DOJ Opinion No. 089, s. 1999

DOJ OPINION NO. 089 , s. 1999 October 11, 1999 3rd Indorsement Respectfully returned to the Assistant Secretary for Legal Service & Internal Audit, Department of Public Works and Highways (DPWH), Manila, the within request for legal opinion as to the basis of the just compensation to be given to the unpaid owners of private lands which were already occupied by the Government prior to the effectivity of Administrative Order (A.O.) No. 50 ( Guidelines for the Acquisition of Certain Parcels of Private Land Intended for Public Use Including the Right-of-Way Easement of Several Public Infrastructure Projects ) issued on February 17, 1999. cdlex It appears from the records that pursuant to Executive Order (E.O.) No. 329, s. 1988 ( Creating Appraisal Committees in the Metropolitan Manila Area, Defining Their General Functions and Prescribing Their Procedures ), as amended, claims of property owners for the payment of their properties taken by the Government were referred to the Metropolitan Manila Development Authority (MMDA) for appraisal. Because of the issuance of A.O. No. 50, the MMDA sought the opinion of Assistant Secretary Jesus Crispin C. Remulla of the Presidential Management Staff, Office of the President. In response to the May 3, 1999 letter of MMDA General Manager Violeta Somera-Seva, Assistant Secretary Remulla explained, in his May 13, 1999 letter, that A.O. No. 50 merely intends to outline specific procedures and guidelines to be complied with by the concerned Government agencies during the acquisition of certain parcels of private land intended for public use, including the right-of-way easement of several public infrastructure projects. He added that the said A.O. did not, as it has no aim, to alter the provisions of relevant issuances, particularly E.O. Nos. 132 ( Procedure to be Followed in the Acquisition of Private Property for Public Use and Creating Appraisal Committees [1937] ), 214 (s. 1939) and 329 (s. 1988), with respect to the powers, composition and jurisdiction of existing appraisal bodies or committees. He went on further by saying that the Metro Manila Appraisal Committee formed under E.O. No. 329, along with the other duly constituted appraisal bodies, are still clothed with all the appropriate powers to conduct timely and objective assessments of private lands intended to be condemned by the Government. Assistant Secretary Remulla likewise said that the existence of such appraisal committees is expressly recognized under Section 3 of A.O. No. 50, which provides in part that: "(I)n order to facilitate the immediate judicial determination of just compensation during the expropriation proceedings, the expropriating agency or its duly authorized assessor . . . must consider . . . the following relevant standards (emphasis supplied)." In addition, he said that not only is the said A.O. a presidential order which prescribes certain rules and forms of procedure for the proper enforcement of the State's inherent power of eminent domain. It moreover relates to remedies or modes of procedure which do not create new nor take away vested rights. He then concluded that such being the case, A.O. No. 50 operates not only to facts or transactions that will occur after its effectivity but also to those that already occurred before its effectivity. In other words, the process established in A.O. No. 50 has retroactive effect and should hence, apply to all private lands which the Government took for public use but have not been formally assessed and paid. Notwithstanding the said response, the MMDA forwarded without action to the DPWH, the various requests for appraisal of the several properties affected by numerous infrastructure projects of the Government still pending with the MMDA Appraisal Committee on the ground that the Committee can no longer act on the said request for appraisal in view of the issuance of A.O. No. 50. Now, it also appears from the records that the DPWH is of the position that the unpaid properties should be appraised in accordance with E.O. No. 329, s. 1988, as amended for if the DPWH were to follow the position of Assistant Secretary Remulla that A.O. No. 50 has a retroactive effect, it will be paying the affected property owners an amount higher than the market value of their lands at the time of the taking of the property considering that under Section 1 of the said A.O., the expropriating agency shall offer in writing a purchase price equivalent to ten (10%) percent higher than the zonal valuation as prescribed by the Bureau of Internal Revenue (BIR). With regret, this Department has to decline rendition of the opinion requested. The Secretary of Justice, by established policy and precedents, does not pass upon a presidential issuance, directive, memorandum circular, proclamation, executive /administrative order or official act of the Office of the President which is presumed to be valid or legal and binding upon all offices and bureaus under the executive branch, unless so requested by the Office of the President itself. (Secretary of Justice Opn. Nos. 15 and 4, current series; Nos. 2 and 83, s. 1998; Nos. 47 and 50, s. 1997) Moreover, any opinion that this Department would render relative to your query would be tantamount to a review of the subject Administrative Order of the Office of the President over which this Office exercises no revisory authority. ( ibid ., No. 15, current series; No. 21, s. 1997) Furthermore, the specific issue raised in the instant request necessarily affects the substantive rights of the private parties, particularly the owners of private lands taken by the Government for public use but who up to now, remain unpaid, upon whom the opinion of the Secretary of Justice, which is merely advisory in nature, has no binding effect, and who may, in all probability, contest the same in court if the opinion turns out to be adverse to their interests. Inasmuch as the matter herein might subsequently be the subject of judicial controversy, it is neither advisable nor proper for this Office to comment thereon. ( Ibid ., Opn. Nos. 53, 36, 12, 8 and 3, current series; Nos. 31, 45 and 76, s. 1997) Lastly, the resolution of the foregoing query would amount to a review of the position taken by the Assistant Secretary of the Presidential Management Staff, Office of the President. By established policy and precedents, this Department has desisted from passing upon the official actuations and/or rulings of any government official, in this case, the Assistant Secretary of the Presidential Management Staff, over whom, this Department has neither supervisory or revisory authority. ( Ibid ., Opn. Nos. 59, 37, 16 and 3, current series) It is therefore suggested that any clarification desired on the provisions of A.O. No. 50 should be sought from the Office of the President. Nonetheless, for your information and guidance, just compensation in the 1987 Constitution is defined as an amount equal to the market value of the property: "that is, the price which the property will command if the seller is not bound to sell and the buyer is not bound to buy." Any statutory determination of just compensation would be "only a prima facie assessment. In the end, the final determination of whether or not the compensation is just will have to be made by the court." Any law fixing the amount that would constitute just compensation would not be binding on the courts "because it is a question of fact which is always subject to review by the courts." ( The Constitution of the Republic of the Philippines by Fr. Joaquin G. Bernas, S.J., 1996 edition, p. 359 ) In fact, the Supreme Court, in the cases of Province of Camarines Sur vs. Court of Appeals, 222 SCRA 173 (1993) and Municipality of Talisay vs. Ramirez, 183 SCRA 528 (1990) ruled that "the rules for determining just compensation are those laid down in Rule 67 of the Rules of Court, which allow private respondents to submit evidence on what they consider shall be the just compensation for their property." In addition, if property is taken before compensation is given or before compensation is deposited with the court having jurisdiction over the case, the final compensation must include interests on its just value, to be computed from the time the property was taken to the time compensation is given or deposited with the court. ( The Constitution of the Republic of the Philippines, supra, p. 352, citing Philippine Railway Co. v. Solon, 13 Phil. 34 [1909]; Philippine Railway Co. v. Duran, 33 Phil. 156 [1916] ) Moreover, the value of the property taken is computed as of the time of the taking, and, between the actual taking and the actual payment, legal interest accrues. ( The Constitution of the Republic of the Philippines, supra, pp. 352-353 ) (SGD.) JUSTICE SERAFIN R. CUEVAS Secretary