The Manila Times

The silencing of PD 705 in Masungi

ANTONIO CONTRERAS

THERE is a need to revisit the legal complexities surrounding the Masungi Georeserve. At the outset, it is not my intention to favor one stakeholder over another. As a scholar of environmental policy, and whose academic training includes the analysis of legal texts and discourses, I am committed to render an objective inquiry into the complex ecology of relevant laws and policies.

I do this in order to shed light on the current conflict between the Department of Environment and Natural Resources (DENR) and the Masungi Georeserve Foundation Inc. (MGFI). The two are parties to a 2017 memorandum of agreement (MoA) that ironically while signed in good faith and with the presumption of regularity, is now assailed by the DENR as legally and constitutionally infirm. This is done with the hope that a middle ground can be found to get out of the predicament that would serve the best interest of all stakeholders, and ultimately the environment.

An objective analysis of the situation reveals an environmental conflict that stems from the political pressures that emanate from private interests colliding with the now-defined and settled policy regime that locates the entire Upper Marikina River Basin Protected Landscape in the ambit of environmental protection, by virtue of Republic Act (RA) 7586, or the “National Integrated Protected Areas (Nipas) Law,” as amended by RA 11038, otherwise known as the “E-Nipas Law.”

The problem with our protected areas discourse is that while there is an overarching state policy on environmental protection, space is allowed for private rights to be recognized, particularly in situations where lands within protected areas have already been titled to private persons, or when those lands are part of the ancestral domains of Indigenous peoples. Thus, while prohibited acts are enumerated in Section 18 of RA 11038, which amends Section 20 of RA 7586, there is an overarching exception when, in the words of the law, the said activity “may be allowed by the nature of their categories and pursuant to rules and regulations governing the same.”

The validity of MGFI’s actions pursuant to the terms of the 2017 MoA, where it was given blanket authority to conduct environmental protection activities, is now being assailed by the DENR as contrary to public interest. The reason given is that they did not comply with the regulations of the E-Nipas Law, which is a strange argument since the 2017 MoA was preceded by one-year RA 11038, which became law only in 2018. Granting that the MoA was inconsistent with the law, then adequate measures should have been taken to harmonize the contract, and renegotiate its terms. After all, aside from the prohibition against an ex-post facto application of laws, there is also the principle of operative fact that theoretically protects the legality of actions even if an associated instrument or law would be declared as inconsistent with the Constitution or any law. If this is true even for laws already in existence when the MoA was signed, the more that it should be considered in the case of a law that only took effect a year after.

The assault on the 2017 MoA develops in the face of competing private claims on the land emanating from resort owners, and others. This is where the legal landscape becomes odd, and deserves closer scrutiny. Private claimants build their case on the basis of Presidential Decree (PD) 324 issued by President Ferdinand E. Marcos Sr. in 1973 which excluded 1,729 hectares from the Marikina Watershed Reservation, and classified it as alienable and disposable (A and D), and therefore could be subjected to exploitation and use under the provisions of the Public Land Act. They offer this argument that a later presidential action, Proclamation 1636, issued by Marcos in 1977, which reverts the land back to its original classification does not have standing since it is a mere proclamation, and not a decree, a claim that is rather dubious and would require judicial vetting in order to be valid.

However, there is one law that surprisingly does not appear not just in the manifestation of the claimants, but even in the official legal briefs tendered by the DENR. In 1975, Marcos issued PD 705, or the Forestry Reform Code. Section 15 of the law clearly states that:

“Lands eighteen percent (18 percent) in slope or over which have already been declared as alienable and disposable shall be reverted to the classification of forest lands by the department head, to form part of the forest reserves, unless they are already covered by existing titles or approved public land application, or actually occupied openly, continuously, adversely and publicly for a period of not less than thirty (30) years as of the effectivity of this Code, where the occupant is qualified for a free patent under the Public Land Act: Provided, That said lands, which are not yet part of well-established communities, shall be kept in a vegetative condition sufficient to prevent erosion and adverse effects on the lowlands and streams: Provided, further, That when public interest so requires, steps shall be taken to expropriate, cancel defective titles, reject public land application, or eject occupants thereof.”

This provision is still effective today, considering that it was not included in the amendments enumerated in PD 1559 issued in 1978.

Therefore, even granting that PD 1636 is assailable, PD 705 clearly directs the reversal of lands with slope above 18 percent that are declared as A and D. It is the burden of those who claim exemption, which could include the private claimants in Masungi, to show that as of 1975, they already had acquired valid titles, or that they held approved public land applications, or that they had already continuously occupied the area for a period of 30 years in 1975, or since 1945. And even if they have valid claims, the state still has the power to expropriate, cancel defective titles or reject public land applications if they run counter to public interest. Certainly, the E-Nipas Law has clearly laid out that such interest lies best in keeping Masungi a protected area.

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2023-04-01T07:00:00.0000000Z

2023-04-01T07:00:00.0000000Z

https://manilatimes.pressreader.com/article/281526525318332

The Manila Times