LOCAL GOVERNMENT ISSUES AND NEEDS IN LAND ACQUISITION AND TITLING PROCESS
UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES 2015
INTRODUCTION OVERVIEW AND OBJECTIVES The Union of Local Authorities of the Philippines (ULAP) – the umbrella organization of all leagues of local government units and locally elected officials in the country – with the AustralianAID (DFAT)–The Asia Foundation (TAF) partnership in the Philippines, and Foundation for Economic Freedom (FEF), conducted a Focus Group Discussion and Workshop on Section 4 of the Residential Free Patent Act (RFPA) or RA 10023.
The issues on the untitled public lands utilized by the LGUs for public use was first raised during the conduct of the consultation meetings of ULAP with the LGUs under the RFPA advocacy campaign from March to July 2015. The issues centered on the fact that since the passage of RA 10023, the Implementing Rules and Regulations (IRR) on Section 4 was released on March 3, 2015 through Administrative Order No. 2015-01, but, only for public schools with untitled lands. The IRR for the titling of lands for the LGUs and NGAs is still under the development phase, as reported by Director Emelyne Talabis of the DENR Land Management Bureau to the ULAP National Executive Board (NEB)1 during the 77th National Executive Board Meeting on August 7, 2015.
Consequently, the ULAP NEB passed Resolution No. 2015-23, “Pursuing Policy Research and Advocacy to Support the Development of the Residential Free Patent Act (RA 10023) Section 4 for Local Government-Used Lands”. ULAP NEB deemed that with its capacity and political capital as the umbrella organization of all the local government units and officials, ULAP should be the forefront and prime advocate of the issues on Section 4 of RA 10023 to DENR and other concerned agencies. Moreover, the resolution further instructs the conduct of further study on the specific section with regard to the issues and concerns of the LGUs on land titling and develop necessary policy support materials to pursue the advocacy.
Given the demand from the LGUs with regard to the issues of the IRR of Section 4 on LGU-used untitled lands, and with support from the TAF partnership, ULAP conducted a workshop on Section 4 of RA 10023 on August 28, 2015 at Max’s Restaurant, Circle Food Complex, Quezon City Circle, Elliptical Road, Diliman Quezon City. ULAP invited the Provincial Administrator and/or Provincial Assessor of the provinces from Regions 2, 3, 4A, 4B, and 5, and cities from NCR to attend the workshop. A total of 45 participants from 20 LGUs participated in the workshop.
The said workshop focused on the issues and concerns of the LGUs with regard to their untitled public lands for public use and that can be reflected in the IRR. The following are the objectives of the focus group discussion and workshop:
To gather initial data on properties solely or co-owned by LGUs; To discuss possible issues and concerns with untitled LGU properties that can be reflected in the draft IRR; and,
The ULAP NEB is composed of the top two officials of each of its 10 member leagues.
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To gather support from provincial governments for the issuance of an IRR for titling of LGU properties under Section 4 of RA 10023.
WORKSHOP PROPER A total of 45 participants from 20 LGUs participated in the workshop, of which list is documented in Annex A: List of Workshop Participants. Herein under is the list of participating LGUs:2
Region 2 Isabela
Region 3 Bataan Bulacan Nueva Ecija Pampanga Tarlac Zambales
Table 1. List of Participating LGUs Region 4-A Region 4-B Region 5 Quezon Marinduque Camarines Norte Batangas Oriental Mindoro Masbate Palawan Romblon
NCR Quezon City San Juan City Caloocan City Muntinlupa City Pasig City
During the workshop preliminaries, Atty. George Katigbak of FEF presented the components of RA 10023, concentrating on the Section 4 of the law. Through the first session of the workshop, it was noted that majority of the participants are unaware of RA 10023, especially on Section 4. This encouraged the participants to ask queries on how to solve their issues on LGU land titling in their respective areas which will be addressed in the second part of the workshop.
The workshop proper, facilitated by ULAP Executive Director Czarina Medina-Guce, served as avenue for the participants to discuss their respective issues on the current status of their untitled lands as well as on the titling process The participants were asked to fill out worksheets that asked them to fill out the following information:
Their list on untitled lands;
Issues arising on the use of the un (titled properties, and;
Actions taken on to resolve these issues.
ULAP Executive Director Medina-Guce proceeded in processing the issues experienced by the LGUs concerning their untiled properties. The succeeding section maps out all the issues generated from the LGU worksheets and the group processing to summarize the range of issues and needs expressed by the LGUs.
A total of 20 out of 28 invited LGUs participated in the workshop
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ISSUES AND NEEDS IDENTIFIED SUMMARY During the FGD-workshop, the LGUs were asked to identify different issues and concerns they are experiencing with regard to untitled LGU lands for public use and the actions they have taken to resolve such issues and concerns. Moreover, they were also asked to identify problems encountered in the process of titling the LGU properties.
The issues and concerns identified during the discussion are summarized in the diagram below, with each issue discussed in the succeeding sections.
Diagram 1. Summary of Issues on Untitled LGU Lands and Titling Process
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ISSUE CLUSTER 1: CLASSIFICATION OF LANDS The first cluster of issues represent the concerns that arise from the lack of proper classification and categorization of public lands.
 UNSYSTEM ATIC INVENTO RY OF UNTITLED LANDS Most of the LGUs do not have an inventory of untitled lands within their jurisdiction. This can be attributed to the lack of capacity of the LGUs in identifying their untitled lands. The LGUs have difficulty in identifying which among the untitled lands belong to the LGUs since there is no current system in place that harmonizes and streamlines the process. There are national government agencies that have different land records that are used for titling purposes. Under DENR Regional Office, there are records on approved survey lands with technical description and approved cadastral maps. On the other hand, DENR-CENRO holds lot status and land classification map. LRA has the judicial decrees, which are titles that were granted by the courts.
Given the vast data on land records, the LGUs expressed that they have very limited access to these since no mechanism or system for data sharing and integration of land records thus provides difficulty in having an inventory of titled and untitled lands. In order for them to create an inventory, they must gather all the data relative to their LGU from all of these agencies and consolidate these data.
According to the Provincial Assessor Joselito Javier of Batangas, “Right now as an assessor, we cannot determine what properties are classified as public land because most of these lands are undeclared.” This was supported as well by the others, wherein 18 of the participating LGUs put in their worksheets that they have incomplete or no inventory of untitled public lands. In the case of Bataan, the Provincial Assessor also manifested that their current database only contains lands that are utilized as public roads and highways. As a result, there is under-utilization or non-utilization of the properties of the LGUs that should have been allocated to projects intended for the development of the community.
 UNSYSTEM ATIC V ALIDATION OF UNTITLED LAND S In connection with the previous issue, the LGUs also expressed that they have no means of validation if untitled lands truly belong to them. Even if they have identified properties that do not have titles, validation of who owns the property is another issue. Though it is the mandate of DENR to process the titling of these untitled lands, LGUs must provide evidence to prove that they have ownership over the property, which in most of the cases are difficult to produce. This is further discussed in a later section: Issue Cluster 3.2 (Lack of Evidence to Prove Land Ownership).
Supporting this issue is the case of Nueva Ecija wherein they have conducted surveys in their LGU, however, they have a problem in validating the data they have gathered.
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 LACK OF PROPER CATEGORIZATION OF LANDS B ASED ON ACTUAL USE The 1987 Philippine Constitution classifies lands of the public domain into agricultural, forest or timber, mineral lands, and national parks. The two major classifications of land are the Alienable and Disposable (A&D) and the Forest lands, both of which are considered lands of public domain. Alienable and disposable lands refer to those which have been declared but not needed for forest purposes. Alienable and disposable are limited to lands classified as agricultural lands and may be further classified according to the uses to which they are devoted. On the other hand, forest lands are areas in the public domain that have been classified for forest use such as public forest, permanent forest or forest reserves, timberlands, grazing lands, game refuge and bird sanctuaries, and areas which are not yet declared in the other classification.
The problem arises when lands that are utilized by the LGUs are classified as Forest Lands. This is the case of the local government of Palawan wherein they are unable to utilize their reserved lands as they are classified as protected area. This is a concern for the LGU of Palawan since 90% of their lands remain unclassified, thus limiting the powers of the provincial government to utilize their lands and expand projects and programs for development in the province.
 CONFLICTING CLASSIFI CATION OF LANDS LE ADING TO THE ENCROACHM ENT OF LGU LANDS Untitled public lands which are used by the LGUs for public purpose are always subject to the Regalian Doctrine, which means that all untitled public lands are owned by the State (national government). The conflict arises in cases such as in the Province of Isabela wherein the Certificates of Land Ownership Award (CLOA) that were given to farmer beneficiaries of the Comprehensive Agrarian Reform Program (CARP) by the Department of Agrarian Reform (DAR) are untitled lands initially owned and used by the LGU for public use. Since there is no proof of ownership from the LGU, the national government has distributed the said land, even with the standing question from the LGU.
In addition, initially identified and used by the LGUs for public use are vulnerable to the encroachment of individuals or other entities. Once occupied by informal settlers, it will be an additional burden to the LGUs to find another property to transfer them. This will take time and additional resources from the LGU that should have been used for other purposes. If ever the LGU will already utilize the property, the delay caused by transferring informal settlers can result in losses of economic opportunity. Also in the case of Isabela, the lot of the old provincial capitol of Isabela was also occupied by informal settlers and have secured land titles in their favor. Aside from informal settlers, provincial offices of national government agencies also occupy the same property, which complicates the issue of ownership even further.
 LACK OF DEFINITIVE C LASSIFICATION OF LAN DS AS TO PROPERTY FO R PUBLIC USE OR PATRIMONIAL PROPERTY Article 423 of the Civil Code provides that the property of provinces, cities, and municipalities is divided into property for public use, and patrimonial property. Furthermore, property for public use in the LGU consists of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said LGU. All other property possessed by any of them is patrimonial.
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As explained by the representatives of Palawan, if the property is owned by the LGU in its proprietary capacity, it has the exclusive right to sell, lease or dispose of the property. Elia Cay from Oriental Mindoro added that in this sense, the LGU has the capability to use the property to its advantage to acquire funds by selling the property or acquiring loans by using the property as a credit capital. This provides LGUs additional financial opportunity, especially for those that are dependent on their IRA, to fund their programs and projects within their jurisdiction. However, LGUs encounter difficulties in declaring patrimonial lands being used for public purpose as their own property because it needs to undergo lengthy and arduous legal proceedings.
ISSUE CLUSTER 2: DRAFTING OF SURVEY MAPS This category discusses the issues that arise from the use of different survey maps in the titling process of LGU lands.
 MULTIPLE AND CONFLIC TING SURVEY MAPS THAT LE ADS TO DIFFICULTIES IN IDENTIFYING UNTITLED LANDS The most common survey map used by the LGUs is the cadastral map, which shows the metes and bounds or political boundaries of cities, municipalities and provinces. However, the cadastral map issued by DENR is incomplete. This is because the function of DENR to conduct isolated and special surveys were devolved to LGUs in 1992. But due to lack of manpower and financial resources, not a single municipality had completed its cadastral survey. Because of this, DENR issued DENR Administrative Order (A.O.) No. 200123 which reverted back to the agency the functions to execute, supervise and manage lands surveys. However, as of January of 2015, DENR has only completed 86.84% out of the total of 1,631 cities and municipalities under its jurisdiction.
Moreover, the Land Registration Authority (LRA) has its own survey map, which uses technical descriptions of land titles. However, technical descriptions on land title may differ with the actual ground survey using the Global Positioning System (GPS). A tax map, on the other hand shows location, dimensions, and other information pertaining to a parcel land subject to property taxes.
Each of these surveys maps serves their own purpose. However, based on the LGUs’ experience, there are discrepancies with the different maps, often times producing conflicting metes and bounds. The reason for these discrepancies come from the different sources of the data – for DENR, data come from actual ground survey using GPS, while for LRA, data are from the lot data computation. Thus, since data are from two different sources, there are cases wherein discrepancies in political subdivision in the maps are evident. This scenario then poses a problem in identifying untitled lands because the LGUs do not know which survey map to use. Moreover, having multiple survey maps lead to additional expenses in the titling process since the LGUs need to pay for all of them.
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 BOUNDARY DISPUTES DUE TO INCONSISTENT SURVEY M APS As mentioned above, there are different types of Survey Maps that are being used by LGUs that are inconsistent with each other. The Provincial Assessor Romeo Dizon of Pampanga mentioned that “Cadastral map governs all other maps. There are a lot of problems with regard to boundary disputes of municipalities. So which shall prevail, the title or the cadastral map?” Virgilio Tuazon, Provincial Assessor of Camarines Norte added that, “Between the Public Land Survey and the Cadastral Map, which one prevails? Example, the Registry of Deeds does not accept Cadastral Map Survey.” The confusion on which survey map prevails over the other creates the boundary disputes between LGUs.
Discussions with the Department of Budget and Management (DBM) showed that the cadastral survey submitted to them by the Land Management Bureau (LMB) increased the total land area of the country by four thousand square kilometers (4,000 km2) compared to the survey it submitted in the year 2001 3. A possible reason for this is that the land areas of newly created LGUs were not subtracted from the land area of the LGU it formerly belonged to, thus doubling the land area. Furthermore, LGUs that have pending land disputes still include the land area in their survey even though the dispute has not been resolved.
 LACK OF FINANCI AL AN D TECHNICAL CAPACITY OF LGUS IN THE CONDUCT OF LAND SURVEYS Difficulties in conducting land surveys are common among LGUs. This causes delays in the titling process because LGUs do not have existing land surveys to produce as evidence that the land is public and untitled.
According to DENR Administrative Order 2001-23, the lack of technical manpower and financial resources hampered the capacity of the LGUs to conduct land surveys, such as cadastral, lot and isolated and special surveys. DENR, transferred the responsibility of conducting land surveys from the LGUs to the national agency, through the Land Management Bureau (LMB). However, the policy does not prevent the LGUs from initiating and funding the conduct of land surveys.
Representatives from Palawan and Tarlac proposed that if the LGUs have the technological and technical knowledge in conducting their own land surveys, it can expedite land titling process since the data and the conduct of survey will come from the LGUs, without waiting for the DENR-PENRO.
Representatives from DBM, DILG, and ULAP discussed issues on shares of LGUs in National Wealth in a meeting held last 25 August 2015 in Holiday Inn, Ortigas Center, Pasig. There are three components in the computation of Internal Revenue Allotment (IRA) received by LGUs and one of which is the Land Area that accounts for 25%. 3
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ISSUE CLUSTER 3: PROCESSES ON LAND TI TLING AND SURVEYS Application for land titling and survey by LGUs undergoes a lengthy process, which involves the President and the DENR central office. The process is as follows:
Authorized officer or LGU shall file for the application of a special patent or proclamation to DENR CENRO. DENR CENRO then forwards the application to DENR PENRO for verification and then to DENR Regional Office. The DENR Regional will again verify the application then will forward to the Land Management Bureau; The Director of Land Management Bureau shall submit to the Secretary of the DENR the application subject to the recommendation of the latter to the President; and, President approves or disapproves the Special Patent.
The issues discussed in this category pertain to problems that LGUs encounter in the system of land titling.
 LACK OF STANDARD RULES AND REQUIREMENTS IN LAND SURVEYING Once a title is awarded by DENR, one must register the title in the Registry of Deeds (RD). However, RD requires the registration in LRA as well. The LRA then processes the title to be included in their database. There is also an issue on inconsistent guidelines on what type of survey map the RD accepts for titling. As shared by Acting Provincial Assessor Virgilio Tuazon of Camarines Norte, “The process usually takes 6 months to 1 year since RD does not accept DENR’s Cadastral Map, instead uses Public Land Survey. We encountered this problem in the municipality of Talisay when we applied for special patent.”
Aside from the lengthy process, LGUs also need to produce numerous documents that are required in the titling and surveying process:
In the case of Camarines Norte, they encountered difficulties in producing and processing the requirements, particularly on the submission of the conveyance of donation of the property.
Zambales is also having difficulties in producing the cadastral map that will be used for the titling of its provincial capitol.
On the other hand, the province of Isabela cannot process the title for its new provincial capitol since it lacks a requirement that needs to be secured from the DPWH.
According to Atty. Jefrie Sahagin of the Provincial Government of Palawan, the lack of standard rules and requirements produces delays in the titling process, which also hinders the capacity of the LGUs to identify their properties. “Here is where the value of titling LGU properties comes in – these properties with titles are credit capital. Using LGU properties, we can loan additional resources for our projects and programs, instead of being just dependent in IRA (translated from Filipino).”
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 LACK OF EVIDENCE TO PROVE LAND OWNERSHIP The best evidence of ownership that can be shown to DENR is the certificate of title duly issued by the RD. In the absence of a title, tax declaration coupled by actual possession and existence of improvement also substantiate claim for ownership. However, possession and ownership are two different things. Possession means actual and exclusive control of property by physical occupation and this could be in good faith or in bad faith. On the other hand, ownership implies the legal right of possession, control and enjoyment by the owner who has established evidence that he owns the property. This is where the problems of the LGUs arise, wherein some of their properties that were acquired or donated lack the necessary evidentiary documents to support their acquisition.
In some cases, LGUs have already developed the area, however, the property is still untitled. This is the case of Pampanga wherein a parcel of land that was donated to them did not have a proper title. Now that they are trying to use the property to build a hospital, the heirs of the donor are claiming the property back. Similar to this case, a parcel of land was donated to the provincial government of Marinduque in the 1940s, however, the descendants of the donors are claiming back the property.
There are also cases wherein the LGUs have current possession of the property, however, the land titles are declared under a different owner. This is the experience of Marinduque in which the lot occupied by one of their District Hospitals is titled under the Roman Catholic Church; however, in the Tax Declaration of the same property, a private person is shown to own the land. In the same province, the parcel of land used as a provincial jails site is declared under the Department of Agriculture. These cases show that discrepancies in the declaration of properties, similar to the case previously cited, further complicate the titling process for LGUs.
 DELAY IN LAND TITLING DUE TO CENTRALIZED APPROV AL PROCESS In the current system of acquiring free patents, the application passes through different agencies from the provincial level up to the national level. As discussed above, the process includes the approval of the President, traversing the bureaucratic process from DENR CENRO up to the DENR Central Office for recommendation.
The participating LGUs are looking at the possibility of getting the approval of the application at the PENRO level, like the case of the residential public lands and untitled public schools. Also, the province of Palawan is proposing that the approval of the cadastral survey map to be delegated to the PENRO level to further hasten the process.
 FEES ON GOVERNMENT T O GOVERNMENT TRANSAC TION WITH REGARD TO LAND TITLING PROCESS Application for both land titling and survey requires processing fees and charges. The Provincial Assessor of Batangas mentioned that, “All of these matters on land that are being discussed require the use of money. Why don’t we request that all the expenses incurred in the titling process are free of charge since the owner of the property is the government itself and not a private entity (translated from Filipino)?” The expenses incurred by the LGU
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in the titling process are resources that can fund other programs and projects of LGUs in the delivery of other services. Since these are government to government transactions, and the payments for these fees come from the government’s resources, deferring the fees and charges might be possible to help the LGUs.
 IMPOSING CAPITAL GAI NS TAX ON CLASSIFIED NON-ECONOMIC AND NONCOMMERCIAL LANDS Capital Gains Tax is a tax imposed on the gains presumed to have been realized by the seller from the sale, exchange, or other disposition of capital assets. Capital Gains Tax amounts to 6% of the market value of the property or the contract price, whichever is higher.
When the government forecloses a property, this tax is still being charged by the BIR even though no “gain” was actually received by the LGU. In Palawan, the provincial government is still paying the capital gains tax of a property that was foreclosed by the LGU because the debtor was not able to pay the mortgage of the property. The said tax must be waived once the property is foreclosed and/or transferred to the custody of the LGU since basically the LGU does not benefit from the said property.
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MOVING FORWARD Given the above issues and concerns of the LGUs, the following are recommendations by the participating LGUs during the workshop, as processed by the ULAP team:
Harmonization of survey maps is necessary since this is the primary requirement in titling of lands of LGUs. Having a harmonized survey map will address many, if not all, land dispute issues between LGUs. This shall also resolve the issue on which map to use or follow. Thus, concerned national government agencies must look into the harmonization and alignment of the existing different maps. Although each map has its own purpose, technical descriptions on the maps must be aligned to avoid conflicting map results. In addition, technical capacity building must be provided to the LGUs to be able to conduct the survey maps.
Proper classification of lands should l help LGUs in the inventory of lands within their jurisdiction. From the inventory, they can identify which areas are public or private, public use or patrimonial, titled or untitled. A clear and unified guideline in classifying lands must be developed.
Streamlining the process on land titling and surveying shall hasten the application for patent of LGUs. Having a clear set of guidelines to follow, with definite requirements and length of time of approval shall give LGUs the proper guidance they need for titling their lands, which is the essence of the proposed IRR of Section 4 of Republic Act 10023. Approval of application may be done at the regional or provincial level (PENRO) of DENR, which is currently done for the residential public lands and untitled public schools.
Land governance in the local level has just been put into meaningful discourse through the ULAP’s facilitation of the RFPA’s presence in selected LGUs, in partnership with AusAID (DFAT)- TAF, and in its National Executive Board, which is composed of all local government units and local officials’ leagues. Given the issues and concerns from the LGUs with regard to Land Acquisition and Titling Process and possible recommendations from the participants, ULAP, as the forefront and representative of the LGUs, is looking at the opportunity to progress the discussion with the national government, specifically with the DENR. This paper will be used to start-off policy assessment and advocacy of ULAP for the continuation of RFPA and development and implementation of Section 4 of the law. Moreover, ULAP will also continue to gather more evidence from the LGUs to support this advocacy that will help the DENR in the effective implementation of RFPA.
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ANNEX A: LIST OF WORKSHOP PARTICIPANTS NAME Virgilio Tuazon
Acting Provincial Assessor
Assistant Provincial Assessor
OIC – Provincial Assessor
10. Jefrie Sahagin
Chief of Staff
11. Nerrie Rodriguez
12. Theresa Reyande
13. Mark Soriquez
14. Ramir Relicio
15. Ricardo Herrera
16. Cruzaldo Lacosta
Tax Mapper IV
17. Dahilo Pineda
18. Mcjohn Viernes
19. Rodrigo Opis
20. Rolando Marca 21. Dumaser Ponce
22. Romeo Dizon
23. Nalyna Pineda
24. Guillermo Barreta 25. Necie Guico
27. Edgardo Briones
San Juan City
28. Leonilo Magno
San Juan City
29. Jaime Macario
San Juan City
30. Shirley Estrellon
31. Teodoro Acemorino
26. Erwin Navaro
32. Delfin Torres Jr.
33. Edgardo Ostaco
34. Jessie Avellano
35. Rodolfo Ordanes
36. Orlando Urbano
37. Normia Salangsang
38. Ark Barnac
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NAME 39. Rhealyn Dealca
40. George Katigbak
41. Nila Tamoria
42. Genixon David
Director, Plans Programs & Policy
43. Kenneth Turaray
44. Carlos Fernandez
Consultant/Project Officer Manager, Plans Programs & Policy Executive Director
The Asia Foundation
Assistant Program Officer
45. Eunice Dela Cruz 46. Czarina Medina-Guce 47. Marco Naguilat
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For details and further clarifications regarding this report, please contact:
UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES Unit 2803 Summit One Tower, 530 Shaw Boulevard, Mandaluyong City Tel: (02)718-1812, 534-6789 Fax: (02)717-1810
Email: [email protected]
Website: www.ulap.net.ph Facebook: www.facebook.com/ulap.org.ph
This report is developed by the ULAP Technical Team composed of the following, as completed on September 15, 2015:
Czarina Medina-Guce, M.A.
Director, Plans Programs & Policy Unit
Norbert Peter Indunan
Carlos Alipio Serafin Fernandez
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