Republic of The Philippines Manila en Banc: Al. Were Heard by The Court On March 13, 1990. After G.R. No
Republic of The Philippines Manila en Banc: Al. Were Heard by The Court On March 13, 1990. After G.R. No
Republic of The Philippines Manila en Banc: Al. Were Heard by The Court On March 13, 1990. After G.R. No
SUPREME COURT public the basis of their decision to push through with the sale
Manila of the Roppongi property inspire of strong public opposition
and to explain the proceedings which effectively prevent the
EN BANC participation of Filipino citizens and entities in the bidding
process.
G.R. No. 92013 July 25, 1990
The oral arguments in G.R. No. 92013, Laurel v. Garcia, et
al. were heard by the Court on March 13, 1990. After G.R. No.
SALVADOR H. LAUREL, petitioner,
92047, Ojeda v. Secretary Macaraig, et al. was filed, the
vs.
respondents were required to file a comment by the Court's
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL
resolution dated February 22, 1990. The two petitions were
MANGLAPUS, as Secretary of Foreign Affairs, and CATALINO
MACARAIG, as Executive Secretary, respondents. consolidated on March 27, 1990 when the memoranda of the
parties in the Laurel case were deliberated upon.
G.R. No. 92047 July 25, 1990
The Court could not act on these cases immediately because
the respondents filed a motion for an extension of thirty (30)
DIONISIO S. OJEDA, petitioner, days to file comment in G.R. No. 92047, followed by a second
vs. motion for an extension of another thirty (30) days which we
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS granted on May 8, 1990, a third motion for extension of time
PRIVATIZATION TRUST CHAIRMAN RAMON T. GARCIA, granted on May 24, 1990 and a fourth motion for extension of
AMBASSADOR RAMON DEL ROSARIO, et al., as members of time which we granted on June 5, 1990 but calling the attention
the PRINCIPAL AND BIDDING COMMITTEES ON THE of the respondents to the length of time the petitions have been
UTILIZATION/DISPOSITION PETITION OF PHILIPPINE pending. After the comment was filed, the petitioner in G.R. No.
GOVERNMENT PROPERTIES IN JAPAN, respondents. 92047 asked for thirty (30) days to file a reply. We noted his
motion and resolved to decide the two (2) cases.
Arturo M. Tolentino for petitioner in 92013.
I
Petitioner Dionisio Ojeda in G.R. No. 92047, apart from The respondents, for their part, refute the petitioner's
questioning the authority of the government to alienate the contention by saying that the subject property is not governed
Roppongi property assails the constitutionality of Executive by our Civil Code but by the laws of Japan where the property is
Order No. 296 in making the property available for sale to non- located. They rely upon the rule of lex situs which is used in
Filipino citizens and entities. He also questions the bidding determining the applicable law regarding the acquisition,
procedures of the Committee on the Utilization or Disposition of transfer and devolution of the title to a property. They also
Philippine Government Properties in Japan for being invoke Opinion No. 21, Series of 1988, dated January 27, 1988 of
discriminatory against Filipino citizens and Filipino-owned the Secretary of Justice which used the lex situs in explaining
entities by denying them the right to be informed about the the inapplicability of Philippine law regarding a property
bidding requirements. situated in Japan.
As property of public dominion, the Roppongi lot is outside the Has the intention of the government regarding the use of the
commerce of man. It cannot be alienated. Its ownership is a property been changed because the lot has been Idle for some
special collective ownership for general use and enjoyment, an years? Has it become patrimonial?
application to the satisfaction of collective needs, and resides in
the social group. The purpose is not to serve the State as a The fact that the Roppongi site has not been used for a long
juridical person, but the citizens; it is intended for the common time for actual Embassy service does not automatically convert
and public welfare and cannot be the object of appropration. it to patrimonial property. Any such conversion happens only if
(Taken from 3 Manresa, 66-69; cited in Tolentino, Commentaries the property is withdrawn from public use (Cebu Oxygen and
on the Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26). Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A property
continues to be part of the public domain, not available for
The applicable provisions of the Civil Code are: private appropriation or ownership until there is a formal
declaration on the part of the government to withdraw it from
ART. 419. Property is either of public dominion being such (Ignacio v. Director of Lands, 108 Phil. 335 [1960]).
or of private ownership.
The respondents enumerate various pronouncements by
ART. 420. The following things are property of concerned public officials insinuating a change of intention. We
public dominion emphasize, however, that an abandonment of the intention to
use the Roppongi property for public service and to make it
(1) Those intended for public use, such as roads, patrimonial property under Article 422 of the Civil Code must be
canals, rivers, torrents, ports and bridges definiteAbandonment cannot be inferred from the non-use alone
specially if the non-use was attributable not to the government's
constructed by the State, banks shores
own deliberate and indubitable will but to a lack of financial
roadsteads, and others of similar character;
support to repair and improve the property (See Heirs of Felino
Santiago v. Lazaro, 166 SCRA 368 [1988]). Abandonment must
(2) Those which belong to the State, without be a certain and positive act based on correct legal premises.
being for public use, and are intended for some
public service or for the development of the
A mere transfer of the Philippine Embassy to Nampeidai in 1976
national wealth.
is not relinquishment of the Roppongi property's original
purpose. Even the failure by the government to repair the
ART. 421. All other property of the State, which building in Roppongi is not abandonment since as earlier
is not of the character stated in the preceding stated, there simply was a shortage of government funds. The
article, is patrimonial property. recent Administrative Orders authorizing a study of the status
and conditions of government properties in Japan were merely
directives for investigation but did not in any way signify a clear
intention to dispose of the properties.
Executive Order No. 296, though its title declares an "authority of future funding to augment (as and when needed) the Agrarian
to sell", does not have a provision in its text expressly Reform Fund created under Executive Order No. 299. Obviously
authorizing the sale of the four properties procured from Japan any property outside of the commerce of man cannot be tapped
for the government sector. The executive order does not declare as a source of funds.
that the properties lost their public character. It merely intends
to make the properties available to foreigners and not to The respondents try to get around the public dominion
Filipinos alone in case of a sale, lease or other disposition. It character of the Roppongi property by insisting that Japanese
merely eliminates the restriction under Rep. Act No. 1789 that law and not our Civil Code should apply.
reparations goods may be sold only to Filipino citizens and one
hundred (100%) percent Filipino-owned entities. The text of
It is exceedingly strange why our top government officials, of all
Executive Order No. 296 provides:
people, should be the ones to insist that in the sale of extremely
valuable government property, Japanese law and not Philippine
Section 1. The provisions of Republic Act No. law should prevail. The Japanese law - its coverage and effects,
1789, as amended, and of other laws to the when enacted, and exceptions to its provision — is not
contrary notwithstanding, the above-mentioned presented to the Court It is simply asserted that the lex loci rei
properties can be made available for sale, lease sitae or Japanese law should apply without stating what that
or any other manner of disposition to non- law provides. It is a ed on faith that Japanese law would allow
Filipino citizens or to entities owned by non- the sale.
Filipino citizens.
We see no reason why a conflict of law rule should apply when
Executive Order No. 296 is based on the wrong premise or no conflict of law situation exists. A conflict of law situation
assumption that the Roppongi and the three other properties arises only when: (1) There is a dispute over the title or
were earlier converted into alienable real properties. As earlier ownership of an immovable, such that the capacity to take and
stated, Rep. Act No. 1789 differentiates the procurements for the transfer immovables, the formalities of conveyance, the
government sector and the private sector (Sections 2 and 12, essential validity and effect of the transfer, or the interpretation
Rep. Act No. 1789). Only the private sector properties can be and effect of a conveyance, are to be determined (See
sold to end-users who must be Filipinos or entities owned by Salonga, Private International Law, 1981 ed., pp. 377-383); and
Filipinos. It is this nationality provision which was amended by (2) A foreign law on land ownership and its conveyance is
Executive Order No. 296. asserted to conflict with a domestic law on the same matters.
Hence, the need to determine which law should apply.
Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which
provides as one of the sources of funds for its implementation, In the instant case, none of the above elements exists.
the proceeds of the disposition of the properties of the
Government in foreign countries, did not withdraw the The issues are not concerned with validity of ownership or title.
Roppongi property from being classified as one of public There is no question that the property belongs to the
dominion when it mentions Philippine properties abroad.
Philippines. The issue is the authority of the respondent
Section 63 (c) refers to properties which are alienable and not to
officials to validly dispose of property belonging to the State.
those reserved for public use or service. Rep Act No. 6657,
And the validity of the procedures adopted to effect its sale.
therefore, does not authorize the Executive Department to sell
the Roppongi property. It merely enumerates possible sources
This is governed by Philippine Law. The rule of lex situs does instrument conveying the title to real estate or to
not apply. any other property the value of which is in
excess of one hundred thousand pesos, the
The assertion that the opinion of the Secretary of Justice sheds respective Department Secretary shall prepare
light on the relevance of the lex situs rule is misplaced. The the necessary papers which, together with the
opinion does not tackle the alienability of the real properties proper recommendations, shall be submitted to
procured through reparations nor the existence in what body of the Congress of the Philippines for approval by
the authority to sell them. In discussing who are capable of the same. Such deed, instrument, or contract
acquiring the lots, the Secretary merely explains that it is the shall be executed and signed by the President of
foreign law which should determine who can acquire the the Philippines on behalf of the Government of
properties so that the constitutional limitation on acquisition of the Philippines unless the Government of the
lands of the public domain to Filipino citizens and entities Philippines unless the authority therefor be
wholly owned by Filipinos is inapplicable. We see no point in expressly vested by law in another officer.
belaboring whether or not this opinion is correct. Why should (Emphasis supplied)
we discuss who can acquire the Roppongi lot when there is no
showing that it can be sold? The requirement has been retained in Section 48, Book I of the
Administrative Code of 1987 (Executive Order No. 292).
The subsequent approval on October 4, 1988 by President
Aquino of the recommendation by the investigating committee SEC. 48. Official Authorized to Convey Real
to sell the Roppongi property was premature or, at the very Property. — Whenever real property of the
least, conditioned on a valid change in the public character of Government is authorized by law to be
the Roppongi property. Moreover, the approval does not have conveyed, the deed of conveyance shall be
the force and effect of law since the President already lost her executed in behalf of the government by the
legislative powers. The Congress had already convened for following:
more than a year.
(1) For property belonging to and titled in the
Assuming for the sake of argument, however, that the Roppongi name of the Republic of the Philippines, by the
property is no longer of public dominion, there is another President, unless the authority therefor is
obstacle to its sale by the respondents. expressly vested by law in another officer.
There is no law authorizing its conveyance. (2) For property belonging to the Republic of the
Philippines but titled in the name of any political
Section 79 (f) of the Revised Administrative Code of 1917 subdivision or of any corporate agency or
provides instrumentality, by the executive head of the
agency or instrumentality. (Emphasis supplied)
Section 79 (f ) Conveyances and contracts to
which the Government is a party. — In cases in It is not for the President to convey valuable real property of the
which the Government of the Republic of the government on his or her own sole will. Any such conveyance
Philippines is a party to any deed or other
must be authorized and approved by a law enacted by the Having declared a need for a law or formal declaration to
Congress. It requires executive and legislative concurrence. withdraw the Roppongi property from public domain to make it
alienable and a need for legislative authority to allow the sale of
Resolution No. 55 of the Senate dated June 8, 1989, asking for the property, we see no compelling reason to tackle the
the deferment of the sale of the Roppongi property does not constitutional issues raised by petitioner Ojeda.
withdraw the property from public domain much less authorize
its sale. It is a mere resolution; it is not a formal declaration The Court does not ordinarily pass upon constitutional
abandoning the public character of the Roppongi property. In questions unless these questions are properly raised in
fact, the Senate Committee on Foreign Relations is conducting appropriate cases and their resolution is necessary for the
hearings on Senate Resolution No. 734 which raises serious determination of the case (People v. Vera, 65 Phil. 56 [1937]).
policy considerations and calls for a fact-finding investigation The Court will not pass upon a constitutional question although
of the circumstances behind the decision to sell the Philippine properly presented by the record if the case can be disposed of
government properties in Japan. on some other ground such as the application of a statute or
general law (Siler v. Louisville and Nashville R. Co., 213 U.S.
The resolution of this Court in Ojeda v. Bidding Committee, et 175, [1909], Railroad Commission v. Pullman Co., 312 U.S. 496
al., supra, did not pass upon the constitutionality of Executive [1941]).
Order No. 296. Contrary to respondents' assertion, we did not
uphold the authority of the President to sell the Roppongi The petitioner in G.R. No. 92013 states why the Roppongi
property. The Court stated that the constitutionality of the property should not be sold:
executive order was not the real issue and that resolving the
constitutional question was "neither necessary nor finally The Roppongi property is not just like any piece
determinative of the case." The Court noted that "[W]hat of property. It was given to the Filipino people in
petitioner ultimately questions is the use of the proceeds of the reparation for the lives and blood of Filipinos
disposition of the Roppongi property." In emphasizing that "the who died and suffered during the Japanese
decision of the Executive to dispose of the Roppongi property military occupation, for the suffering of widows
to finance the CARP ... cannot be questioned" in view of Section and orphans who lost their loved ones and
63 (c) of Rep. Act No. 6657, the Court did not acknowledge the kindred, for the homes and other properties lost
fact that the property became alienable nor did it indicate that by countless Filipinos during the war. The Tokyo
the President was authorized to dispose of the Roppongi properties are a monument to the bravery and
property. The resolution should be read to mean that in case the sacrifice of the Filipino people in the face of an
Roppongi property is re-classified to be patrimonial and invader; like the monuments of Rizal, Quezon,
alienable by authority of law, the proceeds of a sale may be and other Filipino heroes, we do not expect
used for national economic development projects including the economic or financial benefits from them. But
CARP. who would think of selling these monuments?
Filipino honor and national dignity dictate that
Moreover, the sale in 1989 did not materialize. The petitions we keep our properties in Japan as memorials to
before us question the proposed 1990 sale of the Roppongi the countless Filipinos who died and suffered.
property. We are resolving the issues raised in these petitions, Even if we should become paupers we should
not the issues raised in 1989. not think of selling them. For it would be as if we
sold the lives and blood and tears of our Melencio-Herrera, Paras, Bidin, Griño-Aquino and Regalado, JJ.,
countrymen. (Rollo- G.R. No. 92013, p.147) concur.
PADILLA, J., concurring: Public dominion property intended for public service cannot be
alienated unless the property is first transformed into private
I concur in the decision penned by Mr. Justice Gutierrez, Jr., I property of the state otherwise known as patrimonial property
only wish to make a few observations which could help in of the state. 1 The transformation of public dominion property to
further clarifying the issues. state patrimonial property involves, to my mind, a policy
decision. It is a policy decision because the treatment of the
property varies according to its classification. Consequently, it
Under our tripartite system of government ordained by the
is Congress which can decide and declare the conversion of
Constitution, it is Congress that lays down or determines
Roppongi from a public dominion property to a state
policies. The President executes such policies. The policies
patrimonial property. Congress has made no such decision or
determined by Congress are embodied in legislative enactments
that have to be approved by the President to become law. The declaration.
President, of course, recommends to Congress the approval of
policies but, in the final analysis, it is Congress that is the Moreover, the sale of public property (once converted from
policy - determining branch of government. public dominion to state patrimonial property) must be
approved by Congress, for this again is a matter of policy (i.e. to
The judiciary interprets the laws and, in appropriate cases, keep or dispose of the property). Sec. 48, Book 1 of the
determines whether the laws enacted by Congress and Administrative Code of 1987 provides:
approved by the President, and presidential acts implementing
such laws, are in accordance with the Constitution. SEC. 48. Official Authorized to Convey Real
Property. — Whenever real property of the
The Roppongi property was acquired by the Philippine Government is authorized by law to be
conveyed, the deed of conveyance shall be
government pursuant to the reparations agreement between the
executed in behalf of the government by the
Philippine and Japanese governments. Under such agreement,
following:
this property was acquired by the Philippine government for a
specific purpose, namely, to serve as the site of the Philippine
Embassy in Tokyo, Japan. Consequently, Roppongi is a (1) For property belonging to and
property of public dominion and intended for public service, titled in the name of the Republic
squarely falling within that class of property under Art. 420 of of the Philippines, by the
the Civil Code, which provides: President, unless the authority
therefor is expressly vested by
Art. 420. The following things are property of law in another officer.
public dominion :
(2) For property belonging to the available for sale to any interested buyer; the promulgation of
Republic of the Philippines but Republic Act No. 6657, the Comprehensive Agrarian Reform
titled in the name of any political Law, making available for the program's financing, State assets
subdivision or of any corporate sold; the approval by the President of the recommendation of
agency or instrumentality, by the the investigating committee formed to study the property's
executive head of the agency or utilization; and the issuance of Resolution No. 55 of the
instrumentality. (Emphasis Philippine Senate requesting for the deferment of its disposition
supplied) it, "Roppongi", is still property of the public dominion, and if it
is not, how it lost that character.
But the record is bare of any congressional decision or
approval to sell Roppongi. The record is likewise bare of any When land of the public dominion ceases to be one, or when the
congressional authority extended to the President to sell change takes place, is a question our courts have debated early.
Roppongi thru public bidding or otherwise. In a 1906 decision, 1 it was held that property of the public
dominion, a public plaza in this instance, becomes patrimonial
It is therefore, clear that the President cannot sell or order the upon use thereof for purposes other than a plaza. In a later
sale of Roppongi thru public bidding or otherwise without a case, 2 this ruling was reiterated. Likewise, it has been held that
prior congressional approval, first, converting Roppongi from a land, originally private property, has become of public dominion
public dominion property to a state patrimonial property, and, upon its donation to the town and its conversion and use as a
second, authorizing the President to sell the same. public plaza. 3 It is notable that under these three cases, the
character of the property, and any change occurring therein,
ACCORDINGLY, my vote is to GRANT the petition and to make depends on the actual use to which it is dedicated. 4
PERMANENT the temporary restraining order earlier issued by
this Court. Much later, however, the Court held that "until a formal declaration
on the part of the Government, through the executive department or
the Legislative, to the effect that the land . . . is no longer needed for
[public] service- for public use or for special industries, [it] continue[s]
to be part of the public [dominion], not available for private
SARMIENTO, J., concurring: expropriation or ownership." 5 So also, it was ruled that a political
subdivision (the City of Cebu in this case) alone may declare (under
The central question, as I see it, is whether or not the so-called its charter) a city road abandoned and thereafter, to dispose of it. 6
"Roppongi property' has lost its nature as property of public
dominion, and hence, has become patrimonial property of the In holding that there is "a need for a law or formal declaration to
State. I understand that the parties are agreed that it was withdraw the Roppongi property from public domain to make it
property intended for "public service" within the contemplation alienable and a land for legislative authority to allow the sale of the
of paragraph (2), of Article 430, of the Civil Code, and property" 7 the majority lays stress to the fact that: (1) An affirmative
accordingly, land of State dominion, and beyond human act — executive or legislative — is necessary to reclassify property
commerce. The lone issue is, in the light of supervening of the public dominion, and (2) a legislative decree is required to
developments, that is non-user thereof by the National make it alienable. It also clears the uncertainties brought about by
Government (for diplomatic purposes) for the last thirteen earlier interpretations that the nature of property-whether public or
years; the issuance of Executive Order No. 296 making it patrimonial is predicated on the manner it is actually used, or not
used, and in the same breath, repudiates the Government's position boundaries of the Republic or located within the territory of another
that the continuous non-use of "Roppongi", among other arguments, sovereign State, is not self-evident. The first item of the classification
for "diplomatic purposes", has turned it into State patrimonial property intended for public use — can scarcely be properly applied
property. to property belonging to the Republic but found within the territory of
another State. The third item of the classification property intended
I feel that this view corresponds to existing pronouncements of this for the development of the national wealth is illustrated, in Article 339
Court, among other things, that: (1) Property is presumed to be State of the Spanish Civil Code of 1889, by mines or mineral properties.
property in the absence of any showing to the contrary; 8 (2) With Again, mineral lands owned by a sovereign State are rarely, if ever,
respect to forest lands, the same continue to be lands of the public found within the territorial base of another sovereign State. The task
dominion unless and until reclassified by the Executive Branch of the of examining in detail the applicability of the classification set out in
Government; 9 and (3) All natural resources, under the Constitution, Article 420 of our Civil Code to property that the Philippines happens
and subject to exceptional cases, belong to the State. 10 to own outside its own boundaries must, however, be left to
academicians.
I am elated that the Court has banished previous uncertainties.
For present purposes, too, I agree that there is no question of conflict
of laws that is, at the present time, before this Court. The issues
before us relate essentially to authority to sell the Roppongi
property so far as Philippine law is concerned.
FELICIANO, J., dissenting
The majority opinion raises two (2) issues: (a) whether or not the
With regret, I find myself unable to share the conclusions reached by Roppongi property has been converted into patrimonial property or
Mr. Justice Hugo E. Gutierrez, Jr. property of the private domain of the State; and (b) assuming an
affirmative answer to (a), whether or not there is legal authority to
For purposes of this separate opinion, I assume that the piece of dispose of the Roppongi property.
land located in 306 Roppongi, 5-Chome, Minato-ku Tokyo, Japan
(hereinafter referred to as the "Roppongi property") may be I
characterized as property of public dominion, within the meaning of
Article 420 (2) of the Civil Code:
Addressing the first issue of conversion of property of public
dominion intended for some public service, into property of the
[Property] which belong[s] to the State, without being private domain of the Republic, it should be noted that the Civil Code
for public use, and are intended for some public does not address the question of who has authority to effect such
service -. conversion. Neither does the Civil Code set out or refer to
any procedure for such conversion.
It might not be amiss however, to note that the appropriateness of
trying to bring within the confines of the simple threefold classification Our case law, however, contains some fairly explicit pronouncements
found in Article 420 of the Civil Code ("property for public use on this point, as Justice Sarmiento has pointed out in his concurring
property "intended for some public service" and property intended opinion. In Ignacio v. Director of Lands (108 Phils. 335 [1960]),
"for the development of the national wealth") all property owned by petitioner Ignacio argued that if the land in question formed part of
the Republic of the Philippines whether found within the territorial the public domain, the trial court should have declared the same no
longer necessary for public use or public purposes and which would, Thus, under Ignacio, either the Executive Department or the
therefore, have become disposable and available for private Legislative Department may convert property of the State of public
ownership. Mr. Justice Montemayor, speaking for the Court, said: dominion into patrimonial property of the State. No particular formula
or procedure of conversion is specified either in statute law or in case
Article 4 of the Law of Waters of 1866 provides that law. Article 422 of the Civil Code simply states that: "Property of
when a portion of the shore is no longer washed by public dominion, when no longer intended for public use or for public
the waters of the sea and is not necessary for service, shall form part of the patrimonial property of the State". I
purposes of public utility, or for the establishment of respectfully submit, therefore, that the only requirement which is
special industries, or for coast-guard service, the legitimately imposable is that the intent to convert must be
government shall declare it to be the property of the reasonably clear from a consideration of the acts or acts of the
owners of the estates adjacent thereto and as an Executive Department or of the Legislative Department which are
increment thereof. We believe that only the said to have effected such conversion.
executive and possibly the legislative departments
have the authority and the power to make the The same legal situation exists in respect of conversion of property
declaration that any land so gained by the sea, is not of public dominion belonging to municipal corporations, i.e., local
necessary for purposes of public utility, or for the governmental units, into patrimonial property of such entities.
establishment of special industries, or for coast- In Cebu Oxygen Acetylene v. Bercilles (66 SCRA 481 [1975]), the
guard service. If no such declaration has been made City Council of Cebu by resolution declared a certain portion of an
by said departments, the lot in question forms part of existing street as an abandoned road, "the same not being included
the public domain. (Natividad v. Director of in the city development plan". Subsequently, by another resolution,
Lands, supra.) the City Council of Cebu authorized the acting City Mayor to sell the
land through public bidding. Although there was no formal and
The reason for this pronouncement, according to this explicit declaration of conversion of property for public use into
Tribunal in the case of Vicente Joven y Monteverde patrimonial property, the Supreme Court said:
v. Director of Lands, 93 Phil., 134 (cited in Velayo's
Digest, Vol. 1, p. 52). xxx xxx xxx
... is undoubtedly that the courts are neither primarily (2) Since that portion of the city street subject of
called upon, nor indeed in a position to determine petitioner's application for registration of title was
whether any public land are to be used for the withdrawn from public use, it follows that such
purposes specified in Article 4 of the Law of Waters. withdrawn portion becomes patrimonial property
Consequently, until a formal declaration on the part which can be the object of an ordinary contract.
of the Government, through the executive
department or the Legislature, to the effect that the Article 422 of the Civil Code expressly provides that
land in question is no longer needed for coast-guard "Property of public dominion, when no longer
service, for public use or for special industries, they intended for public use of for public service, shall
continue to be part of the public domain not available form part of the patrimonial property of the State."
for private appropriation or ownership. (108 Phil. at
338-339; emphasis supplied)
Besides, the Revised Charter of the City of Cebu y, sin embargo, cesar de hecho el destino publico de
heretofore quoted, in very clear and unequivocal los bienes; ahora bien, en este caso, y para los
terms, states that "Property thus withdrawn from efectos juridicos que resultan de entrar la cosa en el
public servitude may be used or conveyed for any comercio de los hombres,' se entedera que se ha
purpose for which other real property belonging to verificado la conversion de los bienes patrimoniales?
the City may be lawfully used or conveyed."
El citado tratadista Ricci opina, respecto del antiguo
Accordingly, the withdrawal of the property in Codigo italiano, por la afirmativa, y por nuestra parte
question from public use and its subsequent sale to creemos que tal debe ser la soluciion. El destino de
the petitioner is valid. Hence, the petitioner has a las cosas no depende tanto de una declaracion
registrable title over the lot in question. (66 SCRA at expresa como del uso publico de las mismas, y
484-; emphasis supplied) cuanda el uso publico cese con respecto de
determinados bienes, cesa tambien su situacion en
Thus, again as pointed out by Sarmiento J., in his separate opinion, el dominio publico. Si una fortaleza en ruina se
in the case of property owned by municipal corporations simple non- abandona y no se repara, si un trozo de la via
use or the actual dedication of public property to some use other publica se abandona tambien por constituir otro
than "public use" or some "public service", was sufficient legally to nuevo an mejores condiciones....ambos bienes
convert such property into patrimonial property (Municipality of Oas cesan de estar Codigo, y leyes especiales mas o
v. Roa, 7 Phil. 20 [1906]- Municipality of Hinunganan v. Director of memos administrativas. (3 Manresa, Comentarios al
Lands 24 Phil. 124 [1913]; Province of Zamboanga del Norte v. City Codigo Civil Espanol, p. 128 [7a ed.; 1952)
of Zamboanga, 22 SCRA 1334 (1968). (Emphasis supplied)
I would also add that such was the case not only in respect of' The majority opinion says that none of the executive acts pointed to
property of municipal corporations but also in respect of property of by the Government purported, expressly or definitely, to convert the
the State itself. Manresa in commenting on Article 341 of the 1889 Roppongi property into patrimonial property — of the Republic.
Spanish Civil Code which has been carried over verbatim into our Assuming that to be the case, it is respectfully submitted
Civil Code by Article 422 thereof, wrote: that cumulative effect of the executive acts here involved was to
convert property originally intended for and devoted to public service
La dificultad mayor en todo esto estriba, into patrimonial property of the State, that is, property susceptible of
naturalmente, en fijar el momento en que los bienes disposition to and appropration by private persons. These executive
acts, in their totality if not each individual act, make crystal clear the
de dominio publico dejan de serlo. Si la
intent of the Executive Department to effect such conversion. These
Administracion o la autoridad competente legislative
executive acts include:
realizan qun acto en virtud del cual cesa el destino o
uso publico de los bienes de que se trata
naturalmente la dificultad queda desde el primer (a) Administrative Order No. 3 dated 11 August 1985, which created
momento resuelta. Hay un punto de partida cierto a Committee to study the disposition/utilization of the Government's
para iniciar las relaciones juridicas a que pudiera property in Japan, The Committee was composed of officials of the
haber lugar Pero puede ocurrir que no haya Executive Department: the Executive Secretary; the Philippine
taldeclaracion expresa, legislativa or administrativa, Ambassador to Japan; and representatives of the Department of
Foreign Affairs and the Asset Privatization Trust. On 19 September
1988, the Committee recommended to the President the sale of one The majority opinion states that "abandonment cannot be inferred
of the lots (the lot specifically in Roppongi) through public bidding. from the non-use alone especially if the non-use was attributable not
On 4 October 1988, the President approved the recommendation of to the Government's own deliberate and indubitable will but to lack of
the Committee. financial support to repair and improve the property" (Majority
Opinion, p. 13). With respect, it may be stressed that there is no
On 14 December 1988, the Philippine Government by diplomatic abandonment involved here, certainly no abandonment of property
note informed the Japanese Ministry of Foreign Affairs of the or of property rights. What is involved is the charge of the
Republic's intention to dispose of the property in Roppongi. The classification of the property from property of the public domain into
Japanese Government through its Ministry of Foreign Affairs replied property of the private domain of the State. Moreover, if for fourteen
that it interposed no objection to such disposition by the Republic. (14) years, the Government did not see fit to appropriate whatever
Subsequently, the President and the Committee informed the leaders funds were necessary to maintain the property in Roppongi in a
of the House of Representatives and of the Senate of the Philippines condition suitable for diplomatic representation purposes, such
of the proposed disposition of the Roppongi property. circumstance may, with equal logic, be construed as a manifestation
of the crystalizing intent to change the character of the property.
(b) Executive Order No. 296, which was issued by the President on
25 July 1987. Assuming that the majority opinion is right in saying (d) On 30 March 1989, a public bidding was in fact held by the
that Executive Order No. 296 is insufficient to authorize the sale of Executive Department for the sale of the lot in Roppongi. The
the Roppongi property, it is here submitted with respect that circumstance that this bidding was not successful certainly does not
Executive Order No. 296 is more than sufficient to indicate argue against an intent to convert the property involved into property
an intention to convert the property previously devoted to public that is disposable by bidding.
service into patrimonial property that is capable of being sold or
otherwise disposed of The above set of events and circumstances makes no sense at all if
it does not, as a whole, show at least the intent on the part of the
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic Executive Department (with the knowledge of the Legislative
or for any other public purposes. Assuming (but only arguendo) that Department) to convert the property involved into patrimonial
non-use does not, by itself, automatically convert the property into property that is susceptible of being sold.
patrimonial property. I respectfully urge that prolonged non-
use, conjoined with the other factors here listed, was legally effective II
to convert the lot in Roppongi into patrimonial property of the State.
Actually, as already pointed out, case law involving property of Having reached an affirmative answer in respect of the first issue, it
municipal corporations is to the effect that simple non-use or the is necessary to address the second issue of whether or not there
actual dedication of public property to some use other than public exists legal authority for the sale or disposition of the Roppongi
use or public service, was sufficient to convert such property into property.
patrimonial property of the local governmental entity concerned. Also
as pointed out above, Manresa reached the same conclusion in The majority opinion refers to Section 79(f) of the Revised
respect of conversion of property of the public domain of the State
Administrative Code of 1917 which reads as follows:
into property of the private domain of the State.
SEC. 79 (f). Conveyances and contracts to which
the Government is a party. — In cases in which the
Government of the Republic of the Philippines is a Administrative Code of 1917, has been deleted from Section 48 of
party to any deed or other instrument conveying the the 1987 Administrative Code. What Section 48 of the present
title to real estate or to any other property the value Administrative Code refers to is authorization by law for the
of which is in excess of one hundred thousand conveyance. Section 48 does not purport to be itself a source of
pesos, the respective Department Secretary shall legal authority for conveyance of real property of the Government.
prepare the necessary papers which, together with For Section 48 merely specifies the official authorized to execute and
the proper recommendations, shall be submitted to sign on behalf of the Government the deed of conveyance in case of
the Congress of the Philippines for approval by the such a conveyance.
same. Such deed, instrument, or contract shall be
executed and signed by the President of the Secondly, examination of our statute books shows that authorization
Philippines on behalf of the Government of the by law for disposition of real property of the private domain of the
Philippines unless the authority therefor be expressly Government, has been granted by Congress both in the form of (a) a
vested by law in another officer. (Emphasis supplied) general, standing authorization for disposition of patrimonial property
of the Government; and (b) specific legislation authorizing the
The majority opinion then goes on to state that: "[T]he requirement disposition of particular pieces of the Government's patrimonial
has been retained in Section 4, Book I of the Administrative Code of property.
1987 (Executive Order No. 292)" which reads:
Standing legislative authority for the disposition of land of the private
SEC. 48. Official Authorized to Convey Real domain of the Philippines is provided by Act No. 3038, entitled "An
Property. — Whenever real property of the Act Authorizing the Secretary of Agriculture and Natural Resources
Government is authorized by law to be conveyed, to Sell or Lease Land of the Private Domain of the Government of
the deed of conveyance shall be executed in behalf the Philippine Islands (now Republic of the Philippines)", enacted on
of the government by the following: 9 March 1922. The full text of this statute is as follows:
(1) For property belonging to and titled in the name Be it enacted by the Senate and House of
of the Republic of the Philippines, by the President, Representatives of the Philippines in Legislature
unless the authority therefor is expressly vested by assembled and by the authority of the same:
law in another officer.
SECTION 1. The Secretary of Agriculture and
(2) For property belonging to the Republic of the Natural Resources (now Secretary of the
Philippines but titled in the name of any political Environment and Natural Resources) is hereby
subdivision or of any corporate agency or authorized to sell or lease land of the private domain
instrumentality, by the executive head of the agency of the Government of the Philippine Islands, or any
or instrumentality. (Emphasis supplied) part thereof, to such persons, corporations or
associations as are, under the provisions of Act
Two points need to be made in this connection. Firstly, the Numbered Twenty-eight hundred and seventy-four,
requirement of obtaining specific approval of Congress when the (now Commonwealth Act No. 141, as amended)
price of the real property being disposed of is in excess of One known as the Public Land Act, entitled to apply for
Hundred Thousand Pesos (P100,000.00) under the Revised the purchase or lease or agricultural public land.
SECTION 2. The sale of the land referred to in the Specific legislative authorization for disposition of particular
preceding section shall, if such land is agricultural, patrimonial properties of the State is illustrated by certain earlier
be made in the manner and subject to the limitations statutes. The first of these was Act No. 1120, enacted on 26 April
prescribed in chapters five and six, respectively, of 1904, which provided for the disposition of the friar lands, purchased
said Public Land Act, and if it be classified by the Government from the Roman Catholic Church, to bona
differently, in conformity with the provisions of fide settlers and occupants thereof or to other persons. In Jacinto v.
chapter nine of said Act: Provided, however, That Director of Lands (49 Phil. 853 [1926]), these friar lands were held to
the land necessary for the public service shall be be private and patrimonial properties of the State. Act No. 2360,
exempt from the provisions of this Act. enacted on -28 February 1914, authorized the sale of the San
Lazaro Estate located in the City of Manila, which had also been
SECTION 3. This Act shall take effect on its purchased by the Government from the Roman Catholic Church. In
approval. January 1916, Act No. 2555 amended Act No. 2360 by including
therein all lands and buildings owned by the Hospital and the
Approved, March 9, 1922. (Emphasis supplied) Foundation of San Lazaro theretofor leased by private persons, and
which were also acquired by the Philippine Government.
Lest it be assumed that Act No. 3038 refers only to agricultural lands
After the enactment in 1922 of Act No. 3038, there appears, to my
of the private domain of the State, it must be noted that Chapter 9 of
knowledge, to be only one statute authorizing the President to
the old Public Land Act (Act No. 2874) is now Chapter 9 of the
present Public Land Act (Commonwealth Act No. 141, as amended) dispose of a specific piece of property. This statute is Republic Act
and that both statutes refer to: "any tract of land of the public domain No. 905, enacted on 20 June 1953, which authorized the
which being neither timber nor mineral land, is intended to be used
for residential purposes or for commercial or industrial President to sell an Identified parcel of land of the private domain of
purposes other than agricultural" (Emphasis supplied).i•t•c-aüsl In the National Government to the National Press Club of the
other words, the statute covers the sale or lease or residential, Philippines, and to other recognized national associations of
commercial or industrial land of the private domain of the State. professionals with academic standing, for the nominal price of P1.00.
It appears relevant to note that Republic Act No. 905 was not an
outright disposition in perpetuity of the property involved- it provided
Implementing regulations have been issued for the carrying out of
for reversion of the property to the National Government in case the
the provisions of Act No. 3038. On 21 December 1954, the then
Secretary of Agriculture and Natural Resources promulgated Lands National Press Club stopped using it for its headquarters. What
Republic Act No. 905 authorized was really a donation, and not a
Administrative Orders Nos. 7-6 and 7-7 which were entitled,
sale.
respectively: "Supplementary Regulations Governing the Sale of
the Lands of the Private Domain of the Republic of the Philippines";
and "Supplementary Regulations Governing the Lease of Lands of The basic submission here made is that Act No. 3038 provides
Private Domain of the Republic of the Philippines" (text in 51 O.G. standing legislative authorization for disposition of the Roppongi
28-29 [1955]). property which, in my view, has been converted into patrimonial
property of the Republic. 2
It is perhaps well to add that Act No. 3038, although now sixty-eight
(68) years old, is still in effect and has not been repealed. 1 To some, the submission that Act No. 3038 applies not only to lands
of the private domain of the State located in the Philippines but also
to patrimonial property found outside the Philippines, may appear Separate Opinions
strange or unusual. I respectfully submit that such position is not any
more unusual or strange than the assumption that Article 420 of the CRUZ, J., concurring:
Civil Code applies not only to property of the Republic located within
Philippine territory but also to property found outside the boundaries
I concur completely with the excellent ponencia of Mr. Justice
of the Republic.
Gutierrez and will add the following observations only for emphasis.
It remains to note that under the well-settled doctrine that heads of It is clear that the respondents have failed to show the President's
Executive Departments are alter egos of the President (Villena v.
legal authority to sell the Roppongi property. When asked to do so at
Secretary of the Interior, 67 Phil. 451 [1939]), and in view of the
the hearing on these petitions, the Solicitor General was at best
constitutional power of control exercised by the President over
ambiguous, although I must add in fairness that this was not his fault.
department heads (Article VII, Section 17,1987 Constitution), the
The fact is that there is -no such authority. Legal expertise alone
President herself may carry out the function or duty that is cannot conjure that statutory permission out of thin air.
specifically lodged in the Secretary of the Department of
Environment and Natural Resources (Araneta v. Gatmaitan 101 Phil.
328 [1957]). At the very least, the President retains the power to Exec. Order No. 296, which reads like so much legislative, double
approve or disapprove the exercise of that function or duty when talk, does not contain such authority. Neither does Rep. Act No.
done by the Secretary of Environment and Natural Resources. 6657, which simply allows the proceeds of the sale of our properties
abroad to be used for the comprehensive agrarian reform program.
Senate Res. No. 55 was a mere request for the deferment of the
It is hardly necessary to add that the foregoing analyses and
scheduled sale of tile Roppongi property, possibly to stop the
submissions relate only to the austere question of existence of legal
transaction altogether; and ill any case it is not a law. The sale of the
power or authority. They have nothing to do with much debated
said property may be authorized only by Congress through a duly
questions of wisdom or propriety or relative desirability either of the
enacted statute, and there is no such law.
proposed disposition itself or of the proposed utilization of the
anticipated proceeds of the property involved. These latter types of
considerations He within the sphere of responsibility of the political Once again, we have affirmed the principle that ours is a government
departments of government the Executive and the Legislative of laws and not of men, where every public official, from the lowest to
authorities. the highest, can act only by virtue of a valid authorization. I am happy
to note that in the several cases where this Court has ruled against
her, the President of the Philippines has submitted to this principle
For all the foregoing, I vote to dismiss the Petitions for Prohibition in
with becoming grace.
both G.R. Nos. 92013 and 92047.
ACCORDINGLY, my vote is to GRANT the petition and to make Much later, however, the Court held that "until a formal declaration
PERMANENT the temporary restraining order earlier issued by this on the part of the Government, through the executive department or
Court. the Legislative, to the effect that the land . . . is no longer needed for
[public] service- for public use or for special industries, [it] continue[s]
to be part of the public [dominion], not available for private
expropriation or ownership." 5 So also, it was ruled that a political
SARMIENTO, J., concurring: subdivision (the City of Cebu in this case) alone may declare (under
its charter) a city road abandoned and thereafter, to dispose of it. 6
The central question, as I see it, is whether or not the so-called
In holding that there is "a need for a law or formal declaration to
"Roppongi property' has lost its nature as property of public
withdraw the Roppongi property from public domain to make it
dominion, and hence, has become patrimonial property of the State. I
alienable and a land for legislative authority to allow the sale of the
understand that the parties are agreed that it was property intended
property" 7 the majority lays stress to the fact that: (1) An affirmative
for "public service" within the contemplation of paragraph (2), of
Article 430, of the Civil Code, and accordingly, land of State act — executive or legislative — is necessary to reclassify property
dominion, and beyond human commerce. The lone issue is, in the of the public dominion, and (2) a legislative decree is required to
make it alienable. It also clears the uncertainties brought about by
light of supervening developments, that is non-user thereof by the
earlier interpretations that the nature of property-whether public or
National Government (for diplomatic purposes) for the last thirteen
patrimonial is predicated on the manner it is actually used, or not
years; the issuance of Executive Order No. 296 making it available
used, and in the same breath, repudiates the Government's position
for sale to any interested buyer; the promulgation of Republic Act No.
6657, the Comprehensive Agrarian Reform Law, making available for that the continuous non-use of "Roppongi", among other arguments,
for "diplomatic purposes", has turned it into State patrimonial
the program's financing, State assets sold; the approval by the
property.
President of the recommendation of the investigating committee
formed to study the property's utilization; and the issuance of
Resolution No. 55 of the Philippine Senate requesting for the I feel that this view corresponds to existing pronouncements of this
deferment of its disposition it, "Roppongi", is still property of the Court, among other things, that: (1) Property is presumed to be State
public dominion, and if it is not, how it lost that character. property in the absence of any showing to the contrary; 8 (2) With
respect to forest lands, the same continue to be lands of the public
dominion unless and until reclassified by the Executive Branch of the
When land of the public dominion ceases to be one, or when the
Government; 9 and (3) All natural resources, under the Constitution,
change takes place, is a question our courts have debated early. In a
1906 decision, 1 it was held that property of the public dominion, a and subject to exceptional cases, belong to the State. 10
public plaza in this instance, becomes patrimonial upon use thereof
for purposes other than a plaza. In a later case, 2 this ruling was I am elated that the Court has banished previous uncertainties.
reiterated. Likewise, it has been held that land, originally private
property, has become of public dominion upon its donation to the
town and its conversion and use as a public plaza. 3 It is notable that
FELICIANO, J., dissenting The majority opinion raises two (2) issues: (a) whether or not the
Roppongi property has been converted into patrimonial property or
With regret, I find myself unable to share the conclusions reached by property of the private domain of the State; and (b) assuming an
Mr. Justice Hugo E. Gutierrez, Jr. affirmative answer to (a), whether or not there is legal authority to
dispose of the Roppongi property.
For purposes of this separate opinion, I assume that the piece of
land located in 306 Roppongi, 5-Chome, Minato-ku Tokyo, Japan I
(hereinafter referred to as the "Roppongi property") may be
characterized as property of public dominion, within the meaning of Addressing the first issue of conversion of property of public
Article 420 (2) of the Civil Code: dominion intended for some public service, into property of the
private domain of the Republic, it should be noted that the Civil Code
[Property] which belong[s] to the State, without being does not address the question of who has authority to effect such
for public use, and are intended for some public conversion. Neither does the Civil Code set out or refer to
service -. any procedure for such conversion.
It might not be amiss however, to note that the appropriateness of Our case law, however, contains some fairly explicit pronouncements
trying to bring within the confines of the simple threefold classification on this point, as Justice Sarmiento has pointed out in his concurring
found in Article 420 of the Civil Code ("property for public use opinion. In Ignacio v. Director of Lands (108 Phils. 335 [1960]),
property "intended for some public service" and property intended petitioner Ignacio argued that if the land in question formed part of
"for the development of the national wealth") all property owned by the public domain, the trial court should have declared the same no
the Republic of the Philippines whether found within the territorial longer necessary for public use or public purposes and which would,
boundaries of the Republic or located within the territory of another therefore, have become disposable and available for private
sovereign State, is not self-evident. The first item of the classification ownership. Mr. Justice Montemayor, speaking for the Court, said:
property intended for public use — can scarcely be properly applied
to property belonging to the Republic but found within the territory of Article 4 of the Law of Waters of 1866 provides that
another State. The third item of the classification property intended when a portion of the shore is no longer washed by
for the development of the national wealth is illustrated, in Article 339 the waters of the sea and is not necessary for
of the Spanish Civil Code of 1889, by mines or mineral properties. purposes of public utility, or for the establishment of
Again, mineral lands owned by a sovereign State are rarely, if ever, special industries, or for coast-guard service, the
found within the territorial base of another sovereign State. The task government shall declare it to be the property of the
of examining in detail the applicability of the classification set out in owners of the estates adjacent thereto and as an
Article 420 of our Civil Code to property that the Philippines happens increment thereof. We believe that only the
to own outside its own boundaries must, however, be left to executive and possibly the legislative departments
academicians. have the authority and the power to make the
declaration that any land so gained by the sea, is not
For present purposes, too, I agree that there is no question of conflict necessary for purposes of public utility, or for the
of laws that is, at the present time, before this Court. The issues establishment of special industries, or for coast-
before us relate essentially to authority to sell the Roppongi guard service. If no such declaration has been made
property so far as Philippine law is concerned. by said departments, the lot in question forms part of
the public domain. (Natividad v. Director of existing street as an abandoned road, "the same not being included
Lands, supra.) in the city development plan". Subsequently, by another resolution,
the City Council of Cebu authorized the acting City Mayor to sell the
The reason for this pronouncement, according to this land through public bidding. Although there was no formal and
Tribunal in the case of Vicente Joven y Monteverde explicit declaration of conversion of property for public use into
v. Director of Lands, 93 Phil., 134 (cited in Velayo's patrimonial property, the Supreme Court said:
Digest, Vol. 1, p. 52).
xxx xxx xxx
... is undoubtedly that the courts are neither primarily
called upon, nor indeed in a position to determine (2) Since that portion of the city street subject of
whether any public land are to be used for the petitioner's application for registration of title was
purposes specified in Article 4 of the Law of Waters. withdrawn from public use, it follows that such
Consequently, until a formal declaration on the part withdrawn portion becomes patrimonial property
of the Government, through the executive which can be the object of an ordinary contract.
department or the Legislature, to the effect that the
land in question is no longer needed for coast-guard Article 422 of the Civil Code expressly provides that
service, for public use or for special industries, they "Property of public dominion, when no longer
continue to be part of the public domain not available intended for public use of for public service, shall
for private appropriation or ownership. (108 Phil. at form part of the patrimonial property of the State."
338-339; emphasis supplied)
Besides, the Revised Charter of the City of Cebu
Thus, under Ignacio, either the Executive Department or the heretofore quoted, in very clear and unequivocal
Legislative Department may convert property of the State of public terms, states that "Property thus withdrawn from
dominion into patrimonial property of the State. No particular formula public servitude may be used or conveyed for any
or procedure of conversion is specified either in statute law or in case purpose for which other real property belonging to
law. Article 422 of the Civil Code simply states that: "Property of the City may be lawfully used or conveyed."
public dominion, when no longer intended for public use or for public
service, shall form part of the patrimonial property of the State". I Accordingly, the withdrawal of the property in
respectfully submit, therefore, that the only requirement which is question from public use and its subsequent sale to
legitimately imposable is that the intent to convert must be the petitioner is valid. Hence, the petitioner has a
reasonably clear from a consideration of the acts or acts of the
registrable title over the lot in question. (66 SCRA at
Executive Department or of the Legislative Department which are
484-; emphasis supplied)
said to have effected such conversion.
Thus, again as pointed out by Sarmiento J., in his separate opinion,
The same legal situation exists in respect of conversion of property
in the case of property owned by municipal corporations simple non-
of public dominion belonging to municipal corporations, i.e., local
use or the actual dedication of public property to some use other
governmental units, into patrimonial property of such entities.
than "public use" or some "public service", was sufficient legally to
In Cebu Oxygen Acetylene v. Bercilles (66 SCRA 481 [1975]), the
convert such property into patrimonial property (Municipality of Oas
City Council of Cebu by resolution declared a certain portion of an v. Roa, 7 Phil. 20 [1906]- Municipality of Hinunganan v. Director of
Lands 24 Phil. 124 [1913]; Province of Zamboanga del Norte v. City Codigo Civil Espanol, p. 128 [7a ed.; 1952)
of Zamboanga, 22 SCRA 1334 (1968). (Emphasis supplied)
I would also add that such was the case not only in respect of' The majority opinion says that none of the executive acts pointed to
property of municipal corporations but also in respect of property of by the Government purported, expressly or definitely, to convert the
the State itself. Manresa in commenting on Article 341 of the 1889 Roppongi property into patrimonial property — of the Republic.
Spanish Civil Code which has been carried over verbatim into our Assuming that to be the case, it is respectfully submitted
Civil Code by Article 422 thereof, wrote: that cumulative effect of the executive acts here involved was to
convert property originally intended for and devoted to public service
La dificultad mayor en todo esto estriba, into patrimonial property of the State, that is, property susceptible of
naturalmente, en fijar el momento en que los bienes disposition to and appropration by private persons. These executive
de dominio publico dejan de serlo. Si la acts, in their totality if not each individual act, make crystal clear the
Administracion o la autoridad competente legislative intent of the Executive Department to effect such conversion. These
realizan qun acto en virtud del cual cesa el destino o executive acts include:
uso publico de los bienes de que se trata
naturalmente la dificultad queda desde el primer (a) Administrative Order No. 3 dated 11 August 1985, which created
momento resuelta. Hay un punto de partida cierto a Committee to study the disposition/utilization of the Government's
para iniciar las relaciones juridicas a que pudiera property in Japan, The Committee was composed of officials of the
haber lugar Pero puede ocurrir que no haya Executive Department: the Executive Secretary; the Philippine
taldeclaracion expresa, legislativa or administrativa, Ambassador to Japan; and representatives of the Department of
y, sin embargo, cesar de hecho el destino publico de Foreign Affairs and the Asset Privatization Trust. On 19 September
los bienes; ahora bien, en este caso, y para los 1988, the Committee recommended to the President the sale of one
efectos juridicos que resultan de entrar la cosa en el of the lots (the lot specifically in Roppongi) through public bidding.
comercio de los hombres,' se entedera que se ha On 4 October 1988, the President approved the recommendation of
verificado la conversion de los bienes patrimoniales? the Committee.
El citado tratadista Ricci opina, respecto del antiguo On 14 December 1988, the Philippine Government by diplomatic
Codigo italiano, por la afirmativa, y por nuestra parte note informed the Japanese Ministry of Foreign Affairs of the
creemos que tal debe ser la soluciion. El destino de Republic's intention to dispose of the property in Roppongi. The
las cosas no depende tanto de una declaracion Japanese Government through its Ministry of Foreign Affairs replied
expresa como del uso publico de las mismas, y that it interposed no objection to such disposition by the Republic.
cuanda el uso publico cese con respecto de Subsequently, the President and the Committee informed the leaders
determinados bienes, cesa tambien su situacion en of the House of Representatives and of the Senate of the Philippines
el dominio publico. Si una fortaleza en ruina se of the proposed disposition of the Roppongi property.
abandona y no se repara, si un trozo de la via
publica se abandona tambien por constituir otro (b) Executive Order No. 296, which was issued by the President on
nuevo an mejores condiciones....ambos bienes 25 July 1987. Assuming that the majority opinion is right in saying
cesan de estar Codigo, y leyes especiales mas o that Executive Order No. 296 is insufficient to authorize the sale of
memos administrativas. (3 Manresa, Comentarios al the Roppongi property, it is here submitted with respect that
Executive Order No. 296 is more than sufficient to indicate The above set of events and circumstances makes no sense at all if
an intention to convert the property previously devoted to public it does not, as a whole, show at least the intent on the part of the
service into patrimonial property that is capable of being sold or Executive Department (with the knowledge of the Legislative
otherwise disposed of Department) to convert the property involved into patrimonial
property that is susceptible of being sold.
(c) Non-use of the Roppongi lot for fourteen (14) years for diplomatic
or for any other public purposes. Assuming (but only arguendo) that II
non-use does not, by itself, automatically convert the property into
patrimonial property. I respectfully urge that prolonged non- Having reached an affirmative answer in respect of the first issue, it
use, conjoined with the other factors here listed, was legally effective is necessary to address the second issue of whether or not there
to convert the lot in Roppongi into patrimonial property of the State. exists legal authority for the sale or disposition of the Roppongi
Actually, as already pointed out, case law involving property of property.
municipal corporations is to the effect that simple non-use or the
actual dedication of public property to some use other than public The majority opinion refers to Section 79(f) of the Revised
use or public service, was sufficient to convert such property into
Administrative Code of 1917 which reads as follows:
patrimonial property of the local governmental entity concerned. Also
as pointed out above, Manresa reached the same conclusion in
respect of conversion of property of the public domain of the State SEC. 79 (f). Conveyances and contracts to which
into property of the private domain of the State. the Government is a party. — In cases in which the
Government of the Republic of the Philippines is a
party to any deed or other instrument conveying the
The majority opinion states that "abandonment cannot be inferred title to real estate or to any other property the value
from the non-use alone especially if the non-use was attributable not of which is in excess of one hundred thousand
to the Government's own deliberate and indubitable will but to lack of pesos, the respective Department Secretary shall
financial support to repair and improve the property" (Majority prepare the necessary papers which, together with
Opinion, p. 13). With respect, it may be stressed that there is no the proper recommendations, shall be submitted to
abandonment involved here, certainly no abandonment of property the Congress of the Philippines for approval by the
or of property rights. What is involved is the charge of the same. Such deed, instrument, or contract shall be
classification of the property from property of the public domain into
executed and signed by the President of the
property of the private domain of the State. Moreover, if for fourteen Philippines on behalf of the Government of the
(14) years, the Government did not see fit to appropriate whatever Philippines unless the authority therefor be expressly
funds were necessary to maintain the property in Roppongi in a
vested by law in another officer. (Emphasis supplied)
condition suitable for diplomatic representation purposes, such
circumstance may, with equal logic, be construed as a manifestation
of the crystalizing intent to change the character of the property. The majority opinion then goes on to state that: "[T]he requirement
has been retained in Section 4, Book I of the Administrative Code of
1987 (Executive Order No. 292)" which reads:
(d) On 30 March 1989, a public bidding was in fact held by the
Executive Department for the sale of the lot in Roppongi. The
circumstance that this bidding was not successful certainly does not SEC. 48. Official Authorized to Convey Real
argue against an intent to convert the property involved into property Property. — Whenever real property of the
that is disposable by bidding. Government is authorized by law to be conveyed,
the deed of conveyance shall be executed in behalf the Philippine Islands (now Republic of the Philippines)", enacted on
of the government by the following: 9 March 1922. The full text of this statute is as follows:
(1) For property belonging to and titled in the name Be it enacted by the Senate and House of
of the Republic of the Philippines, by the President, Representatives of the Philippines in Legislature
unless the authority therefor is expressly vested by assembled and by the authority of the same:
law in another officer.
SECTION 1. The Secretary of Agriculture and
(2) For property belonging to the Republic of the Natural Resources (now Secretary of the
Philippines but titled in the name of any political Environment and Natural Resources) is hereby
subdivision or of any corporate agency or authorized to sell or lease land of the private domain
instrumentality, by the executive head of the agency of the Government of the Philippine Islands, or any
or instrumentality. (Emphasis supplied) part thereof, to such persons, corporations or
associations as are, under the provisions of Act
Two points need to be made in this connection. Firstly, the Numbered Twenty-eight hundred and seventy-four,
requirement of obtaining specific approval of Congress when the (now Commonwealth Act No. 141, as amended)
price of the real property being disposed of is in excess of One known as the Public Land Act, entitled to apply for
Hundred Thousand Pesos (P100,000.00) under the Revised the purchase or lease or agricultural public land.
Administrative Code of 1917, has been deleted from Section 48 of
the 1987 Administrative Code. What Section 48 of the present SECTION 2. The sale of the land referred to in the
Administrative Code refers to is authorization by law for the preceding section shall, if such land is agricultural,
conveyance. Section 48 does not purport to be itself a source of be made in the manner and subject to the limitations
legal authority for conveyance of real property of the Government. prescribed in chapters five and six, respectively, of
For Section 48 merely specifies the official authorized to execute and said Public Land Act, and if it be classified
sign on behalf of the Government the deed of conveyance in case of differently, in conformity with the provisions of
such a conveyance. chapter nine of said Act: Provided, however, That
the land necessary for the public service shall be
Secondly, examination of our statute books shows that authorization exempt from the provisions of this Act.
by law for disposition of real property of the private domain of the
Government, has been granted by Congress both in the form of (a) a SECTION 3. This Act shall take effect on its
general, standing authorization for disposition of patrimonial property approval.
of the Government; and (b) specific legislation authorizing the
disposition of particular pieces of the Government's patrimonial Approved, March 9, 1922. (Emphasis supplied)
property.
Lest it be assumed that Act No. 3038 refers only to agricultural lands
Standing legislative authority for the disposition of land of the private of the private domain of the State, it must be noted that Chapter 9 of
domain of the Philippines is provided by Act No. 3038, entitled "An the old Public Land Act (Act No. 2874) is now Chapter 9 of the
Act Authorizing the Secretary of Agriculture and Natural Resources present Public Land Act (Commonwealth Act No. 141, as amended)
to Sell or Lease Land of the Private Domain of the Government of and that both statutes refer to: "any tract of land of the public domain
which being neither timber nor mineral land, is intended to be used President to sell an Identified parcel of land of the private domain of
for residential purposes or for commercial or industrial the National Government to the National Press Club of the
purposes other than agricultural" (Emphasis supplied). In other Philippines, and to other recognized national associations of
words, the statute covers the sale or lease or residential, commercial professionals with academic standing, for the nominal price of P1.00.
or industrial land of the private domain of the State. It appears relevant to note that Republic Act No. 905 was not an
outright disposition in perpetuity of the property involved- it provided
Implementing regulations have been issued for the carrying out of for reversion of the property to the National Government in case the
the provisions of Act No. 3038. On 21 December 1954, the then National Press Club stopped using it for its headquarters. What
Secretary of Agriculture and Natural Resources promulgated Lands Republic Act No. 905 authorized was really a donation, and not a
Administrative Orders Nos. 7-6 and 7-7 which were entitled, sale.
respectively: "Supplementary Regulations Governing the Sale of
the Lands of the Private Domain of the Republic of the Philippines"; The basic submission here made is that Act No. 3038 provides
and "Supplementary Regulations Governing the Lease of Lands of standing legislative authorization for disposition of the Roppongi
Private Domain of the Republic of the Philippines" (text in 51 O.G. property which, in my view, has been converted into patrimonial
28-29 [1955]). property of the Republic. 2
It is perhaps well to add that Act No. 3038, although now sixty-eight To some, the submission that Act No. 3038 applies not only to lands
(68) years old, is still in effect and has not been repealed. 1 of the private domain of the State located in the Philippines but also
to patrimonial property found outside the Philippines, may appear
Specific legislative authorization for disposition of particular strange or unusual. I respectfully submit that such position is not any
patrimonial properties of the State is illustrated by certain earlier more unusual or strange than the assumption that Article 420 of the
statutes. The first of these was Act No. 1120, enacted on 26 April Civil Code applies not only to property of the Republic located within
1904, which provided for the disposition of the friar lands, purchased Philippine territory but also to property found outside the boundaries
by the Government from the Roman Catholic Church, to bona of the Republic.
fide settlers and occupants thereof or to other persons. In Jacinto v.
Director of Lands (49 Phil. 853 [1926]), these friar lands were held to It remains to note that under the well-settled doctrine that heads of
be private and patrimonial properties of the State. Act No. 2360, Executive Departments are alter egos of the President (Villena v.
enacted on -28 February 1914, authorized the sale of the San Secretary of the Interior, 67 Phil. 451 [1939]), and in view of the
Lazaro Estate located in the City of Manila, which had also been constitutional power of control exercised by the President over
purchased by the Government from the Roman Catholic Church. In department heads (Article VII, Section 17,1987 Constitution), the
January 1916, Act No. 2555 amended Act No. 2360 by including President herself may carry out the function or duty that is
therein all lands and buildings owned by the Hospital and the specifically lodged in the Secretary of the Department of
Foundation of San Lazaro theretofor leased by private persons, and Environment and Natural Resources (Araneta v. Gatmaitan 101 Phil.
which were also acquired by the Philippine Government. 328 [1957]). At the very least, the President retains the power to
approve or disapprove the exercise of that function or duty when
After the enactment in 1922 of Act No. 3038, there appears, to my done by the Secretary of Environment and Natural Resources.
knowledge, to be only one statute authorizing the President to
dispose of a specific piece of property. This statute is Republic Act It is hardly necessary to add that the foregoing analyses and
No. 905, enacted on 20 June 1953, which authorized the submissions relate only to the austere question of existence of legal
power or authority. They have nothing to do with much debated
questions of wisdom or propriety or relative desirability either of the
proposed disposition itself or of the proposed utilization of the
anticipated proceeds of the property involved. These latter types of
considerations He within the sphere of responsibility of the political
departments of government the Executive and the Legislative
authorities.
For all the foregoing, I vote to dismiss the Petitions for Prohibition in
both G.R. Nos. 92013 and 92047.