse facilities, a solar drier, an office and
residential building, roadway, garden, depository, and dumping grounds for various materials.
When the private respondent failed to pay his loan after more than seven years had passed, DBP
foreclosed the mortgage on June 28, 1977. On that date, the total obligation amounted to
P1,114,913.34. DBP was the highest bidder. Certificates of sale were issued in its favor;
P452,995.00 was for the two lots and P108,450.00 for the chattels. The certificate covering the
disputed lot was registered with the Registry of Deeds on January 24, 1978.
After the foreclosure sale, respondent Pe leased the lot and its improvements from DBP for
P1,500.00 a month. Part of the property was also leased by DBP to the then National Grains
Authority.
The respondent failed to redeem the property within the one year period. On September 24, 1979
DBP sold the lot to the petitioner for P1,650,000.00 payable in quarterly amortizations over a five
year period. The petitioners occupied the purchased lot and introduced further improvements
worth P970,000.00.
On July 12, 1983, claiming that he was acting within the legal period given to him to repurchase,
respondent Pe offered in writing to repurchase the lot for P327,995.00. DBP countered, however,
that over the years a total of P3,056,739.52 had already been incurred in the preservation,
maintenance, and introduction of improvements.
G.R. No. 97973 January 27, 1992
SPOUSES GAUVAIN and BERNARDITA BENZONAN, petitioners,
vs.
COURT OF APPEALS, BENITO SALVANI PE and DEVELOPMENT BANK OF THE
PHILIPPINES, respondents.

On October 4, 1983, Pe filed a complaint for repurchase under Section 119 of Commonwealth Act
No. 141 with the Regional Trial Court (RTC) of General Santos City.
On November 27, 1986, the trial court rendered judgment. The dispositive portion reads:
WHEREFORE, in view of the foregoing, the defendant Development Bank of the Philippines is
ordered:

G.R. No. 97998 January 27, 1992

DEVELOPMENT BANK OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and BENITO SALVANI PE, respondents.
Ruben E. Agpalo for Sps. Gauvain and Bernardita Benzonan.

1)
to reconvey unto the plaintiff the parcel of land in question (Lot No. P-2404) for the
repurchase price of P327,995.00 plus legal interest from June 18, 1977 to June 19, 1978 only, and
the expenses of extrajudicial foreclosure of mortgage; expenses for registration and ten percent
(10%) attorneys fees;
2)
ordering the defendants to vacate forever the premises of said property in favor of the
plaintiff upon payment of the total repurchase price;

Vicente R. Acsay for Benito Salvani Pe.

Thomas T. Jacobo for DBP.
GUTIERREZ, JR., J.:
This is a petition to review the August 31, 1990 decision of the Court of Appeals which sustained
the right of respondent Benito Salvani Pe to repurchase a parcel of land foreclosed by petitioner
Development Bank of the Philippines (DBP) and sold to petitioners Gauvain and Bernardita

3)
ordering the defendants, jointly and solidarily, to pay the plaintiff attorney's fees in the
amount of P25,000.00;
4)
and to set an example to government banking and lending institutions not to take borrowers
for granted by making it hard for them to repurchase by misleading them, the bank is hereby
ordered to pay the plaintiff by way of exemplary damages in the amount of P50,000.00;
Ordering further the defendant DBP:

5)
to reimburse the co-defendants spouses Benzonan the amount they have paid or advanced
the defendant DBP for the purchase of Lot O.C.T. No. P-2404;

In G.R No. 97998, DBP limited its petition to the value of the repurchase price and the nature of
the contract between the parties. It framed the issues as follows:

6)

1.
The Court of Appeals erred in not holding that Section 31 of Commonwealth Act No. 459 as
amended is not applicable in the instant case to determine the repurchase price contrary to
decisions of the Honorable Supreme Court in the following cases: DBP v. Jimenez, et al. (36
SCRA 426) and DBP v. Mirang (66 SCRA 141).

ordering the defendants to pay the cost of suit. (Rollo of G.R. No. 97973, pp. 74-75)

On appeal, the Court of Appeals affirmed the decision with modifications as follows:
xxx

xxx

xxx

All the foregoing premises considered, judgment is hereby rendered AFFIRMING the decision
rendered by the court a quo with the modification that the defendant DBP shall reimburse to its codefendant Benzonan spouses all amounts that the latter have paid for the land, minus interest,
and that the Benzonan spouses shall be allowed to remove the improvement that they have made
on the property under litigation, without impairing or damaging the same. (Rollo of G.R. No. 97973,
p. 105)
A motion for reconsideration was denied on March 19, 1991.
The petitioners-spouses in G.R. No. 97973 raise the following "legal issues, reasons, or errors"
allegedly committed by the Court of Appeals, to wit:
1.
The Court of Appeals erred in holding that conversion and use of the land in question to
industrial or commercial purposes, as a result of which it could no longer be used for cultivation,
and the fact that respondent Pe has vast holdings whose motive in seeking to repurchase the
property is to continue the business or for speculation or greater profits did not deprive him of the
right to repurchase under Sec. 119 of CA 141, and, as a result, in ignoring or disregarding Pe's
admissions and undisputed facts establishing such circumstances, contrary to what this Court held
in Santana v. Marias, 94 SCRA 853 [1979], Vargas v. Court of Appeals, 91 SCRA 195 [1979] and
Simeon v. Pea, 36 SCRA 610 [1970].
2.
Assuming, arguendo, that respondent Pe still had the right to repurchase the land under
Sec. 119 of CA 141, the Court of Appeals erred in not counting the 5-year period from the date of
foreclosure sale on June 18, 1977 or at the very most from its registration on January 24, 1978, in
accordance with the prevailing doctrinal law at the time as enunciated in Monge v. Angeles, 101
Phil. 561 [1957], Oliva v. Lamadrid, 21 SCRA 737 [1967] and Tupas v. Damasco, 132 SCRA 593
[1984], pursuant to which Pe's right to repurchase already expired.
3.
The Court of Appeals erred in applying retroactively the ruling in Belisario v. Intermediate
Appellate Court, 165 SCRA 101 [1988], which held that the 5-year period is counted from the date
after the one-year period to redeem foreclosed homestead expired, to the foreclosure of the land
in question in 1977, as its retroactive application revived Pe's lost right of repurchase and defeated
petitioners' right of ownership that already accrued under the then prevailing doctrinal law.
4.
Assuming, arguendo, that respondent Pe had the right to repurchase the land in question
and assuming, further, that the 5-year period is to be counted from the consolidation of ownership
after the expiration of the one-year period to redeem, the Court of Appeals erred in not holding that
the mere filing of an action for repurchase without tendering or depositing the repurchase price did
not satisfy the requirements of repurchase, Pe's failure to make the tender or deposit even up to
the present being confirmatory of speculative motive behind his attempt to repurchase.
5.
Assuming, finally, that respondent Pe is entitled to repurchase the property, the Court of
Appeals erred in not holding that petitioners are possessors in good faith, similar to a vendee a
retro, entitled (a) to reimbursement of necessary and useful expenses under Article 1616 of the
Civil Code as held in Calagan v. CFI of Davao, 95 SCRA 498 [1980] and in Lee v. Court of
Appeals, 68 SCRA 196 [1975]; and (b) to refund of all amounts paid by them by reason of the sale
of the property in their favor, including interest payments, in both instances with right of retention.
(Rollo of G.R. No. 97973, pp. 14-16)

2.
The Court of Appeals erred in not holding that the law between the contracting parties are
the terms and conditions embodied in the contract signed by them. (Rollo of G.R. No. 97998, p.
12)
We find merit in the petitions.
The determination of the main issues raised by the petitioners calls for the proper application of
Section 119 of CA 141 as amended which provides: "Every conveyance of land acquired under the
free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant,
his widow, or legal heirs, within a period of five years from the date of conveyance."
There is no dispute over the fact that the Government awarded the land to respondent Pe so that
he could earn a living by farming the land. Did respondent Pe lose his right to repurchase the
subject agricultural lot under the aforequoted law considering its conversion for industrial or
commercial purposes? The evidence relating to the conversion is sufficiently established and yet
was not properly appreciated by the respondent court.
Only three months after getting the free patent and the original certificate of title over the subject
lot, it was mortgaged by respondent Pe to get a commercial loan of nearly P1 million from DBP. Pe
spent the proceeds of the loan to construct permanent improvements on the lot for his rice-mill and
other businesses, i.e., two warehouse buildings; administration-residential building; perimeter
fence; solar and concrete drier; shed; machine shop; dirty kitchen; and machineries and
equipments such as ricemill (TSN, August 13, 1984, pp. 173-174). The entire lot has been
converted to serve commercial and industrial purposes. The testimony of petitioners Gauvain
Benzonan on this score has not been successfully challenged, viz:
Q.
Out of this 2.6 hectares land area, how much of this is devoted to the solar drier
construction?
A.
The solar drier is about one thousand (1,000) square meters . . . ah no, about six thousand
(6,000) square meters.
Q.

What about the area occupied by the warehouse and the ricemill complex?

A.

The warehouse and ricemill complex is occupying about one and a half (1 1/2) hectares.

Q.

What about the area occupied by the residence as well as the roadways?

A.

It covers about another half of a hectare again, Sir.

Q.
Is any part of this two point six hectares devoted to agricultural production or production of
agricultural crops?
A.
None whatsoever because the other portion is occupied as a dumping area for our waste
materials. (TSN, PP. 361-362, Sept. 3, 1985).
The conversion of the lot for commercial purposes is understandable considering that the heart of
General Santos City developed in that area.

The respondent does not deny that, he is using the land for purely commercial and industrial
purposes. His explanation is that the land may be converted into agricultural land in the future. He
applies the Krivenko v. Register of Deeds of Manila (79 Phil. 461 [1947]) ruling that lands not
mineral or forest are agricultural in nature and may be devoted to business purposes without
losing their agricultural classification.

disputed property without doing violence to everything that CA No. 141 (as amended) stands for.
We ruled in Simeon v. Pea, 36 SCRA 610, 617 [1970] through Chief Justice Claudio Teehankee,
that:
xxx

Indeed, the records show that it was never the intention of respondent Pe to utilize the land, given
to him for free by the Government, for agricultural purposes. He was not the kind of poor farmer for
whom homesteads and free patents were intended by the law.
As stated by the petitioners:
1.
Respondent Pe acquired by free patent the land in question with an area of 2.6064 hectares,
which was issued Original Certificate of Title No. P-2404 on November 24, 1969. Instead of
cultivating it for agricultural purposes, Pe mortgaged the land, along with another land, on
February 24, 1970, or only three (3) months from issuance of OCT No.
P-2404, with the DBP for P978,920.00. (par. 4, complaint, Annex "A"). Pe testified that his purpose
was to construct in the land in question "bodega", an administration-residential building, a
perimeter fence, a concrete drier, and for some machineries and equipment." (TSN, p. 95, June
22, 1984). He stated that the improvements and facilities in the land included "the warehouse, the
ricemill and a big warehouse housing the palay of stocks of the National Grains Authority and an
administration-residential building, a solar drier and a perimeter fence and some sheds or garage .
. . a small piggery pen of several compartments, a dirty kitchen . . . a machine shop." (TSN, pp.
173-174, August 13, 1984). Pe used the property for such purposes and operated the ricemill
business for a period of about nine (9) years until September, 1979 (pars. 7 and 8, complaint,
Annex "A"), without paying the DBP of his mortgage indebtedness, as a result of which DBP
foreclosed the properties. (Annex "F")
2.
Respondent Pe testified that the land in question with its improvements has an appraised
value of P1,347,860.00 in 1974, and P2,028,030.00 in 1976. (TSN, pp. 176, 177, August 13,
1984). Petitioner Gauvain Benzonan claimed it has a fair market value, as of 1985, of
P5,000,000.00. (p. 8, trial court decision, Annex "F"). As against such value of the land and
improvements, respondent Pe insisted that the repurchase price should only be the principal sum
of P327,995.00. (par. 10, complaint, Annex "A")
3.
Respondent Pe, when he testified in 1984, said he was 60 years old; he is now therefore
over 66 years old. He is a "businessman and resident of Dadiangas, General Santos City" (TSN,
p. 3, June 20, 1984), doing business under the style, "Dadiangas B.P. Trading" (TSN, 144, June
22, 1984). In his sworn declaration dated July 18, 1983, filed with the assessor's office pursuant to
P.D. No. 1612, he listed the following real properties and their market value, all situated in General
Santos City, to wit (Exh. 11-Benzonan):
(a)
(b)
(c)
(d)
(e)
(f)
(g)

447 sq. m. residential P

28,720.00
11.9980 hectares of agri. lot P
23,880.00
2.000 hectares of agri. lot
P
40,000.00
2.000 hectares of agri. lot
P
40,000.00
6,064 sq. m. of industrial lot P303,200.00
Industrial building P434,130.00
Industrial machinery
P
96,000.00

On June 22, 1984, when Pe testified, he said that "I own three (3) residential lots," (TSN, p. 153,
June 22, 1984) and that he and his wife own in Antique Province "around twenty (20) hectares
planted to coconut and sugarcane" (ibid., p. 145); he used to have 30 hectares of agricultural
lands and 22 subdivision lots, which he sold to Norma Salvani and Carlos Salvani. (TSN, pp. 166169, June 22, 1984); Exhs. 1, 1-A, 1-B, 1-C, 3, 6, 6-A-Benzonan). (Rollo of G.R. No. 97973, pp.
17-19)
In the light of the records of these cases, we rule that respondent Pe cannot repurchase the

xxx

xxx

These findings of fact of the Court of Appeals that "(E)vidently, the reconveyance sought by the
plaintiff (petitioner) is not in accordance with the purpose of the law, that is, "to preserve and keep
in the family of the homesteader that portion of public land which the State has gratuitously given
to him"" and expressly found by it to "find justification from the evidence of record. . . ."
Under the circumstances, the Court is constrained to agree with the Court of Appeals that
petitioners' proposed repurchase of the property does not fall within the purpose, spirit and
meaning of section 119 of the Public Land Act, authorizing redemption of the homestead from any
vendee thereof.
We reiterated this ruling in Vargas v. Court of Tax Appeals, 91 SCRA 195, 200, [1979] viz:
As regards the case of Simeon v. Pea, petitioners ought to know that petitioner therein was not
allowed to repurchase because the lower court found that his purpose was only speculative and
for profit. In the present case, the Court of Appeals found that herein petitioners' purposes and
motives are also speculative and for profit.
It might be well to note that the underlying principle of Section 119 of Commonwealth Act No. 141
is to give the homesteader or patentee every chance to preserve for himself and his family the
land that the State had gratuitously given to him as a reward for his labor in cleaning and
cultivating it. (Simeon v. Pea, 36 SCRA 617). As found by the Court of Appeals, the motive of the
petitioners in repurchasing the lots in question being one for speculation and profit, the same
therefore does not fall within the purpose, spirit and meaning of said section.
and in Santana et al. v. Marias, 94 SCRA 853, 861-862 [1979] to wit:
In Simeon v. Pea we analyzed the various cases previously decided, and arrived at the
conclusion that the plain intent, the raison d' etre, of Section 119, C.A. No. 141 ". . . is to give the
homesteader or patentee every chance to preserve for himself and his family the land that the
state had gratuitously given to him as a reward for his labor in cleaning and cultivating it." In the
same breath, we agreed with the trial court, in that case, that "it is in this sense that the provision
of law in question becomes unqualified and unconditional. And in keeping with such reasons
behind the passage of the law, its basic objective is to promote public policy, that is, to provide
home and decent living for destitutes, aimed at promoting a class of independent small
landholders which is the bulwark of peace and order.
As it was in Simeon v. Pea, respondent Marias' intention in exercising the right of repurchase "is
not for the purpose of preserving the same within the family fold," but "to dispose of it again for
greater profit in violation of the law's policy and spirit." The foregoing conclusions are supported by
the trial court's findings of fact already cited, culled from evidence adduced. Thus respondent
Marias was 71 years old and a widower at the time of the sale in 1956; that he was 78 when he
testified on October 24, 1963 (or over 94 years old today if still alive); that . . . he was not living on
the property when he sold the same but was residing in the poblacion attending to a hardware
store, and that the property was no longer agricultural at the time of the sale, but was a residential
and commercial lot in the midst of many subdivisions. The profit motivation behind the effort to
repurchase was conclusively shown when the then plaintiff's counsel, in the case below, Atty.
Loreto Castillo, in his presence, suggested to herein petitioners' counsel, Atty. Rafael Dinglasan
". . . to just add to the original price so the case would be settled." Moreover, Atty. Castillo
manifested in court that an amicable settlement was possible, for which reason he asked for time
"within which to settle the terms thereof'" and that "the plaintiff . . . Mr. Marias, has manifested to
the Court that if the defendants would be willing to pay the sum of One Peso and Fifty Centavos

(P1.50) per square meter, he would be willing to accept the offer and dismiss the case."
Our decisions were disregarded by the respondent court which chose to adopt a Court of Appeals
ruling in Lim, et al. v. Cruz, et al., CA-G.R. No. 67422, November 25, 1983 that the motives of the
homesteader in repurchasing the land are inconsequential" and that it does not matter even "when
the obvious purpose is for selfish gain or personal aggrandizement."
The other major issue is when to count the five-year period for the repurchase by respondent Pe
whether from the date of the foreclosure sale or from the expiration of the one year period to
redeem the foreclosed property.
The respondent court ruled that the period of repurchase should be counted from the expiration of
the one year period to redeem the foreclosed property. Since the one year period to redeem
expired on January 24, 1979 and he filed Case No. 280 on October 4, 1983 to enforce his right to
repurchase the disputed property, the Court of Appeals held that Pe exercised his right to
repurchase within the five-year period provided by Section 119 of CA 141 as amended.
The respondent court cited Belisario, et al., v. Intermediate Appellate Court, et al., 165 SCRA 101,
107 [1988] where we held:
. . . In addition, Section 119 of Commonwealth Act 141 provides that every conveyance of land
acquired under the free patent or homestead patent provisions of the Public Land Act, when
proper, shall be subject to repurchase by the applicant, his widow or legal heirs within the period of
five years from the date of conveyance. The five-year period of redemption fixed in Section 119 of
the Public Land Law of homestead sold at extrajudicial foreclosure begins to run from the day after
the expiration of the one-year period of repurchase allowed in an extrajudicial foreclosure. (Manuel
v. PNB, et al., 101 Phil. 968) Hence, petitioners still had five (5) years from July 22, 1972 (the
expiration of the redemption period under Act 3135) within which to exercise their right to
repurchase under the Public Land Act.
As noted by the respondent court, the 1988 case of Belisario reversed the previous rulings of this
Court enunciated in Monge, et al., v. Angeles, et al., 101 Phil. 563 [1957] and Tupas v. Damasco,
et al., 132 SCRA 593 [1984] to the effect that the five year period of repurchase should be counted
from the date of conveyance or foreclosure sale. The petitioners, however, urge that Belisario
should only be applied prospectively or after 1988 since it established a new doctrine.
We sustain the petitioners' position. It is undisputed that the subject lot was mortgaged to DBP on
February 24, 1970. It was acquired by DBP as the highest bidder at a foreclosure sale on June 18,
1977, and then sold to the petitioners on September 29, 1979.
At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended was that
enunciated in Monge and Tupas cited above. The petitioners Benzonan and respondent Pe and
the DBP are bound by these decisions for pursuant to Article 8 of the Civil Code "judicial decisions
applying or interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines." But while our decisions form part of the law of the land, they are also subject to
Article 4 of the Civil Code which provides that "laws shall have no retroactive effect unless the
contrary is provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the
law looks forward not backward. The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that have already become vested or impairs
the obligations of contract and hence, is unconstitutional (Francisco v. Certeza, 3 SCRA 565
[1961]).
The same consideration underlies our rulings giving only prospective effect to decisions
enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974] ". . .
when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should
be applied prospectively and should not apply to parties who had relied on the old doctrine and
acted on the faith thereof."

There may be special cases where weighty considerations of equity and social justice will warrant
a retroactive application of doctrine to temper the harshness of statutory law as it applies to poor
farmers or their widows and orphans. In the present petitions, however, we find no such equitable
considerations. Not only did the private respondent apply for free agricultural land when he did not
need it and he had no intentions of applying it to the noble purposes behind the law, he would now
repurchase for only P327,995.00, the property purchased by the petitioners in good faith for
P1,650,000.00 in 1979 and which, because of improvements and the appreciating value of land
must be worth more than that amount now.
The buyers in good faith from DBP had a right to rely on our rulings in Monge and Tupas when
they purchased the property from DBP in 1979 or thirteen (13) years ago. Under the rulings in
these two cases, the period to repurchase the disputed lot given to respondent Pe expired on June
18, 1982. He failed to exercise his right. His lost right cannot be revived by relying on the 1988
case of Belisario. The right of petitioners over the subject lot had already become vested as of that
time and cannot be impaired by the retroactive application of the Belisario ruling.
Considering our above findings, we find no need to resolve the other issues raised by the
petitioners in their petitions.
WHEREFORE, the questioned decision of the respondent court is hereby REVERSED and SET
ASIDE. The complaint for repurchase under Section 119 of Commonwealth Act No. 141 as
amended is DISMISSED. No pronouncement as to costs.
Feliciano, Bidin, Davide, Jr. and Romero, JJ., concur.