Big bold reform: Land tenure

As part of the “big bold reform” initiative by the administration, the Department of Agrarian Reform (DAR) is contemplating issuing an administrative order (AO) purportedly removing the requirement of securing the agency’s clearance on land transactions on private agricultural lands and the transfers of awarded agricultural lands under Republic Act 6657, or the Comprehensive Agrarian Reform Law (CARL), as amended.

The agency believes that this will significantly alter the land market in the country.

First, it will enable farmer-entrepreneurs to own land beyond the 5 hectares limit for a couple tilling the land and 3 hectares for an individual cultivator. This will allow consolidation of farmlands, which have fragmented into miniscule sizes (average farm size now is 0.83 of a hectare) due to the protracted implementation of CARL. In turn, land consolidation will enable producers to enjoy economies of scale in production.

The other implication, which is no less significant, is that it will facilitate conversion of agricultural lands to nonagricultural uses such as real estate development and the construction of more industrial sites and tourism spots. The difficulty in converting agricultural lands into nonfarm purposes is seen as one of the causes of rising real estate and industrial development costs.

The proposed AO brings a sense of excitement because it has the potential to trigger massive investments from the private sector, both local and foreign, to the rural sector, in particular. However, the problem is that despite the AO’s issuance, pundits are claiming that its potential of contributing to development will not be realized due to legal infirmities.

A position paper, written by Erwin Tiamson, a recognized legal expert on land laws in the country and a member of the Foundation for Economic Freedom, elaborates on the reasons.

He argues that the proposed AO indeed “weakens the operational relevance of the 5-hectare retention limit without repealing it” since lands can now can be consolidated through ordinary transactions without fear that the ceiling will be enforced by DAR during the point of transfer. Take note that the AO lifts DAR’s clearance authority during the process. The result is that while there is a CARL land ownership retention ceiling provision, the removal of DAR’s clearance authority at this transaction point means the absence of an agency to enforce this provision.

Thus, the AO has the effect of making the retention ceiling “dormant” or temporarily inactive.

Tiamson clarifies that this is not a new legal ploy, as this was also applied to the share tenancy law, which declared that this tenurial arrangement is illegal (criminal) though hardly enforced now. By resorting to this legal maneuvering, the measure avoids the trap of raising the issue to Congress where such an amendment will expectedly trigger controversies and divisions. And the Marcos administration can ill-afford this given its declining political capital.

The downside of this “dormant” approach, Tiamson observes, is that since the proposed AO is a statutory amendment, its continued implementation will be at the whims of the Executive branch of government. A change in the administration with a pro-agrarian reform bias in the future will likely trigger a return to the low land ownership retention ceiling as stipulated in CARL.

However, Tiamson sees land conversion as the more problematic aspect of the DAR AO. Rigidities in the land conversion process have negative downstream consequences on the ability of local government units (LGUs), and the Department of Human Settlements and Urban Development (DHSUD) to reclassify lands for nonagricultural development purposes such as designation for residential areas and industrial sites. Similarly, investors will be discouraged by the lengthy and costly land conversion process.

The AO does not address this problem, Tiamson said. While LGUs, DHSUD and even the private sector can formulate zoning and development plans in their respective localities for the rational use of their scarce land resources, the matter becomes moot and academic if a land conversion authority is not issued by DAR.

“The reform improves land mobility and consolidation. It does not reconcile the institutional conflict between decentralized planning and centralized conversion control. Until conversion authority is harmonized with land use planning, development uncertainty persists,” Tiamson said.

What are the key takeaways from Tiamson’s assessment of DAR’s AO?

First, it obviously does not constitute a “big bold reform.” It is neither “big” nor “bold” because it does not structurally address the root cause of the problem in a more assertive manner.

Two, there will be a need to amend the specific provision in CARL regarding the land ownership retention ceiling to raise it at a level where our food producers can enjoy economies of scale. Only by introducing such an amendment by Congress that the uncertainties over the retention ceiling and the land market can be resolved.

Three, a big bold reform will require streamlining the land conversion process that might involve stripping partly the powers of DAR on land conversion. This will necessitate the formulation and passage of a national land use plan that identifies in detail areas designated for agricultural, real estate, industrial development, among others. This then becomes the basis of whether lands should be retained for further agricultural development or for nonagricultural uses, which facilitates the land conversion process.

Four, the ultimate measure to remove uncertainty over the land market is the declaration that CARL has been completed, with a promise that no further extension will be accommodated. Further implementation will just be confined to areas which have been issued with a notice of coverage (NOC) and no further NOC will be issued by DAR. Note that as per DAR data, almost 88 percent (or nearly 5 million hectares) of targeted lands for distribution have been placed under agrarian reform.

In the past, agrarian reform advocates theorized that land reform would increase agricultural productivity and result in countryside development. Ironically, scholarly studies have now revealed that in the Philippine case, agrarian reform actually led to a decline in farm productivity by around 17 percent due to fragmentation of lands into miniscule plots. In other words, the way we implemented agrarian reform consigned our small farmers to poverty. It is high time that we shift gears.

Let us not allow an economic dogma popular in the mid-20th century to continue to dominate our agriculture development policy landscape. We are now in the 21st century wherein adopting and adjusting to new technologies, particularly the advent of artificial intelligence, will determine whether our economy will further progress or stagnate.

Source: Manila Times