LOCAL AUTONOMY, DEVOLUTION & DECENTRALIZATION

G.R. No. 152774             May 27, 2004

THE PROVINCE OF BATANGAS, represented by its Governor, HERMILANDO I. MANDANAS, petitioner, vs.HON. ALBERTO G. ROMULO, Executive Secretary and Chairman of the Oversight Committee on Devolution; HON. EMILIA BONCODIN, Secretary, Department of Budget and Management; HON. JOSE D. LINA, JR., Secretary, Department of Interior and Local Government, respondents.

D E C I S I O N

CALLEJO, SR., J.:

The Province of Batangas, represented by its Governor, Hermilando I. Mandanas, filed the present petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court, as amended, to declare as unconstitutional and void certain provisos contained in the General Appropriations Acts (GAA) of 1999, 2000 and 2001, insofar as they uniformly earmarked for each corresponding year the amount of five billion pesos (P5,000,000,000.00) of the Internal Revenue Allotment (IRA) for the Local Government Service Equalization Fund (LGSEF) and imposed conditions for the release thereof.

Named as respondents are Executive Secretary Alberto G. Romulo, in his capacity as Chairman of the Oversight Committee on Devolution, Secretary Emilia Boncodin of the Department of Budget and Management (DBM) and Secretary Jose Lina of the Department of Interior and Local Government (DILG).

Background

On December 7, 1998, then President Joseph Ejercito Estrada issued Executive Order (E.O.) No. 48 entitled "ESTABLISHING A PROGRAM FOR DEVOLUTION ADJUSTMENT AND EQUALIZATION." The program was established to "facilitate the process of enhancing the capacities of local government units (LGUs) in the discharge of the functions and services devolved to them by the National Government Agencies concerned pursuant to the Local Government Code."1 The Oversight Committee (referred to as the Devolution Committee in E.O. No. 48) constituted under Section 533(b) of Republic Act No. 7160 (The Local Government Code of 1991) has been tasked to formulate and issue the appropriate rules and regulations necessary for its effective implementation.2Further, to address the funding shortfalls of functions and services devolved to the LGUs and other funding requirements of the program, the "Devolution Adjustment and Equalization Fund" was created.3 For 1998, the DBM was directed to set aside an amount to be determined by the Oversight Committee based on the devolution status appraisal surveys undertaken by the DILG.4 The initial fund was to be sourced from the available savings of the national government for CY 1998.5 For 1999 and the succeeding years, the corresponding amount required to sustain the program was to be

incorporated in the annual GAA.6 The Oversight Committee has been authorized to issue the implementing rules and regulations governing the equitable allocation and distribution of said fund to the LGUs.7

The LGSEF in the GAA of 1999

In Republic Act No. 8745, otherwise known as the GAA of 1999, the program was renamed as the LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF). Under said appropriations law, the amount ofP96,780,000,000 was allotted as the share of the LGUs in the internal revenue taxes. Item No. 1, Special Provisions, Title XXXVI – A. Internal Revenue Allotment of Rep. Act No. 8745 contained the following proviso:

... PROVIDED, That the amount of FIVE BILLION PESOS (P5,000,000,000) shall be earmarked for the Local Government Service Equalization Fund for the funding requirements of projects and activities arising from the full and efficient implementation of devolved functions and services of local government units pursuant to R.A. No. 7160, otherwise known as the Local Government Code of 1991: PROVIDED, FURTHER, That such amount shall be released to the local government units subject to the implementing rules and regulations, including such mechanisms and guidelines for the equitable allocations and distribution of said fund among local government units subject to the guidelines that may be prescribed by the Oversight Committee on Devolution as constituted pursuant to Book IV, Title III, Section 533(b) of R.A. No. 7160. The Internal Revenue Allotment shall be released directly by the Department of Budget and Management to the Local Government Units concerned.

On July 28, 1999, the Oversight Committee (with then Executive Secretary Ronaldo B. Zamora as Chairman) passed Resolution Nos. OCD-99-003, OCD-99-005 and OCD-99-006 entitled as follows:

OCD-99-005

RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE PhP5 BILLION CY 1999 LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF) AND REQUESTING HIS EXCELLENCY PRESIDENT JOSEPH EJERCITO ESTRADA TO APPROVE SAID ALLOCATION SCHEME.

OCD-99-006

RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE PhP4.0 BILLION OF THE 1999 LOCAL GOVERNMENT SERVICE EQUALIZATION FUND AND ITS CONCOMITANT GENERAL FRAMEWORK, IMPLEMENTING GUIDELINES AND MECHANICS FOR ITS IMPLEMENTATION AND RELEASE, AS PROMULGATED BY THE OVERSIGHT COMMITTEE ON DEVOLUTION.

OCD-99-003

RESOLUTION REQUESTING HIS EXCELLENCY PRESIDENT JOSEPH EJERCITO ESTRADA TO APPROVE THE REQUEST OF THE OVERSIGHT COMMITTEE ON DEVOLUTION TO SET ASIDE TWENTY PERCENT (20%) OF THE LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF) FOR LOCAL AFFIRMATIVE ACTION PROJECTS AND OTHER PRIORITY INITIATIVES FOR LGUs INSTITUTIONAL AND CAPABILITY BUILDING IN ACCORDANCE WITH THE IMPLEMENTING GUIDELINES AND MECHANICS AS PROMULGATED BY THE COMMITTEE.

These OCD resolutions were approved by then President Estrada on October 6, 1999.

Under the allocation scheme adopted pursuant to Resolution No. OCD-99-005, the five billion pesos LGSEF was to be allocated as follows:

1. The PhP4 Billion of the LGSEF shall be allocated in accordance with the allocation scheme and implementing guidelines and mechanics promulgated and adopted by the OCD. To wit:

a. The first PhP2 Billion of the LGSEF shall be allocated in accordance with the codal formula sharing scheme as prescribed under the 1991 Local Government Code;

b. The second PhP2 Billion of the LGSEF shall be allocated in accordance with a modified 1992 cost of devolution fund (CODEF) sharing scheme, as recommended by the respective leagues of provinces, cities and municipalities to the OCD. The modified CODEF sharing formula is as follows:

Province : 40%

Cities : 20%

Municipalities : 40%

This is applied to the P2 Billion after the approved amounts granted to individual provinces, cities and municipalities as assistance to cover decrease in 1999 IRA share due to reduction in land area have been taken out.

2. The remaining PhP1 Billion of the LGSEF shall be earmarked to support local affirmative action projects and other priority initiatives submitted by LGUs to the Oversight Committee on Devolution for approval in accordance with its prescribed guidelines as promulgated and adopted by the OCD.

In Resolution No. OCD-99-003, the Oversight Committee set aside the one billion pesos or 20% of the LGSEF to support Local Affirmative Action Projects (LAAPs) of LGUs. This remaining amount was intended to "respond to the urgent need for additional funds assistance, otherwise not available within the parameters of other existing fund sources." For LGUs to be eligible for funding under the one-billion-peso portion of the LGSEF, the OCD promulgated the following:

III. CRITERIA FOR ELIGIBILITY:

1. LGUs (province, city, municipality, or barangay), individually or by group or multi-LGUs or leagues of LGUs, especially those belonging to the 5th and 6th class, may access the fund to support any projects or activities that satisfy any of the aforecited purposes. A barangay may also access this fund directly or through their respective municipality or city.

2. The proposed project/activity should be need-based, a local priority, with high development impact and are congruent with the socio-cultural, economic and development agenda of the Estrada Administration, such as food security, poverty alleviation, electrification, and peace and order, among others.

3. Eligible for funding under this fund are projects arising from, but not limited to, the following areas of concern:

a. delivery of local health and sanitation services, hospital services and other tertiary services;

b. delivery of social welfare services;

c. provision of socio-cultural services and facilities for youth and community development;

d. provision of agricultural and on-site related research;

e. improvement of community-based forestry projects and other local projects on environment and natural resources protection and conservation;

f. improvement of tourism facilities and promotion of tourism;

g. peace and order and public safety;

h. construction, repair and maintenance of public works and infrastructure, including public buildings and facilities for public use, especially those destroyed or damaged by man-made or natural calamities and disaster as well as facilities for water supply, flood control and river dikes;

i. provision of local electrification facilities;

j. livelihood and food production services, facilities and equipment;

k. other projects that may be authorized by the OCD consistent with the aforementioned objectives and guidelines;

4. Except on extremely meritorious cases, as may be determined by the Oversight Committee on Devolution, this portion of the LGSEF shall not be used in expenditures for personal costs or benefits under existing laws applicable to governments. Generally, this fund shall cover the following objects of expenditures for programs, projects and activities arising from the implementation of devolved and regular functions and services:

a. acquisition/procurement of supplies and materials critical to the full and effective implementation of devolved programs, projects and activities;

b. repair and/or improvement of facilities;

c. repair and/or upgrading of equipment;

d. acquisition of basic equipment;

e. construction of additional or new facilities;

f. counterpart contribution to joint arrangements or collective projects among groups of municipalities, cities and/or provinces related to devolution and delivery of basic services.

5. To be eligible for funding, an LGU or group of LGU shall submit to the Oversight Committee on Devolution through the Department of Interior and Local Governments, within the prescribed schedule and timeframe, a Letter Request for Funding Support from the Affirmative Action Program under the LGSEF, duly signed by the concerned LGU(s) and endorsed by cooperators and/or beneficiaries, as well as the duly signed Resolution of Endorsement by the respective Sanggunian(s) of the LGUs concerned. The LGU-proponent shall also be required to submit the Project Request (PR), using OCD Project Request Form No. 99-02, that details the following:

(a) general description or brief of the project;

(b) objectives and justifications for undertaking the project, which should highlight the benefits to the locality and the expected impact to the local program/project arising from the full and efficient implementation of social services and facilities, at the local levels;

(c) target outputs or key result areas;

(d) schedule of activities and details of requirements;

(e) total cost requirement of the project;

(f) proponent's counterpart funding share, if any, and identified source(s) of counterpart funds for the full implementation of the project;

(g) requested amount of project cost to be covered by the LGSEF.

Further, under the guidelines formulated by the Oversight Committee as contained in Attachment - Resolution No. OCD-99-003, the LGUs were required to identify the projects eligible for funding under the one-billion-peso portion of the LGSEF and submit the project proposals thereof and other documentary requirements to the DILG for appraisal. The project proposals that passed the DILG's appraisal would then be submitted to the Oversight Committee for review, evaluation and approval. Upon its approval, the Oversight Committee would then serve notice to the DBM for the preparation of the Special Allotment Release Order (SARO) and Notice of Cash Allocation (NCA) to effect the release of funds to the said LGUs.

The LGSEF in the GAA of 2000

Under Rep. Act No. 8760, otherwise known as the GAA of 2000, the amount of P111,778,000,000 was allotted as the share of the LGUs in the internal revenue taxes. As in the GAA of 1999, the GAA of 2000 contained a proviso earmarking five billion pesos of the IRA for the LGSEF. This proviso, found in Item No. 1, Special Provisions, Title XXXVII – A. Internal Revenue Allotment, was similarly worded as that contained in the GAA of 1999.

The Oversight Committee, in its Resolution No. OCD-2000-023 dated June 22, 2000, adopted the following allocation scheme governing the five billion pesos LGSEF for 2000:

1. The PhP3.5 Billion of the CY 2000 LGSEF shall be allocated to and shared by the four levels of LGUs, i.e., provinces, cities, municipalities, and barangays, using the following percentage-sharing formula agreed upon and jointly endorsed by the various Leagues of LGUs:

For Provinces 26% or P 910,000,000

For Cities 23% or 805,000,000

For Municipalities 35% or 1,225,000,000

For Barangays 16% or 560,000,000

Provided that the respective Leagues representing the provinces, cities, municipalities and barangays shall draw up and adopt the horizontal distribution/sharing schemes among the member LGUs whereby the Leagues concerned may opt to adopt direct financial assistance or project-based arrangement, such that the LGSEF allocation for individual LGU shall be released directly to the LGU concerned;

Provided further that the individual LGSEF shares to LGUs are used in accordance with the general purposes and guidelines promulgated by the OCD for the implementation of the LGSEF at the local levels pursuant to Res. No. OCD-99-006 dated October 7, 1999 and pursuant to the Leagues' guidelines and mechanism as approved by the OCD;

Provided further that each of the Leagues shall submit to the OCD for its approval their respective allocation scheme, the list of LGUs with the corresponding LGSEF shares and the corresponding project categories if project-based;

Provided further that upon approval by the OCD, the lists of LGUs shall be endorsed to the DBM as the basis for the preparation of the corresponding NCAs, SAROs, and related budget/release documents.

2. The remaining P1,500,000,000 of the CY 2000 LGSEF shall be earmarked to support the following initiatives and local affirmative action projects, to be endorsed to and approved by the Oversight Committee on Devolution in accordance with the OCD agreements, guidelines, procedures and documentary requirements:

On July 5, 2000, then President Estrada issued a Memorandum authorizing then Executive Secretary Zamora and the DBM to implement and release the 2.5 billion pesos LGSEF for 2000 in accordance with Resolution No. OCD-2000-023.

Thereafter, the Oversight Committee, now under the administration of President Gloria Macapagal-Arroyo, promulgated Resolution No. OCD-2001-29 entitled "ADOPTING RESOLUTION NO. OCD-2000-023 IN THE ALLOCATION, IMPLEMENTATION AND RELEASE OF THE REMAINING P2.5 BILLION LGSEF FOR CY 2000." Under this resolution, the amount of one billion pesos of the LGSEF was to be released in accordance with paragraph 1 of Resolution No. OCD-2000-23, to complete the 3.5 billion pesos allocated to the LGUs, while the amount of 1.5 billion pesos was allocated for the LAAP. However, out of the latter amount, P400,000,000 was to be allocated and released as follows: P50,000,000 as financial assistance to the LAAPs of LGUs; P275,360,227 as financial assistance to cover the decrease in the IRA of LGUs concerned due to reduction in land area; and P74,639,773 for the LGSEF Capability-Building Fund.

The LGSEF in the GAA of 2001

In view of the failure of Congress to enact the general appropriations law for 2001, the GAA of 2000 was deemed re-enacted, together with the IRA of the LGUs therein and the proviso earmarking five billion pesos thereof for the LGSEF.

On January 9, 2002, the Oversight Committee adopted Resolution No. OCD-2002-001 allocating the five billion pesos LGSEF for 2001 as follows:

Modified Codal Formula P 3.000 billion

Priority Projects 1.900 billion

Capability Building Fund .100 billion

P 5.000 billion

RESOLVED FURTHER, that the P3.0 B of the CY 2001 LGSEF which is to be allocated according to the modified codal formula shall be released to the four levels of LGUs, i.e., provinces, cities, municipalities and barangays, as follows:

LGUs Percentage Amount

Provinces 25 P 0.750 billion

Cities 25 0.750

Municipalities 35 1.050

Barangays 15 0.450

100 P 3.000 billion

RESOLVED FURTHER, that the P1.9 B earmarked for priority projects shall be distributed according to the following criteria:

1.0 For projects of the 4th, 5th and 6th class LGUs; or

2.0 Projects in consonance with the President's State of the Nation Address (SONA)/summit commitments.

RESOLVED FURTHER, that the remaining P100 million LGSEF capability building fund shall be distributed in accordance with the recommendation of the Leagues of Provinces, Cities, Municipalities and Barangays, and approved by the OCD.

Upon receipt of a copy of the above resolution, Gov. Mandanas wrote to the individual members of the Oversight Committee seeking the reconsideration of Resolution No. OCD-2002-001. He also wrote to Pres. Macapagal-Arroyo urging her to disapprove said resolution as it violates the Constitution and the Local Government Code of 1991.

On January 25, 2002, Pres. Macapagal-Arroyo approved Resolution No. OCD-2002-001.

The Petitioner's Case

The petitioner now comes to this Court assailing as unconstitutional and void the provisos in the GAAs of 1999, 2000 and 2001, relating to the LGSEF. Similarly assailed are the Oversight Committee's Resolutions Nos. OCD-99-003, OCD-99-005, OCD-99-006, OCD-2000-023, OCD-2001-029 and OCD-2002-001 issued pursuant thereto. The petitioner submits that the assailed provisos in the GAAs and the OCD resolutions, insofar as they earmarked the amount of five billion pesos of the IRA of the LGUs for 1999, 2000 and 2001 for the LGSEF and imposed conditions for the release thereof, violate the Constitution and the Local Government Code of 1991.

Section 6, Article X of the Constitution is invoked as it mandates that the "just share" of the LGUs shall be automatically released to them. Sections 18 and 286 of the Local Government Code of 1991, which enjoin that the "just share" of the LGUs shall be "automatically and directly" released to them "without need of further action" are, likewise, cited.

The petitioner posits that to subject the distribution and release of the five-billion-peso portion of the IRA, classified as the LGSEF, to compliance by the LGUs with the implementing rules and regulations, including the mechanisms and guidelines prescribed by the Oversight Committee, contravenes the explicit directive of the Constitution that the LGUs' share in the national taxes "shall be automatically released to them." The petitioner maintains that the use of the word "shall" must be given a compulsory meaning.

To further buttress this argument, the petitioner contends that to vest the Oversight Committee with the authority to determine the distribution and release of the LGSEF, which is a part of the IRA of the LGUs, is an anathema to the principle of local autonomy as embodied in the Constitution and the Local Government Code of 1991. The petitioner cites as an example the experience in 2001 when the release of the LGSEF was long delayed because the Oversight Committee was not able to convene that year and no guidelines were issued therefor. Further, the possible disapproval by the Oversight Committee of the project proposals of the LGUs would result in the diminution of the latter's share in the IRA.

Another infringement alleged to be occasioned by the assailed OCD resolutions is the improper amendment to Section 285 of the Local Government Code of 1991 on the percentage sharing of the IRA among the LGUs. Said provision allocates the IRA as follows: Provinces – 23%; Cities – 23%; Municipalities – 34%; and Barangays – 20%.8 This formula has been improperly amended or modified, with respect to the five-billion-peso portion of the IRA allotted for the LGSEF, by the assailed OCD resolutions as they invariably provided for a different sharing scheme.

The modifications allegedly constitute an illegal amendment by the executive branch of a substantive law. Moreover, the petitioner mentions that in the Letter dated December 5, 2001 of respondent Executive Secretary Romulo addressed to respondent Secretary

Boncodin, the former endorsed to the latter the release of funds to certain LGUs from the LGSEF in accordance with the handwritten instructions of President Arroyo. Thus, the LGUs are at a loss as to how a portion of the LGSEF is actually allocated. Further, there are still portions of the LGSEF that, to date, have not been received by the petitioner; hence, resulting in damage and injury to the petitioner.

The petitioner prays that the Court declare as unconstitutional and void the assailed provisos relating to the LGSEF in the GAAs of 1999, 2000 and 2001 and the assailed OCD resolutions (Resolutions Nos. OCD-99-003, OCD-99-005, OCD-99-006, OCD-2000-023, OCD-2001-029 and OCD-2002-001) issued by the Oversight Committee pursuant thereto. The petitioner, likewise, prays that the Court direct the respondents to rectify the unlawful and illegal distribution and releases of the LGSEF for the aforementioned years and release the same in accordance with the sharing formula under Section 285 of the Local Government Code of 1991. Finally, the petitioner urges the Court to declare that the entire IRA should be released automatically without further action by the LGUs as required by the Constitution and the Local Government Code of 1991.

The Respondents' Arguments

The respondents, through the Office of the Solicitor General, urge the Court to dismiss the petition on procedural and substantive grounds. On the latter, the respondents contend that the assailed provisos in the GAAs of 1999, 2000 and 2001 and the assailed resolutions issued by the Oversight Committee are not constitutionally infirm. The respondents advance the view that Section 6, Article X of the Constitution does not specify that the "just share" of the LGUs shall be determined solely by the Local Government Code of 1991. Moreover, the phrase "as determined by law" in the same constitutional provision means that there exists no limitation on the power of Congress to determine what is the "just share" of the LGUs in the national taxes. In other words, Congress is the arbiter of what should be the "just share" of the LGUs in the national taxes.

The respondents further theorize that Section 285 of the Local Government Code of 1991, which provides for the percentage sharing of the IRA among the LGUs, was not intended to be a fixed determination of their "just share" in the national taxes. Congress may enact other laws, including appropriations laws such as the GAAs of 1999, 2000 and 2001, providing for a different sharing formula. Section 285 of the Local Government Code of 1991 was merely intended to be the "default share" of the LGUs to do away with the need to determine annually by law their "just share." However, the LGUs have no vested right in a permanent or fixed percentage as Congress may increase or decrease the "just share" of the LGUs in accordance with what it believes is appropriate for their operation. There is nothing in the Constitution which prohibits Congress from making such determination through the appropriations laws. If the provisions of a particular statute, the GAA in this case, are within the constitutional power of the legislature to enact, they should be sustained whether the courts agree or not in the wisdom of their enactment.

On procedural grounds, the respondents urge the Court to dismiss the petition outright as the same is defective. The petition allegedly raises factual issues which should be properly threshed out in the lower courts, not this Court, not being a trier of facts. Specifically, the petitioner's allegation that there are portions of the LGSEF that it has not, to date, received,

thereby causing it (the petitioner) injury and damage, is subject to proof and must be substantiated in the proper venue, i.e., the lower courts.

Further, according to the respondents, the petition has already been rendered moot and academic as it no longer presents a justiciable controversy. The IRAs for the years 1999, 2000 and 2001, have already been released and the government is now operating under the 2003 budget. In support of this, the respondents submitted certifications issued by officers of the DBM attesting to the release of the allocation or shares of the petitioner in the LGSEF for 1999, 2000 and 2001. There is, therefore, nothing more to prohibit.

Finally, the petitioner allegedly has no legal standing to bring the suit because it has not suffered any injury. In fact, the petitioner's "just share" has even increased. Pursuant to Section 285 of the Local Government Code of 1991, the share of the provinces is 23%. OCD Nos. 99-005, 99-006 and 99-003 gave the provinces 40% of P2 billion of the LGSEF. OCD Nos. 2000-023 and 2001-029 apportioned 26% of P3.5 billion to the provinces. On the other hand, OCD No. 2001-001 allocated 25% of P3 billion to the provinces. Thus, the petitioner has not suffered any injury in the implementation of the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions.

The Ruling of the Court Procedural Issues

Before resolving the petition on its merits, the Court shall first rule on the following procedural issues raised by the respondents: (1) whether the petitioner has legal standing or locus standi to file the present suit; (2) whether the petition involves factual questions that are properly cognizable by the lower courts; and (3) whether the issue had been rendered moot and academic.

The petitioner has locus standi to maintain the present suit

The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."9 Accordingly, it has been held that the interest of a party assailing the constitutionality of a statute must be direct and personal. Such party must be able to show, not only that the law or any government act is invalid, but also that he has sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.10

The Court holds that the petitioner possesses the requisite standing to maintain the present suit. The petitioner, a local government unit, seeks relief in order to protect or vindicate an interest of its own, and of the other LGUs. This interest pertains to the LGUs' share in the national taxes or the IRA. The petitioner's constitutional claim is, in substance, that the assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions contravene Section 6, Article X of the Constitution, mandating the "automatic release" to

the LGUs of their share in the national taxes. Further, the injury that the petitioner claims to suffer is the diminution of its share in the IRA, as provided under Section 285 of the Local Government Code of 1991, occasioned by the implementation of the assailed measures. These allegations are sufficient to grant the petitioner standing to question the validity of the assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions as the petitioner clearly has "a plain, direct and adequate interest" in the manner and distribution of the IRA among the LGUs.

The petition involves a significant legal issue

The crux of the instant controversy is whether the assailed provisos contained in the GAAs of 1999, 2000 and 2001, and the OCD resolutions infringe the Constitution and the Local Government Code of 1991. This is undoubtedly a legal question. On the other hand, the following facts are not disputed:

1. The earmarking of five billion pesos of the IRA for the LGSEF in the assailed provisos in the GAAs of 1999, 2000 and re-enacted budget for 2001;

2. The promulgation of the assailed OCD resolutions providing for the allocation schemes covering the said five billion pesos and the implementing rules and regulations therefor; and

3. The release of the LGSEF to the LGUs only upon their compliance with the implementing rules and regulations, including the guidelines and mechanisms, prescribed by the Oversight Committee.

Considering that these facts, which are necessary to resolve the legal question now before this Court, are no longer in issue, the same need not be determined by a trial court.11 In any case, the rule on hierarchy of courts will not prevent this Court from assuming jurisdiction over the petition. The said rule may be relaxed when the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of this Court's primary jurisdiction.12

The crucial legal issue submitted for resolution of this Court entails the proper legal interpretation of constitutional and statutory provisions. Moreover, the "transcendental importance" of the case, as it necessarily involves the application of the constitutional principle on local autonomy, cannot be gainsaid. The nature of the present controversy, therefore, warrants the relaxation by this Court of procedural rules in order to resolve the case forthwith.

The substantive issue needs to be resolved notwithstanding the supervening events

Granting arguendo that, as contended by the respondents, the resolution of the case had already been overtaken by supervening events as the IRA, including the LGSEF, for 1999, 2000 and 2001, had already been released and the government is now operating under a new appropriations law, still, there is compelling reason for this Court to resolve the

substantive issue raised by the instant petition. Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution.13Even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public.14

Another reason justifying the resolution by this Court of the substantive issue now before it is the rule that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review."15 For the GAAs in the coming years may contain provisos similar to those now being sought to be invalidated, and yet, the question may not be decided before another GAA is enacted. It, thus, behooves this Court to make a categorical ruling on the substantive issue now.

Substantive Issue

As earlier intimated, the resolution of the substantive legal issue in this case calls for the application of a most important constitutional policy and principle, that of local autonomy.16 In Article II of the Constitution, the State has expressly adopted as a policy that:

Section 25. The State shall ensure the autonomy of local governments.

An entire article (Article X) of the Constitution has been devoted to guaranteeing and promoting the autonomy of LGUs. Section 2 thereof reiterates the State policy in this wise:

Section 2. The territorial and political subdivisions shall enjoy local autonomy.

Consistent with the principle of local autonomy, the Constitution confines the President's power over the LGUs to one of general supervision.17 This provision has been interpreted to exclude the power of control. The distinction between the two powers was enunciated in Drilon v. Lim:18

An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for doing the act. He has no judgment on this matter except to see to it that the rules are followed.19

The Local Government Code of 199120 was enacted to flesh out the mandate of the Constitution.21 The State policy on local autonomy is amplified in Section 2 thereof:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities

and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the local government units.

Guided by these precepts, the Court shall now determine whether the assailed provisos in the GAAs of 1999, 2000 and 2001, earmarking for each corresponding year the amount of five billion pesos of the IRA for the LGSEF and the OCD resolutions promulgated pursuant thereto, transgress the Constitution and the Local Government Code of 1991.

The assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions violate the constitutional precept on local autonomy

Section 6, Article X of the Constitution reads:

Sec. 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.

When parsed, it would be readily seen that this provision mandates that (1) the LGUs shall have a "just share" in the national taxes; (2) the "just share" shall be determined by law; and (3) the "just share" shall be automatically released to the LGUs.

The Local Government Code of 1991, among its salient provisions, underscores the automatic release of the LGUs' "just share" in this wise:

Sec. 18. Power to Generate and Apply Resources. Local government units shall have the power and authority to establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives and priorities; to create their own sources of revenue and to levy taxes, fees, and charges which shall accrue exclusively for their use and disposition and which shall be retained by them;to have a just share in national taxes which shall be automatically and directly released to them without need of further action;

...

Sec. 286. Automatic Release of Shares. (a) The share of each local government unit shall be released, without need of any further action, directly to the provincial, city, municipal or barangay treasurer, as the case may be, on a quarterly basis within five (5) days after the end of each quarter, and which shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose.

(b) Nothing in this Chapter shall be understood to diminish the share of local government units under existing laws.

Webster's Third New International Dictionary defines "automatic" as "involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton." Further, the word "automatically" is defined as "in an automatic manner: without thought or conscious intention." Being "automatic," thus, connotes something mechanical, spontaneous and perfunctory. As such, the LGUs are not required to perform any act to receive the "just share" accruing to them from the national coffers. As emphasized by the Local Government Code of 1991, the "just share" of the LGUs shall be released to them "without need of further action." Construing Section 286 of the LGC, we held in Pimentel, Jr. v. Aguirre,22 viz:

Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the National internal revenue. This is mandated by no less than the Constitution. The Local Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and "shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose." As a rule, the term "SHALL" is a word of command that must be given a compulsory meaning. The provision is, therefore, IMPERATIVE.

Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs' IRA "pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation" in the country. Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means "something held back or withheld, often temporarily." Hence, the "temporary" nature of the retention by the national government does not matter. Any retention is prohibited.

In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis, Section 4 thereof has no color of validity at all. The latter provision effectively encroaches on the fiscal autonomy of local governments. Concededly, the President was well-intentioned in issuing his Order to withhold the LGUs' IRA, but the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.23

The "just share" of the LGUs is incorporated as the IRA in the appropriations law or GAA enacted by Congress annually. Under the assailed provisos in the GAAs of 1999, 2000 and 2001, a portion of the IRA in the amount of five billion pesos was earmarked for the LGSEF, and these provisos imposed the condition that "such amount shall be released to the local government units subject to the implementing rules and regulations, including such mechanisms and guidelines for the equitable allocations and distribution of said fund among local government units subject to the guidelines that may be prescribed by the Oversight Committee on Devolution." Pursuant thereto, the Oversight Committee, through the assailed OCD resolutions, apportioned the five billion pesos LGSEF such that:

For 1999

P2 billion - allocated according to Sec. 285 LGC

P2 billion - Modified Sharing Formula (Provinces – 40%;

Cities – 20%; Municipalities – 40%)

P1 billion – projects (LAAP) approved by OCD.24

For 2000

P3.5 billion – Modified Sharing Formula (Provinces – 26%;

Cities – 23%; Municipalities – 35%; Barangays – 16%);

P1.5 billion – projects (LAAP) approved by the OCD.25

For 2001

P3 billion – Modified Sharing Formula (Provinces – 25%;

Cities – 25%; Municipalities – 35%; Barangays – 15%)

P1.9 billion – priority projects

P100 million – capability building fund.26

Significantly, the LGSEF could not be released to the LGUs without the Oversight Committee's prior approval. Further, with respect to the portion of the LGSEF allocated for various projects of the LGUs (P1 billion for 1999;P1.5 billion for 2000 and P2 billion for 2001), the Oversight Committee, through the assailed OCD resolutions, laid down guidelines and mechanisms that the LGUs had to comply with before they could avail of funds from this portion of the LGSEF. The guidelines required (a) the LGUs to identify the projects eligible for funding based on the criteria laid down by the Oversight Committee; (b) the LGUs to submit their project proposals to the DILG for appraisal; (c) the project proposals that passed the appraisal of the DILG to be submitted to the Oversight Committee for review, evaluation and approval. It was only upon approval thereof that the Oversight Committee would direct the DBM to release the funds for the projects.

To the Court's mind, the entire process involving the distribution and release of the LGSEF is constitutionally impermissible. The LGSEF is part of the IRA or "just share" of the LGUs in the national taxes. To subject its distribution and release to the vagaries of the implementing rules and regulations, including the guidelines and mechanisms unilaterally prescribed by the Oversight Committee from time to time, as sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the release not automatic, a flagrant violation of the constitutional and statutory mandate that

the "just share" of the LGUs "shall be automatically released to them." The LGUs are, thus, placed at the mercy of the Oversight Committee.

Where the law, the Constitution in this case, is clear and unambiguous, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is obeyed.27 Moreover, as correctly posited by the petitioner, the use of the word "shall" connotes a mandatory order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of discretion.28

Indeed, the Oversight Committee exercising discretion, even control, over the distribution and release of a portion of the IRA, the LGSEF, is an anathema to and subversive of the principle of local autonomy as embodied in the Constitution. Moreover, it finds no statutory basis at all as the Oversight Committee was created merely to formulate the rules and regulations for the efficient and effective implementation of the Local Government Code of 1991 to ensure "compliance with the principles of local autonomy as defined under the Constitution."29 In fact, its creation was placed under the title of "Transitory Provisions," signifying its ad hoc character. According to Senator Aquilino Q. Pimentel, the principal author and sponsor of the bill that eventually became Rep. Act No. 7160, the Committee's work was supposed to be done a year from the approval of the Code, or on October 10, 1992.30 The Oversight Committee's authority is undoubtedly limited to the implementation of the Local Government Code of 1991, not to supplant or subvert the same. Neither can it exercise control over the IRA, or even a portion thereof, of the LGUs.

That the automatic release of the IRA was precisely intended to guarantee and promote local autonomy can be gleaned from the discussion below between Messrs. Jose N. Nolledo and Regalado M. Maambong, then members of the 1986 Constitutional Commission, to wit:

MR. MAAMBONG. Unfortunately, under Section 198 of the Local Government Code, the existence of subprovinces is still acknowledged by the law, but the statement of the Gentleman on this point will have to be taken up probably by the Committee on Legislation. A second point, Mr. Presiding Officer, is that under Article 2, Section 10 of the 1973 Constitution, we have a provision which states:

The State shall guarantee and promote the autonomy of local government units, especially the barrio, to insure their fullest development as self-reliant communities.

This provision no longer appears in the present configuration; does this mean that the concept of giving local autonomy to local governments is no longer adopted as far as this Article is concerned?

MR. NOLLEDO. No. In the report of the Committee on Preamble, National Territory, and Declaration of Principles, that concept is included and widened upon the initiative of Commissioner Bennagen.

MR. MAAMBONG. Thank you for that.

With regard to Section 6, sources of revenue, the creation of sources as provided by previous law was "subject to limitations as may be provided by law," but now, we are using the term "subject to such guidelines as may be fixed by law." In Section 7, mention is made about the "unique, distinct and exclusive charges and contributions," and in Section 8, we talk about "exclusivity of local taxes and the share in the national wealth." Incidentally, I was one of the authors of this provision, and I am very thankful. Does this indicate local autonomy, or was the wording of the law changed to give more autonomy to the local government units?31

MR. NOLLEDO. Yes. In effect, those words indicate also "decentralization" because local political units can collect taxes, fees and charges subject merely to guidelines, as recommended by the league of governors and city mayors, with whom I had a dialogue for almost two hours. They told me that limitations may be questionable in the sense that Congress may limit and in effect deny the right later on.

MR. MAAMBONG. Also, this provision on "automatic release of national tax share" points to more local autonomy. Is this the intention?

MR. NOLLEDO. Yes, the Commissioner is perfectly right.32

The concept of local autonomy was explained in Ganzon v. Court of Appeals33 in this wise:

As the Constitution itself declares, local autonomy 'means a more responsive and accountable local government structure instituted through a system of decentralization.' The Constitution, as we observed, does nothing more than to break up the monopoly of the national government over the affairs of local governments and as put by political adherents, to "liberate the local governments from the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and interdependence between the central administration and local government units, or otherwise, to usher in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self-government.

As we observed in one case, decentralization means devolution of national administration – but not power – to the local levels. Thus:

Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments 'more responsive and accountable' and 'ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.' At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises 'general supervision' over them, but only to 'ensure that local affairs are administered according to law.' He has no control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the [sic] favor of local governments [sic] units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to 'self-immolation,' since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency.34

Local autonomy includes both administrative and fiscal autonomy. The fairly recent case of Pimentel v. Aguirre35is particularly instructive. The Court declared therein that local fiscal autonomy includes the power of the LGUs to, inter alia, allocate their resources in accordance with their own priorities:

Under existing law, local government units, in addition to having administrative autonomy in the exercise of their functions, enjoy fiscal autonomy as well. Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof. They are not formulated at the national level and imposed on local governments, whether they are relevant to local needs and resources or not ...36

Further, a basic feature of local fiscal autonomy is the constitutionally mandated automatic release of the shares of LGUs in the national internal revenue.37

Following this ratiocination, the Court in Pimentel struck down as unconstitutional Section 4 of Administrative Order (A.O.) No. 372 which ordered the withholding, effective January 1, 1998, of ten percent of the LGUs' IRA "pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation."

In like manner, the assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions constitute a "withholding" of a portion of the IRA. They put on hold the distribution and release of the five billion pesos LGSEF and subject the same to the implementing rules and regulations, including the guidelines and mechanisms prescribed by the Oversight Committee from time to time. Like Section 4 of A.O. 372, the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions effectively encroach on the fiscal autonomy enjoyed by the LGUs and must be struck down. They cannot, therefore, be upheld.

The assailed provisos in the GAAs of 1999, 2000

and 2001 and the OCD resolutions cannot amend

Section 285 of the Local Government Code of 1991

Section 28438 of the Local Government Code provides that, beginning the third year of its effectivity, the LGUs' share in the national internal revenue taxes shall be 40%. This percentage is fixed and may not be reduced except "in the event the national government

incurs an unmanageable public sector deficit" and only upon compliance with stringent requirements set forth in the same section:

Sec. 284. ...

Provided, That in the event that the national government incurs an unmanageable public sector deficit, the President of the Philippines is hereby authorized, upon recommendation of Secretary of Finance, Secretary of Interior and Local Government and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the liga, to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of the national internal revenue taxes of the third fiscal year preceding the current fiscal year; Provided, further That in the first year of the effectivity of this Code, the local government units shall, in addition to the thirty percent (30%) internal revenue allotment which shall include the cost of devolved functions for essential public services, be entitled to receive the amount equivalent to the cost of devolved personnel services.

Thus, from the above provision, the only possible exception to the mandatory automatic release of the LGUs' IRA is if the national internal revenue collections for the current fiscal year is less than 40 percent of the collections of the preceding third fiscal year, in which case what should be automatically released shall be a proportionate amount of the collections for the current fiscal year. The adjustment may even be made on a quarterly basis depending on the actual collections of national internal revenue taxes for the quarter of the current fiscal year. In the instant case, however, there is no allegation that the national internal revenue tax collections for the fiscal years 1999, 2000 and 2001 have fallen compared to the preceding three fiscal years.

Section 285 then specifies how the IRA shall be allocated among the LGUs:

Sec. 285. Allocation to Local Government Units. – The share of local government units in the internal revenue allotment shall be allocated in the following manner:

(a) Provinces – Twenty-three (23%)

(b) Cities – Twenty-three percent (23%);

(c) Municipalities – Thirty-four (34%); and

(d) Barangays – Twenty percent (20%).

However, this percentage sharing is not followed with respect to the five billion pesos LGSEF as the assailed OCD resolutions, implementing the assailed provisos in the GAAs of 1999, 2000 and 2001, provided for a different sharing scheme. For example, for 1999, P2 billion of the LGSEF was allocated as follows: Provinces – 40%; Cities – 20%; Municipalities – 40%.39 For 2000, P3.5 billion of the LGSEF was allocated in this manner: Provinces – 26%; Cities – 23%; Municipalities – 35%; Barangays – 26%.40 For 2001, P3

billion of the LGSEF was allocated, thus: Provinces – 25%; Cities – 25%; Municipalities – 35%; Barangays – 15%.41

The respondents argue that this modification is allowed since the Constitution does not specify that the "just share" of the LGUs shall only be determined by the Local Government Code of 1991. That it is within the power of Congress to enact other laws, including the GAAs, to increase or decrease the "just share" of the LGUs. This contention is untenable. The Local Government Code of 1991 is a substantive law. And while it is conceded that Congress may amend any of the provisions therein, it may not do so through appropriations laws or GAAs. Any amendment to the Local Government Code of 1991 should be done in a separate law, not in the appropriations law, because Congress cannot include in a general appropriation bill matters that should be more properly enacted in a separate legislation.42

A general appropriations bill is a special type of legislation, whose content is limited to specified sums of money dedicated to a specific purpose or a separate fiscal unit.43 Any provision therein which is intended to amend another law is considered an "inappropriate provision." The category of "inappropriate provisions" includes unconstitutional provisions and provisions which are intended to amend other laws, because clearly these kinds of laws have no place in an appropriations bill.44

Increasing or decreasing the IRA of the LGUs or modifying their percentage sharing therein, which are fixed in the Local Government Code of 1991, are matters of general and substantive law. To permit Congress to undertake these amendments through the GAAs, as the respondents contend, would be to give Congress the unbridled authority to unduly infringe the fiscal autonomy of the LGUs, and thus put the same in jeopardy every year. This, the Court cannot sanction.

It is relevant to point out at this juncture that, unlike those of 1999, 2000 and 2001, the GAAs of 2002 and 2003 do not contain provisos similar to the herein assailed provisos. In other words, the GAAs of 2002 and 2003 have not earmarked any amount of the IRA for the LGSEF. Congress had perhaps seen fit to discontinue the practice as it recognizes its infirmity. Nonetheless, as earlier mentioned, this Court has deemed it necessary to make a definitive ruling on the matter in order to prevent its recurrence in future appropriations laws and that the principles enunciated herein would serve to guide the bench, bar and public.

Conclusion

In closing, it is well to note that the principle of local autonomy, while concededly expounded in greater detail in the present Constitution, dates back to the turn of the century when President William McKinley, in his Instructions to the Second Philippine Commission dated April 7, 1900, ordered the new Government "to devote their attention in the first instance to the establishment of municipal governments in which the natives of the Islands, both in the cities and in the rural communities, shall be afforded the opportunity to manage their own affairs to the fullest extent of which they are capable, and subject to the least degree of supervision and control in which a careful study of their capacities and

observation of the workings of native control show to be consistent with the maintenance of law, order and loyalty."45 While the 1935 Constitution had no specific article on local autonomy, nonetheless, it limited the executive power over local governments to "general supervision ... as may be provided by law."46 Subsequently, the 1973 Constitution explicitly stated that "[t]he State shall guarantee and promote the autonomy of local government units, especially the barangay to ensure their fullest development as self-reliant communities."47 An entire article on Local Government was incorporated therein. The present Constitution, as earlier opined, has broadened the principle of local autonomy. The 14 sections in Article X thereof markedly increased the powers of the local governments in order to accomplish the goal of a more meaningful local autonomy.

Indeed, the value of local governments as institutions of democracy is measured by the degree of autonomy that they enjoy.48 As eloquently put by

M. De Tocqueville, a distinguished French political writer, "[l]ocal assemblies of citizens constitute the strength of free nations. Township meetings are to liberty what primary schools are to science; they bring it within the people's reach; they teach men how to use and enjoy it. A nation may establish a system of free governments but without the spirit of municipal institutions, it cannot have the spirit of liberty."49

Our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit and liberty upon which these provisions are based.50

WHEREFORE, the petition is GRANTED. The assailed provisos in the General Appropriations Acts of 1999, 2000 and 2001, and the assailed OCD Resolutions, are declared UNCONSTITUTIONAL.

SO ORDERED.

G.R. No. 149848             November 25, 2004

ARSADI M. DISOMANGCOP and RAMIR M. DIMALOTANG, petitioners, vs.THE SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS SIMEON A. DATUMANONG and THE SECRETARY OF BUDGET and MANAGEMENT EMILIA T. BONCODIN, respondents.

D E C I S I O N

TINGA, J.:

At stake in the present case is the fate of regional autonomy for Muslim Mindanao which is the epoch-making, Constitution-based project for achieving national unity in diversity.

Challenged in the instant petition for certiorari, prohibition and mandamus with prayer for a temporary restraining order and/or writ of preliminary injunction1 (Petition) are the constitutionality and validity of Republic Act No. 8999 (R.A. 8999),2 entitled "An Act Establishing An Engineering District in the First District of the Province of Lanao del Sur and Appropriating Funds Therefor," and Department of Public Works and Highways (DPWH) Department Order No. 119 (D.O. 119)3 on the subject, "Creation of Marawi Sub-District Engineering Office."

The Background

The uncontested legal and factual antecedents of the case follow.

For the first time in its history after three Constitutions, the Philippines ordained the establishment of regional autonomy with the adoption of the 1987 Constitution. Sections 14 and 15, Article X mandate the creation of autonomous regions in Muslim Mindanao and in the Cordilleras. Section 15 specifically provides that "[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines." To effectuate this mandate, the Charter devotes a number of provisions under Article X.5

Pursuant to the constitutional mandate, Republic Act No. 6734 (R.A. 6734), entitled "An Act Providing for An Organic Act for the Autonomous Region in Muslim Mindanao," was enacted and signed into law on 1 August 1989. The law called for the holding of a plebiscite in the provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa and Zamboanga.6 In the ensuing plebiscite held on 19 November 1989, only four (4) provinces voted for the creation of an autonomous region, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. These provinces became the Autonomous Region in Muslim Mindanao (ARMM).7 The law contains elaborate provisions on the powers of the Regional Government and the areas of jurisdiction which are reserved for the National Government.8

In accordance with R.A. 6734, then President Corazon C. Aquino issued on 12 October 1990, Executive Order No. 426 (E.O. 426), entitled "Placing the Control and Supervision of the Offices of the Department of Public Works and Highways within the Autonomous

Region in Muslim Mindanao under the Autonomous Regional Government, and for other purposes." Sections 1 to 39 of the Executive Order are its operative provisions.

ARMM was formally organized on 6 November 1990. President Corazon C. Aquino flew to Cotabato, the seat of the Regional Government, for the inauguration. At that point, she had already signed seven (7) Executive Orders devolving to ARMM the powers of seven (7) cabinet departments, namely: (1) local government; (2) labor and employment; (3) science and technology; (4) public works and highways; (5) social welfare and development; (6) tourism; and (7) environment and national resources.10

Nearly nine (9) years later, on 20 May 1999, then Department of Public Works and Highways (DPWH) Secretary Gregorio R. Vigilar issued D.O. 119 which reads, thus:

Subject: Creation of Marawi Sub-District Engineering Office

Pursuant to Sections 6 and 25 of Executive Order No. 124 dated 30 January 1987, there is hereby created a DPWH Marawi Sub-District Engineering Office which shall have jurisdiction over all national infrastructure projects and facilities under the DPWH within Marawi City and the province of Lanao del Sur. The headquarters of the Marawi Sub-District Engineering Office shall be at the former quarters of the Marawi City Engineering Office.

Personnel of the above-mentioned Sub-District Engineering Office shall be made up of employees of the National Government Section of the former Marawi City Engineering Office who are now assigned with the Iligan City Sub-District Engineering Office as may be determined by the DPWH Region XII Regional Director. (Emphasis supplied)

Almost two (2) years later, on 17 January 2001, then President Joseph E. Estrada approved and signed into law R.A. 8999. The text of the law reads:

AN ACT ESTABLISHING AN ENGINEERING DISTRICT IN THE FIRST DISTRICT OF THE PROVINCE OF LANAO DEL SUR AND APPROPRIATING FUNDS THEREFOR

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. The City of Marawi and the municipalities comprising the First District of the Province of Lanao del Sur are hereby constituted into an engineering district to be known as the First Engineering District of the Province of Lanao del Sur.

SEC. 2. The office of the engineering district hereby created shall be established in Marawi City, Province of Lanao del Sur.

SEC. 3. The amount necessary to carry out the provisions of this Act shall be included in the General Appropriations Act of the year following its enactment into law. Thereafter, such sums as may be necessary for the maintenance and continued operation of the engineering district office shall be included in the annual General Appropriations Act.

SEC. 4. This Act shall take effect upon its approval. (Emphasis supplied)

Congress later passed Republic Act No. 9054 (R.A. 9054), entitled "An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended." Like its forerunner, R.A. 9054 contains detailed provisions on the powers of the Regional Government and the retained areas of governance of the National Government.11

R.A. 9054 lapsed into law12 on 31 March 2001. It was ratified in a plebiscite held on 14 August 2001. The province of Basilan and the City of Marawi also voted to join ARMM on the same date. R.A. 6734 and R.A. 9054 are collectively referred to as the ARMM Organic Acts.

On 23 July 2001, petitioners Arsadi M. Disomangcop (Disomangcop) and Ramir M. Dimalotang (Dimalotang) addressed a petition to then DPWH Secretary Simeon A. Datumanong, seeking the revocation of D.O. 119 and the non-implementation of R.A. 8999. No action, however, was taken on the petition.13

Consequently, petitioners Disomangcop and Dimalotang filed the instant petition, in their capacity as Officer-in-Charge and District Engineer/Engineer II, respectively, of the First Engineering District of the Department of Public Works and Highways, Autonomous Region in Muslim Mindanao (DPWH-ARMM) in Lanao del Sur.

Petitioners seek the following principal reliefs: (1) to annul and set aside D.O. 119; (2) to prohibit respondent DPWH Secretary from implementing D.O. 119 and R.A. 8999 and releasing funds for public works projects intended for Lanao del Sur and Marawi City to the Marawi Sub-District Engineering Office and other administrative regions of DPWH; and (3) to compel the Secretary of the Department of Budget and Management (DBM) to release all funds for public works projects intended for Marawi City and the First District of Lanao del Sur to the DPWH-ARMM First Engineering District in Lanao del Sur only; and to compel respondent DPWH Secretary to let the DPWH-ARMM First Engineering District in Lanao del Sur implement all public works projects within its jurisdictional area.14

The petition includes an urgent application for the issuance of a temporary restraining order (TRO) and, after hearing, a writ of preliminary injunction, to enjoin respondent DBM Secretary from releasing funds for public works projects in Lanao del Sur to entities other than the DPWH-ARMM First Engineering District in Lanao del Sur, and also to restrain the DPWH Secretary from allowing others besides the DPWH-ARMM First

Engineering District in Lanao del Sur to implement public works projects in Lanao del Sur.15

To support their petition, petitioners allege that D.O. 119 was issued with grave abuse of discretion and that it violates the constitutional autonomy of the ARMM. They point out that the challenged Department Order has tasked the Marawi Sub-District Engineering Office with functions that have already been devolved to the DPWH-ARMM First Engineering District in Lanao del Sur.16

Petitioners also contend that R.A. 8999 is a piece of legislation that was not intelligently and thoroughly studied, and that the explanatory note to House Bill No. 995 (H.B. 995) from which the law originated is questionable. Petitioners assert as well that prior to the sponsorship of the law, no public hearing nor consultation with the DPWH-ARMM was made. The House Committee on Public Works and Highways (Committee) failed to invite a single official from the affected agency. Finally, petitioners argue that the law was skillfully timed for signature by former President Joseph E. Estrada during the pendency of the impeachment proceedings.17

In its resolution of 8 October 2001, the Court required respondents to file their comment.18 In compliance, respondents DPWH Secretary and DBM Secretary, through the Solicitor General, filed on 7 January 2002, their Comment.

In their Comment,19 respondents, through the Office of the Solicitor General, maintain the validity of D.O. 119, arguing that it was issued in accordance with Executive Order No. 124 (E.O. 124).20 In defense of the constitutionality of R.A. 8999, they submit that the powers of the autonomous regions did not diminish the legislative power of Congress.21 Respondents also contend that the petitioners have no locus standi or legal standing to assail the constitutionality of the law and the department order. They note that petitioners have no personal stake in the outcome of the controversy.22

Asserting their locus standi, petitioners in their Memorandum23 point out that they will suffer actual injury as a result of the enactments complained of.24

Jurisdictional Considerations

First, the jurisdictional predicates.

The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of the courts to determine in an appropriate action the validity of acts of the political departments. It speaks of judicial prerogative in terms of duty.25

Jurisprudence has laid down the following requisites for the exercise of judicial power: First, there must be before the Court an actual case calling for the exercise of judicial review. Second, the question before the Court must be ripe for adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity. Fifth, the issue of constitutionality must be the very lis mota of the case.26

In seeking to nullify acts of the legislature and the executive department on the ground that they contravene the Constitution, the petition no doubt raises a justiciable controversy. As held in Tañada v. Angara,27 "where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute." But in deciding to take jurisdiction over this petition questioning acts of the political departments of government, the Court will not review the wisdom, merits, or propriety thereof, but will strike them down only on either of two grounds: (1) unconstitutionality or illegality and (2) grave abuse of discretion.28

For an abuse to be grave, the power must be exercised in an arbitrary or despotic manner by reason of passion or personal hostility. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or to act in contemplation of law. There is grave abuse of discretion when respondent acts in a capricious or whimsical manner in the exercise of its judgment as to be equivalent to lack of jurisdiction.29

The challenge to the legal standing of petitioners cannot succeed. Legal standing or locus standi is defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term "interest" means a material interest, an interest in issue affected by the decree, as distinguished from a mere interest in the question involved, or a mere incidental interest.30

A party challenging the constitutionality of a law, act, or statute must show "not only that the law is invalid, but also that he has sustained or is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way." He must show that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute complained of.31

But following the new trend, this Court is inclined to take cognizance of a suit although it does not satisfy the requirement of legal standing when paramount interests are involved. In several cases, the Court has adopted a liberal stance on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people.32

In the instant case, petitioner Disomangcop holds the position of Engineer IV. When he filed this petition, he was the Officer-in-Charge, Office of the District Engineer of the First Engineering District of DPWH-ARMM, Lanao del Sur. On the other hand, petitioner Dimalotang is an Engineer II and President of the rank and file employees also of the First Engineering District of DPWH-ARMM in Lanao del Sur. Both are charged with the duty and responsibility of supervising and implementing all public works projects to be undertaken and being undertaken in Lanao del Sur which is the area of their jurisdiction.33

It is thus not far-fetched that the creation of the Marawi Sub-District Engineering Office under D.O. 119 and the creation of and appropriation of funds to the First Engineering District of Lanao del Sur as directed under R.A. 8999 will affect the powers, functions and responsibilities of the petitioners and the DPWH-ARMM. As the two offices have

apparently been endowed with functions almost identical to those of DPWH-ARMM First Engineering District in Lanao del Sur, it is likely that petitioners are in imminent danger of being eased out of their duties and, not remotely, even their jobs. Their material and substantial interests will definitely be prejudiced by the enforcement of D.O. 119 and R.A. 8999. Such injury is direct and immediate. Thus, they can legitimately challenge the validity of the enactments subject of the instant case.

Points of Contention

In the petition before us, petitioners contend that R.A. 8999 and D.O. 119 are unconstitutional and were issued with grave abuse of discretion.

We agree in part.

Republic Act No. 8999

At the outset, let it be made clear that it is not necessary to declare R.A. No. 8999 unconstitutional for the adjudication of this case. The accepted rule is that the Court will not resolve a constitutional question unless it is the lis mota of the case, or if the case can be disposed of or settled on other grounds.34

The plain truth is the challenged law never became operative and was superseded or repealed by a subsequent enactment.

The ARMM Organic Acts are deemed a part of the regional autonomy scheme. While they are classified as statutes, the Organic Acts are more than ordinary statutes because they enjoy affirmation by a plebiscite.35Hence, the provisions thereof cannot be amended by an ordinary statute, such as R.A. 8999 in this case. The amendatory law has to be submitted to a plebiscite.

We quote excerpts of the deliberations of the Constitutional Commission:

FR. BERNAS. Yes, that is the reason I am bringing this up. This thing involves some rather far-reaching consequences also in relation to the issue raised by Commissioner Romulo with respect to federalism. Are we, in effect, creating new categories of laws? Generally, we have statutes and constitutional provisions. Is this organic act equivalent to a constitutional provision? If it is going to be equivalent to a constitutional provision, it would seem to me that the formulation of the provisions of the organic act will have to be done by the legislature, acting as a constituent assembly, and therefore, subject to the provisions of the Article on Amendments. That is the point that I am trying to bring up. In effect, if we opt for federalism, it would really involve an act of the National Assembly or Congress acting as a constituent assembly and present amendments to this Constitution, and the end product itself would be a constitutional provision which would only be amendable according to the processes indicated in the Constitution.

MR. OPLE. Madam President, may I express my personal opinion in this respect.

I think to require Congress to act as a constituent body before enacting an organic act would be to raise an autonomous region to the same level as the sovereign people of the whole country. And I think the powers of the Congress should be quite sufficient in enacting a law, even if it is now exalted to the level of an organic act for the purpose of providing a basic law for an autonomous region without having to transform itself into a constituent assembly. We are dealing still with one subordinate subdivision of the State even if it is now vested with certain autonomous powers on which its own legislature can pass laws.

FR. BERNAS. So the questions I have raised so far with respect to this organic act are: What segment of the population will participate in the plebiscite? In what capacity would the legislature be acting when it passes this? Will it be a constituent assembly or merely a legislative body? What is the nature, therefore, of this organic act in relation to ordinary statutes and the Constitution? Finally, if we are going to amend this organic act, what process will be followed?

MR. NOLLEDO. May I answer that, please, in the light of what is now appearing in our report.

First, only the people who are residing in the units composing the regions should be allowed to participate in the plebiscite. Second, the organic act has the character of a charter passed by the Congress, not as a constituent assembly, but as an ordinary legislature and, therefore, the organic act will still be subject to amendments in the ordinary legislative process as now constituted, unless the Gentlemen has another purpose.

FR. BERNAS. But with plebiscite again.

MR. NOLLEDO. Those who will participate in the plebiscite are those who are directly affected, the inhabitants of the units constitutive of the region. (Emphasis supplied)36

Although R.A. 9054 was enacted later, it reaffirmed the imperativeness of the plebiscite requirement.37 In fact, R.A. 9054 itself, being the second or later ARMM Organic Act, was subjected to and ratified in a plebiscite.

The first ARMM Organic Act, R.A. 6074, as implemented by E.O. 426, devolved the functions of the DPWH in the ARMM which includes Lanao del Sur (minus Marawi City at the time)38 to the Regional Government. By creating an office with previously devolved functions, R.A. 8999, in essence, sought to amend R.A. 6074. The amendatory law should therefore first obtain the approval of the people of the ARMM before it could validly take effect. Absent compliance with this requirement, R.A. 8999 has not even become operative.

From another perspective, R.A. 8999 was repealed and superseded by R.A. 9054. Where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect.

Of course, the intention to repeal must be clear and manifest.39 Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter; they are clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both cannot be given effect, that is, that one law cannot be enforced without nullifying the other.40

The Court has also held that statutes should be construed in light of the objective to be achieved and the evil or mischief to be suppressed, and they should be given such construction as will advance the object, suppress the mischief and secure the benefits intended.41

R.A. 9054 is anchored on the 1987 Constitution. It advances the constitutional grant of autonomy by detailing the powers of the ARG covering, among others, Lanao del Sur and Marawi City, one of which is its jurisdiction over regional urban and rural planning. R.A. 8999, however, ventures to reestablish the National Government's jurisdiction over infrastructure programs in Lanao del Sur. R.A. 8999 is patently inconsistent with R.A. 9054, and it destroys the latter law's objective.

Clearly, R.A. 8999 is antagonistic to and cannot be reconciled with both ARMM Organic Acts, R.A. 6734 and R.A. 9054. The kernel of the antagonism and disharmony lies in the regional autonomy which the ARMM Organic Acts ordain pursuant to the Constitution. On the other hand, R.A. 8999 contravenes true decentralization which is the essence of regional autonomy.

Regional Autonomy Under

R.A. 6734 and R.A. 9054

The 1987 Constitution mandates regional autonomy to give a bold and unequivocal answer to the cry for a meaningful, effective and forceful autonomy.42 According to Commissioner Jose Nolledo, Chairman of the Committee which drafted the provisions, it "is an indictment against the status quo of a unitary system that, to my mind, has ineluctably tied the hands of progress in our country . . . our varying regional characteristics are factors to capitalize on to attain national strength through decentralization."43

The idea behind the Constitutional provisions for autonomous regions is to allow the separate development of peoples with distinctive cultures and traditions.44 These cultures, as a matter of right, must be allowed to flourish.45

Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of the strain and wastage caused by the assimilationist approach.46 Policies emanating from the legislature are invariably assimilationist in character despite channels being open for minority representation. As a result, democracy becomes an irony to the minority group.47

Several commissioners echoed the pervasive sentiment in the plenary sessions in their own inimitable way. Thus, Commissioner Blas Ople referred to the recognition that the Muslim

Mindanao and the Cordilleras "do not belong to the dominant national community" as the justification for conferring on them a "measure of legal self-sufficiency, meaning self-government, so that they will flourish politically, economically and culturally," with the hope that after achieving parity with the rest of the country they would "give up their own autonomous region in favor of joining the national mainstream."48 For his part, the Muslim delegate, Commissioner Ahmad Alonto, spoke of the diversity of cultures as the framework for nation-building.49 Finally, excerpts of the poignant plea of Commissioner Ponciano Bennagen deserve to be quoted verbatim:

. . . They see regional autonomy as the answer to their centuries of struggle against oppression and exploitation. For so long, their names and identities have been debased. Their ancestral lands have been ransacked for their treasures, for their wealth. Their cultures have been defiled, their very lives threatened, and worse, extinguished, all in the name of national development; all in the name of public interest; all in the name of common good; all in the name of the right to property; all in the name of Regalian Doctrine; all in the name of national security. These phrases have meant nothing to our indigenous communities, except for the violation of their human rights.

. . .

Honorable Commissioners, we wish to impress upon you the gravity of the decision to be made by every single one of us in this Commission. We have the overwhelming support of the Bangsa Moro and the Cordillera Constitution. By this we mean meaningful and authentic regional autonomy. We propose that we have a separate Article on the autonomous regions for the Bangsa Moro and Cordillera people clearly spelled out in this Constitution, instead of prolonging the agony of their vigil and their struggle. This, too is a plea for national peace. Let us not pass the buck to the Congress to decide on this. Let us not wash our hands of our responsibility to attain national unity and peace and to settle this problem and rectify past injustices, once and for all.50

The need for regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people who have been fighting for it. Their political struggle highlights their unique cultures and the unresponsiveness of the unitary system to their aspirations.51 The Moros' struggle for self-determination dates as far back as the Spanish conquest in the Philippines. Even at present, the struggle goes on.52

Perforce, regional autonomy is also a means towards solving existing serious peace and order problems and secessionist movements. Parenthetically, autonomy, decentralization and regionalization, in international law, have become politically acceptable answers to intractable problems of nationalism, separatism, ethnic conflict and threat of secession.53

However, the creation of autonomous regions does not signify the establishment of a sovereignty distinct from that of the Republic, as it can be installed only "within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines."54

Regional autonomy is the degree of self-determination exercised by the local government unit vis-à-vis the central government.

In international law, the right to self-determination need not be understood as a right to political separation, but rather as a complex net of legal-political relations between a certain people and the state authorities. It ensures the right of peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity, the establishment of priorities by the community's internal decision-making processes and the management of collective matters by themselves.55

If self-determination is viewed as an end in itself reflecting a preference for homogeneous, independent nation-states, it is incapable of universal application without massive disruption. However, if self-determination is viewed as a means to an end—that end being a democratic, participatory political and economic system in which the rights of individuals and the identity of minority communities are protected—its continuing validity is more easily perceived.56

Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government.57

The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business. This is achieved through the establishment of a special governance regime for certain member communities who choose their own authorities from within the community and exercise the jurisdictional authority legally accorded to them to decide internal community affairs.58

In the Philippine setting, regional autonomy implies the cultivation of more positive means for national integration. It would remove the wariness among the Muslims, increase their trust in the government and pave the way for the unhampered implementation of the development programs in the region.59 Again, even a glimpse of the deliberations of the Constitutional Commission could lend a sense of the urgency and the inexorable appeal of true decentralization:

MR. OPLE. . . . We are writing a Constitution, of course, for generations to come, not only for the present but for our posterity. There is no harm in recognizing certain vital pragmatic needs for national peace and solidarity, and the writing of this Constitution just happens at a time when it is possible for this Commission to help the cause of peace and reconciliation in Mindanao and the Cordilleras, by taking advantage of a heaven-sent opportunity. . . . 60

. . .

MR. ABUBAKAR. . . . So in order to foreclose and convince the rest of the of the Philippines that Mindanao autonomy will be granted to them as soon as possible, more or less, to dissuade these armed men from going outside while Mindanao

will be under the control of the national government, let us establish an autonomous Mindanao within our effort and capacity to do so within the shortest possible time. This will be an answer to the Misuari clamor, not only for autonomy but for independence.61

. . .

MR. OPLE. . . . The reason for this abbreviation of the period for the consideration of the Congress of the organic acts and their passage is that we live in abnormal times. In the case of Muslim Mindanao and the Cordilleras, we know that we deal with questions of war and peace. These are momentous issues in which the territorial integrity and the solidarity of this country are being put at stake, in a manner of speaking.

We are writing a peace Constitution. We hope that the Article on Social Justice can contribute to a climate of peace so that any civil strife in the countryside can be more quickly and more justly resolved. We are providing for autonomous regions so that we give constitutional permanence to the just demands and grievances of our own fellow countrymen in the Cordilleras and in Mindanao. One hundred thousand lives were lost in that struggle in Mindanao, and to this day, the Cordilleras is being shaken by an armed struggle as well as a peaceful and militant struggle.

. . .

Rather than give opportunity to foreign bodies, no matter how sympathetic to the Philippines, to contribute to the settlement of this issue, I think the Constitutional Commission ought not to forego the opportunity to put the stamp of this Commission through definitive action on the settlement of the problems that have nagged us and our forefathers for so long.62

A necessary prerequisite of autonomy is decentralization.63

Decentralization is a decision by the central government authorizing its subordinates, whether geographically or functionally defined, to exercise authority in certain areas. It involves decision-making by subnational units. It is typically a delegated power, wherein a larger government chooses to delegate certain authority to more local governments. Federalism implies some measure of decentralization, but unitary systems may also decentralize. Decentralization differs intrinsically from federalism in that the sub-units that have been authorized to act (by delegation) do not possess any claim of right against the central government.64

Decentralization comes in two forms—deconcentration and devolution. Deconcentration is administrative in nature; it involves the transfer of functions or the delegation of authority and responsibility from the national office to the regional and local offices. This mode of decentralization is also referred to as administrative decentralization.65

Devolution, on the other hand, connotes political decentralization, or the transfer of powers, responsibilities, and resources for the performance of certain functions from the central government to local government units.66 This is a more liberal form of decentralization since there is an actual transfer of powers and responsibilities.67 It aims to grant greater autonomy to local government units in cognizance of their right to self-government, to make them self-reliant, and to improve their administrative and technical capabilities.68

This Court elucidated the concept of autonomy in Limbona v. Mangelin,69 thus:

Autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," and "ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local government units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "self-immolation," since in that event the autonomous government becomes accountable not to the central authorities but to its constituency.

In the case, the Court reviewed the expulsion of a member from the Sangguniang Pampook, Autonomous Region. It held that the Court may assume jurisdiction as the local government unit, organized before 1987, enjoys autonomy of the former category. It refused, though, to resolve whether the grant of autonomy to Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration.70

A year later, in Cordillera Broad Coalition v. Commission on Audit,71 the Court, with the same composition, ruled without any dissent that the creation of autonomous regions contemplates the grant of political autonomy—an autonomy which is greater than the administrative autonomy granted to local government units. It held that "the constitutional guarantee of local autonomy in the Constitution (Art. X, Sec. 2) refers to administrative autonomy of local government units or, cast in more technical language, the decentralization of government authority…. On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political autonomy and not just administrative autonomy to these regions."72

And by regional autonomy, the framers intended it to mean "meaningful and authentic regional autonomy."73 As articulated by a Muslim author, substantial and meaningful autonomy is "the kind of local self-government which allows the people of the region or area the power to determine what is best for their growth and development without undue interference or dictation from the central government."74

To this end, Section 16, Article X75 limits the power of the President over autonomous regions.76 In essence, the provision also curtails the power of Congress over autonomous regions.77 Consequently, Congress will have to re-examine national laws and make sure that they reflect the Constitution's adherence to local autonomy. And in case of conflicts, the underlying spirit which should guide its resolution is the Constitution's desire for genuine local autonomy.78

The diminution of Congress' powers over autonomous regions was confirmed in Ganzon v. Court of Appeals,79wherein this Court held that "the omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from Congress and to break Congress' 'control' over local government affairs."

This is true to subjects over which autonomous regions have powers, as specified in Sections 18 and 20, Article X of the 1987 Constitution. Expressly not included therein are powers over certain areas. Worthy of note is that the area of public works is not excluded and neither is it reserved for the National Government. The key provisions read, thus:

SEC. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of the Constitution and national laws.

The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

SEC. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of general welfare of the people of the region. (Emphasis supplied)

E.O. 426 officially devolved the powers and functions of the DPWH in ARMM to the Autonomous Regional Government (ARG). Sections 1 and 2 of E.O. 426 provide:

SECTION 1. Transfer of Control and Supervision. The offices of the Department of Public Works and Highways (DPWH) within the Autonomous Region in Muslim Mindanao (ARMM) including their functions, powers and responsibilities, personnel, equipment, properties, budgets and liabilities are hereby placed under the control and supervision of the Autonomous Regional Government.

In particular, these offices are identified as the four (4) District Engineering Offices (DEO) in each of the four provinces respectively and the three (3) Area Equipment Services (AES) located in Tawi-Tawi, Sulu and Maguindanao (Municipality of Sultan Kudarat).

SEC. 2. Functions Transferred. The Autonomous Regional Government shall be responsible for highways, flood control and water resource development systems, and other public works within the ARMM and shall exercise the following functions:

1. Undertake and evaluate the planning, design, construction and works supervision for the infrastructure projects whose location and impact are confined within the ARMM;

2. Undertake the maintenance of infrastructure facilities within the ARMM and supervise the maintenance of such local roads and other infrastructure facilities receiving financial assistance from the National Government;

3. Ensure the implementation of laws, policies, programs, rules and regulations regarding infrastructure projects as well as all public and private physical structures within the ARMM;

4. Provide technical assistance related to their functions to other agencies within the ARMM, especially the local government units;

5. Coordinate with other national and regional government departments, agencies, institutions and organizations, especially the local government units within the ARMM in the planning and implementation of infrastructure projects;

6. Conduct continuing consultations with the local communities, take appropriate measures to make the services of the Autonomous Regional Government responsive to the needs of the general public and recommend such appropriate actions as may be necessary; and

7. Perform such other related duties and responsibilities within the ARMM as may be assigned or delegated by the Regional Governor or as may be provided by law. (Emphasis supplied)

More importantly, Congress itself through R.A. 9054 transferred and devolved the administrative and fiscal management of public works and funds for public works to the ARG. Section 20, Article VI of R.A. 9054 provides:

ARTICLE VI

THE LEGISLATIVE DEPARTMENT

…

SEC. 20. Annual Budget and Infrastructure Funds. – The annual budget of the Regional Government shall be enacted by Regional Assembly. Funds for infrastructure in the autonomous region allocated by the central government or national government shall be appropriated through a Regional Assembly Public Works Act.

Unless approved by the Regional Assembly, no public works funds allocated by the central government or national government for the Regional Government or allocated by the Regional Government from its own revenues may be disbursed, distributed, realigned, or used in any manner.

The aim of the Constitution is to extend to the autonomous peoples, the people of Muslim Mindanao in this case, the right to self-determination—a right to choose their own path of development; the right to determine the political, cultural and economic content of their development path within the framework of the sovereignty and territorial integrity of the Philippine Republic.80 Self-determination refers to the need for a political structure that will respect the autonomous peoples' uniqueness and grant them sufficient room for self-expression and self-construction.81

In treading their chosen path of development, the Muslims in Mindanao are to be given freedom and independence with minimum interference from the National Government. This necessarily includes the freedom to decide on, build, supervise

and maintain the public works and infrastructure projects within the autonomous region. The devolution of the powers and functions of the DPWH in the ARMM and transfer of the administrative and fiscal management of public works and funds to the ARG are meant to be true, meaningful and unfettered. This unassailable conclusion is grounded on a clear consensus, reached at the Constitutional Commission and ratified by the entire Filipino electorate, on the centrality of decentralization of power as the appropriate vessel of deliverance for Muslim Filipinos and the ultimate unity of Muslims and Christians in this country.

With R.A. 8999, however, this freedom is taken away, and the National Government takes control again. The hands, once more, of the autonomous peoples are reined in and tied up.

The challenged law creates an office with functions and powers which, by virtue of E.O. 426, have been previously devolved to the DPWH-ARMM, First Engineering District in Lanao del Sur.

E.O. 426 clearly ordains the transfer of the control and supervision of the offices of the DPWH within the ARMM, including their functions, powers and responsibilities, personnel, equipment, properties, and budgets to the ARG. Among its other functions, the DPWH-ARMM, under the control of the Regional Government shall be responsible for highways, flood control and water resource development systems, and other public works within the ARMM. Its scope of power includes the planning, design, construction and supervision of public works. According to R.A. 9054, the reach of the Regional Government enables it to appropriate, manage and disburse all public work funds allocated for the region by the central government.

The use of the word "powers" in E.O. 426 manifests an unmistakable case of devolution.

In this regard, it is not amiss to cite Opinion No. 120, S. 199182 of the Secretary of Justice on whether the national departments or their counterpart departments in the ARG are responsible for implementation of roads, rural water supply, health, education, women in development, agricultural extension and watershed management. Referring to Section 2, Article V of R.A. 6734 which enumerates the powers of the ARG, he states:

It is clear from the foregoing provision of law that except for the areas of executive power mentioned therein, all other such areas shall be exercised by the Autonomous Regional Government ("ARG") of the Autonomous Region in Muslim Mindanao. It is noted that programs relative to infrastructure facilities, health, education, women in development, agricultural extension and watershed management do not fall under any of the exempted areas listed in the abovequoted provision of law. Thus, the inevitable conclusion is that all these spheres of executive responsibility have been transferred to the ARG.

Reinforcing the aboveview (sic) are the various executive orders issued by the President providing for the devolution of the powers and functions of specified executive departments of the National Government to the ARG. These are E.O. Nos. 425 (Department of Labor and Employment, Local Government, Tourism, Environment and Natural Resources, Social Welfare and Development and Science and Technology), 426 (Department of Public Works and Highways), 459 (Department of Education, Culture and Sports) and 460 (Department of Agriculture). The execution of projects on infrastructure, education, women, agricultural extension and watershed management within the Autonomous Region of Muslim Mindanao normally fall within the responsibility of one of the aforementioned executive departments of the National Government, but by virtue of the aforestated EOs, such responsibility has been transferred to the ARG.

E.O. 426 was issued to implement the provisions of the first ARMM Organic Act, R.A. 6734—the validity of which this Court upheld in the case of Abbas v. Commission on Elections.83 In Section 4, Article XVIII of said Act, "central government or national government offices and agencies in the autonomous region which are not excluded under Section 3, Article IV84 of this Organic Act, shall be placed under the control and supervision of the Regional Government pursuant to a schedule prescribed by the oversight committee."

Evidently, the intention is to cede some, if not most, of the powers of the national government to the autonomous government in order to effectuate a veritable autonomy. The continued enforcement of R.A. 8999, therefore, runs afoul of the ARMM Organic Acts and results in the recall of powers which have previously been handed over. This should not be sanctioned, elsewise the Organic Acts' desire for greater autonomy for the ARMM in accordance with the Constitution would be quelled. It bears stressing that national laws are subject to the Constitution one of whose state policies is to ensure the autonomy of autonomous regions. Section 25, Article II of the 1987 Constitution states:

Sec. 25. The State shall ensure the autonomy of local governments.

R.A. 8999 has made the DPWH-ARMM effete and rendered regional autonomy illusory with respect to infrastructure projects. The Congressional Record shows, on the other hand, that the "lack of an implementing and monitoring body within the area" has hindered the speedy implementation, of infrastructure projects.85Apparently, in the legislature's estimation, the existing DPWH-ARMM engineering districts failed to measure up to the task. But if it was indeed the case, the problem could not be solved through the simple legislative creation of an incongruous engineering district for the central government in the ARMM. As it was, House Bill No. 995 which ultimately became R.A. 8999 was passed in record time on second reading (not more than 10 minutes), absolutely without the usual sponsorship speech and debates.86 The precipitate speed which characterized the passage of R.A. 8999 is difficult to comprehend since R.A. 8999 could have resulted in the amendment of the first ARMM Organic Act and, therefore, could not take effect without first being ratified in a plebiscite. What is more baffling is that in March 2001, or barely two (2) months after it enacted R.A. 8999 in January 2001, Congress passed R.A. 9054, the second ARMM Organic Act, where it reaffirmed the devolution of the DPWH in

ARMM, including Lanao del Sur and Marawi City, to the Regional Government and effectively repealed R.A. 8999.

DPWH Department Order No. 119

Now, the question directly related to D.O. 119.

D.O. 119 creating the Marawi Sub-District Engineering Office which has jurisdiction over infrastructure projects within Marawi City and Lanao del Sur is violative of the provisions of E.O. 426. The Executive Order was issued pursuant to R.A. 6734—which initiated the creation of the constitutionally-mandated autonomous region87 and which defined the basic structure of the autonomous government.88 E.O. 426 sought to implement the transfer of the control and supervision of the DPWH within the ARMM to the Autonomous Regional Government. In particular, it identified four (4) District Engineering Offices in each of the four (4) provinces, namely: Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi.89 Accordingly, the First Engineering District of the DPWH-ARMM in Lanao del Sur has jurisdiction over the public works within the province.

The office created under D.O. 119, having essentially the same powers, is a duplication of the DPWH-ARMM First Engineering District in Lanao del Sur formed under the aegis of E.O. 426. The department order, in effect, takes back powers which have been previously devolved under the said executive order. D.O. 119 runs counter to the provisions of E.O. 426. The DPWH's order, like spring water, cannot rise higher than its source of power—the Executive.

The fact that the department order was issued pursuant to E.O. 124—signed and approved by President Aquino in her residual legislative powers—is of no moment. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one.90 Lex specialis derogant generali. As this Court expressed in the case of Leveriza v. Intermediate Appellate Court,91 "another basic principle of statutory construction mandates that general legislation must give way to special legislation on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable, that specific statute prevails over a general statute and that where two statutes are of equal theoretical application to a particular case, the one designed therefor specially should prevail."

E.O. No. 124, upon which D.O. 119 is based, is a general law reorganizing the Ministry of Public Works and Highways while E.O. 426 is a special law transferring the control and supervision of the DPWH offices within ARMM to the Autonomous Regional Government. The latter statute specifically applies to DPWH-ARMM offices. E.O. 124 should therefore give way to E.O. 426 in the instant case.

In any event, the ARMM Organic Acts and their ratification in a plebiscite in effect superseded E.O. 124. In case of an irreconcilable conflict between two laws of different vintages, the later enactment prevails because it is the later legislative will.92

Further, in its repealing clause, R.A. 9054 states that "all laws, decrees, orders, rules and regulations, and other issuances or parts thereof, which are inconsistent with this Organic Act, are hereby repealed or modified accordingly."93 With the repeal of E.O. 124 which is the basis of D.O. 119, it necessarily follows that D.O. 119 was also rendered functus officio by the ARMM Organic Acts.

Grave abuse of discretion

Without doubt, respondents committed grave abuse of discretion. They implemented R.A. 8999 despite its inoperativeness and repeal. They also put in place and maintained the DPWH Marawi Sub-District Engineering Office in accordance with D.O. 119 which has been rendered functus officio by the ARMM Organic Acts.

Still, on the issue of grave abuse of discretion, this Court, however, cannot uphold petitioners' argument that R.A. 8999 was signed into law under suspicious circumstances to support the assertion that there was a capricious and whimsical exercise of legislative authority. Once more, this Court cannot inquire into the wisdom, merits, propriety or expediency of the acts of the legislative branch.

Likewise, the alleged lack of consultation or public hearing with the affected agency during the inception of the law does not render the law infirm. This Court holds that the Congress did not transgress the Constitution nor any statute or House Rule in failing to invite a resource person from the DPWH-ARMM during the Committee meeting. Section 27, Rule VII of the Rules of the House94 only requires that a written notice be given to all the members of a Committee seven (7) calendar days before a regularly scheduled meeting, specifying the subject matter of the meeting and the names of the invited resource persons. And it must be emphasized that the questions of who to invite and whether there is a need to invite resource persons during Committee meetings should be addressed solely to Congress in its plenary legislative powers.95

Conclusion

The repeal of R.A. 8999 and the functus officio state of D.O. 119 provide the necessary basis for the grant of the writs of certiorari and prohibition sought by the petitioners. However, there is no similar basis for the issuance of a writ of mandamus to compel respondent DBM Secretary to release funds appropriated for public works projects in Marawi City and Lanao del Sur to the DPWH-ARMM First Engineering District in Lanao del Sur and to compel respondent DPWH Secretary to allow the DPWH-ARMM, First Engineering District in Lanao del Sur to implement all public works projects within its jurisdictional area. Section 20, Article VI of R.A. 9054 clearly provides that "(f)unds for infrastructure in the autonomous region allocated by the central government or national government shall only be appropriated through a Regional Assembly Public Works Act" passed by the Regional Assembly. There is no showing that such Regional Assembly Public Works Act has been enacted.

WHEREFORE, considering that Republic Act No. 9054 repealed Republic Act No. 8999 and rendered DPWH Department Order No. 119 functus officio, the petition insofar as it

seeks the writs of certiorari and prohibition is GRANTED. Accordingly, let a writ of prohibition ISSUE commanding respondents to desist from implementing R.A. 8999 and D.O. 119, and maintaining the DPWH Marawi Sub-District Engineering Office and the First Engineering District of the Province of Lanao del Sur comprising the City of Marawi and the municipalities within the First District of Lanao del Sur. However, the petition insofar as it seeks a writ of mandamus against respondents is DENIED.

No costs.

SO ORDERED.

Puno, (Acting C.J.), Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, and Garcia, JJ., concur.Davide, Jr., C.J., on official leave.Corona, J., on leave.

G.R. No. 170626             March 3, 2008

THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO MARCOS, MUNICIPALITY OF BAYOMBONG PROVINCE OF NUEVA VISCAYA represented by BARANGAY KAGAWAD JOSE CENEN SANTOS, MARIO BACUD, WALTER FRANCISCO, ROSITA SEBASTIAN, LAURETA CABAUATAN, CECILIA ALINDAYU and MELY SIMANGAN, petitioners, vs.PUNONG BARANGAY SEVERINO MARTINEZ, respondent.

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Orders dated 20 October 20051 and 30 November 20052 of the Regional Trial Court (trial court), Branch 27, of Bayombong, Nueva Vizcaya, in Special Civil Action No. 6727. In its assailed Orders, the trial court ruled that the Sangguniang Bayan of Bayombong, Neuva Vizcaya (Sangguniang Bayan), exceeded its jurisdiction when it imposed upon respondent Severino Martinez the administrative penalty of removal from office.

Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya, a local government unit created, organized and existing as such under pertinent laws of the Republic of the Philippines. Respondent Martinez is the incumbent Punong Barangay of the said local government unit.3

On 5 November 2004, Martinez was administratively charged with Dishonesty and Graft and Corruption by petitioner through the filing of a verified complaint before the Sangguniang Bayan as the disciplining authority over elective barangay officials pursuant to Section 614 of Rep. Act No. 7160, otherwise known as the Local Government Code. Petitioner filed with the Sangguniang Bayan an Amended Administrative Complaint against Martinez on 6 December 2004 for Dishonesty, Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices Act.5 Petitioner alleged that Martinez committed the following acts:

1. Failure to submit and fully remit to the Barangay Treasurer the income of their solid waste management project since 2001 particularly the sale of fertilizer derived from composting.

2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken from garbage collection.

3. Using the garbage truck for other purposes like hauling sand and gravel for private persons without monetary benefit to the barangay because no income from this source appears in the year end report even if payments were collected x x x.

4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare parts of the garbage truck instead of using the money or income of said truck from the garbage fees collected as income from its Sold Waste Management Project. x x x.

5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a cash advance was made by the respondent for the said purpose, he, however, did not attend said seminar because on the dates when he was supposed to be on seminar they saw him in the barangay. x x x.

6. That several attempts to discuss said problem during sessions were all in vain because respondent declined to discuss it and would adjourn the session.x x x.6

Upon his failure to file an Answer to the Amended Administrative Complaint dated 6 December 2004, Martinez was declared by the Sangguniang Bayan as in default. Pending the administrative proceedings, Martinez was placed under preventive suspension for 60 days or until 8 August 2005.7

On 28 July 2005, the Sangguniang Bayan rendered its Decision which imposed upon Martinez the penalty of removal from office.8

The Decision dated 28 July 2005 was conveyed to the Municipal Mayor of Bayombong, Nueva Ecija, Severino Bagasao, for its implementation. On 3 August 2005, Municial Mayor Bagasao issued a Memorandum, wherein he stated that the Sanggunaing Bayan is not empowered to order Martinez’s removal from service. However, the Decision remains valid until reversed and must be executed by him. For the meantime, he ordered the

indefinite suspension of Martinez since the period of appeal had not yet lapsed.9 The dispositive portion of the said Memorandum states that:10

The FOREGOING considered come AUGUST 8, 2005, respondent SEVERINO D. MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions of the Office of the Punong Barangay of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya and for complainant JOSE CENEN SANTOS to CONTINUE assuming and discharging the functions of the said office in ACTING CAPACITY pursuant to the provisions of Sections 67 and 68 of Republic Act No. 7160.

On 26 August 2005, Martinez filed a Special Civil Action for Certiorari with a prayer for Temporary Restraining Order and Preliminary Injunction before the trial court against petitioner, the Sangguniang Bayan and Mayor Bagasao questioning the validity of the Decision dated 28 July 2005 of the Sangguniang Bayan. This case was docketed as Special Civil Action No. 6727, which was initially heard by Branch 28, but later raffled to Branch 27 of the trial court.11

On 20 October 2005, the trial court issued an Order declaring the Decision of the Sangguniang Bayan and the Memorandum of Mayor Bagasao void. It maintained that the proper courts, and not the petitioner, are empowered to remove an elective local official from office, in accordance with Section 60 of the Local Government Code. Thus, the Order of the Sangguniang Bayan removing Martinez from service is void. As a consequence, Mayor Bagasao cannot prevent Martinez from assuming his office on the basis of a void order. The trial court further ruled that Martinez properly availed himself of the remedy of Special Civil Action, where the order assailed was a patent nullity.12

On 10 November 2005, petitioner filed a Motion for Reconsideration13 of the trial court’s Order dated 10 October 2005. The trial court denied the said motion in another Order dated 30 November 2005.14

Hence, the present petition was filed.

Although Martinez’s term as Punong Baranggay expired upon the holding of the 29 October 2007 Synchronized Barangay and Sangguniang Kabataan elections and, thus, rendering this petition moot and academic, the Court will nevertheless settle a legal question that is capable of repetition yet evading review.15

The pivotal issue in this case is whether or not the Sangguniang Bayan may remove Martinez, an elective local official, from office. The pertinent legal provisions and cases decided by this Court firmly establish that the Sanggunaing Bayan is not empowered to do so.

Section 60 of the Local Government Code conferred upon the courts the power to remove elective local officials from office:

Section 60. Grounds for Disciplinary Actions.—An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

x x x x.

An elective local official may be removed from office on the grounds enumerated above by order of the proper court. (Emphasis provided.)

During the deliberations of the Senate on the Local Government Code,16 the legislative intent to confine to the courts, i.e., regional trial courts, the Sandiganbayan and the appellate courts, jurisdiction over cases involving the removal of elective local officials was evident:

Senator Pimentel. This has been reserved, Mr. President, including the issue of whether or not the Department Secretary or the Office of the President can suspend or remove an elective official.

Senator Saguisag. For as long as that is open for some later disposition, may I just add the following thought: It seems to me that instead of identifying only the proper regional trial court or the Sandiganbayan, and since we know that in the case of a regional trial court, particularly, a case may be appealed or may be the subject of an injunction, in the framing of this later on, I would like to suggest that we consider replacing the phrase "PROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYAN" simply by "COURTS." Kasi po, maaaring sabihin nila na mali iyong regional trial court o ang Sandiganbayan.

Senator Pimentel. "OR THE PROPER COURT."

Senator Saguisag. "OR THE PROPER COURT."

Senator Pimentel. Thank you. We are willing to accept that now, Mr. President.

Senator Saguisag. It is to be incorporated in the phraseology that we will craft to capture the other ideas that have been elevated. (Emphasis provided.)

In Salalima v. Guingona, Jr.,17 the Court en banc categorically ruled that the Office of the President is without any power to remove elected officials, since the power is exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the Local Government Code. It further invalidated Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of 1991, which provided that:

Article 125. Grounds for Disciplinary Actions. x x x.

x x x x.

(b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other.

The Court nullified the aforequoted rule since the Oversight Committee that prepared the Rules and Regulations of the Local Government Code exceeded its authority when it granted to the "disciplining authority" the power to remove elective officials, a power which the law itself granted only to the proper courts. Thus, it is clear that under the law, the Sangguniang Bayan is not vested with the power to remove Martinez.

Petitioner contends that administrative cases involving elective barangay officials may be filed with, heard and decided by the Sangguniang Panlungsod or Sangguniang Bayan concerned, which can, thereafter, impose a penalty of removal from office. It further claims that the courts are merely tasked with issuing the order of removal, after the Sangguniang Panlungsod or Sangguniang Bayan finds that a penalty of removal is warranted.18

The aforementioned position put forward by the petitioner would run counter to the rationale for making the removal of elective officials an exclusive judicial prerogative. In Pablico v. Villapando,19 the court declared that:

It is beyond cavil, therefore, that the power to remove erring elective local officials from service is lodged exclusively with the courts. Hence, Article 124 (sic 125)20 (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the "disciplining authority" to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991. The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove. (Emphasis supplied.)

The rule which confers to the proper courts the power to remove an elective local official from office is intended as a check against any capriciousness or partisan activity by the disciplining authority. Vesting the local legislative body with the power to decide whether or not a local chief executive may be removed from office, and only relegating to the courts a mandatory duty to implement the decision, would still not free the resolution of the case from the capriciousness or partisanship of the disciplining authority. Thus, the petitioner’s interpretation would defeat the clear intent of the law.

Moreover, such an arrangement clearly demotes the courts to nothing more than an implementing arm of the Sangguniang Panlungsod, or Sangguniang Bayan. This would be an unmistakable breach of the doctrine on separation of powers, thus placing the courts under the orders of the legislative bodies of local governments. The courts would be stripped of their power of review, and their discretion in imposing the extreme penalty of removal from office is thus left to be exercised by political factions which stand to benefit from the removal from office of the local elective official concerned, the very evil which Congress sought to avoid when it enacted Section 60 of the Local Government Code.

Congress clearly meant that the removal of an elective local official be done only after a trial before the appropriate court, where court rules of procedure and evidence can ensure impartiality and fairness and protect against political maneuverings. Elevating the removal of an elective local official from office from an administrative case to a court case may be justified by the fact that such removal not only punishes the official concerned but also, in effect, deprives the electorate of the services of the official for whom they voted.

As the law stands, Section 61 of the Local Government Code provides for the procedure for the filing of an administrative case against an erring elective barangay official before the Sangguniang Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under Section 60 of the Local Government Code. Thus, if the acts allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the case should be filed with the regional trial court. Once the court assumes jurisdiction, it retains jurisdiction over the case even if it would be subsequently apparent during the trial that a penalty less than removal from office is appropriate. On the other hand, the most extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring electivebarangay official is suspension; if it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court.

Petitioner alleged that an interpretation which gives the judiciary the power to remove local elective officials violates the doctrine of separation of powers. This allegation runs contrary to the 1987 Constitution itself, as well as jurisprudence.

The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of the courts to determine in an appropriate action the validity of acts of the political departments. It speaks of judicial prerogative in terms of duty.21 Paragraph 2, Section 1, Article VIII of the 1987 Constitution, provides that:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis provided.)

The doctrine of separation of powers is not absolute in its application; rather, it should be applied in accordance with the principle of checks and balances. The removal from office of elective officials must not be tainted with partisan politics and used to defeat the will of the voting public. Congress itself saw it fit to vest that power in a more impartial tribunal, the court. Furthermore, the local government units are not deprived of the right to discipline local elective officials; rather, they are prevented from imposing the extreme penalty of dismissal.

Petitioner questions the Decision dated 20 October 2005 of the trial court for allowing the petition filed before it as an exception to the doctrine of exhaustion of administrative remedies. If, indeed, the Sangguniang Bayan had no power to remove Martinez from office, then Martinez should have sought recourse from the Sangguniang Panlalawigan. This Court upholds the ruling of the trial court.

The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. Non-observance of the doctrine results in lack of a cause of action, which is one of the grounds allowed by the Rules of Court for the dismissal of the complaint.22

The doctrine of exhaustion of administrative remedies, which is based on sound public policy and practical consideration, is not inflexible. There are instances when it may be dispensed with and judicial action may be validly resorted to immediately. Among these exceptions are: 1) where there is estoppel on the part of the party invoking the doctrine; 2) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; 3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; 4) where the amount involved is relatively small as to make the rule impractical and oppressive; 5)where the question raised is purely legal and will ultimately have to be decided by the courts of justice; 6) where judicial intervention is urgent; 7) where its application may cause great and irreparable damage; 8) where the controverted acts violate due process; 9) when the issue of non-exhaustion of administrative remedies has been rendered moot; 10) where there is no other plain, speedy and adequate remedy; 11) when strong public interest is involved; and 13) in quo warranto proceedings.23

As a general rule, no recourse to courts can be had until all administrative remedies have been exhausted. However, this rule is not applicable where the challenged administrative act is patently illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially judicial.

In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it issued the assailed Order dated 28 July 2005 removing Martinez from office. Such act was patently illegal and, therefore, Martinez was no longer required to avail himself of an administrative appeal in order to annul the said Order of the Sangguniang Bayan.24 Thus, his direct recourse to regular courts of justice was justified.

In addition, this Court in Castro v. Gloria25 declared that where the case involves only legal questions, the litigant need not exhaust all administrative remedies before such judicial relief can be sought. The reason behind providing an exception to the rule on exhaustion of administrative remedies is that issues of law cannot be resolved with finality by the administrative officer. Appeal to the administrative officer would only be an exercise in futility. A legal question is properly addressed to a regular court of justice rather than to an administrative body.26

In the present case, Martinez raised before the trial court the sole issue of whether the Sangguniang Bayan has jurisdiction over a case involving the removal of a local elective official from office.27 In Martinez’s petition before the trial court, only a legal question was raised, one that will ultimately be resolved by the courts. Hence, appeal to the administrative officer concerned would only be circuitous and, therefore, should no longer be required before judicial relief can be sought.

IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision of the Bayombong RTC in Special Civil Action No. 6727 is AFFIRMED.

SO ORDERED.

Ynares-Santiago, Chairperson, Austria-Martinez,, Nachura, Reyes, JJ., concur.

G.R. No. 196271               February 28, 2012

DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH SAUPI, Petitioners, vs.SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the President Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO TAN, Treasurer of the Philippines,Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 196305

BASARI D. MAPUPUNO, Petitioner, vs.SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections,

FLORENCIO ABAD, JR. in his capacity as Secretary of the Department of Budget and Management, PAQUITO OCHOA, JR., in his capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity as Senate President, and FELICIANO BELMONTE, in his capacity as Speaker of the House of Representatives, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 197221

REP. EDCEL C. LAGMAN, Petitioner, vs.PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the COMMISSION ON ELECTIONS, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 197280

ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-LABAN), Petitioners, vs.THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO B. ABAD, JR., in his capacity as Secretary of the Department of Budget and Management, and HON. ROBERTO B. TAN, in his capacity as Treasurer of the Philippines, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 197282

ATTY. ROMULO B. MACALINTAL, Petitioner, vs.COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 197392

LOUIS "BAROK" C. BIRAOGO, Petitioner, vs.THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 197454

JACINTO V. PARAS, Petitioner, vs.EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and THE COMMISSION ON ELECTIONS, Respondents.

MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-Intervenor.

R E S O L U T I O N

BRION, J.:

We resolve: (a) the motion for reconsideration filed by petitioners Datu Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion for reconsideration filed by petitioner Rep. Edcel Lagman in G.R. No. 197221; (c) the ex abundante ad cautelam motion for reconsideration filed by petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion for reconsideration filed by petitioner Atty. Romulo Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by petitioners Almarim Centi Tillah, Datu Casan Conding Cana and Partido Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the manifestation and motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No. 197280; and (g) the very urgent motion to issue clarificatory resolution that the temporary restraining order (TRO) is still existing and effective.

These motions assail our Decision dated October 18, 2011, where we upheld the constitutionality of Republic Act (RA) No. 10153. Pursuant to the constitutional mandate of synchronization, RA No. 10153 postponed the regional elections in the Autonomous Region in Muslim Mindanao (ARMM) (which were scheduled to be held on the second Monday of August 2011) to the second Monday of May 2013 and recognized the President’s power to appoint officers-in-charge (OICs) to temporarily assume these positions upon the expiration of the terms of the elected officials.

The Motions for Reconsideration

The petitioners in G.R. No. 196271 raise the following grounds in support of their motion:

I. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE ARMM ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING THAT THE CONSTITUTION GIVES THE ARMM A SPECIAL STATUS AND IS SEPARATE AND DISTINCT FROM ORDINARY LOCAL GOVERNMENT UNITS.

II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.

III. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A. 9054) ARE NOT IRREPEALABLE LAWS.

IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE SECTION 18, ARTICLE X OF THE CONSTITUTION.

V. BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC PRINCIPLE[.]1

The petitioner in G.R. No. 197221 raises similar grounds, arguing that:

I. THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE OFFICIALS OF ARMM CANNOT BE CONSIDERED AS OR EQUATED WITH THE TRADITIONAL LOCAL GOVERNMENT OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE (A) THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION ON SUCH PARITY; AND (B) THE ARMM IS MORE SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS OWN APART FROM TRADITIONAL LGUs.

II. THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL MANDATE FOR AN ELECTIVE AND REPRESENTATIVE EXECUTIVE DEPARTMENT AND LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY PRECLUDES THE APPOINTMENT BY THE PRESIDENT OF OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR TEMPORARY, FOR THE POSITIONS OF ARMM GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE REGIONAL ASSEMBLY.

III. THE PRESIDENT’S APPOINTING POWER IS LIMITED TO APPOINTIVE OFFICIALS AND DOES NOT EXTEND TO ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS ONLY VESTED WITH SUPERVISORY POWERS OVER THE ARMM, THEREBY NEGATING THE AWESOME POWER TO APPOINT AND REMOVE OICs OCCUPYING ELECTIVE POSITIONS.

IV. THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF ARMM ELECTED OFFICIALS PENDING THE ELECTION AND QUALIFICATION OF THEIR SUCCESSORS.

V. THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED OFFICIALS WHOSE TERMS OF OFFICE ARE NOT PROVIDED FOR BY THE CONSTITUTION BUT PRESCRIBED BY THE ORGANIC ACTS.

VI. THE REQUIREMENT OF A SUPERMAJORITY OF ¾ VOTES IN THE HOUSE OF REPRESENTATIVES AND THE SENATE FOR THE VALIDITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT IMPOSE AN IRREPEALABLE LAW.

VII. THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT UNDULY EXPAND THE PLEBISCITE REQUIREMENT OF THE CONSTITUTION.

VIII. SYNCHRONIZATION OF THE ARMM ELECTION WITH THE NATIONAL AND LOCAL ELECTIONS IS NOT MANDATED BY THE CONSTITUTION.

IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT SPECIAL ELECTIONS IN ARMM, AND THE ENACTMENT OF AN IMPROVIDENT AND UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS CAUSE WARRANTING COMELEC’S HOLDING OF SPECIAL ELECTIONS.2 (italics supplied)

The petitioner in G.R. No. 196305 further asserts that:

I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET A STATUTE, IT IS A CONDITION SINE QUA NON THAT THERE BE DOUBT OR AMBIGUITY IN ITS LANGUAGE.

THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND UNAMBIGUOUS: THEY REFER TO THE 1992 ELECTIONS AND TURN-OVER OF ELECTIVE OFFICIALS.

IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE FRAMERS, AND APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER, THE HONORABLE SUPREME COURT MAY HAVE VIOLATED THEFOREMOST RULE IN STATUTORY CONSTRUCTION.

x x x x

II. THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT RA 9054, AN ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO AMEND RA 9054.

x x x x

III. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN DECLARING THE 2/3 VOTING REQUIREMENT SET FORTH IN RA 9054 AS UNCONSTITUTIONAL.

x x x x

IV. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN AMENDING THE ORGANIC ACT.

x x x x

V. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN DECLARING THE HOLD-OVER OF ARMM ELECTIVE OFFICIALS UNCONSTITUTIONAL.

x x x x

VI. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN UPHOLDING THE APPOINTMENT OF OFFICERS-IN-CHARGE.3 (italics and underscoring supplied)

The petitioner in G.R. No. 197282 contends that:

A.

ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs FOR THE REGIONAL GOVERNMENT OF THE ARMM IS NOT UNCONSTITUTIONAL TO BEGIN WITH, SUCH APPOINTMENT OF OIC REGIONAL OFFICIALS WILL CREATE A FUNDAMENTAL CHANGE IN THE BASIC STRUCTURE OF THE REGIONAL GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO A PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE, WHICH PLEBISCITE REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY CHARACTERIZING THE PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF OICs AS AN "INTERIM MEASURE".

B.

THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT BY THE PRESIDENT OF OICs FOR THE ARMM REGIONAL GOVERNMENT IS NOT VIOLATIVE OF THE CONSTITUTION.

C.

THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT VIOLATE THE CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE ELECTED IN EITHER AN ELECTION TO BE HELD AT THE SOONEST POSSIBLE TIME OR IN MAY 2013, THE SAID INCUMBENT ARMM REGIONAL OFFICIALS MAY VALIDLY CONTINUE FUNCTIONING AS

SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH SECTION 7, ARTICLE VII OF R.A. NO. 9054.

D.

WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS, SPECIAL ELECTIONS MUST IMMEDIATELY BE HELD FOR THE ELECTIVE REGIONAL OFFICIALS OF THE ARMM WHO SHALL SERVE UNTIL THEIR SUCCESSORS ARE ELECTED IN THE MAY 2013 SYNCHRONIZED ELECTIONS.4

Finally, the petitioners in G.R. No. 197280 argue that:

a) the Constitutional mandate of synchronization does not apply to the ARMM elections;

b) RA No. 10153 negates the basic principle of republican democracy which, by constitutional mandate, guides the governance of the Republic;

c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has to comply with the 2/3 vote from the House of Representatives and the Senate, voting separately, and be ratified in a plebiscite;

d) if the choice is between elective officials continuing to hold their offices even after their terms are over and non-elective individuals getting into the vacant elective positions by appointment as OICs, the holdover option is the better choice;

e) the President only has the power of supervision over autonomous regions, which does not include the power to appoint OICs to take the place of ARMM elective officials; and

f) it would be better to hold the ARMM elections separately from the national and local elections as this will make it easier for the authorities to implement election laws.

In essence, the Court is asked to resolve the following questions:

(a) Does the Constitution mandate the synchronization of ARMM regional elections with national and local elections?

(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153 have to comply with the supermajority vote and plebiscite requirements?

(c) Is the holdover provision in RA No. 9054 constitutional?

(d) Does the COMELEC have the power to call for special elections in ARMM?

(e) Does granting the President the power to appoint OICs violate the elective and representative nature of ARMM regional legislative and executive offices?

(f) Does the appointment power granted to the President exceed the President’s supervisory powers over autonomous regions?

The Court’s Ruling

We deny the motions for lack of merit.

Synchronization mandate includes ARMM elections

The Court was unanimous in holding that the Constitution mandates the synchronization of national and local elections. While the Constitution does not expressly instruct Congress to synchronize the national and local elections, the intention can be inferred from the following provisions of the Transitory Provisions (Article XVIII) of the Constitution, which state:

Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years.

x x x x

Section 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

To fully appreciate the constitutional intent behind these provisions, we refer to the discussions of the Constitutional Commission:

MR. MAAMBONG. For purposes of identification, I will now read a section which we will temporarily indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992."

This was presented by Commissioner Davide, so may we ask that Commissioner Davide be recognized.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.

MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the action taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will read as follows: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992."

I proposed this because of the proposed section of the Article on Transitory Provisions giving a term to the incumbent President and Vice-President until 1992. Necessarily then, since the term provided by the Commission for Members of the Lower House and for local officials is three years, if there will be an election in 1987, the next election for said officers will be in 1990, and it would be very close to 1992. We could never attain, subsequently, any synchronization of election which is once every three years.

So under my proposal we will be able to begin actual synchronization in 1992, and consequently, we should not have a local election or an election for Members of the Lower House in 1990 for them to be able to complete their term of three years each. And if we also stagger the Senate, upon the first election it will result in an election in 1993 for the Senate alone, and there will be an election for 12 Senators in 1990. But for the remaining 12 who will be elected in 1987, if their term is for six years, their election will be in 1993. So, consequently we will have elections in 1990, in 1992 and in 1993. The later election will be limited to only 12 Senators and of course to the local officials and the Members of the Lower House. But, definitely, thereafter we can never have an election once every three years, therefore defeating the very purpose of the Commission when we adopted the term of six years for the President and another six years for the Senators with the possibility of staggering with 12 to serve for six years and 12 for three years insofar as the first Senators are concerned. And so my proposal is the only way to effect the first synchronized election which would mean, necessarily, a bonus of two years to the Members of the Lower House and a bonus of two years to the local elective officials.

THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?

MR. DE CASTRO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.

MR. DE CASTRO. Thank you.

During the discussion on the legislative and the synchronization of elections, I was the one who proposed that in order to synchronize the elections every three years, which the body approved — the first national and local officials to be elected in 1987 shall continue in office for five years, the same thing the Honorable Davide is now proposing. That means they will all serve until 1992, assuming that the term of the President will be for six years and continue beginning in 1986. So from 1992, we will again have national, local and presidential elections. This time, in 1992, the President shall have a term until 1998 and the first 12 Senators will serve until 1998, while the next 12 shall serve until 1995, and then the local officials elected in 1992 will serve until 1995. From then on, we shall have an election every three years.

So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our elections every three years which was already approved by the body.

Thank you, Mr. Presiding Officer.

x x x x

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent President and Vice-President in 1992.

MR. DAVIDE. Yes.

MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the Senators and local officials with the election of the President?

MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that the provision of the Transitory Provisions on the term of the incumbent President and Vice-President would really end in 1992.

MR. GUINGONA. Yes.

MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President up to the municipal officials.5 (emphases and underscoring ours)

The framers of the Constitution could not have expressed their objective more clearly – there was to be a single election in 1992 for all elective officials – from the President down to the municipal officials. Significantly, the framers were even willing to temporarily lengthen or shorten the terms of elective officials in order to meet this objective, highlighting the importance of this constitutional mandate.

We came to the same conclusion in Osmeña v. Commission on Elections,6 where we unequivocally stated that "the Constitution has mandated synchronized national and local elections."7 Despite the length and verbosity of their motions, the petitioners have failed to convince us to deviate from this established ruling.

Neither do we find any merit in the petitioners’ contention that the ARMM elections are not covered by the constitutional mandate of synchronization because the ARMM elections were not specifically mentioned in the above-quoted Transitory Provisions of the Constitution.

That the ARMM elections were not expressly mentioned in the Transitory Provisions of the Constitution on synchronization cannot be interpreted to mean that the ARMM elections are not covered by the constitutional mandate of synchronization. We have to consider that the ARMM, as we now know it, had not yet been officially organized at the time the Constitution was enacted and ratified by the people. Keeping in mind that a constitution is not intended to provide merely for the exigencies of a few years but is to endure through generations for as long as it remains unaltered by the people as ultimate sovereign, a constitution should be construed in the light of what actually is a continuing instrument to govern not only the present but also the unfolding events of the indefinite future. Although the principles embodied in a constitution remain fixed and unchanged from the time of its adoption, a constitution must be construed as a dynamic process intended to stand for a great length of time, to be progressive and not static.8

To reiterate, Article X of the Constitution, entitled "Local Government," clearly shows the intention of the Constitution to classify autonomous regions, such as the ARMM, as local governments. We refer to Section 1 of this Article, which provides:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

The inclusion of autonomous regions in the enumeration of political subdivisions of the State under the heading "Local Government" indicates quite clearly the constitutional intent to consider autonomous regions as one of the forms of local governments.

That the Constitution mentions only the "national government" and the "local governments," and does not make a distinction between the "local government" and the "regional government," is particularly revealing, betraying as it does the intention of the framers of the Constitution to consider the autonomous regions not as separate forms of government, but as political units which, while having more powers and attributes than other local government units, still remain under the category of local governments. Since autonomous regions are classified as local governments, it follows that elections held in autonomous regions are also considered as local elections.

The petitioners further argue that even assuming that the Constitution mandates the synchronization of elections, the ARMM elections are not covered by this mandate since they are regional elections and not local elections.

In construing provisions of the Constitution, the first rule is verba legis, "that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed."9 Applying this principle to determine the scope of "local elections," we refer to the meaning of the word "local," as understood in its ordinary

sense. As defined in Webster’s Third New International Dictionary Unabridged, "local" refers to something "that primarily serves the needs of a particular limited district, often a community or minor political subdivision." Obviously, the ARMM elections, which are held within the confines of the autonomous region of Muslim Mindanao, fall within this definition.

To be sure, the fact that the ARMM possesses more powers than other provinces, cities, or municipalities is not enough reason to treat the ARMM regional elections differently from the other local elections. Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not distinguish.10

RA No. 10153 does not amend RA No. 9054

The petitioners are adamant that the provisions of RA No. 10153, in postponing the ARMM elections, amend RA No. 9054.

We cannot agree with their position.

A thorough reading of RA No. 9054 reveals that it fixes the schedule for only the first ARMM elections;11 it does not provide the date for the succeeding regular ARMM elections. In providing for the date of the regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do not amend RA No. 9054 since these laws do not change or revise any provision in RA No. 9054. In fixing the date of the ARMM elections subsequent to the first election, RA No. 9333 and RA No. 10153 merely filled the gap left in RA No. 9054.

We reiterate our previous observations:

This view – that Congress thought it best to leave the determination of the date of succeeding ARMM elections to legislative discretion – finds support in ARMM’s recent history.

To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First Organic Act – RA No. 6734 – not only did not fix the date of the subsequent elections; it did not even fix the specific date of the first ARMM elections, leaving the date to be fixed in another legislative enactment. Consequently, RA No. 7647, RA No. 8176, RA No. 8746, RA No. 8753, and RA No. 9012 were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change or modify any part or provision of RA No. 6734, they were not amendments to this latter law. Consequently, there was no need to submit them to any plebiscite for ratification.

The Second Organic Act – RA No. 9054 – which lapsed into law on March 31, 2001, provided that the first elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No. 9140 to reset the date of the ARMM elections. Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to

approve RA No. 9054. Thereafter, Congress passed RA No. 9333, which further reset the date of the ARMM regional elections. Again, this law was not ratified through a plebiscite.

From these legislative actions, we see the clear intention of Congress to treat the laws which fix the date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted consistently with this intent when it passed RA No. 10153 without requiring compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054.12 (emphases supplied)

The petitioner in G.R. No. 196305 contends, however, that there is no lacuna in RA No. 9054 as regards the date of the subsequent ARMM elections. In his estimation, it can be implied from the provisions of RA No. 9054 that the succeeding elections are to be held three years after the date of the first ARMM regional elections.

We find this an erroneous assertion. Well-settled is the rule that the court may not, in the guise of interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by the lawmakers. An omission at the time of enactment, whether careless or calculated, cannot be judicially supplied however later wisdom may recommend the inclusion.13 Courts are not authorized to insert into the law what they think should be in it or to supply what they think the legislature would have supplied if its attention had been called to the omission.14 Providing for lapses within the law falls within the exclusive domain of the legislature, and courts, no matter how well-meaning, have no authority to intrude into this clearly delineated space.

Since RA No. 10153 does not amend, but merely fills in the gap in RA No. 9054, there is no need for RA No. 10153 to comply with the amendment requirements set forth in Article XVII of RA No. 9054.

Supermajority vote requirement makes RA No. 9054 an irrepealable law

Even assuming that RA No. 10153 amends RA No. 9054, however, we have already established that the supermajority vote requirement set forth in Section 1, Article XVII of RA No. 905415 is unconstitutional for violating the principle that Congress cannot pass irrepealable laws.

The power of the legislature to make laws includes the power to amend and repeal these laws. Where the legislature, by its own act, attempts to limit its power to amend or repeal laws, the Court has the duty to strike down such act for interfering with the plenary powers of Congress. As we explained in Duarte v. Dade:16

A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it

becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes. [emphasis ours]

Under our Constitution, each House of Congress has the power to approve bills by a mere majority vote, provided there is quorum.17 In requiring all laws which amend RA No. 9054 to comply with a higher voting requirement than the Constitution provides (2/3 vote), Congress, which enacted RA No. 9054, clearly violated the very principle which we sought to establish in Duarte. To reiterate, the act of one legislature is not binding upon, and cannot tie the hands of, future legislatures.18

We also highlight an important point raised by Justice Antonio T. Carpio in his dissenting opinion, where he stated: "Section 1, Article XVII of RA 9054 erects a high vote threshold for each House of Congress to surmount, effectively and unconstitutionally, taking RA 9054 beyond the reach of Congress’ amendatory powers. One Congress cannot limit or reduce the plenary legislative power of succeeding Congresses by requiring a higher vote threshold than what the Constitution requires to enact, amend or repeal laws. No law can be passed fixing such a higher vote threshold because Congress has no power, by ordinary legislation, to amend the Constitution."19

Plebiscite requirement in RA No. 9054 overly broad

Similarly, we struck down the petitioners’ contention that the plebiscite requirement20 applies to all amendments of RA No. 9054 for being an unreasonable enlargement of the plebiscite requirement set forth in the Constitution.

Section 18, Article X of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose[.]" We interpreted this to mean that only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions – i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act21 – require ratification through a plebiscite. We stand by this interpretation.

The petitioners argue that to require all amendments to RA No. 9054 to comply with the plebiscite requirement is to recognize that sovereignty resides primarily in the people.

While we agree with the petitioners’ underlying premise that sovereignty ultimately resides with the people, we disagree that this legal reality necessitates compliance with the plebiscite requirement for all amendments to RA No. 9054. For if we were to go by the petitioners’ interpretation of Section 18, Article X of the Constitution that all amendments to the Organic Act have to undergo the plebiscite requirement before becoming effective, this would lead to impractical and illogical results – hampering the ARMM’s progress by impeding Congress from enacting laws that timely address problems as they arise in the region, as well as weighing down the ARMM government with the costs that unavoidably follow the holding of a plebiscite.

Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in giving the President the power to appoint OICs to take the place of the elective officials of the ARMM, creates a fundamental change in the basic structure of the government, and thus requires compliance with the plebiscite requirement embodied in RA No. 9054.

Again, we disagree.

The pertinent provision in this regard is Section 3 of RA No. 10153, which reads:

Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.

We cannot see how the above-quoted provision has changed the basic structure of the ARMM regional government. On the contrary, this provision clearly preserves the basic structure of the ARMM regional government when it recognizes the offices of the ARMM regional government and directs the OICs who shall temporarily assume these offices to "perform the functions pertaining to the said offices."

Unconstitutionality of the holdover provision

The petitioners are one in defending the constitutionality of Section 7(1), Article VII of RA No. 9054, which allows the regional officials to remain in their positions in a holdover capacity. The petitioners essentially argue that the ARMM regional officials should be allowed to remain in their respective positions until the May 2013 elections since there is no specific provision in the Constitution which prohibits regional elective officials from performing their duties in a holdover capacity.

The pertinent provision of the Constitution is Section 8, Article X which provides:

Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. [emphases ours]

On the other hand, Section 7(1), Article VII of RA No. 9054 provides:

Section 7. Terms of Office of Elective Regional Officials. – (1) Terms of Office. The terms of office of the Regional Governor, Regional Vice Governor and members of the Regional Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th day of September next following the day of the election and shall end at noon of the same date three (3) years thereafter. The incumbent elective officials of the autonomous region shall continue in effect until their successors are elected and qualified.

The clear wording of Section 8, Article X of the Constitution expresses the intent of the framers of the Constitution to categorically set a limitation on the period within which all elective local officials can occupy their offices. We have already established that elective ARMM officials are also local officials; they are, thus, bound by the three-year term limit prescribed by the Constitution. It, therefore, becomes irrelevant that the Constitution does not expressly prohibit elective officials from acting in a holdover capacity. Short of amending the Constitution, Congress has no authority to extend the three-year term limit by inserting a holdover provision in RA No. 9054. Thus, the term of three years for local officials should stay at three (3) years, as fixed by the Constitution, and cannot be extended by holdover by Congress.

Admittedly, we have, in the past, recognized the validity of holdover provisions in various laws. One significant difference between the present case and these past cases22 is that while these past cases all refer to electivebarangay or sangguniang kabataan officials whose terms of office are not explicitly provided for in the Constitution, the present case refers to local elective officials - the ARMM Governor, the ARMM Vice Governor, and the members of the Regional Legislative Assembly - whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution.

Even assuming that a holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA No. 9054), the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident.23

Congress, in passing RA No. 10153 and removing the holdover option, has made it clear that it wants to suppress the holdover rule expressed in RA No. 9054. Congress, in the exercise of its plenary legislative powers, has clearly acted within its discretion when it deleted the holdover option, and this Court has no authority to question the wisdom of this decision, absent any evidence of unconstitutionality or grave abuse of discretion. It is for the legislature and the executive, and not this Court, to decide how to fill the vacancies in the ARMM regional government which arise from the legislature complying with the constitutional mandate of synchronization.

COMELEC has no authority to hold special elections

Neither do we find any merit in the contention that the Commission on Elections (COMELEC) is sufficiently empowered to set the date of special elections in the ARMM. To recall, the Constitution has merely empowered the COMELEC to enforce and administer all laws and regulations relative to the conduct of an election.24 Although the legislature, under the Omnibus Election Code (Batas Pambansa Bilang [BP] 881), has granted the COMELEC the power to postpone elections to another date, this power is confined to the specific terms and circumstances provided for in the law. Specifically, this power falls within the narrow confines of the following provisions:

Section 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly

and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect.

Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [emphases and underscoring ours]

As we have previously observed in our assailed decision, both Section 5 and Section 6 of BP 881 address instances where elections have already been scheduled to take place but do not occur or had to be suspended because of unexpected and unforeseen circumstances, such as violence, fraud, terrorism, and other analogous circumstances.

In contrast, the ARMM elections were postponed by law, in furtherance of the constitutional mandate of synchronization of national and local elections. Obviously, this does not fall under any of the circumstances contemplated by Section 5 or Section 6 of BP 881.

More importantly, RA No. 10153 has already fixed the date for the next ARMM elections and the COMELEC has no authority to set a different election date.

Even assuming that the COMELEC has the authority to hold special elections, and this Court can compel the COMELEC to do so, there is still the problem of having to shorten the terms of the newly elected officials in order to synchronize the ARMM elections with the May 2013 national and local elections. Obviously, neither the Court nor the COMELEC has the authority to do this, amounting as it does to an amendment of Section 8, Article X of the Constitution, which limits the term of local officials to three years.

President’s authority to appoint OICs

The petitioner in G.R. No. 197221 argues that the President’s power to appoint pertains only to appointive positions and cannot extend to positions held by elective officials.

The power to appoint has traditionally been recognized as executive in nature.25 Section 16, Article VII of the Constitution describes in broad strokes the extent of this power, thus:

Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [emphasis ours]

The 1935 Constitution contained a provision similar to the one quoted above. Section 10(3), Article VII of the 1935 Constitution provides:

(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. [emphasis ours]

The main distinction between the provision in the 1987 Constitution and its counterpart in the 1935 Constitution is the sentence construction; while in the 1935 Constitution, the various appointments the President can make are enumerated in a single sentence, the 1987 Constitution enumerates the various appointments the President is empowered to make and divides the enumeration in two sentences. The change in style is significant; in providing for this change, the framers of the 1987 Constitution clearly sought to make a distinction between the first group of presidential appointments and the second group of presidential appointments, as made evident in the following exchange:

MR. FOZ. Madame President x x x I propose to put a period (.) after "captain" and x x x delete "and all" and substitute it with HE SHALL ALSO APPOINT ANY.

MR. REGALADO. Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.26

The first group of presidential appointments, specified as the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the Armed Forces, and other officers whose appointments are vested in the President by the Constitution, pertains to the appointive officials who have to be confirmed by the Commission on Appointments.

The second group of officials the President can appoint are "all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint."27The second sentence acts as the "catch-all provision" for the President’s appointment power, in recognition of the fact that the power to appoint is essentially executive in nature.28 The wide latitude given to the President to appoint is further demonstrated by the recognition of the President’s power to appoint officials whose appointments are not even provided for by law. In other words, where there are offices which have to be filled, but the law does not provide the process for filling them, the Constitution recognizes the power of the President to fill the office by appointment.

Any limitation on or qualification to the exercise of the President’s appointment power should be strictly construed and must be clearly stated in order to be recognized.29 Given that the President derives his power to appoint OICs in the ARMM regional government from law, it falls under the classification of presidential appointments covered by the second sentence of Section 16, Article VII of the Constitution; the President’s appointment power thus rests on clear constitutional basis.

The petitioners also jointly assert that RA No. 10153, in granting the President the power to appoint OICs in elective positions, violates Section 16, Article X of the Constitution,30 which merely grants the President the power of supervision over autonomous regions.

This is an overly restrictive interpretation of the President’s appointment power. There is no incompatibility between the President’s power of supervision over local governments and autonomous regions, and the power granted to the President, within the specific confines of RA No. 10153, to appoint OICs.

The power of supervision is defined as "the power of a superior officer to see to it that lower officers perform their functions in accordance with law."31 This is distinguished from the power of control or "the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter."32

The petitioners’ apprehension regarding the President’s alleged power of control over the OICs is rooted in their belief that the President’s appointment power includes the power to remove these officials at will. In this way, the petitioners foresee that the appointed OICs will be beholden to the President, and act as representatives of the President and not of the people.

Section 3 of RA No. 10153 expressly contradicts the petitioners’ supposition. The provision states:

Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said

offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.

The wording of the law is clear. Once the President has appointed the OICs for the offices of the Governor, Vice Governor and members of the Regional Legislative Assembly, these same officials will remain in office until they are replaced by the duly elected officials in the May 2013 elections. Nothing in this provision even hints that the President has the power to recall the appointments he already made. Clearly, the petitioners’ fears in this regard are more apparent than real.

RA No. 10153 as an interim measure

We reiterate once more the importance of considering RA No. 10153 not in a vacuum, but within the context it was enacted in. In the first place, Congress enacted RA No. 10153 primarily to heed the constitutional mandate to synchronize the ARMM regional elections with the national and local elections. To do this, Congress had to postpone the scheduled ARMM elections for another date, leaving it with the problem of how to provide the ARMM with governance in the intervening period, between the expiration of the term of those elected in August 2008 and the assumption to office – twenty-one (21) months away – of those who will win in the synchronized elections on May 13, 2013.

In our assailed Decision, we already identified the three possible solutions open to Congress to address the problem created by synchronization – (a) allow the incumbent officials to remain in office after the expiration of their terms in a holdover capacity; (b) call for special elections to be held, and shorten the terms of those to be elected so the next ARMM regional elections can be held on May 13, 2013; or (c) recognize that the President, in the exercise of his appointment powers and in line with his power of supervision over the ARMM, can appoint interim OICs to hold the vacated positions in the ARMM regional government upon the expiration of their terms. We have already established the unconstitutionality of the first two options, leaving us to consider the last available option.

In this way, RA No. 10153 is in reality an interim measure, enacted to respond to the adjustment that synchronization requires. Given the context, we have to judge RA No. 10153 by the standard of reasonableness in responding to the challenges brought about by synchronizing the ARMM elections with the national and local elections. In other words, "given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the President’s power to appoint – for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution – an unconstitutional or unreasonable choice for Congress to make?"33

We admit that synchronization will temporarily disrupt the election process in a local community, the ARMM, as well as the community’s choice of leaders. However, we have to keep in mind that the adoption of this measure is a matter of necessity in order to comply with a mandate that the Constitution itself has set out for us. Moreover, the implementation of the provisions of RA No. 10153 as an interim measure is comparable to

the interim measures traditionally practiced when, for instance, the President appoints officials holding elective offices upon the creation of new local government units.

The grant to the President of the power to appoint OICs in place of the elective members of the Regional Legislative Assembly is neither novel nor innovative. The power granted to the President, via RA No. 10153, to appoint members of the Regional Legislative Assembly is comparable to the power granted by BP 881 (the Omnibus Election Code) to the President to fill any vacancy for any cause in the Regional Legislative Assembly (then called the Sangguniang Pampook).34

Executive is not bound by the principle of judicial courtesy

The petitioners in G.R. No. 197280, in their Manifestation and Motion dated December 21, 2011, question the propriety of the appointment by the President of Mujiv Hataman as acting Governor and Bainon Karon as acting Vice Governor of the ARMM. They argue that since our previous decision was based on a close vote of 8-7, and given the numerous motions for reconsideration filed by the parties, the President, in recognition of the principle of judicial courtesy, should have refrained from implementing our decision until we have ruled with finality on this case.

We find the petitioners’ reasoning specious.

Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies only to lower courts in instances where, even if there is no writ of preliminary injunction or TRO issued by a higher court, it would be proper for a lower court to suspend its proceedings for practical and ethical considerations.35 In other words, the principle of "judicial courtesy" applies where there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court or court of origin.36 Consequently, this principle cannot be applied to the President, who represents a co-equal branch of government. To suggest otherwise would be to disregard the principle of separation of powers, on which our whole system of government is founded upon.

Secondly, the fact that our previous decision was based on a slim vote of 8-7 does not, and cannot, have the effect of making our ruling any less effective or binding. Regardless of how close the voting is, so long as there is concurrence of the majority of the members of the en banc who actually took part in the deliberations of the case,37 a decision garnering only 8 votes out of 15 members is still a decision of the Supreme Court en banc and must be respected as such. The petitioners are, therefore, not in any position to speculate that, based on the voting, "the probability exists that their motion for reconsideration may be granted."38

Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue Clarificatory Resolution, argues that since motions for reconsideration were filed by the aggrieved parties challenging our October 18, 2011 decision in the present case, the TRO we initially issued on September 13, 2011 should remain subsisting and effective. He further argues that any attempt by the Executive to implement our October 18, 2011

decision pending resolution of the motions for reconsideration "borders on disrespect if not outright insolence"39 to this Court.

In support of this theory, the petitioner cites Samad v. COMELEC,40 where the Court held that while it had already issued a decision lifting the TRO, the lifting of the TRO is not yet final and executory, and can also be the subject of a motion for reconsideration. The petitioner also cites the minute resolution issued by the Court in Tolentino v. Secretary of Finance,41 where the Court reproached the Commissioner of the Bureau of Internal Revenue for manifesting its intention to implement the decision of the Court, noting that the Court had not yet lifted the TRO previously issued.42

We agree with the petitioner that the lifting of a TRO can be included as a subject of a motion for reconsideration filed to assail our decision. It does not follow, however, that the TRO remains effective until after we have issued a final and executory decision, especially considering the clear wording of the dispositive portion of our October 18, 2011 decision, which states:

WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the temporary restraining order we issued in our Resolution of September 13, 2011. No costs.43 (emphases ours)

In this regard, we note an important distinction between Tolentino and the present case. While it may be true that Tolentino and the present case are similar in that, in both cases, the petitions assailing the challenged laws were dismissed by the Court, an examination of the dispositive portion of the decision in Tolentino reveals that the Court did not categorically lift the TRO. In sharp contrast, in the present case, we expressly lifted the TRO issued on September 13, 2011. 1âwphi1 There is, therefore, no legal impediment to prevent the President from exercising his authority to appoint an acting ARMM Governor and Vice Governor as specifically provided for in RA No. 10153.

Conclusion

As a final point, we wish to address the bleak picture that the petitioner in G.R. No. 197282 presents in his motion, that our Decision has virtually given the President the power and authority to appoint 672,416 OICs in the event that the elections of barangay and Sangguniang Kabataan officials are postponed or cancelled.

We find this speculation nothing short of fear-mongering.

This argument fails to take into consideration the unique factual and legal circumstances which led to the enactment of RA No. 10153. RA No. 10153 was passed in order to synchronize the ARMM elections with the national and local elections. In the course of synchronizing the ARMM elections with the national and local elections, Congress had to grant the President the power to appoint OICs in the ARMM, in light of the fact that: (a) holdover by the incumbent ARMM elective officials is legally impermissible; and (b)

Congress cannot call for special elections and shorten the terms of elective local officials for less than three years.

Unlike local officials, as the Constitution does not prescribe a term limit for barangay and Sangguniang Kabataan officials, there is no legal proscription which prevents these specific government officials from continuing in a holdover capacity should some exigency require the postponement of barangay or Sangguniang Kabataan elections. Clearly, these fears have neither legal nor factual basis to stand on.

For the foregoing reasons, we deny the petitioners’ motions for reconsideration.

WHEREFORE, premises considered, we DENY with FINALITY the motions for reconsideration for lack of merit and UPHOLD the constitutionality of RA No. 10153.

SO ORDERED.

G.R. No. 132988               July 19, 2000

AQUILINO Q. PIMENTEL JR., petitioner, vs.Hon. ALEXANDER AGUIRRE in his capacity as Executive Secretary, Hon. EMILIA BONCODIN in her capacity as Secretary of the Department of Budget and Management, respondents.

ROBERTO PAGDANGANAN, intervenor.

D E C I S I O N

PANGANIBAN, J.:

The Constitution vests the President with the power of supervision, not control, over local government units (LGUs). Such power enables him to see to it that LGUs and their officials execute their tasks in accordance with law. While he may issue advisories and seek their cooperation in solving economic difficulties, he cannot prevent them from performing their tasks and using available resources to achieve their goals. He may not withhold or alter any authority or power given them by the law. Thus, the withholding of a portion of internal revenue allotments legally due them cannot be directed by administrative fiat.

The Case

Before us is an original Petition for Certiorari and Prohibition seeking (1) to annul Section 1 of Administrative Order (AO) No. 372, insofar as it requires local government units to reduce their expenditures by 25 percent of their authorized regular appropriations for non-

personal services; and (2) to enjoin respondents from implementing Section 4 of the Order, which withholds a portion of their internal revenue allotments.

On November 17, 1998, Roberto Pagdanganan, through Counsel Alberto C. Agra, filed a Motion for Intervention/Motion to Admit Petition for Intervention,1 attaching thereto his Petition in Intervention2 joining petitioner in the reliefs sought. At the time, intervenor was the provincial governor of Bulacan, national president of the League of Provinces of the Philippines and chairman of the League of Leagues of Local Governments. In a Resolution dated December 15, 1998, the Court noted said Motion and Petition.

The Facts and the Arguments

On December 27, 1997, the President of the Philippines issued AO 372. Its full text, with emphasis on the assailed provisions, is as follows:

"ADMINISTRATIVE ORDER NO. 372

ADOPTION OF ECONOMY MEASURES IN GOVERNMENT FOR FY 1998

WHEREAS, the current economic difficulties brought about by the peso depreciation requires continued prudence in government fiscal management to maintain economic stability and sustain the country's growth momentum;

WHEREAS, it is imperative that all government agencies adopt cash management measures to match expenditures with available resources;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and direct:

SECTION 1. All government departments and agencies, including state universities and colleges, government-owned and controlled corporations and local governments units will identify and implement measures in FY 1998 that will reduce total expenditures for the year by at least 25% of authorized regular appropriations for non-personal services items, along the following suggested areas:

1. Continued implementation of the streamlining policy on organization and staffing by deferring action on the following:

a. Operationalization of new agencies;

b. Expansion of organizational units and/or creation of positions;

c. Filling of positions; and

d. Hiring of additional/new consultants, contractual and casual personnel, regardless of funding source.

2. Suspension of the following activities:

a. Implementation of new capital/infrastructure projects, except those which have already been contracted out;

b. Acquisition of new equipment and motor vehicles;

c. All foreign travels of government personnel, except those associated with scholarships and trainings funded by grants;

d. Attendance in conferences abroad where the cost is charged to the government except those clearly essential to Philippine commitments in the international field as may be determined by the Cabinet;

e. Conduct of trainings/workshops/seminars, except those conducted by government training institutions and agencies in the performance of their regular functions and those that are funded by grants;

f. Conduct of cultural and social celebrations and sports activities, except those associated with the Philippine Centennial celebration and those involving regular competitions/events;

g. Grant of honoraria, except in cases where it constitutes the only source of compensation from government received by the person concerned;

h. Publications, media advertisements and related items, except those required by law or those already being undertaken on a regular basis;

i. Grant of new/additional benefits to employees, except those expressly and specifically authorized by law; and

j. Donations, contributions, grants and gifts, except those given by institutions to victims of calamities.

3. Suspension of all tax expenditure subsidies to all GOCCs and LGUs

4. Reduction in the volume of consumption of fuel, water, office supplies, electricity and other utilities

5. Deferment of projects that are encountering significant implementation problems

6. Suspension of all realignment of funds and the use of savings and reserves

SECTION 2. Agencies are given the flexibility to identify the specific sources of cost-savings, provided the 25% minimum savings under Section 1 is complied with.

SECTION 3. A report on the estimated savings generated from these measures shall be submitted to the Office of the President, through the Department of Budget and Management, on a quarterly basis using the attached format.

SECTION 4. Pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal revenue allotment to local government units shall be withheld.

SECTION 5. The Development Budget Coordination Committee shall conduct a monthly review of the fiscal position of the National Government and if necessary, shall recommend to the President the imposition of additional reserves or the lifting of previously imposed reserves.

SECTION 6. This Administrative Order shall take effect January 1, 1998 and shall remain valid for the entire year unless otherwise lifted.

DONE in the City of Manila, this 27th day of December, in the year of our Lord, nineteen hundred and ninety-seven."

Subsequently, on December 10, 1998, President Joseph E. Estrada issued AO 43, amending Section 4 of AO 372, by reducing to five percent (5%) the amount of internal revenue allotment (IRA) to be withheld from the LGUs.

Petitioner contends that the President, in issuing AO 372, was in effect exercising the power of control over LGUs. The Constitution vests in the President, however, only the power of general supervision over LGUs, consistent with the principle of local autonomy. Petitioner further argues that the directive to withhold ten percent (10%) of their IRA is in contravention of Section 286 of the Local Government Code and of Section 6, Article X of the Constitution, providing for the automatic release to each of these units its share in the national internal revenue.

The solicitor general, on behalf of the respondents, claims on the other hand that AO 372 was issued to alleviate the "economic difficulties brought about by the peso devaluation" and constituted merely an exercise of the President's power of supervision over LGUs. It allegedly does not violate local fiscal autonomy, because it merelydirects local governments to identify measures that will reduce their total expenditures for non-personal services by at least 25 percent. Likewise, the withholding of 10 percent of the LGUs’ IRA does not violate the statutory prohibition on the imposition of any lien or holdback on their revenue shares, because such withholding is "temporary in nature pending the assessment and evaluation by the Development Coordination Committee of the emerging fiscal situation."

The Issues

The Petition3 submits the following issues for the Court's resolution:

"A. Whether or not the president committed grave abuse of discretion [in] ordering all LGUS to adopt a 25% cost reduction program in violation of the LGU[']S fiscal autonomy

"B. Whether or not the president committed grave abuse of discretion in ordering the withholding of 10% of the LGU[']S IRA"

In sum, the main issue is whether (a) Section 1 of AO 372, insofar as it "directs" LGUs to reduce their expenditures by 25 percent; and (b) Section 4 of the same issuance, which withholds 10 percent of their internal revenue allotments, are valid exercises of the President's power of general supervision over local governments.

Additionally, the Court deliberated on the question whether petitioner had the locus standi to bring this suit, despite respondents' failure to raise the issue.4 However, the intervention of Roberto Pagdanganan has rendered academic any further discussion on this matter.

The Court's Ruling

The Petition is partly meritorious.

Main Issue:

Validity of AO 372

Insofar as LGUs Are Concerned

Before resolving the main issue, we deem it important and appropriate to define certain crucial concepts: (1) the scope of the President's power of general supervision over local governments and (2) the extent of the local governments' autonomy.

Scope of President's Power of Supervision Over LGUs

Section 4 of Article X of the Constitution confines the President's power over local governments to one of general supervision. It reads as follows:

"Sec. 4. The President of the Philippines shall exercise general supervision over local governments. x x x"

This provision has been interpreted to exclude the power of control. In Mondano v. Silvosa,5 the Court contrasted the President's power of supervision over local government officials with that of his power of control over executive officials of the national government. It was emphasized that the two terms -- supervision and control -- differed in meaning and extent. The Court distinguished them as follows:

"x x x In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to

fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the latter."6

In Taule v. Santos,7 we further stated that the Chief Executive wielded no more authority than that of checking whether local governments or their officials were performing their duties as provided by the fundamental law and by statutes. He cannot interfere with local governments, so long as they act within the scope of their authority. "Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body,"8 we said.

In a more recent case, Drilon v. Lim,9 the difference between control and supervision was further delineated. Officers in control lay down the rules in the performance or accomplishment of an act. If these rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates or even decide to do it themselves. On the other hand, supervision does not cover such authority. Supervising officials merely see to it that the rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such rules. They may not prescribe their own manner of execution of the act. They have no discretion on this matter except to see to it that the rules are followed.

Under our present system of government, executive power is vested in the President.10 The members of the Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed.11 In contrast, the heads of political subdivisions are elected by the people. Their sovereign powers emanate from the electorate, to whom they are directly accountable. By constitutional fiat, they are subject to the President’s supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers. By the same token, the President may not withhold or alter any authority or power given them by the Constitution and the law.

Extent of Local Autonomy

Hand in hand with the constitutional restraint on the President's power over local governments is the state policy of ensuring local autonomy.12

In Ganzon v. Court of Appeals,13 we said that local autonomy signified "a more responsive and accountable local government structure instituted through a system of decentralization." The grant of autonomy is intended to "break up the monopoly of the national government over the affairs of local governments, x x x not x x x to end the relation of partnership and interdependence between the central administration and local government units x x x." Paradoxically, local governments are still subject to regulation, however limited, for the purpose of enhancing self-government.14

Decentralization simply means the devolution of national administration, not power, to local governments. Local officials remain accountable to the central government as the law may provide.15 The difference between decentralization of administration and that of power was explained in detail in Limbona v. Mangelin16 as follows:

"Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments 'more responsive and accountable,'17 and 'ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.'18 At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises 'general supervision'19 over them, but only to 'ensure that local affairs are administered according to law.'20 He has no control over their acts in the sense that he can substitute their judgments with his own.21

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local government units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to 'self-immolation,' since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency."22

Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress. As we stated in Magtajas v. Pryce Properties Corp., Inc., municipal governments are still agents of the national government.23

The Nature of AO 372

Consistent with the foregoing jurisprudential precepts, let us now look into the nature of AO 372. As its preambular clauses declare, the Order was a "cash management measure" adopted by the government "to match expenditures with available resources," which were presumably depleted at the time due to "economic difficulties brought about by the peso depreciation." Because of a looming financial crisis, the President deemed it necessary to "direct all government agencies, state universities and colleges, government-owned and controlled corporations as well as local governments to reduce their total expenditures by at least 25 percent along suggested areas mentioned in AO 372.

Under existing law, local government units, in addition to having administrative autonomy in the exercise of their functions, enjoy fiscal autonomy as well. Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof. They are not formulated at the national level and imposed on local governments, whether they are relevant to local needs and resources or not. Hence, the necessity of a balancing of viewpoints and the harmonization of proposals from both local and national officials,24 who in any case are partners in the attainment of national goals.

Local fiscal autonomy does not however rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals. Significantly, the President, by constitutional fiat, is the head of the economic and planning agency of the government,25 primarily responsible for formulating and implementing continuing, coordinated and integrated social and economic policies, plans and programs26 for the entire country. However, under the Constitution, the formulation and the implementation of such policies and programs are subject to "consultations with the appropriate public agencies, various private sectors, and local government units." The President cannot do so unilaterally.

Consequently, the Local Government Code provides:27

"x x x [I]n the event the national government incurs an unmanaged public sector deficit, the President of the Philippines is hereby authorized, upon the recommendation of [the] Secretary of Finance, Secretary of the Interior and Local Government and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the liga, to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current fiscal year x x x."

There are therefore several requisites before the President may interfere in local fiscal matters: (1) an unmanaged public sector deficit of the national government; (2) consultations with the presiding officers of the Senate and the House of Representatives and the presidents of the various local leagues; and (3) the corresponding recommendation of the secretaries of the Department of Finance, Interior and Local Government, and Budget and Management. Furthermore, any adjustment in the allotment shall in no case be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current one.

Petitioner points out that respondents failed to comply with these requisites before the issuance and the implementation of AO 372. At the very least, they did not even try to show that the national government was suffering from an unmanageable public sector deficit. Neither did they claim having conducted consultations with the different leagues of local governments. Without these requisites, the President has no authority to adjust, much less to reduce, unilaterally the LGU's internal revenue allotment.

The solicitor general insists, however, that AO 372 is merely directory and has been issued by the President consistent with his power of supervision over local governments. It is intended only to advise all government agencies and instrumentalities to undertake cost-reduction measures that will help maintain economic stability in the country, which is facing economic difficulties. Besides, it does not contain any sanction in case of noncompliance. Being merely an advisory, therefore, Section 1 of AO 372 is well within the powers of the President. Since it is not a mandatory imposition, the directive cannot be characterized as an exercise of the power of control.

While the wordings of Section 1 of AO 372 have a rather commanding tone, and while we agree with petitioner that the requirements of Section 284 of the Local Government Code have not been satisfied, we are prepared to accept the solicitor general's assurance that the directive to "identify and implement measures x x x that will reduce total expenditures x x x by at least 25% of authorized regular appropriation" is merely advisory in character, and does not constitute a mandatory or binding order that interferes with local autonomy. The language used, while authoritative, does not amount to a command that emanates from a boss to a subaltern.

Rather, the provision is merely an advisory to prevail upon local executives to recognize the need for fiscal restraint in a period of economic difficulty. Indeed, all concerned would do well to heed the President's call to unity, solidarity and teamwork to help alleviate the crisis. It is understood, however, that no legal sanction may be imposed upon LGUs and their officials who do not follow such advice. It is in this light that we sustain the solicitor general's contention in regard to Section 1.

Withholding a Part of LGUs' IRA

Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue. This is mandated by no less than the Constitution.28 The Local Government Code29 specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and "shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose."30 As a rule, the term "shall" is a word of command that must be given a compulsory meaning.31 The provision is, therefore, imperative.

Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs' IRA "pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation" in the country. Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means "something held back or withheld, often temporarily."32Hence, the "temporary" nature of the retention by the national government does not matter. Any retention is prohibited.

In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis, Section 4 thereof has no color of validity at all. The latter provision effectively encroaches on the fiscal autonomy of local governments. Concededly, the

President was well-intentioned in issuing his Order to withhold the LGUs’ IRA, but the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.

Refutation of Justice Kapunan's Dissent

Mr. Justice Santiago M. Kapunan dissents from our Decision on the grounds that, allegedly, (1) the Petition is premature; (2) AO 372 falls within the powers of the President as chief fiscal officer; and (3) the withholding of the LGUs’ IRA is implied in the President's authority to adjust it in case of an unmanageable public sector deficit.

First, on prematurity. According to the Dissent, when "the conduct has not yet occurred and the challenged construction has not yet been adopted by the agency charged with administering the administrative order, the determination of the scope and constitutionality of the executive action in advance of its immediate adverse effect involves too remote and abstract an inquiry for the proper exercise of judicial function."

This is a rather novel theory -- that people should await the implementing evil to befall on them before they can question acts that are illegal or unconstitutional. Be it remembered that the real issue here is whether the Constitution and the law are contravened by Section 4 of AO 372, not whether they are violated by the acts implementing it. In the unanimous en banc case Tañada v. Angara,33 this Court held that when an act of the legislative department is seriously alleged to have infringed the Constitution, settling the controversy becomes the duty of this Court. By the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty. Said the Court:

"In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. 'The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld.'34 Once a 'controversy as to the application or interpretation of a constitutional provision is raised before this Court x x x , it becomes a legal issue which the Court is bound by constitutional mandate to decide.'35

x x x           x x x          x x x

"As this Court has repeatedly and firmly emphasized in many cases,36 it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government."

In the same vein, the Court also held in Tatad v. Secretary of the Department of Energy:37

"x x x Judicial power includes not only the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable, but also the duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. The courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. Where the statute violates the Constitution, it is not only the right but the duty of the judiciary to declare such act unconstitutional and void."

By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws, as in the present case, settling the dispute becomes the duty and the responsibility of the courts.

Besides, the issue that the Petition is premature has not been raised by the parties; hence it is deemed waived. Considerations of due process really prevents its use against a party that has not been given sufficient notice of its presentation, and thus has not been given the opportunity to refute it.38

Second, on the President's power as chief fiscal officer of the country. Justice Kapunan posits that Section 4 of AO 372 conforms with the President's role as chief fiscal officer, who allegedly "is clothed by law with certain powers to ensure the observance of safeguards and auditing requirements, as well as the legal prerequisites in the release and use of IRAs, taking into account the constitutional and statutory mandates."39 He cites instances when the President may lawfully intervene in the fiscal affairs of LGUs.

Precisely, such powers referred to in the Dissent have specifically been authorized by law and have not been challenged as violative of the Constitution. On the other hand, Section 4 of AO 372, as explained earlier, contravenes explicit provisions of the Local Government Code (LGC) and the Constitution. In other words, the acts alluded to in the Dissent are indeed authorized by law; but, quite the opposite, Section 4 of AO 372 is bereft of any legal or constitutional basis.

Third, on the President's authority to adjust the IRA of LGUs in case of an unmanageable public sector deficit. It must be emphasized that in striking down Section 4 of AO 372, this Court is not ruling out any form of reduction in the IRAs of LGUs. Indeed, as the President may make necessary adjustments in case of an unmanageable public sector deficit, as stated in the main part of this Decision, and in line with Section 284 of the LGC, which Justice Kapunan cites. He, however, merely glances over a specific requirement in the same provision -- that such reduction is subject to consultation with the presiding officers of both Houses of Congress and, more importantly, with the presidents of the leagues of local governments.

Notably, Justice Kapunan recognizes the need for "interaction between the national government and the LGUs at the planning level," in order to ensure that "local development plans x x x hew to national policies and standards." The problem is that no such interaction or consultation was ever held prior to the issuance of AO 372. This is why

the petitioner and the intervenor (who was a provincial governor and at the same time president of the League of Provinces of the Philippines and chairman of the League of Leagues of Local Governments) have protested and instituted this action. Significantly, respondents do not deny the lack of consultation.

In addition, Justice Kapunan cites Section 28740 of the LGC as impliedly authorizing the President to withhold the IRA of an LGU, pending its compliance with certain requirements. Even a cursory reading of the provision reveals that it is totally inapplicable to the issue at bar. It directs LGUs to appropriate in their annual budgets 20 percent of their respective IRAs for development projects. It speaks of no positive power granted the President to priorly withhold any amount. Not at all.

WHEREFORE, the Petition is GRANTED. Respondents and their successors are hereby permanentlyPROHIBITED from implementing Administrative Order Nos. 372 and 43, respectively dated December 27, 1997 and December 10, 1998, insofar as local government units are concerned.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.Kapunan, J., see dissenting opinion.Purisima, and Ynares-Santiago, JJ., join J. Kapunan in his dissenting opinion.

G.R. No. 187298               July 03, 2012

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN AWADI, and SPO1 SATTAL H. JADJULI, Petitioners, vs.GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO SABAN, COL. EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT. BIENVENIDO G. LATAG, in their capacity as officers of the Phil. Marines and Phil. National Police, respectively, Respondents.

D E C I S I O N

SERENO, J.:

On 15 January 2009, three members from the International Committee of the Red Cross (ICRC) were kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu.1 Andres Notter, a Swiss national and head of the ICRC in Zamboanga City, Eugenio Vagni, an Italian national and ICRC delegate, and Marie Jean Lacaba, a Filipino engineer, were purportedly inspecting a water and sanitation project for the Sulu Provincial Jail when inspecting a water and sanitation project for the Sulu Provincial Jail when they were seized by three armed men who were later confirmed to be members of the Abu Sayyaf Group

(ASG).2 The leader of the alleged kidnappers was identified as Raden Abu, a former guard at the Sulu Provincial Jail. News reports linked Abu to Albader Parad, one of the known leaders of the Abu Sayyaf.

On 21 January 2009, a task force was created by the ICRC and the Philippine National Police (PNP), which then organized a parallel local group known as the Local Crisis Committee.3 The local group, later renamed Sulu Crisis Management Committee, convened under the leadership of respondent Abdusakur Mahail Tan, the Provincial Governor of Sulu. Its armed forces component was headed by respondents General Juancho Saban, and his deputy, Colonel Eugenio Clemen. The PNP component was headed by respondent Police Superintendent Bienvenido G. Latag, the Police Deputy Director for Operations of the Autonomous Region of Muslim Mindanao (ARMM).4

Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians coming from different municipalities, who were redeployed to surrounding areas of Patikul.5 The organization of the CEF was embodied in a "Memorandum of Understanding"6 entered into

between three parties: the provincial government of Sulu, represented by Governor Tan; the Armed Forces of the Philippines, represented by Gen. Saban; and the Philippine National Police, represented by P/SUPT. Latag. The Whereas clauses of the Memorandum alluded to the extraordinary situation in Sulu, and the willingness of civilian supporters of the municipal mayors to offer their services in order that "the early and safe rescue of the hostages may be achieved."7

This Memorandum, which was labeled ‘secret’ on its all pages, also outlined the responsibilities of each of the party signatories, as follows:

Responsibilities of the Provincial Government:

1) The Provincial Government shall source the funds and logistics needed for the activation of the CEF;

2) The Provincial Government shall identify the Local Government Units which shall participate in the operations and to propose them for the approval of the parties to this agreement;

3) The Provincial Government shall ensure that there will be no unilateral action(s) by the CEF without the knowledge and approval by both parties.

Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):

1) The AFP/PNP shall remain the authority as prescribed by law in military operations and law enforcement;

2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of their assigned task(s);

3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of operation(s);

4) The AFP/PNP shall provide the necessary support and/or assistance as called for in the course of operation(s)/movements of the CEF.8

Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local Government, announced to the media that government troops had cornered some one hundred and twenty (120) Abu Sayyaf members along with the three (3) hostages.9 However, the ASG made

contact with the authorities and demanded that the military pull its troops back from the jungle area.10 The government troops yielded and went back to their barracks; the Philippine Marines withdrew to their camp, while police and civilian forces pulled back from the terrorists’ stronghold by ten (10) to fifteen (15) kilometers. Threatening that one of the hostages will be beheaded, the ASG further demanded the evacuation of the military camps and bases in the different barangays in Jolo.11 The authorities were given no later than 2:00 o’clock in the afternoon of 31 March 2009 to comply.12

On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-09), declaring a state of emergency in the province of Sulu.13 It cited the kidnapping incident as a ground for the said declaration, describing it as a terrorist act pursuant to the Human Security

Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160), which bestows on the Provincial Governor the power to carry out emergency measures during man-made and natural disasters and calamities, and to call upon the appropriate national law enforcement agencies to suppress disorder and lawless violence.

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up checkpoints and chokepoints, conduct general search and seizures including arrests, and other actions necessary to ensure public safety. The pertinent portion of the proclamation states:

NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:

1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such Guidelines as may be issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of the kidnappers and their supporters; and

4. To conduct such other actions or police operations as may be necessary to ensure public safety.

DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS

31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14

On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent P/SUPT. Julasirim Kasim.15 Upon arriving at the police station, he was booked, and interviewed about his relationship to Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon admitting that he was indeed related to the three, he was detained. After a few hours, former Punong Barangay Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi Ismula, Punong Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani, were also arrested.16 The affidavit17 of the apprehending officer alleged that they were suspected ASG supporters and were being arrested under Proclamation 1-09. The following day, 2 April 2009, the hostage Mary Jane Lacaba was released by the ASG.

On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of the "Guidelines for the Implementation of Proclamation No. 1, Series of 2009 Declaring a State of Emergency in the Province of Sulu."18These Guidelines suspended all Permits to Carry

Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed civilians to seek exemption from the gun ban only by applying to the Office of the Governor and obtaining the appropriate identification cards. The said guidelines also allowed general searches and seizures in designated checkpoints and chokepoints.

On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi, Ahajan Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present Petition for Certiorari and Prohibition,19 claiming that Proclamation 1-09 was issued with grave abuse of discretion amounting to lack or excess of jurisdiction, as it threatened fundamental freedoms guaranteed under Article III of the 1987 Constitution.

Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were issued ultra vires, and thus null and void, for violating Sections 1 and 18, Article VII of the Constitution, which grants the President sole authority to exercise emergency powers and calling-out powers as the chief executive of the Republic and commander-in-chief of the armed forces.20 Additionally, petitioners claim that the Provincial Governor is not authorized by any law to create civilian armed forces under his command, nor regulate and limit the issuances of PTCFORs to his own private army.

In his Comment, Governor Tan contended that petitioners violated the doctrine on hierarchy of courts when they filed the instant petition directly in the court of last resort, even if both the Court of Appeals (CA) and the Regional Trial Courts (RTC) possessed concurrent jurisdiction with the

Supreme Court under Rule 65.21 This is the only procedural defense raised by respondent Tan. Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT. Julasirim Kasim, and P/SUPT. Bienvenido Latag did not file their respective Comments. 1âwphi1

On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra vires, as Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local Government Code, which empowers the Provincial Governor to carry out emergency measures during calamities and disasters, and to call upon the appropriate national law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or sedition.22Furthermore, the Sangguniang Panlalawigan of Sulu authorized the declaration of a state of emergency as evidenced by Resolution No. 4, Series of 2009 issued on 31 March 2009 during its regular session.23

The threshold issue in the present case is whether or not Section 465, in relation to Section 16, of the Local Government Code authorizes the respondent governor to declare a state of emergency, and exercise the powers enumerated under Proclamation 1-09, specifically the conduct of general searches and seizures. Subsumed herein is the secondary question of whether or not the provincial governor is similarly clothed with authority to convene the CEF under the said provisions.

We grant the petition.

I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy of Courts

We first dispose of respondents’ invocation of the doctrine of hierarchy of courts which allegedly prevents judicial review by this Court in the present case, citing for this specific purpose, Montes v. Court of Appeals and Purok Bagong Silang Association, Inc. v. Yuipco.24 Simply put, the

doctrine provides that where the issuance of an extraordinary writ is also within the competence of the CA or the RTC, it is in either of these courts and not in the Supreme Court, that the specific action for the issuance of such writ must be sought unless special and important laws are clearly and specifically set forth in the petition. The reason for this is that this Court is a court of last resort and must so remain if it is to perform the functions assigned to it by the Constitution and immemorial tradition. It cannot be burdened with deciding cases in the first instance.25

The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court stated:

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case, however, raises constitutional questions of transcendental importance to the public. The Court can resolve this case without determining any factual issue related to the case. Also, the instant case is a petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.27

The instant case stems from a petition for certiorari and prohibition, over which the Supreme Court possesses original jurisdiction.28 More crucially, this case involves acts of a public official which pertain to restrictive custody, and is thus impressed with transcendental public importance that would warrant the relaxation of the general rule. The Court would be remiss in its constitutional duties were it to dismiss the present petition solely due to claims of judicial hierarchy.

In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public importance involved in cases that concern restrictive custody, because judicial review in these cases serves as "a manifestation of the crucial defense of civilians ‘in police power’ cases due to the diminution of their basic liberties under the guise of a state of emergency."30 Otherwise, the importance of the high tribunal as the court of last resort would be put to naught, considering the nature of "emergency" cases, wherein the proclamations and issuances are inherently short-lived. In finally disposing of the claim that the issue had become moot and academic, the Court also cited transcendental public importance as an exception, stating:

Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga (restrictive custody) at pagmonitor ng galaw (monitoring of movements) ng nagpepetisyon, dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng madla na nakapaloob dito,

(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang kapulisan tungkol dito.

The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when [the] constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

…There is no question that the issues being raised affect the public interest, involving as they do the people’s basic rights to freedom of expression, of assembly and of the press. Moreover, the

Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present

petitions, the military and the police, on the extent of the protection given by constitutional guarantees. And lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to judicial review.

Evidently, the triple reasons We advanced at the start of Our ruling are justified under the foregoing exceptions. Every bad, unusual incident where police officers figure in generates public interest and people watch what will be done or not done to them. Lack of disciplinary steps taken against them erode public confidence in the police institution. As petitioners themselves assert, the restrictive custody of policemen under investigation is an existing practice, hence, the issue is bound to crop up every now and then. The matter is capable of repetition or susceptible of recurrence. It better be resolved now for the education and guidance of all concerned.31 (Emphasis supplied)

Hence, the instant petition is given due course, impressed as it is with transcendental public importance.

II. Only the President is vested with calling-out powers, as the commander-in-chief of the Republic

i. One executive, one commander-in-chief

As early as Villena v. Secretary of Interior,32 it has already been established that there is one repository of executive powers, and that is the President of the Republic. This means that when Section 1, Article VII of the Constitution speaks of executive power, it is granted to the President and no one else.33 As emphasized by Justice Jose P. Laurel, in his ponencia in Villena:

With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is readily visible without the projection of judicial searchlight, and that is the establishment of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principle that "The executive power shall be vested in a President of the Philippines." This means that the President of the Philippines is the Executive of the Government of the Philippines, and no other.34

Corollarily, it is only the President, as Executive, who is authorized to exercise emergency powers as provided under Section 23, Article VI, of the Constitution, as well as what became known as the calling-out powers under Section 7, Article VII thereof.

ii. The exceptional character of Commander-in-Chief powers dictate that they are exercised by one president

Springing from the well-entrenched constitutional precept of One President is the notion that there are certain acts which, by their very nature, may only be performed by the president as the Head of the State. One of these acts or prerogatives is the bundle of Commander-in-Chief powers to which the "calling-out" powers constitutes a portion. The President’s Emergency Powers, on the other hand, is balanced only by the legislative act of

Congress, as embodied in the second paragraph of Section 23, Article 6 of the Constitution:

Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.35

Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.36

The power to declare a state of martial law is subject to the Supreme Court’s authority to review the factual basis thereof. 37 By constitutional fiat, the calling-out powers, which is of lesser gravity than the power to declare martial law, is bestowed upon the President alone. As noted in Villena, "(t)here are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law x x x.38

Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article VII,

Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his.40 As Commander-in-Chief, he is authorized to direct the movements of the

naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual.41

In the case of Integrated Bar of the Philippines v. Zamora,42 the Court had occasion to rule that the calling-out powers belong solely to the President as commander-in-chief:

When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis.

There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power.43 (Emphasis supplied)

Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President’s action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification.44

That the power to call upon the armed forces is discretionary on the president is clear from the deliberation of the Constitutional Commission:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.

x x x           x x x          x x x

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.

The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court.

x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion.45 (Emphasis Supplied)

In the more recent case of Constantino, Jr. v. Cuisia,46 the Court characterized these powers as exclusive to the President, precisely because they are of exceptional import:

These distinctions hold true to this day as they remain embodied in our fundamental law. There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power, notwithstanding the judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similargravitas and exceptional import.47

In addition to being the commander-in-chief of the armed forces, the President also acts as the leader of the country’s police forces, under the mandate of Section 17, Article VII of the Constitution, which provides that, "The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed." During the deliberations of the Constitutional Commission on the framing of this provision, Fr. Bernas defended the retention of the word "control," employing the same rationale of singularity of the office of the president, as the only Executive under the presidential form of government.48

Regarding the country’s police force, Section 6, Article XVI of the Constitution states that: "The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law."49

A local chief executive, such as the provincial governor, exercises operational supervision over the police,50 and may exercise control only in day-to-day operations, viz:

Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or by law full control of the police by the local chief executive and local executives, the mayors. By our experience, this has spawned warlordism, bossism and sanctuaries for vices and abuses. If the national government does not have a mechanism to supervise these 1,500 legally, technically separate police forces, plus 61 city police forces, fragmented police system, we will have a lot of difficulty in presenting a modern professional police force. So that a certain amount of supervision and control will have to be exercised by the national government.

For example, if a local government, a town cannot handle its peace and order problems or police problems, such as riots, conflagrations or organized crime, the national government may come in, especially if requested by the local executives. Under that situation, if they come in under such an extraordinary situation, they will be in control. But if the day-to-day business of police investigation of crime, crime prevention, activities, traffic control, is all lodged in the mayors, and if they are in complete operational control of the day-to-day business of police service, what the national government would control would be the administrative aspect.

x x x           x x x          x x x

Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual duties being performed by the ordinary policemen, will be under the supervision of the local executives?

Mr. Natividad: Yes, Madam President.

x x x           x x x          x x x

Mr. de los Reyes: But in exceptional cases, even the operational control can be taken over by the National Police Commission?

Mr. Natividad: If the situation is beyond the capacity of the local governments.51 (Emphases supplied)

Furthermore according to the framers, it is still the President who is authorized to exercise supervision and control over the police, through the National Police Commission:

Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-in-Chief of all the armed forces.

Mr. Natividad: Yes, Madam President.

Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not suppose they come under the Commander-in-Chief powers of the President of the Philippines.

Mr. Natividad: They do, Madam President. By law, they are under the supervision and control of the President of the Philippines.

Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police.

Mr. Natividad: He is the President.

Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that the President is the Commander-in-Chief of all the armed forces.

Mr. Natividad: No, not under the Commander-in-Chief provision.

Mr. Rodrigo: There are two other powers of the President. The

President has control over ministries, bureaus and offices, and supervision over local governments. Under which does the police fall, under control or under supervision?

Mr. Natividad: Both, Madam President.

Mr. Rodrigo: Control and supervision.

Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the President.52

In the discussions of the Constitutional Commission regarding the above provision it is clear that the framers never intended for local chief executives to exercise unbridled control over the police in emergency situations. This is without prejudice to their authority over police units in their jurisdiction as provided by law, and their prerogative to seek assistance from the police in day to day situations, as contemplated by the Constitutional Commission. But as a civilian agency of the government, the police, through the NAPOLCOM, properly comes within, and is subject to, the exercise by the President of the power of executive control.53

iii. The provincial governor does not possess the same calling-out powers as the President

Given the foregoing, respondent provincial governor is not endowed with the power to call upon the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code, as will be discussed subsequently.

Respondents, however, justify this stance by stating that nowhere in the seminal case of David v. Arroyo, which dealt squarely with the issue of the declaration of a state of

emergency, does it limit the said authority to the President alone. Respondents contend that the ruling in David expressly limits the authority to declare a national emergency, a condition which covers the entire country, and does not include emergency situations in local government units.54 This claim is belied by the clear intent of the framers that in all situations involving threats to security, such as lawless violence, invasion or rebellion, even in localized areas, it is still the President who possesses the sole authority to exercise calling-out powers. As reflected in the Journal of the Constitutional Commission:

Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in lieu of "invasion or rebellion." Mr. Sumulong stated that the committee could not accept the amendment because under the first section of Section 15, the President may call out and make use of the armed forces to prevent or suppress not only lawless violence but even invasion or rebellion without declaring martial law. He observed that by deleting "invasion or rebellion" and substituting PUBLIC DISORDER, the President would have to declare martial law before he can make use of the armed forces to prevent or suppress lawless invasion or rebellion.

Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter situation where there is some lawless violence in a small portion of the country or public disorder in another at which times, the armed forces can be called to prevent or suppress these incidents. He noted that the Commander-in-Chief can do so in a minor degree but he can also exercise such powers should the situation worsen. The words "invasion or rebellion" to be eliminated on line 14 are covered by the following sentence which provides for "invasion or rebellion." He maintained that the proposed amendment does not mean that under such circumstances, the President cannot call on the armed forces to prevent or suppress the same.55 (Emphasis supplied)

III. Section 465 of the Local

Government Code cannot be invoked to justify the powers enumerated under Proclamation 1-09

Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic act, and used this incident to justify the exercise of the powers enumerated under Proclamation 1-09.56 He invokes Section 465, in relation to Section 16, of the Local Government Code, which purportedly allows the governor to carry out emergency measures and call upon the appropriate national law enforcement agencies for assistance. But a closer look at the said proclamation shows that there is no provision in the Local Government Code nor in any law on which the broad and unwarranted powers granted to the Governor may be based.

Petitioners cite the implementation of "General Search and Seizure including arrests in the pursuit of the kidnappers and their supporters,"57 as being violative of the constitutional proscription on general search warrants and general seizures. Petitioners rightly assert that this alone would be sufficient to render the proclamation void, as general searches and seizures are proscribed, for being violative of the rights enshrined in the Bill of Rights, particularly:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.58

In fact, respondent governor has arrogated unto himself powers exceeding even the martial law powers of the President, because as the Constitution itself declares, "A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ."59

We find, and so hold, that there is nothing in the Local Government Code which justifies the acts sanctioned under the said Proclamation. Not even Section 465 of the said Code, in relation to Section 16, which states:

Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.

x x x           x x x          x x x

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall:

(1) Exercise general supervision and control over all programs, projects, services, and activities of the provincial government, and in this connection, shall:

x x x           x x x          x x x

(vii) Carry out such emergency measures as may be necessary during and in the aftermath of man-made and natural disasters and calamities;

(2) Enforce all laws and ordinances relative to the governance of the province and the exercise of the appropriate corporate powers provided for under Section 22 of this Code, implement all approved policies, programs, projects, services and activities of the province and, in addition to the foregoing, shall:

x x x           x x x          x x x

(vi) Call upon the appropriate national law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or sedition or to apprehend violators of the law when public interest so requires and the police forces of the component city or municipality where the disorder or violation is happening are inadequate to cope with the situation or the violators.

Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. (Emphases supplied)

Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the said provision expressly refers to calamities and disasters, whether man-made or natural. The governor, as local chief executive of the province, is certainly empowered to enact and implement emergency measures during these occurrences. But the kidnapping incident in the case at bar cannot be considered as a calamity or a disaster. Respondents cannot find any legal mooring under this provision to justify their actions.

Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two reasons. First, the Armed Forces of the Philippines does not fall under the category of a "national law enforcement agency," to which the National Police Commission (NAPOLCOM) and its departments belong.

Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and defend the Republic against all enemies, foreign and domestic. Its aim is also to secure the integrity of the national territory.60

Second, there was no evidence or even an allegation on record that the local police forces were inadequate to cope with the situation or apprehend the violators. If they were inadequate, the recourse of the provincial governor was to ask the assistance of the Secretary of Interior and Local Government, or such other authorized officials, for the assistance of national law enforcement agencies.

The Local Government Code does not involve the diminution of central powers inherently vested in the National Government, especially not the prerogatives solely granted by the Constitution to the President in matters of security and defense.

The intent behind the powers granted to local government units is fiscal, economic, and administrative in nature. 1âwphi1The Code is concerned only with powers that would make the delivery of basic services more effective to the constituents,61 and should not be unduly stretched to confer calling-out powers on local executives.

In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of powers is a step towards the autonomy of local government units (LGUs), and is actually an experiment whose success heavily relies on the power of taxation of the LGUs. The underpinnings of the Code can be found in Section 5, Article II of the 1973 Constitution,

which allowed LGUs to create their own sources of revenue.62 During the interpellation made by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that "Decentralization is an administrative concept and the process of shifting and delegating power from a central point to subordinate levels to promote independence, responsibility, and quicker decision-making. … (I)t does not involve any transfer of final authority from the national to field levels, nor diminution of central office powers and responsibilities. Certain government agencies, including the police force, are exempted from the decentralization process because their functions are not inherent in local government units."63

IV. Provincial governor is not authorized to convene CEF

Pursuant to the national policy to establish one police force, the organization of private citizen armies is proscribed. Section 24 of Article XVIII of the Constitution mandates that:

Private armies and other armed groups not recognized by duly constituted authority shall be dismantled. All paramilitary forces including Civilian Home Defense Forces (CHDF) not consistent with the citizen armed force established in this Constitution, shall be dissolved or, where appropriate, converted into the regular force.

Additionally, Section 21of Article XI states that, "The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government."

Taken in conjunction with each other, it becomes clear that the Constitution does not authorize the organization of private armed groups similar to the CEF convened by the respondent Governor. The framers of the Constitution were themselves wary of armed citizens’ groups, as shown in the following proceedings:

MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force operating under the cloak, under the mantle of legality is creating a lot of problems precisely by being able to operate as an independent private army for many regional warlords. And at the same time, this I think has been the thrust, the intent of many of the discussions and objections to the paramilitary units and the armed groups.

MR. PADILLA: My proposal covers two parts: the private armies of political warlords and other armed torces not recognized by constituted authority which shall be dismantled and dissolved. In my trips to the provinces, I heard of many abuses committed by the CHDF (Civilian Home Defense Forces), specially in Escalante, Negros Occidental. But I do not know whether a particular CHDF is approved or authorized by competent authority. If it is not authorized, then the CHDF will have to be dismantled. If some CHDFs, say in other provinces, are authorized by constituted authority, by the Armed Forces of the Philippines, through the Chief of Staff or the Minister of National Defense, if they are recognized and authorized, then they will not be dismantled. But I cannot give a categorical answer to any specific CHDF unit, only the principle that if they are armed forces which are not authorized, then they should be dismantled. 64 (Emphasis supplied)

Thus, with the discussions in the Constitutional Commission as guide, the creation of the Civilian Emergency Force (CEF) in the present case, is also invalid.

WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding respondents to desist from further proceedings m implementing Proclamation No. 1, Series of 2009, and its Implementing Guidelines. The said proclamation and guidelines are hereby declared NULL and VOID for having been issued in grave abuse of discretion, amounting to lack or excess of jurisdiction.

SO ORDERED.

MARIA LOURDES P. A. SERENOAssociate Justice

G.R. No. 198860               July 23, 2012

ABRAHAM RIMANDO, Petitioner, vs.NAGUILIAN EMISSION TESTING CENTER, INC., represented by its President, ROSEMARIE LLARENAS and HON. COURT OF APPEALS, Respondents.

R E S O L U T I O N

REYES, J.:

Before us is a petition for review on certiorari1 under Rule 45 of the Rules of Court seeking to annul and set aside Decision2 dated March 30, 2011 of the Court of Appeals (CA) in CA-G.R. SP NO. 112152.

The Facts

The present controversy stemmed from a petition for mandamus and damages filed before Branch 67 of the Regional Trial Court (RTC) of Bauang, La Union, by Naguilian Emission Testing Center, Inc., represented by its President, Rosemarie Llarenas (respondent) against Abraham P. Rimando (petitioner), who, at the time material to the case, was the sitting mayor of the Municipality of Naguilian, La Union.

The petition prayed for the issuance of a writ of mandamus to compel the petitioner to issue a business permit in favor of the respondent.

In support of its plea, the respondent claimed that its business is being conducted on a parcel of land which formerly belonged to the national government but later on certified by the Department of Environment and Natural Resources (DENR) as an alienable and disposable land of the public domain. The respondent had operated its business of

emission testing on the land from 2005 to 2007. On January 18, 2008, the respondent filed an application for the renewal of its business permit and paid the corresponding fees therefor.

The petitioner, however, refused to issue a business permit unless and until the respondent executes a contract of lease with the Municipality of Naguilian. The respondent was amenable to signing such contract subject to some proposed revisions, which, however, were not acceptable to the petitioner. The parties did not reach a common ground hence, the petition for mandamus.

The Ruling of the RTC

On May 26, 2009, the RTC denied the petition3 for lack of merit based on the ratiocinations that: (a) the Municipality of Naguilian is the declared owner of the subject parcel of land by virtue of Tax Declaration No. 002-01197; (b) under Section 6A.01 of the Revenue Code of the Municipality of Naguilian, the municipality has the right to require the petitioner to sign a contract of lease because its business operation is being conducted on a real property owned by the municipality; and (c) a mayor’s duty to issue business permits is discretionary in nature which may not be enforced by a mandamus writ. The decretal portion of the decision reads:

WHEREFORE, premises considered, the petition is DENIED for lack of merit.

SO ORDERED.4

The Ruling of the CA

Unwaivering, the respondent appealed to the CA. In its Decision5 dated March 30, 2011, the CA held that the appeal was dismissible on the ground of mootness considering that the period for which the business period was being sought had already lapsed. As such, any ruling on the matter would bring no practical relief. Nonetheless, the CA proceeded to resolve the issues involved in the appeal for academic purposes.

The CA disagreed with the RTC and found that the factual milieu of the case justifies the issuance of a writ of mandamus. The CA reasoned that the tax declaration in the name of the municipality was insufficient basis to require the execution of a contract of lease as a condition sine qua non for the renewal of a business permit. The CA further observed that Sangguniang Bayan Resolution No. 2007-81, upon which the municipality anchored its imposition of rental fees, was void because it failed to comply with the requirements of the Local Government Code and its Implementing Rules and Regulations.

The CA held that the petitioner may not be held liable for damages since his action or inaction, for that matter, was done in the performance of official duties that are legally protected by the presumption of good faith. The CA likewise stressed that the civil action filed against the petitioner had already become moot and academic upon the expiration of his term as the mayor of Naguilian, La Union.

Despite its incessant declarations on the mootness of the case, the CA disposed of the appeal in this wise:

WHEREFORE, the Decision dated 26 May 2009 of the Regional Trial Court, First Judicial Region, Bauang, La Union, Branch 67, in Special Civil Action Case No. 72-BG, is hereby REVERSED and SET ASIDE.

SO ORDERED.6

The petitioner moved for reconsideration7 questioning the pronouncement of the CA that Sangguniang Bayan Resolution No. 2007-81 was void and arguing that a petition for mandamus is not the proper vehicle to determine the issue on the ownership of the subject land. The motion was denied in the CA Resolution8 dated September 30, 2011.

The petitioner is now before this Court reiterating the arguments raised in his motion for reconsideration.

Our Ruling

We agree with the CA that the petition for mandamus has already become moot and academic owing to the expiration of the period intended to be covered by the business permit.

An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would be without practical use and value9 or in the nature of things, cannot be enforced.10In such cases, there is no actual substantial relief to which the applicant would be entitled to and which would be negated by the dismissal of the petition.11 As a rule, courts decline jurisdiction over such case, or dismiss it on ground of mootness.12

The objective of the petition for mandamus to compel the petitioner to grant a business permit in favor of respondent corporation for the period 2008 to 2009 has already been superseded by the passage of time and the expiration of the petitioner’s term as mayor. Verily then, the issue as to whether or not the petitioner, in his capacity as mayor, may be compelled by a writ of mandamus to release the respondent’s business permit ceased to present a justiciable controversy such that any ruling thereon would serve no practical value. Should the writ be issued, the petitioner can no longer abide thereby; also, the effectivity date of the business permit no longer subsists.

While the CA is not precluded from proceeding to resolve the otherwise moot appeal of the respondent, we find that the decretal portion of its decision was erroneously couched.

The CA’s conclusions on the issue of ownership over the subject land and the invalidity of Sangguniang Bayan Resolution No. 2007-81, aside from being unsubstantiated by convincing evidence, can no longer be practically utilized in favor of the petitioner. Thus, the overriding and decisive factor in the final disposition of the appeal was its mootness

and the CA should have dismissed the same along with the petition for mandamus that spawned it.

More importantly, a mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is a delegated police power hence, discretionary in nature. This was the pronouncement of this Court in Roble Arrastre, Inc. v. Hon. Villaflor13 where a determination was made on the nature of the power of a mayor to grant business permits under the Local Government Code,14 viz:

Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of the Local Government Code of 1991, which provides, thus:

SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation.

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall:

x x x x

3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and country-wide growth and progress, and relative thereto, shall:

x x x x

(iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance.

As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue licenses is pursuant to Section 16 of the Local Government Code of 1991, which declares:

SEC. 16. General Welfare. – Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

Section 16, known as the general welfare clause, encapsulates the delegated police power to local governments. 1âwphi1Local government units exercise police power through their respective legislative bodies. Evidently, the Local Government Code of 1991 is unequivocal that the municipal mayor has the power to issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. x x x

x x x x

Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus.15 (Citations omitted)

Indeed, as correctly ruled by the RTC, the petition for mandamus filed by the respondent is incompetent to compel the exercise of a mayor’s discretionary duty to issue business permits.

WHEREFORE, premises considered, the Decision dated March 30, 2011 of the Court of Appeals in CA-G.R. SP No. 112152 is hereby SET ASIDE. The Decision dated May 26, 2009 of the Regional Trial Court of Bauang, La Union is REINSTATED.

SO ORDERED.

BIENVENIDO L. REYESAssociate justice

CREATION, CONVERSION, DIVISION, MERGER & ABOLITION

G.R. No. 118577 March 7, 1995

JUANITO MARIANO, JR. et al., petitioners, vs.THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

G.R. No. 118627 March 7, 1995

JOHN R. OSMEÑA, petitioner, vs.THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI,

HON. JEJOMAR BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

 

PUNO, J.:

At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City of Makati." 1

G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds:

1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial jurisdiction of Makati by metes and bounds, with technical descriptions, in violation of Section 10, Article X of the Constitution, in relation to Sections 7 and 450 of the Local Government Code;

2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three consecutive term" limit for local elective officials, in violation of Section 8, Article X and Section 7, Article VI of the Constitution.

3. Section 52 of R.A. No. 7854 is unconstitutional for:

(a) it increased the legislative district of Makati only by special law (the Charter in violation of the constitutional provision requiring a general reapportionment law to be passed by Congress within three (3) years following the return of every census;

(b) the increase in legislative district was not expressed in the title of the bill; and

(c) the addition of another legislative district in Makati is not in accord with Section 5 (3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only 450,000.

G.R. No. 118627 was filed by the petitioner John H. Osmeña as senator, taxpayer, and concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the same grounds as aforestated.

We find no merit in the petitions.

I

Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of Makati, thus:

Sec. 2. The City of Makati. — The Municipality of Makati shall be converted into a highly urbanized city to be known as the City of Makati, hereinafter referred to as the City, which shall comprise the present territory of the Municipality of Makati in Metropolitan Manila Area over which it has jurisdiction bounded on the northeast by Pasig River and beyond by the City of Mandaluyong and the Municipality of Pasig; on the southeast by the municipalities of Pateros and Taguig; on the southwest by the City of Pasay and the Municipality of Taguig; and, on the northwest, by the City of Manila.

The foregoing provision shall be without prejudice to the resolution by the appropriate agency or forum of existing boundary disputes or cases involving questions of territorial jurisdiction between the City of Makati and the adjoining local government units. (Emphasis supplied)

In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the Local Government Code which require that the area of a local government unit should be made by metes and bounds with technical descriptions. 2

The importance of drawing with precise strokes the territorial boundaries of a local unit of government cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of a local government unit. It can legitimately exercise powers of government only within the limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of governmental powers which ultimately will prejudice the people's welfare. This is the evil sought to avoided by the Local Government Code in requiring that the land area of a local government unit must be spelled out in metes and bounds, with technical descriptions.

Given the facts of the cases at bench, we cannot perceive how this evil can be brought about by the description made in section 2 of R.A. No. 7854, Petitioners have not demonstrated that the delineation of the land area of the proposed City of Makati will cause confusion as to its boundaries. We note that said delineation did not change even by an inch the land area previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or multiply the established land area of Makati. In language that

cannot be any clearer, section 2 stated that, the city's land area "shall comprise the present territory of the municipality."

The deliberations of Congress will reveal that there is a legitimate reason why the land area of the proposed City of Makati was not defined by metes and bounds, with technical descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati and Taguig over Fort Bonifacio was under court litigation. Out of a becoming sense of respect to co-equal department of government, legislators felt that the dispute should be left to the courts to decide. They did not want to foreclose the dispute by making a legislative finding of fact which could decide the issue. This would have ensued if they defined the land area of the proposed city by its exact metes and bounds, with technical descriptions. 3 We take judicial notice of the fact that Congress has also refrained from using the metes and bounds description of land areas of other local government units with unsettled boundary disputes. 4

We hold that the existence of a boundary dispute does not per se present an insurmountable difficulty which will prevent Congress from defining with reasonable certitude the territorial jurisdiction of a local government unit. In the cases at bench, Congress maintained the existing boundaries of the proposed City of Makati but as an act of fairness, made them subject to the ultimate resolution by the courts. Considering these peculiar circumstances, we are not prepared to hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain the submission of the Solicitor General in this regard, viz.:

Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that the requirement stated therein, viz.: "the territorial jurisdiction of newly created or converted cities should be described by meted and bounds, with technical descriptions" — was made in order to provide a means by which the area of said cities may be reasonably ascertained. In other words, the requirement on metes and bounds was meant merely as tool in the establishment of local government units. It is not an end in itself. Ergo, so long as the territorial jurisdiction of a city may be reasonably ascertained, i.e., by referring to common boundaries with neighboring municipalities, as in this case, then, it may be concluded that the legislative intent behind the law has been sufficiently served.

Certainly, Congress did not intends that laws creating new cities must contain therein detailed technical descriptions similar to those appearing in Torrens titles, as petitioners seem to imply. To require such description in the law as a condition sine qua non for its validity would be to defeat the very purpose which the Local Government Code to seeks to serve. The manifest intent of the Code is to empower local government units and to give them their rightful due. It seeks to make local governments more responsive to the needs of their constituents while at the same time serving as a vital cog in national development. To invalidate R.A. No. 7854 on the mere ground that no cadastral type of description was used in the law would serve the letter but defeat the spirit of the Code. It then becomes a case of the master serving the slave,

instead of the other way around. This could not be the intendment of the law.

Too well settled is the rule that laws must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of the statute when to do so would depart from the true intent of the legislature or would otherwise yield conclusions inconsistent with the general purpose of the act. (Torres v. Limjap, 56 Phil., 141; Tañada v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an active instrument of government, which, for purposes of interpretation, means that laws have ends to achieve, and statutes should be so construed as not to defeat but to carry out such ends and purposes (Bocolbo v. Estanislao, 72 SCRA 520). The same rule must indubitably apply to the case at bar.

II

Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A. No. 7854. Section 51 states:

Sec. 51. Officials of the City of Makati. — The represent elective officials of the Municipality of Makati shall continue as the officials of the City of Makati and shall exercise their powers and functions until such time that a new election is held and the duly elected officials shall have already qualified and assume their offices: Provided, The new city will acquire a new corporate existence. The appointive officials and employees of the City shall likewise continues exercising their functions and duties and they shall be automatically absorbed by the city government of the City of Makati.

They contend that this section collides with section 8, Article X and section 7, Article VI of the Constitution which provide:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.

No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Petitioners stress that under these provisions, elective local officials, including Members of the House of Representative, have a term of three (3) years and are prohibited from serving for more than three (3) consecutive terms. They argue that by providing that the new city shall acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the present municipal elective officials of Makati and disregards the terms previously served by them. In particular, petitioners point that section 51 favors the incumbent Makati Mayor, respondent Jejomar Binay, who has already served for two (2) consecutive terms. They further argue that should Mayor Binay decide to run and eventually win as city mayor in the coming elections, he can still run for the same position in 1998 and seek another three-year consecutive term since his previous three-year consecutive term as municipal mayor would not be counted. Thus, petitioners conclude that said section 51 has been conveniently crafted to suit the political ambitions of respondent Mayor Binay.

We cannot entertain this challenge to the constitutionality of section 51. The requirements before a litigant can challenge the constitutionality of a law are well delineated. They are: 1) there must be an actual case or controversy; (2) the question of constitutionality must be raised by the proper party; (3) the constitutional question must be raised at the earliest possible opportunity; and (4) the decision on the constitutional question must be necessary to the determination of the case itself. 5

Petitioners have far from complied with these requirements. The petition is premised on the occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming mayoralty elections; that he would be re-elected in said elections; and that he would seek re-election for the same position in the 1998 elections. Considering that these contingencies may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano) are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic issue in a petition for declaratory relief over which this Court has no jurisdiction.

III

Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52, Article X of R.A. No. 7854. Section 52 of the Charter provides:

Sec. 52. Legislative Districts. — Upon its conversion into a highly-urbanized city, Makati shall thereafter have at least two (2) legislative districts that shall initially correspond to the two (2) existing districts created under Section 3(a) of Republic Act. No. 7166 as implemented by the Commission on Elections to commence at the next national elections to be held after the effectivity of this Act. Henceforth, barangays

Magallanes, Dasmariñas and Forbes shall be with the first district, in lieu of Barangay Guadalupe-Viejo which shall form part of the second district. (emphasis supplied)

They contend. that the addition of another legislative district in Makati is unconstitutional for: (1) reapportionment 6cannot made by a special law, (2) the addition of a legislative district is not expressed in the title of the bill 7 and (3) Makati's population, as per the 1990 census, stands at only four hundred fifty thousand (450,000).

These issues have been laid to rest in the recent case of Tobias v. Abalos. 8 In said case, we ruled that reapportionment of legislative districts may be made through a special law, such as in the charter of a new city. The Constitution 9 clearly provides that Congress shall be composed of not more than two hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude Congress from increasing its membership by passing a law, other than a general reapportionment of the law. This is its exactly what was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's legislative district. Moreover, to hold that reapportionment can only be made through a general apportionment law, with a review of all the legislative districts allotted to each local government unit nationwide, would create an inequitable situation where a new city or province created by Congress will be denied legislative representation for an indeterminate period of time. 10 The intolerable situations will deprive the people of a new city or province a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is indivisible. It must be forever whole or it is not sovereignty.

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). 13 Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative. 14

Finally, we do not find merit in petitioners' contention that the creation of an additional legislative district in Makati should have been expressly stated in the title of the bill. In the same case of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring a liberal construction of the "one title-one subject" rule so as not to impede legislation. To be sure, with Constitution does not command that the title of a law should exactly mirror, fully index, or completely catalogue all its details. Hence, we ruled that "it should be sufficient compliance if the title expresses the general subject and all the provisions are germane to such general subject."

WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

 

 

 

Separate Opinions

 

DAVIDE, JR., J., concurring:

I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a few observations.

I.

Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to be created or converted should be properly identified by metes and bounds with technical descriptions.

The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The Constitution does not provide for a description by metes and bounds as a condition sine qua non for the creation of a local government unit or its conversion from one level to another. The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of fact, the section starts with the clause "as a general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It pertinently reads as follows:

Sec. 450. Requisite for creation. — (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites:

xxx xxx xxx

(b) The territorial jurisdiction of a newly created city shall be properly identified by metes and bounds. . . .

The constitution classifies cities as either highly urbanized or component. Section 12 of Article X thereof provides:

Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

And Section 451 of R.A. No. 7160 provides:

Sec. 451. Cities Classified. — A city may either be component or highly urbanized: Provided, however, That the criteria established in this Code shall not affect the classification and corporate status of existing cities.

Independent component cities are those component cities whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the province.

II.

Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said Section which reads in full as follows:

Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

In short, the clause refers to a general reapportionment law.

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the Ordinance appended to the Constitution which reads:

Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commissionand subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows:

METROPOLITAN MANILA AREA

xxx xxx xxx

MAKATI one (1)

xxx xxx xxx

Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created, or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphases supplied)

 

 

Separate Opinions

DAVIDE, JR., J., concurring:

I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a few observations.

I.

Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected." These criteria are now set forth in Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government unit to be created or converted should be properly identified by metes and bounds with technical descriptions.

The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of the city by metes and bounds does not make R.A. No. 7854 unconstitutional

or illegal. The Constitution does not provide for a description by metes and bounds as a condition sine qua non for the creation of a local government unit or its conversion from one level to another. The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of fact, the section starts with the clause "as a general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city. It pertinently reads as follows:

Sec. 450. Requisite for creation. — (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites:

xxx xxx xxx

(b) The territorial jurisdiction of a newly created city shall be properly identified by metes and bounds. . . .

The constitution classifies cities as either highly urbanized or component. Section 12 of Article X thereof provides:

Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

And Section 451 of R.A. No. 7160 provides:

Sec. 451. Cities Classified. — A city may either be component or highly urbanized: Provided, however, That the criteria established in this Code shall not affect the classification and corporate status of existing cities.

Independent component cities are those component cities whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the province.

II.

Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said Section which reads in full as follows:

Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

In short, the clause refers to a general reapportionment law.

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the Ordinance appended to the Constitution which reads:

Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commissionand subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows:

METROPOLITAN MANILA AREA

xxx xxx xxx

MAKATI one (1)

xxx xxx xxx

Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created, or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphases supplied)

Footnotes

1 R.A. No. 7854 is a consolidation of House Bill No. 12240 sponsored by Congressman Joker Arroyo and Senate Bill No. 1244 sponsored by Senator Vicente Sotto III.

2 Sec. 7. Creation and Conversion. — As a general rule, the creation of a local government unit or its conversion from one level to another level

shall be based on verifiable indicators of viability and projected capacity to provide services, to wit:

xxx xxx xxx

(c) Land Area. — It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions and sufficient to provide for such basic services and facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).

xxx xxx xxx

Sec. 450. Requisites for Creation. — . . .

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. . . .

3 August 18, 1994, Senate Deliberations on H.B. No. 12240, pp. 23-28.

4 Ibid, citing as example the City of Mandaluyong.

5 Dumlao v. COMELEC, 95 SCRA 392 (19180); Cruz, Constitutional Law, 1991 ed., p. 24.

6 Section 5(4), Article VI of the Constitution provides:

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

7 Section 26(1), Article VI of the Constitution provides:

Sec. 26 (1) Every bill passed by the Congress shall, embrace only one subject which shall be expressed in the title thereof.

8 G.R. No. 114783, December 8, 1994.

9 Section 5(1), Article VI.

10 In this connection, we take judicial notice of the fact that since 1986 up to this time, Congress has yet to pass a general reapportionment law.

11 Section 1, Article II provides that "the Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority from them."

12 Sec. 5. . . .

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

xxx xxx xxx

13 As per the certificate issued by Administration Tomas Africa of the National Census and Statistics Office, the population of Makati as of 1994 stood at 508,174; August 4, 1994, Senate Deliberations on House Bill No. 12240 (converting Makati into a highly urbanized city), p. 15.

14 Sec. 3 provides: "Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred, and twenty days before the election."

G.R. No. 118303             January 31, 1996

SENATOR HEHERSON T. ALVAREZ, SENATOR JOSE D. LINA, JR., MR. NICASIO B. BAUTISTA, MR. JESUS P. GONZAGA, MR. SOLOMON D. MAYLEM, LEONORA C. MEDINA, CASIANO S. ALIPON, petitioners, vs.HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, HON. RAFAEL ALUNAN, in his capacity as Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget, THE COMMISSION ON AUDIT, HON. JOSE MIRANDA, in his capacity as Municipal Mayor of Santiago and HON. CHARITO MANUFAY, HON. VICTORINO

MIRANDA, JR., HON. ARTEMIO ALVAREZ, HON. DANILO VERGARA, HON. PETER DE JESUS, HON. NELIA NATIVIDAD, HON. CELSO CALEON and HON. ABEL MUSNGI, in their capacity as SANGGUNIANG BAYAN MEMBERS, MR. RODRIGO L. SANTOS, in his capacity as Municipal Treasurer, and ATTY. ALFREDO S. DIRIGE, in his capacity as Municipal Administrator, respondents.

D E C I S I O N

HERMOSISIMA, JR., J.:

Of main concern to the petitioners is whether Republic Act No. 7720, just recently passed by Congress and signed by the President into law, is constitutionally infirm.

Indeed, in this Petition for Prohibition with prayer for Temporary Restraining Order and Preliminary Prohibitory Injunction, petitioners assail the validity of Republic Act No. 7720, entitled, "An Act Converting the Municipality of Santiago, Isabela into an Independent Component City to be known as the City of Santiago," mainly because the Act allegedly did not originate exclusively in the House of Representatives as mandated by Section 24, Article VI of the 1987 Constitution.

Also, petitioners claim that the Municipality of Santiago has not met the minimum average annual income required under Section 450 of the Local Government Code of 1991 in order to be converted into a component city.

Undisputed is the following chronicle of the metamorphosis of House Bill No. 8817 into Republic Act No. 7720:

On April 18, 1993, HB No. 8817, entitled "An Act Converting the Municipality of Santiago into an Independent Component City to be known as the City of Santiago," was filed in the House of Representatives with Representative Antonio Abaya as principal author. Other sponsors included Representatives Ciriaco Alfelor, Rodolfo Albano, Santiago Respicio and Faustino Dy. The bill was referred to the House Committee on Local Government and the House Committee on Appropriations on May 5, 1993.

On May 19, 1993, June 1, 1993, November 28, 1993, and December 1, 1993, public hearings on HB No. 8817 were conducted by the House Committee on Local Government. The committee submitted to the House a favorable report, with amendments, on December 9, 1993.

On December 13, 1993, HB No. 8817 was passed by the House of Representatives on Second Reading and was approved on Third Reading on December 17, 1993. On January 28, 1994, HB No. 8817 was transmitted to the Senate.

Meanwhile, a counterpart of HB No. 8817, Senate Bill No. 1243, entitled, "An Act Converting the Municipality of Santiago into an Independent Component City to be Known as the City of Santiago," was filed in the Senate. It was introduced by Senator

Vicente Sotto III, as principal sponsor, on May 19, 1993. This was just after the House of Representatives had conducted its first public hearing on HB No. 8817.

On February 23, 1994, or a little less than a month after HB No. 8817 was transmitted to the Senate, the Senate Committee on Local Government conducted public hearings on SB No. 1243. On March 1, 1994, the said committee submitted Committee Report No. 378 on HB No. 8817, with the recommendation that it be approved without amendment, taking into consideration the reality that H.B. No. 8817 was on all fours with SB No. 1243. Senator Heherson T. Alvarez, one of the herein petitioners, indicated his approval thereto by signing said report as member of the Committee on Local Government.

On March 3, 1994, Committee Report No. 378 was passed by the Senate on Second Reading and was approved on Third Reading on March 14, 1994. On March 22, 1994, the House of Representatives, upon being apprised of the action of the Senate, approved the amendments proposed by the Senate.

The enrolled bill, submitted to the President on April 12, 1994, was signed by the Chief Executive on May 5, 1994 as Republic Act No. 7720. When a plebiscite on the Act was held on July 13, 1994, a great majority of the registered voters of Santiago voted in favor of the conversion of Santiago into a city.

The question as to the validity of Republic Act No. 7720 hinges on the following twin issues: (I) Whether or not the Internal Revenue Allotments (IRAs) are to be included in the computation of the average annual income of a municipality for purposes of its conversion into an independent component city, and (II) Whether or not, considering that the Senate passed SB No. 1243, its own version of HB No. 8817, Republic Act No. 7720 can be said to have originated in the House of Representatives.

I

The annual income of a localgovernment unit includes the IRAs

Petitioners claim that Santiago could not qualify into a component city because its average annual income for the last two (2) consecutive years based on 1991 constant prices falls below the required annual income of Twenty Million Pesos (P20,000,000.00) for its conversion into a city, petitioners having computed Santiago's average annual income in the following manner:

Total income (at 1991 constant prices) for 1991 P 20,379,057.07Total income (at 1991 constant prices) for 1992 P 21,570,106.87

Total income for 1991 and 1992 P 41,949,163.94Minus:

IRAs for 1991 and 1992 P 15,730,043.00Total income for 1991 and 1992 P 26,219,120.94

Average Annual Income P 13,109,560.47===============

By dividing the total income of Santiago for calendar years 1991 and 1992, after deducting the IRAs, the average annual income arrived at would only be P13,109,560.47 based on the 1991 constant prices. Thus, petitioners claim that Santiago's income is far below the aforesaid Twenty Million Pesos average annual income requirement.

The certification issued by the Bureau of Local Government Finance of the Department of Finance, which indicates Santiago's average annual income to be P20,974,581.97, is allegedly not accurate as the Internal Revenue Allotments were not excluded from the computation. Petitioners asseverate that the IRAs are not actually income but transfers and/or budgetary aid from the national government and that they fluctuate, increase or decrease, depending on factors like population, land and equal sharing.

In this regard, we hold that petitioners asseverations are untenable because Internal Revenue Allotments form part of the income of Local Government Units.

It is true that for a municipality to be converted into a component city, it must, among others, have an average annual income of at least Twenty Million Pesos for the last two (2) consecutive years based on 1991 constant prices.1 Such income must be duly certified by the Department of Finance.

Resolution of the controversy regarding compliance by the Municipality of Santiago with the aforecited income requirement hinges on a correlative and contextual explication of the meaning of internal revenue allotments (IRAs) vis-a-vis the notion of income of a local government unit and the principles of local autonomy and decentralization underlying the institutionalization and intensified empowerment of the local government system.

A Local Government Unit is a political subdivision of the State which is constituted by law and possessed of substantial control over its own affairs.3 Remaining to be an intra sovereign subdivision of one sovereign nation, but not intended, however, to be an imperium in imperio,4 the local government unit is autonomous in the sense that it is given more powers, authority, responsibilities and resources.5 Power which used to be highly centralized in Manila, is thereby deconcentrated, enabling especially the peripheral local government units to develop not only at their own pace and discretion but also with their own resources and assets.

The practical side to development through a decentralized local government system certainly concerns the matter of financial resources. With its broadened powers and increased responsibilities, a local government unit must now operate on a much wider scale. More extensive operations, in turn, entail more expenses. Understandably, the vesting of duty, responsibility and accountability in every local government unit is accompanied with a provision for reasonably adequate resources to discharge its powers and effectively carry out its functions.7 Availment of such resources is effectuated through the vesting in every local government unit of (1) the right to create and broaden its own source of revenue; (2) the right to be allocated a just share in national taxes, such share

being in the form of internal revenue allotments (IRAs); and (3) the right to be given its equitable share in the proceeds of the utilization and development of the national wealth, if any, within its territorial boundaries.8

The funds generated from local taxes, IRAs and national wealth utilization proceeds accrue to the general fund of the local government and are used to finance its operations subject to specified modes of spending the same as provided for in the Local Government Code and its implementing rules and regulations. For instance, not less than twenty percent (20%) of the IRAs must be set aside for local development projects.9 As such, for purposes of budget preparation, which budget should reflect the estimates of the income of the local government unit, among others, the IRAs and the share in the national wealth utilization proceeds are considered items of income. This is as it should be, since income is defined in the Local Government Code to be all revenues and receipts collected or received forming the gross accretions of funds of the local government unit.10

The IRAs are items of income because they form part of the gross accretion of the funds of the local government unit. The IRAs regularly and automatically accrue to the local treasury without need of any further action on the part of the local government unit.11 They thus constitute income which the local government can invariably rely upon as the source of much needed funds.

For purposes of converting the Municipality of Santiago into a city, the Department of Finance certified, among others, that the municipality had an average annual income of at least Twenty Million Pesos for the last two (2) consecutive years based on 1991 constant prices. This, the Department of Finance did after including the IRAs in its computation of said average annual income.

Furthermore, Section 450 (c) of the Local Government Code provides that "the average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income." To reiterate, IRAs are a regular, recurring item of income; nil is there a basis, too, to classify the same as a special fund or transfer, since IRAs have a technical definition and meaning all its own as used in the Local Government Code that unequivocally makes it distinct from special funds or transfers referred to when the Code speaks of "funding support from the national government, its instrumentalities and government-owned-or-controlled corporations".12

Thus, Department of Finance Order No. 35-9313 correctly encapsulizes the full import of the above disquisition when it defined ANNUAL INCOME to be "revenues and receipts realized by provinces, cities and municipalities from regular sources of the Local General Fund including the internal revenue allotment and other shares provided for in Sections 284, 290 and 291 of the Code, but exclusive of non-recurring receipts, such as other national aids, grants, financial assistance, loan proceeds, sales of fixed assets, and similar others" (Emphasis ours).14 Such order, constituting executive or contemporaneous construction of a statute by an administrative agency charged with the task of interpreting and applying the same, is entitled to full respect and should be accorded great weight by the courts, unless such construction is clearly shown to be in sharp conflict with the Constitution, the governing statute, or other laws.15

II

In the enactment of RA No. 7720,there was compliance with Section 24,Article VI of the 1987 Constitution

Although a bill of local application like HB No. 8817 should, by constitutional prescription,16 originate exclusively in the House of Representatives, the claim of petitioners that Republic Act No. 7720 did not originate exclusively in the House of Representatives because a bill of the same import, SB No. 1243, was passed in the Senate, is untenable because it cannot be denied that HB No. 8817 was filed in the House of Representatives first before SB No. 1243 was filed in the Senate. Petitioners themselves cannot disavow their own admission that HB No. 8817 was filed on April 18, 1993 while SB No. 1243 was filed on May 19, 1993. The filing of HB No. 8817 was thus precursive not only of the said Act in question but also of SB No. 1243. Thus, HB No. 8817, was the bill that initiated the legislative process that culminated in the enactment of Republic Act No. 7720. No violation of Section 24, Article VI, of the 1987 Constitution is perceptible under the circumstances attending the instant controversy.

Furthermore, petitioners themselves acknowledge that HB No. 8817 was already approved on Third Reading and duly transmitted to the Senate when the Senate Committee on Local Government conducted its public hearing on HB No. 8817. HB No. 8817 was approved on the Third Reading on December 17, 1993 and transmitted to the Senate on January 28, 1994; a little less than a month thereafter, or on February 23, 1994, the Senate Committee on Local Government conducted public hearings on SB No. 1243. Clearly, the Senate held in abeyance any action on SB No. 1243 until it received HB No. 8817, already approved on the Third Reading, from the House of Representatives. The filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, does not contravene the constitutional requirement that a bill of local application should originate in the House of Representatives, for as long as the Senate does not act thereupon until it receives the House bill.

We have already addressed this issue in the case of Tolentino vs. Secretary of Finance.17 There, on the matter of the Expanded Value Added Tax (EVAT) Law, which, as a revenue bill, is nonetheless constitutionally required to originate exclusively in the House of Representatives, we explained:

. . . To begin with, it is not the law — but the revenue bill — which is required by the Constitution to "originate exclusively" in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. . . . as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute — and not only the bill which initiated the legislative process culminating in the enactment of the law — must substantially be the same as the House bill would be to deny the Senate's power not only to "concur with amendments" but also to "propose amendments." It would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate.

xxx       xxx       xxx

It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to "take [H. No. 11197] into consideration" in enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting clause and then writing its own version following the enacting clause (which, it would seem petitioners admit is an amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either case the result are two bills on the same subject.

Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws.

Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. . . .18

III

Every law, including RA No. 7720,has in its favor the presumptionof constitutionality

It is a well-entrenched jurisprudential rule that on the side of every law lies the presumption of constitutionality.19Consequently, for RA No. 7720 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful and equivocal one; in other words, the grounds for nullity must be clear and beyond reasonable doubt.20 Those who petition this court to declare a law to be unconstitutional must clearly and fully establish the basis that will justify such a declaration; otherwise, their petition must fail. Taking into consideration the justification of our stand on the immediately preceding ground raised by petitioners to challenge the constitutionality of RA No. 7720, the Court stands on the holding that petitioners have failed to overcome the presumption. The dismissal of this petition is, therefore, inevitable.

WHEREFORE, the instant petition is DISMISSED for lack of merit with costs against petitioners.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ., concur.

G.R. No. 133064 September 16, 1999

JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO, MARIANO V. BABARAN and ANDRES R. CABUYADAO, petitioners, vs.HON. ALEXANDER AGUIRRE, In his capacity as Executive Secretary; HON. EPIMACO VELASCO, in his capacity as Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget, THE COMMISSION ON AUDIT, THE COMMISSION ON ELECTIONS, HON. BENJAMIN G. DY, in his capacity as Governor of Isabela, THE HONORABLE SANGGUNIANG PANLALAWIGAN OF ISABELA, ATTY. BALTAZAR PICIO, in his capacity as Provincial Administrator, and MR. ANTONIO CHUA, in his capacity as Provincial Treasurer, respondents, GIORGIDI B. AGGABAO, intervenor.

 

PUNO, J.:

This is a petition for a writ of prohibition with prayer for preliminary injunction assailing the constitutionality of Republic Act No. 8528 converting the city of Santiago, Isabela from an independent component city to a component city.

On May 5, 1994, Republic Act No. 7720 which converted the municipality of Santiago, Isabela into an independent component city was signed into law. On July 4, 1994, the people of Santiago ratified R.A. No. 7720 in a plebiscite.1

On February 14, 1998, Republic Act No. 8528 was enacted. It amended R.A. No. 7720. Among others, it changed the status of Santiago from an independent component city to a component city, viz.:

AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT NUMBERED 7720 — AN ACT CONVERTING THE MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF SANTIAGO.

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Sec. 1. Section 2 of Republic Act No. 7720 is hereby amended by deleting the words "an independent" thereon so that said Section will read as follows:

Sec. 2. The City of Santiago. — The Municipality of Santiago shall be converted into a component city to be known as the City of Santiago, hereinafter referred to as the City, which shall comprise of the present territory of the Municipality of Santiago, Isabela. The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of Santiago.

Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting the entire section and in its stead substitute the following:

Sec. 51. Election of Provincial Governor, Vice-Governor, Sangguniang Panlalawigan Members, and any Elective Provincial Position for the Province of Isabela. — The voters of the City of Santiago shall be qualified to vote in the elections of the Provincial Governor, Vice-Governor, Sangguniang Panlalawigan members and other elective provincial positions of the Province of Isabela, and any such qualified voter can be a candidate for such provincial positions and any elective provincial office.

Sec. 3. Repealing Clause. — All existing laws or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

Sec. 4. Effectivity. — This Act shall take effect upon its approval.

Approved.

Petitioners assail the constitutionality of R.A. No. 8528. 2 They alleged as ground the lack of provision in R.A. No. 8528 submitting the law for ratification by the people of Santiago City in a proper plebiscite. Petitioner Miranda was the mayor of Santiago at the time of the filing of the petition at bar. Petitioner Afiado is the President of the Liga ng mga Barangay ng Santiago City. Petitioners Dirige, Cabuyadao and Babaran are residents of Santiago City.

In their Comment, respondent provincial officials of Isabela defended the constitutionality of R.A. No. 8528. They assailed the standing of petitioners to file the petition at bar. They also contend that the petition raises a political question over which this Court lacks jurisdiction.

Another Comment was filed by the Solicitor General for the respondent public officials. The Solicitor General also contends that petitioners are not real parties in interest. More importantly, it is contended that R.A. No. 8528 merely reclassified Santiago City from an independent component city to a component city. It allegedly did not involve any "creation, division, merger, abolition, or substantial alteration of boundaries of local government units," hence, a plebiscite of the people of Santiago is unnecessary.

A third Comment similar in tone was submitted by intervenor Giorgidi B. Aggabao, 3 a member of the provincial board of Isabela. 4 He contended that both the Constitution and the Local Government Code of 1991 do not require a plebiscite "to approve a law that merely allowed qualified voters of a city to vote in provincial elections. The rules implementing the Local Government Code cannot require a plebiscite. He also urged that petitioners lacked locus standi.

Petitioners filed a Reply to meet the arguments of the respondents and the intervenor. They defended their standing. They also stressed the changes that would visit the city of Santiago as a result of its reclassification.

We find merit in the petition.

First. The challenge to the locus standi of petitioners cannot succeed. It is now an ancient rule that the constitutionality of law can be challenged by one who will sustain a direct injury as a result of its enforcement. 5Petitioner Miranda was the mayor of Santiago City when he filed the present petition in his own right as mayor and not on behalf of the city, hence, he did not need the consent of the city council of Santiago. It is also indubitable that the change of status of the city of Santiago from independent component city to a mere component city will affect his powers as mayor, as will be shown hereafter. The injury that he would sustain from the enforcement of R.A. No. 8528 is direct and immediate and not a mere generalized grievance shared with the people of Santiago City. Similarly, the standing of the other petitioners rests on a firm foundation. They are residents and voters in the city of Santiago. They have the right to be heard in the conversion of their city thru a plebiscite to be conducted by the COMELEC. The denial of this right in R.A. No. 8528 gives them proper standing to strike the law as unconstitutional. 1âwphi1.nêt

Second. The plea that this court back off from assuming jurisdiction over the petition at bar on the ground that it involves a political question has to be brushed aside. This plea has long lost its appeal especially in light of Section 1 of Article VIII of the 1987 Constitution which defines judicial power as including "the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." To be sure, the cut between a political and justiciable issue has been made by this Court in many cases and need no longer mystify us. In Tañada v. Cuenco, 6 we held:

xxx xxx xxx

The term "political question" connotes what it means in ordinary parlance, namely, a question of policy. It refers "to those questions which under the Constitution are to be decided by the people in their sovereign capacity; or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government."

It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

In Casibang v. Aquino, 7 we defined a justiciable issue as follows:

A purely justiciable issue implies a given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law, for said breach of right.

Clearly, the petition at bar presents a justiciable issue. Petitioners claim that under Section 10, Article X of the 1987 Constitution they have a right to approve or disapprove R.A. No. 8528 in a plebiscite before it can be enforced. It ought to be self-evident that whether or not petitioners have the said right is a legal not a political question. For whether or not laws passed by Congress comply with the requirements of the Constitution pose questions that this Court alone can decide. The proposition that this Court is the ultimate arbiter of the meaning and nuances of the Constitution need not be the subject of a prolix explanation.

Third. The threshold issue is whether R.A. No. 8528 is unconstitutional for its failure to provide that the conversion of the city of Santiago from an independent component city to a component city should be submitted to its people in a proper plebiscite. We hold that the Constitution requires a plebiscite. Section 10, Article X of the 1987 Constitution provides:

No province, city, municipality, or barangay may be created, or divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

This constitutional requirement is reiterrated in Section 10, Chapter 2 of the Local Government Code (R.A. No. 7160), thus:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

The power to create, divide, merge, abolish or substantially alter boundaries of local government units belongs to Congress. 8 This power is part of the larger power to enact laws which the Constitution vested in Congress. 9 The exercise of the power must be in accord with the mandate of the Constitution. In the case at bar, the issue is whether the downgrading of Santiago City from an independent component city to a mere component city requires the approval of the people of Santiago City in a plebiscite. The resolution of the issue depends on whether or not the downgrading falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of municipalities per Section 10, Article X of the Constitution. A close analysis of the said constitutional provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries of local government units involve a common denominator — material

change in the political and economic rights of the local government units directly affected as well as the people therein. It is precisely for this reason that the Constitution requires the approval of the people "in the political units directly affected." It is not difficult to appreciate the rationale of this constitutional requirement. The 1987 Constitution, more than any of our previous Constitutions, gave more reality to the sovereignty of our people for it was borne out of the people power in the 1986 EDSA revolution. Its Section 10, Article X addressed the undesirable practice in the past whereby local government units were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people. Thus, the consent of the people of the local government unit directly affected was required to serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of local government units. It is one instance where the people in their sovereign capacity decide on a matter that affects them — direct democracy of the people as opposed to democracy thru people's representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution granting more autonomy to local government units.

The changes that will result from the downgrading of the city of Santiago from an independent component city to a component city are many and cannot be characterized as insubstantial. For one, the independence of the city as a political unit will be diminished. The city mayor will be placed under the administrative supervision of the provincial governor. The resolutions and ordinances of the city council of Santiago will have to be reviewed by the Provincial Board of Isabela. Taxes that will be collected by the city will now have to be shared with the province. Petitioners pointed out these far reaching changes on the life of the people of the city of Santiago, viz.: 10

Although RESPONDENTS would like to make it appear that R.A. No. 8528 had "merely re-classified" Santiago City from an independent component city into a component city, the effect when challenged (sic) the Act were operational would be, actually, that of conversion. Consequently, there would besubstantial changes in the political culture and administrative responsibilities of Santiago City, and the Province of Isabela. Santiago City from an independent component city will revert to the Province of Isabela, geographically, politically, and administratively. Thus, the territorial land area of Santiago City will be added to the land area comprising the province of Isabela. This will be to the benefit or advantage of the Provincial Government of Isabela on account of the subsequent increase of its share from the internal revenue allotment (IRA) from the National Government (Section 285, R.A. No. 7160 or the Local Government Code of 1991). The IRA is based on land area and population of local government units, provinces included.

The nature or kinds, and magnitude of the taxes collected by the City Government, and which taxes shall accrue solely to the City Government, will be redefined (Section 151, R.A. No. 7160), and may be shared with the province such as taxes on sand, gravel and other quarry resources (Section 138, R.A. No. 7160), professional taxes (Section 139, R.A. No. 7160), or amusement taxes (Section 140, R.A. No. 7160). The Provincial Government will allocate operating funds for the City. Inarguably, there would be a (sic) diminished funds for the local operations of the City Government because of reduced shares of the IRA in accordance with the schedule set forth by Section 285 of R.A.

No. 7160. The City Government's share in the proceeds in the development and utilization of national wealth shall be diluted since certain portions shall accrue to the Provincial Government (Section 292, R.A. No. 7160).

The registered voters of Santiago City will vote for and can be voted as provincial officials (Section 451 and 452 [c], R.A. No. 7160).

The City Mayor will now be under the administrative supervision of the Provincial Governor who is tasked by law to ensure that every component city and municipality within the territorial jurisdiction of the province acts within the scope of its prescribed powers and functions (Section 29 and 465 (b) (2) (i), R.A. No. 7160), and to review (Section 30, R.A. No. 7160) all executive orders submitted by the former (Section 455 (b) (1) (xii), R.A. No. 7160) and (R)eportorial requirements with respect to the local governance and state of affairs of the city (Section 455 (b) (1) (xx), R.A. No. 7160). Elective city officials will also be effectively under the control of the Provincial Governor (Section 63, R.A. No. 7160). Such will be the great change in the state of the political autonomy of what is now Santiago City where by virtue of R.A. No. 7720, it is the Office of the President which has supervisory authority over it as an independent component city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987 Constitution).

The resolutions and ordinances adopted and approved by the Sangguniang Panlungsod will be subject to the review of the Sangguniang Panlalawigan (Sections 56, 468, (a) (1) (i), 468 (a) (2) (vii), and 469 (c) (4), R.A. No. 7160). Likewise, the decisions in administrative cases by the former could be appealed and acted upon by the latter (Section 67 R.A. No. 7160).

It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality to an independent component city, it required the approval of its people thru a plebiscite called for the purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the will of the people of Santiago City when R.A. No. 8528 downgrades the status of their city. Indeed, there is more reason to consult the people when a law substantially diminishes their right. Rule II, Article 6, paragraph (f) (1) of the Implementing Rules and Regulations of the Local Government Code is in accord with the Constitution when it provides that:

(f) Plebiscite — (1) no creation, conversion, division, merger, abolition, or substantial alteration of boundaries of LGUS shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the LGU or LGUs affected. The plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the effectivity of the law or ordinance prescribing such action, unless said law or ordinance fixes another date.

xxx xxx xxx

The rules cover all conversions, whether upward or downward in character, so long as they result in a material change in the local government unit directly affected, especially a change in the political and economic rights of its people.

A word on the dissenting opinions of our esteemed brethren. Mr. Justice Buena justifies R.A. No. 8528 on the ground that Congress has the power to amend the charter of Santiago City. This power of amendment, however, is limited by Section 10, Article X of the Constitution. Quite clearly, when an amendment of a law involves the creation, merger, division, abolition or substantial alteration of boundaries of local government units, a plebiscite in the political units directly affected is mandatory. He also contends that the amendment merely caused a transitionin the status of Santiago as a city. Allegedly, it is a transition because no new city was created nor was a former city dissolved by R.A. No. 8528. As discussed above, the spirit of Section 10, Article X of the Constitution calls for the people of the local government unit directly affected to vote in a plebiscite whenever there is a material change in their rights and responsibilities. They may call the downgrading of Santiago to a component city as a mere transition but they cannot blink away from the fact that the transition will radically change its physical and political configuration as well as the rights and responsibilities of its people.

On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits the theory that "only if the classification involves changes in income, population, and land area of the local government unit is there a need for such changes to be approved by the people . . . ."

With due respect, such an interpretation runs against the letter and spirit of Section 10, Article X of the 1987 Constitution which, to repeat, states: "No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected." It is clear that the Constitution imposes two conditions — first, the creation, division, merger, abolition or substantial alteration of boundary of a local government unit must meet the criteria fixed by the Local Government Code on income, population and land area and second, the law must be approved by the people "by a majority of the votes cast in a plebiscite in the political units directly affected."

In accord with the Constitution, sections 7, 8, and 9 of the Local Government Code fixed the said criteria and they involve requirements on income, population and land area. These requirements, however, are imposed to help assure the economic viability of the local government unit concerned. They were not imposed to determine the necessity for a plebiscite of the people. Indeed, the Local Government Code does not state that there will be no more plebiscite after its requirements on income, population and land area have been satisfied. On the contrary, section 10, Chapter 2 of the Code provides: "No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes casts in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the COMELEC within one hundred twenty (120) days from the date of the

effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes anotherdate. 11 Senator Aquilino Pimentel, the principal author of the Local Government Code of 1991, opines that the plebiscite is absolute and mandatory. 12

It cannot be overstressed that the said two requirements of the Constitution have different purposes. The criteria fixed by the Local Government Code on income, population and land area are designed to achieve an economic purpose. They are to be based on verified indicators, hence, section 7, Chapter 2 of the Local Government Code requires that these "indicators shall be attested by the Department of Finance, the National Statistics Office, and the Lands Management Bureau of the Department of Environment and Natural Resources." In contrast, the people's plebiscite is required to achieve a political purpose — to use the people's voice as a check against the pernicious political practice of gerrymandering. There is no better check against this excess committed by the political representatives of the people themselves than the exercise of direct people power. As well-observed by one commentator, as the creation, division, merger, abolition, or substantial alteration of boundaries are ". . . basic to local government, it is also imperative that these acts be done not only by Congress but also be approved by the inhabitants of the locality concerned. . . . By giving the inhabitants a hand in their approval, the provision will also eliminate the old practice of gerrymandering and minimize legislative action designed for the benefit of a few politicians. Hence, it promotes the autonomy of local government units." 13

The records show that the downgrading of Santiago City was opposed by certain segments of its people. In the debates in Congress, it was noted that at the time R.A. No. 8528 was proposed, Santiago City has been converted to an independent component city barely two and a half (2 1/2) years ago and the conversion was approved by a majority of 14,000 votes. Some legislators expressed surprise for the sudden move to downgrade the status of Santiago City as there had been no significant change in its socio-economic-political status. The only reason given for the downgrading is to enable the people of the city to aspire for the leadership of the province. To say the least, the alleged reason is unconvincing for it is the essence of an independent component city that its people can no longer participate or be voted for in the election of officials of the province. The people of Santiago City were aware that they gave up that privilege when they voted to be independent from the province of Isabela. There was an attempt on the part of the Committee on Local Government to submit the downgrading of Santiago City to its people via a plebiscite. The amendment to this effect was about to be voted upon when a recess was called. After the recess, the chairman of the Committee announced the withdrawal of the amendment "after a very enlightening conversion with the elders of the Body." We quote the debates, viz.: 14

BILL ON SECOND READING

H.B. No. 8729 — City of Santiago

Senator Tatad. Mr. President, I move that we consider

House Bill No. 8729 as reported out under Committee Report No. 971.

The President. Is there any objection? [Silence] there being none, the motion is approved.

Consideration of House Bill No. 8729 is now in order. With the permission of the Body, the Secretary will read only the title of the bill without prejudice to inserting in the Record the whole text thereof.

The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled:

AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720 ENTITLED "AN ACT CONVERTING THE MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF SANTIAGO

The following is the full text of H.B. No. 8729

Insert

Senator Tatad. Mr. President, for the sponsorship, I ask that the distinguished Chairman of the Committee on Local Government be recognized.

The President. Senator Sotto is recognized.

SPONSORSHIP SPEECH OF SENATOR SOTTO

Mr. President. House Bill No. 8729, which was introduced in the House by Congressman Antonio M. Abaya as its principal author, is a simple measure which merely seeks to convert the City of Santiago into a component city of the Province of Isabela.

The City of Santiago is geographically located within, and is physically an integral part of the Province of Isabela. As an independent component city, however, it is completely detached and separate from the said province as a local political unit. To use the language of the Explanatory Note of the proposed bill, the City of Santiago is an "island in the provincial milieu.

The residents of the city no longer participate in the elections, nor are they qualified to run for any elective positions in the Province of Isabela.

The Province of Isabela, on the other hand, is no longer vested with the power and authority of general supervision over the city and its officials, which power and authority are now exercised by the Office of the President, which is very far away from Santiago City.

Being geographically located within the Province of Isabela, the City of Santiago is affected, one way or the other, by the happenings in the said province, and is benefited by its progress and development. Hence, the proposed bill to convert the City of Santiago into a component city of Isabela.

Mr. President, it is my pleasure, therefore, to present for consideration of this august Body Committee Report No. 971 of the Committee on Local Government, recommending approval, with our proposed committee amendment, of House Bill No. 8729.

Thank you, Mr. President.

The President. The Majority Leader is recognized.

Senator Tatad. Mr. President, I moved (sic) that we close the period of interpellations.

The President. Is there any objection? [Silence] There being none, the period of interpellations is closed.

Senator Tatad. I move that we now consider the committee amendments.

Senator Roco. Mr. President.

The President. What is the pleasure of Senator Roco?

Senator Roco. Mr. President, may I ask for a reconsideration of the ruling on the motion to close the period of interpellations just to be able to ask a few questions?

Senator Tatad. May I move for a reconsideration of

my motion, Mr. President.

The President. Is there any objection to the reconsideration of the closing of the period of interpellations? [Silence] There being none, the motion is approved.

Senator Roco is recognized.

Senator Roco. Will the distinguished gentlemen yield for some questions?

Senator Sotto. Willingly, Mr. President.

Senator Roco. Mr. President, together with the Chairman of the Committee on Local Government, we were with the sponsors when we approved this bill to make Santiago a City. That was about two and a half years ago. At that time, I remember it was the cry of the city that it be "independent." Now we are deleting that word "independent."

Mr. President, only because I was a co-author and a co-sponsor, for the Record, I want some explanation on what happened between then and now that has made us decided that the City of Santiago should cease to be independent and should now become a component city.

Senator Sotto. Mr. President, the officials of the province said during the public hearing that they are no longer vested with the power and authority of general supervision over the city. The power and authority is now being exercised by the Office of the President and it is quite far from the City of Santiago.

In the public hearing, we also gathered that there is a clamor from some sectors that they want to participate in the provincial elections.

Senator Roco. Mr. President, I did not mean to delay this. I did want it on record, however. I think there was a majority of 14,000 who approved the charter, and maybe we owe it to those who voted for that charter some degree of respect. But if there has been a change of political will, there has been a change of political will, then so be it.

Thank you, Mr. President.

Senator Sotto. Mr. President, to be very frank about it, that was a very important point raised by Senator Roco, and I will have to place it on the Record of the Senate that the reason why we are proposing a committee amendment is that, originally, there was an objection on the part of the local officials and those who oppose it by incorporating a plebiscite in this bill. That was the solution. Because there were some sectors in the City of Santiago who were opposing the reclassification or reconversion of the city into a component city.

Senator Roco. All I wanted to say, Mr. President — because the two of us had special pictures (sic) in the city — is that I thought it should be put on record that we have supported originally the proposal to make it an independent

city. But now if it is their request, then, on the manifestation of the Chairman, let it be so.

Thank you.

Senator Drilon. Mr. President.

Senator Drilon. Will the gentleman yield for a few questions, Mr. President.

Senator Sotto. Yes, Mr. President.

Senator Drilon. Mr. President, further to the interpellation of our good friend, the Senator from Bicol, on the matter of the opinion of the citizens of Santiago City, there is a resolution passed by the Sanggunian on January 30, 1997 opposing the conversion of Santiago from an independent city.

This opposition was placed on records during the committee hearings. And that is the reason why, as mentioned by the good sponsor, one of the amendments is that a plebiscite be conducted before the law takes effect.

The question I would like to raise — and I would like to recall the statement of our Minority Leader — is that, at this time we should not be passing it for a particular politician.

In this particular case, it is obvious that this bill is being passed in order that the additional territory be added to the election of the provincial officials of the province of Isabela.

Now, is this for the benefit of any particular politician, Mr. President.

Senator Sotto. If it is, I am not aware of it, Mr. President.

Senator Alvarez. Mr. President.

The President. With the permission of the two gentlemen on the Floor, Senator Alvarez is recognized.

Senator Alvarez. As a born inbred citizen of this city, Mr. President, may I share some information.

Mr. President, if we open up the election of the city to the provincial leadership, it will not be to the benefit of the provincial leadership, because the provincial leadership will then campaign in a bigger territory.

As a matter of fact, the ones who will benefit from this are the citizens of Santiago who will now be enfranchised in the provincial electoral process, and whose children will have the opportunity to grow into provincial leadership. This is one of the prime reasons why this amendment is being put forward.

While it is true that there may have been a resolution by the city council, those who signed the resolution were not the whole of the council. This

bill was sponsored by the congressman of that district who represents a constituency, the voice of the district.

I think, Mr. President, in considering which interest is paramount, whose voice must be heard, and if we have to fathom the interest of the people, the law which has been crafted here in accordance with the rules should be given account, as we do give account to many of the legislations coming from the House on local issues.

Senator Drilon. Mr. President, the reason why I am raising this question is that, as Senator Roco said, just two and-a-half years ago we passed a bill which indeed disenfranchized — if we want to use that phrase — the citizens of the City of Santiago in the matter of the provincial election. Two-and-a-half years after, we are changing the rule.

In the original charter, the citizens of the City of Santiago participated in a plebiscite in order to approve the conversion of the city into an independent city. I believe that the only way to resolve this issue raised by Senator Roco is again to subject this issue to another plebiscite as part of the provision of this proposed bill and as will be proposed by the Committee Chairman as an amendment.

Thank you very much, Mr. President.

Senator Alvarez. Mr. President, the Constitution does not require that the change from an independent to a component city be subjected to a plebiscite.

Secs. 10, 11, 12 of Article X of the 1987 Constitution provides as follows:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

This change from an independent city into a component city is none of those enumerated. So the proposal coming from the House is in adherence to this constitutional mandate which does not require a plebiscite.

Senator Sotto. Mr. President, the key word here is "conversion". The word "conversion" appears in that provision wherein we must call a plebiscite. During the public hearing, the representative of Congressman Abaya was insisting that this is not a conversion; this is merely a reclassification. But it is clear in the bill.

We are amending a bill that converts, and we are converting it into a component city. That is how the members of the committee felt. That is why we have proposed an amendment to this, and this is to incorporate a plebiscite in as much as there is no provision on incorporating a plebiscite. Because we would like not only to give the other people of Santiago a chance or be enfranchised as far as the leadership of the province is concerned, but also we will give a chance to those who are opposing it. To them, this is the best compromise. Let the people decide, instead of the political leaders of Isabela deciding for them.

Senator Tatad. Mr. President.

The President. The Majority Leader is recognized.

Senator Tatad. At this point, Mr. President, I think we can move to close the period of interpellations.

The President. Is there any objection? [Silence] There being none, the motion is approved.

Senator Tatad. I move that we now consider the committee amendments, Mr. President.

The President. Is there any objection? [Silence] There being none the motion is approved.

Senator Sotto. On page 2, after line 13, insert a new Section 3, as follows:

Sec 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY AMENDED BY DELETING THE ENTIRE SECTION AND IN ITS STEAD SUBSTITUTE THE FOLLOWING:

Sec. 49. PLEBISCITE. — THE CONVERSION OF THE CITY OF SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF ISABELA SHALL TAKE EFFECT UPON THE RETIFICATION OF THIS ACT BY A MAJORITY OF THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE WITHIN SIXTY (60) DAYS FROM THE APPROVAL OF THIS ACT. THE COMMISSION ON ELECTIONS SHALL CONDUCT AND SUPERVISE SUCH PLEBISCITE.

The President. Is there any objection?

Senator Enrile. Mr. President.

The President. Senator Enrile is recognized.

Senator Enrile. I object to this committee amendment, Mr. President.

SUSPENSION OF SESSION

Senator Tatad. May I ask for a one-minute suspension of the session.

The President. The session is suspended for a few minutes if there is no objection. [There was none].

It was 7:54 p.m.

RESUMPTION OF SESSION

At 7:57 p.m., the session was resumed.

The President. The session is resumed.

Senator Sotto is recognized.

Senator Sotto. Mr. President, after a very enlightening conversation with the elders of the Body, I withdraw my amendment.

The President. The amendment is withdrawn.

Senator Maceda. Mr. President.

The President. Senator Maceda is recognized.

Senator Maceda. We wish to thank the sponsor for the withdrawal of the amendment.

Mr. President, with due respect to the Senator from Isabela — I am no great fan of the Senator from Isabela — but it so happens that this is a local bill affecting not only his province but his own city where he is a resident and registered voter.

So, unless the issue is really a matter of life and death and of national importance, senatorial courtesy demands that we, as much as possible, accommodate the request of the Senator from Isabela as we have done on matters affecting the district of other senators. I need not remind them.

Thank you anyway, Mr. President.

Senator Alvarez. Mr. President.

The President. Senator Alvarez is recognized.

Senator Alvarez. Mr. President, may I express my deepest appreciation for the statement of the gentleman from Ilocos and Laguna. Whatever he may have said, the feeling is not mutual. At least for now, I have suddenly become his great fan for the evening.

May I put on record, Mr. President, that I campaigned against the cityhood of Santiago not because I do not want it to be a city but because it had disenfranchised the young men of my city from aspiring for the leadership of the province. The town is the gem of the province. How could we extricate the town from the province?

But I would like to thank the gentleman, Mr. President, and also the Chairman of the Committee.

Senator Tatad. Mr. President.

The President. The Majority Leader is recognized.

Senator Tatad. There being no committee amendments, I move that the period of committee

amendments be closed.

The President. Shall we amend the title of this bill by removing the word "independent" preceding "component city"?

Senator Sotto. No, Mr. President. We are merely citing the title. The main title of this House Bill No. 8729 is "An Act Amending Certain Sections of Republic Act 7720". The title is the title of Republic Act 7720. So, I do not think that we should amend that anymore.

The President. What is the pending motion? Will the gentleman kindly state the motion?

Senator Tatad. I move that we close the period of committee amendments.

The President. Is there any objection? [Silence] There being none, the

motion is approved.

Senator Tatad. Unless there are any individual amendments, I move that we close the period of individual amendments.

The President. Is there any objection? [Silence] There being none, the period of individual amendments is closed.

APPROVAL OF H.B. NO. 8729 ON SECOND READING

Senator Tatad. Mr. President, I move that we vote on Second Reading on House Bill No. 8729.

The President. Is there any objection? [Silence] There being none, we shall now vote on Second Reading on House Bill No. 8729.

As many as are in favor of the bill, say aye.

Several Members. Aye.

As many as are against the bill, say nay. [Silences]

House Bill No. 8279 is approved on Second Reading.

The debates cannot but raise some quizzical eyebrows on the real purpose for the downgrading of the city of Santiago. There is all the reason to listen to the voice of the people of the city via a plebiscite.

In the case of Tan, et al. v. COMELEC, 15 BP 885 was enacted partitioning the province of Negros Occidental without consulting its people in a plebiscite. In his concurring opinion striking down the law as unconstitutional, Chief Justice Teehankee cited the illicit political purpose behind its enactment, viz:

The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President." Thus, the petitioners reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the "solid North" to ex-President Marcos. The rest is history. What happened in Negros del Norte during the elections — the unashamed use of naked power and resources — contributed in no small way to arousing "people's power" and steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today.

The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz., the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of Las Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladoid, San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected. It follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole is affected by its proposed division and substantial

alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule.

Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when allegedly independent component cities were downgraded into component cities without need of a plebiscite. They cite the City of Oroquieta, Misamis Occidental, 16 and the City of San Carlos, Pangasinan 17 whose charters were amended to allow their people to vote and be voted upon in the election of officials of the province to which their city belongs without submitting the amendment to a plebiscite. With due respect, the cities of Oroquieta and San Carlos are not similarly situated as the city of Santiago. The said two cities then were not independent component cities unlike the city of Santiago. The two cities were chartered but were not independent component cities for both were not highly urbanized cities which alone were considered independent cities at that time. Thus, when the case of San Carlos City was under consideration by the Senate, Senator Pimentel explained: 18

. . . Senator Pimentel. The bill under consideration, Mr. President, merely empowers the voters of San Carlos to vote in the elections of provincial officials. There is no intention whatsoever to downgrade the status of the City of San Carlos and there is no showing whatsoever that the enactment of this bill will, in any way, diminish the powers and prerogatives already enjoyed by the City of San Carlos. In fact, the City of San Carlos as of now, is a component city. It is not a highly urbanized city. Therefore, this bill merely, as we said earlier, grants the voters of the city, the power to vote in provincial elections, without in any way changing the character of its being a component city. It is for this reason that I vote in favor of this bill.

It was Senator Pimentel who also sponsored the bill 19 allowing qualified voters of the city of Oroquieta to vote in provincial elections of the province of Misamis Occidental. In his sponsorship speech, he explained that the right to vote being given to the people of Oroquieta City was consistent with its status as a component city. 20 Indeed, during the debates, former Senator Neptali Gonzales pointed out the need to remedy the anomalous situation then obtaining". . . where voters of one component city cannot vote simply because their charters so provide." 21 Thus, Congress amended other charters of component cities prohibiting their people from voting in provincial elections.

IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is declared unconstitutional and the writ of prohibition is hereby issued commanding the respondents to desist from implementing said law.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Pardo, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Vitug, J., pls. see separate opinion.

Mendoza, J., please see dissent.

Quisumbing and Purisima, JJ., we join Justice Mendoza in his dissent.

Buena, J., please see dissent.

Separate Opinions

VITUG, J., separate opinion;

I share the opinion of the majority of my colleagues that, for the reasons expressed in the ponencia, a plebiscite is essential in order to render effective the conversion of the City of Santiago, Isabela, from an independent to a component city. I would not go to the extent, however, of declaring Republic Act No. 7720 unconstitutional; instead, with due respect, I take the view that a plebiscite can be held conformably with the provisions of the Local Government Code. I do not see, in this instance, a serious incompatibility in having Republic Act No. 7720 stand along with the Local Government Code.

MENDOZA, J., dissenting opinion;

The issue in this case is whether the conversion of the City of Santiago in Isabela province from an independent component city to a component city constitutes the creation, division, merger, abolition, or substantial alteration of the boundary of a city within the contemplation of Art. X, §10 of the Constitution so as to require the approval of the people in a plebiscite. The Court, in declaring R.A. No. 8528 unconstitutional for lack of provision for a plebiscite, does not say that the reclassification of Santiago City as an ordinary component city constitutes creation, division, merger, abolition, or substantial alteration of boundary. Nonetheless, the Court today holds that because the reclassification of the city would result in a "material change in the political and economic rights of the local government units directly affected as well as the people therein," the approval of the law in a plebiscite is required. 1âwphi1.nêt

With all due respect I submit that not every change — however "material" and far-reaching — in the classification of a local government unit requires popular approval. Only if the reclassification involves changes in income, population, and land area of the local government unit is there a need for such changes to be approved by the people, for then there would be a creation, division, merger, abolition, or substantial alteration of the boundary of a local government unit, as the case may be, within the meaning of Art. X, §10 of the Constitution. Thus, the Local Government Code (R.A. No. 7160), in implementing the constitutional provision in question, states:

Sec. 7. Creation and Conversion. — As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators or viability and projected capacity to provide services, to wit:

(a) Income. — It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned;

(b) Population. — It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c) Land Area. — It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).

Sec. 8. Division and Merger. — Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, That the income classification of the original local government unit or units shall not fall below its current income classification prior to such division.

The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein.

Sec. 9. Abolition of Local Government Units. — A local government unit may be abolished when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sanggunian concerned, as the case may be.

The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged.

The conversion from an independent component city to a component city involves no such changes in income, population, or land area. There may be changes in the voting rights of

the residents of the city, the supervision of the city's administration, and the city's share in the local taxes, as petitioners point out, but such changes do not amount to the creation, division, merger, abolition, or substantial alteration of the boundary of a local government unit so as to require a plebiscite for their approval. An independent component city and an ordinary component city are both component cities, as distinguished from highly urbanized cities. 1 The only difference between them is that the charters of the independent component cities prohibit their voters from voting for provincial elective officials and such cities are independent of the provinces in which they are located. 2 Thus, the Local Government Code provides:

Sec. 450. Requisites for Creation. — (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites:

(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and nonrecurring income.

Sec. 451. Cities, Classified. — A city may either be component or highly urbanized: Provided,however, That the criteria established in this Code shall not affect the classification and corporate status of existing cities.

Independent component cities are those component cities whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the province.

Sec. 452. Highly Urbanized Cities. — (a) Cities with a minimum population of two hundred thousand (200,000.00) inhabitants, as certified by the National Statistics Office, and with the latest annual

income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the city treasurer; shall be classified as highly urbanized cities.

(b) Cities which do not meet the above requirements shall be considered component cities of the province in which they are geographically located. If a component city is located within the boundaries of two (2) or more provinces, such city shall be considered a component of the province of which it used to be a municipality.

(c) Qualified voters of highly urbanized cities shall remain excluded from voting for elective provincial officials.

Unless otherwise provided in the Constitution or this Code, qualified voters of independent component cities shall be governed by their respective charters, as amended, on the participation of voters in provincial elections.

Qualified voters of cities who acquired the right to vote for elective provincial officials prior to the classification of said cities as highly urbanized after the ratification of the Constitution and before the effectivity of this Code, shall continue to exercise such right.

The Court says that the changes resulting from the reclassification of Santiago City as an ordinary component city "cannot be considered insubstantial." For one, it is said, its independence will be diminished because the city mayor will be placed under the administrative supervision of the provincial governor. For another, the resolutions and ordinances of the city council will have to be approved by the provincial board of Isabela.

The fact is that whether the City of Santiago is an independent component city or an ordinary component city, it is subject to administrative supervision, with the only difference that, as an independent component city, it is under the direct supervision of the President of the Philippines, whereas, as an ordinary component city, it will be subject to the supervision of the President through the province. 3 That is hardly a distinction. For the fact is that under the Constitution, the President of the Philippines exercises general supervision over all local governments. 4

Nor does it matter that ordinances passed by the city councils of component cities are subject to review (not approval as the Court says) by the provincial boards for the purpose of determining whether the ordinances are within the powers of the city councils to enact. 5 For that matter, ordinances passed by the city councils of independent component cities are likewise subject to review, although by the Office of the President. 6 The reason for this is to be found in Art. X, §4 of the Constitution which provides:

The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component

barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

In any case, these are not important differences which determine whether the law effecting them should be approved in a plebiscite. The defining characteristics of a local government unit are its income, population, and local area, as §§450 and 452 of the LGC provide. These are referred to in §7 of the LGC and its Implementing Rules as the "verifiable indicators of viability and projected capacity to provide services." Tested by these standards, there is no change in the City of Santiago requiring the approval of the people in a plebiscite.

The majority states: "It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality to an independent component city, it required the approval of its People thru a plebiscite called for the purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the will of the people of Santiago City when R.A. No. 8525 downgrades the status of their city." The conversion of the then Municipality of Santiago in Isabela Province by R.A. No. 7720 was an act of creation. It was based on the municipality's satisfying the requisites for the creation of a city as provided in the LGC, to wit:

Sec. 450. Requisites for Creation. — (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of a least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites:

(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office;

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and nonrecurring income.

As thus indicated these requisites are based on the "verifiable indicators" of income, population, and land area and, therefore, the conversion of what was once a municipality into a city needed approval in a plebiscite. But the conversion of Santiago City from an independent component city into a component city involves no more than a change in the right of the people (i.e., the registered voters of the city) to vote for provincial elective officials.

If an analogy is needed, it is to the reversion of a component city — whether independent or ordinary — to the status of a municipality. For then the city is actually abolished and abolition, as stated in the Art. X, §10 of the Constitution, must be approved by the majority of the votes cast in a plebiscite. Stated otherwise, when a municipality is converted into a city, a city is created, and when the city is reverted into a municipality, the city isabolished. Both acts of creation and abolition require the approval of the people in a plebiscite called for the purpose. But when an independent component city is converted into a component city, it is not created into another form, it is not divided, it is not merged with another unit of local government, it is not abolished, much less is its boundary substantially altered.

Indeed, this is not the first time that an independent component city is converted into a component city without a plebiscite. The City of Oroquieta, created as an independent component city in 1969 by R.A. No. 5518, was converted into a component city in 1989 by R.A. No. 6726, while the City of San Carlos, created as an independent component city in 1965 by R.A. No. 4187, was converted into a component city by R.A. No. 6843 in 1990. In both cases, the conversion was made without submitting the matter to a plebiscite.

There is, therefore, no reason for requiring that the reclassification of Santiago City as a component city must be approved by the majority of the votes cast in a plebiscite and for holding that, because R.A. No. 8528 contains no provision for such plebiscite, it is unconstitutional.

It is easy to sympathize with calls for plebiscites as an exercise of direct democracy by the people. But, although the Constitution declares that "Sovereignty resides in the people and all government authority emanates from them," it also provides that we are a "republican State." 7 It is thus a representative form of government that we have. With few exceptions, we have vested the legislative power in the Congress of the Philippines. 8 This means that when an act of the people's representatives assembled in Congress is duly passed and approved by the President in the manner prescribed in the Constitution, the act becomes a law 9 without the need of approval or ratification by the people in order to be effective. 10

This is the theory of representative government. Such a government is no less democratic because it is indirect. In some ways it is better than direct government given the complexity of modern society, let alone the volatility of voters and their susceptibility to manipulation. In this age of mass communication there is less reason to distrust the judgment of the people's representatives in Congress on matters such as this and, therefore, no reason to require the people to manifest their sovereign will, except where this is expressly required by the Constitution.

For the foregoing reasons, I vote to dismiss the petition in this case.

BUENA, J., dissenting opinion;

With all due respect to my esteemed colleague, Mr. Justice Reynato S. Puno, whose well-written ponenciaexpresses his opinion with clarity, I regret that I am unable to agree that Republic Act No. 8528 should be declared as unconstitutional for the following reasons:

1. Section 10, Article X of the 1987 Constitution provides that —

Sec. 10, Article X. — No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Sec. 10 Chapter 2 of the Local Government Code (R.A. No. 7160) provides:

Sec. 10, Chapter 2. — Plebiscite Requirement. No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.

In short, conversion does not appear in the 1987 Constitution nor in the Section 10, Chapter 2 of the Local Government Code. Surprisingly, Rule II, Article 6, paragraph (f) (1) of the Implementing Rules of the Local Government Code included conversion in the enumeration of the modes of changing the status of local government units, thus:

(f) Plebiscite. — (1) No creation, conversion, division, merger, abolition, or substantial alteration of boundaries of LGUs shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the LGU or LGUs affected. The plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the effectivity of the law or ordinance prescribing such action, unless said law or ordinance fixes another date.

xxx xxx xxx (emphasis supplied)

Other than that, the Local Government Code uses the term "conversion" only in the following instances: (1) Section 7, which provides that "[a]s a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: . . . . . .;" (2) Section 450, which provides for the requisites for the "conversion" of a municipality or a cluster of barangays into a component city; and (3) Section 462, which involves the "conversion" of existing sub-provinces into regular provinces.

Senator Aquilino Pimentel, Jr. defines 1 — "conversion," as "the elevation of an LGU from one level to another, like converting a municipality to a city or a component city to a highly urbanized one or the raising of the classification of one municipality, city or province from a fourth class category to third, second or first." It is my humble opinion therefore that the requirement of a plebiscite does not apply to the case at bar which does not involve the upgrading or elevation of Santiago City but a downgrading thereof.

2. I am not convinced that a mere Rule and Regulation intended to implement the Local Government Code can expand the terms and provisions clearly expressed in the basic law to be implemented. As aptly contended by the Solicitor General in his Comment on the petition viz.:

It is a settled jurisprudence that the power of administrative agencies to promulgate rules and regulations must be in strict compliance with the legislative enactment. Thus, in Tayug Rural Bank vs.Central Bank of the Philippines (146 SCRA 129-30), this Honorable Court ruled that in the case of discrepancy between the basic law and a rule or regulation to implement said law, the basic law prevails as said rule or regulation can not go beyond the terms and provisions of the basic law. Neither can such rules and regulations extend or expand the letter and spirit of the law they seek to implement. (Iglesia ni Kristo vs. Court of Appeals, 259 SCRA529) 2

As a matter of fact, Mr. Justice Puno, in his ponencia in the above cited case of Iglesia ni Kristo, opined that "(T)his rule is void for it runs smack against the hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they seek to enforce. 3

3. The proceedings in the Senate show that the Committee on Local Government, to which H.B. No. 8729 was referred, reported back to the Senate with the recommendation that it be approved with the following amendment:

Sec. 3. Section 49 of Republic Act No. 7720 is hereby amended by deleting the entire section and in its stead substitute the following:

Sec. 49. PLEBISCITE. — THE CONVERSION OF THE CITY OF SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF ISABELA SHALL TAKE EFFECT UPON THE RATIFICATION OF THIS ACT BY A MAJORITY OF THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE WITHIN (60) DAYS FROM THE APPROVAL OF THIS ACT. THE COMMISSION ON ELECTIONS SHALL CONDUCT AND SUPERVISE SUCH PLEBISCITE.

However, after the deliberations in the Senate, the Committee on Local Government decided to withdraw the foregoing proposed amendment. Hence, on February 6, 1998, the Republic Act No. 8528, the constitutionality of which is challenged by the petitioners, was approved.

Be that as it may, may this Court properly require a plebiscite for the validity of said law when Congress itself, which had been given the opportunity to include such a requirement, decided against it? Are we not supplanting our judgment over that of Congress, a co-equal branch of government entrusted by the Constitution to enact laws? I respectfully submit that we may not do so without disturbing the balance of power as apportioned and delineated by the Constitution.

4. I likewise submit that we must consider the ramifications of a declaration of unconstitutionality of Republic Act No. 8528 on Republic Act No. 6726 (1989) and Republic Act No. 6843 (1990), respectively allowing the voters of the City of Oroquieta (Misamis Oriental) and San Carlos City (Pangasinan) to vote and be voted for any of the respective provincial offices, in effect downgrading them from independent component cities to component cities. The resulting confusion on the political structures of the local government units involved would surely be disastrous to the order and stability of these cities.

5. Finally, in a situation where the supposed breach of the constitution is doubtful, equivocal and, at best, based on argumentative implications, I believe that, as we have ruled in a plethora of cases 4, every law has in its favor, the presumption of constitutionality and in case of doubt, the Court must exert every effort to prevent the invalidation of the law and the nullification of the will of the legislature that enacted it and the executive that approved it. 1âwphi1.nêt

I therefore vote to dismiss the petition.

G.R. No. 135927              June 26, 2000

SULTAN USMAN SARANGANI, SORAIDA M. SARANGANI and HADJI NOR HASSAN, petitioners, vs.COMMISSION ON ELECTIONS and HADJI ABOLAIS R. OMAR, MANAN OSOP and ATTY. NASIB D. YASSIN,respondents.

BUENA, J.:

Way back in the 1950's and during the martial law era, it has been said that even the dead, the birds and the bees voted in Lanao. This petition for certiorari under Rule 65 of the Rules of Court which seeks to nullify the Order issued by the Commission on Elections [COMELEC, for brevity] dated June 29, 1998, finding Padian Torogan in Madalum, Lanao Del Sur as "ghost precinct," is an illustrative case.

The facts are as follows:

On September 15, 1997, a petition for annulment of several precincts and annulment of book of voters in Madalum, Lanao Del Sur was filed with the COMELEC by, among others, Hadji Oblais R. Omar thru counsel Atty. Nasib D. Yasin, herein private respondents. Among the precincts sought to be annulled was Padian Torogan, subject matter of the present petition for certiorari.1

On September 18, 1997, the COMELEC, thru the Clerk of the Commission sent telegrams to the respective Board of Election Inspectors (BEI) of the questioned precincts in Madalum, Lanao Del Sur, including Padian Torogan, to file their answer to the petition for abolition of precincts and annulment of book of voters.2

On October 31, 1997, the incumbent mayor of Madalum, Lanao Del Sur, Usman T. Sarangani, herein petitioner, together with other oppositors who were allegedly barangay chairmen of the twenty three (23) barangays the "Books of Voters" and precincts of which were sought to be annulled and abolished, respectively, filed an "Answer in Opposition"3 which included the affidavits of the barangay chairmen of the affected precincts attesting to the fact that the move to annul the book of voters and abolish the questioned election precincts were for the purpose of diminishing the bailiwicks of the incumbent mayor of Madalum, Lanao del Sur. 4

After hearing and submission of formal offer of exhibits and memoranda by the parties, the COMELEC issued an Order 5 dated February 11, 1998, referring the case to its Law Department for appropriate investigation. The COMELEC Law Department conformably issued a memorandum dated April 29, 1998 directing Atty. Muslemin Tahir, the Provincial Election Supervisor of Marawi City, Lanao del Sur "to conduct a rigorous incisive investigation on the alleged ghost precincts and thereafter submit a report on the investigation conducted."6 Consequently, Atty. Tahir created a TASK FORCE INVESTIGATION TEAM by virtue of a memorandum dated June 13, 1998 directing Election Officers Casan Macadato, Sacrain Guro and Anuar Datudacula "to conduct ocular inspection on the alleged twelve (12) ghost barangays in the Municipality of Madalum, Lanao Del Sur." 7

On June 18, 1998, an ocular inspection was conducted on the alleged ghost precincts yielding the following results —

At 12:10 pm, the Task Force Investigation Team from the COMELEC accompanied by traditional leaders, political leaders, many concerned residents of this town, a representative from the Lanao del Sur Provincial Statistics Office, Mr. Lacson Abdullah, and a Team from the DILG-ARMM, Lanao del Sur, arrived in the area supposedly Barangay Padian Torogan with these comments and observations:

It appears that in this area there are only two structures: One is a concrete house with no roof, and the other is a wooden structure without walls and roof. This

obviously mean that no single human being could possibly reside in these two structures.

Also, it came out that the name Padian-Torogan means a cemetery not a residential place. So this contradicts the records being brought by the COMELEC Team from the Census saying that the area has 45 households with a total population of 285. (Ref. Municipal census Report as of September 1, 1995).

Besides, no less than the Chairman of the COMELEC Investigating Team asked the people around who among them is a resident or a registered voter in the so-called Barangay Padian-Torogan, and no one answered affirmatively.

Then at 12:50 PM, the COMELEC Investigating Team still with the people mentioned above are in Barangay Lumbac to look for the other supposed Barangay named Rakutan, and found this observations.

x x x           x x x          x x x

By the way, unfortunately, at the peak of this ocular inspection, the Madalum Municipal Chief of Police Mahdi Mindalano, armed with UZI pistolized Machine Gun, arrived at the scene at exactly 12:55 pm boarding an orange Mitsubishi car with four armed bodyguards, the (sic) confronted the Team Leader of the COMELEC Investigating Group and angrily insisted to stop the ocular inspection.

This STACOM Mindalano, in warning a photographer not to take a shot on him, pointed his pistolized Rifle to this man when the photographer positioned his camera to take a picture of him while he is arguing with the investigating leader, Mr. CASAN MACADATO.

Moving camera film and several pictures are added hereto for further information and as exhibits. Also attached hereof are the names and signatures of among the more-or-less one hundred people who observed the conduct of this ocular inspection.

(NOTE: This writer, Mr. Khalil Y. Alawi, is a member of the five (5) man Committee from the DILG-ARMM, Lanao del Sur created in respect to the Memo/Invitation from the COMELEC Provincial Office of Lanao del Sur dated June 15, 1998 signed by Mr. CASAN MACADATO, EO II, Chief Investigation Team. Mr. Macadato designated verbally and in public Mr. ALAWI to be his Secretary during this investigation, and of course, the (sic) with the consent of the DILG Team).1âwphi1.nêt

I hereby certify that the foregoing are true and correct to the best of my knowledge.

Prepared by: (sgd) Khalil Y. Alawi

Member, DILG Team

Submitted by: (sgd) Casan Macadato

Election Officer II

Chairman, Task Force Investigation Team8

On the basis of the foregoing, Election Officer Casan Macadato submitted to the Provincial Election Supervisor of COMELEC in Marawi City its 1st Indorsement dated June 19, 1998 reporting the results of the ocular inspection that Padian Torogan and Rakutan were uninhabited.9

On June 29, 1998, the COMELEC issued the assailed Order finding "Padian Torogan as ghost precinct." The dispositive portion of the COMELEC Order reads:

ACCORDINGLY, the Commission En Banc:

(1) resolves to GRANT the request and hereby:

(a) DIRECTS the Task Force Investigating Team created pursuant to the Order of the Commission en banc dated February 11, 1998, to continue the conduct of ocular inspection and investigation as contained in the original directive of the Law Department dated April 29, 1998;

(b) RECOMMENDS to the PNP Director and the Regional Director of the Philippine National police, (1) to immediately relieve and transfer Chief of Police Mahdi Mindalano of Madalum, Lanao del Sur and transfer him to an area where it will be extremely difficult for him to return to Mandalum and do further damage to effort of the Commission to investigate ghost precincts in said area considering the urgency of said investigation. (2) to look into the possibility of involvement of other policement (sic) in Madalum in the aforestated criminal mischief of the Police Station Commander or their possible partisanship.

(c) RECOMMENDS to AFP Regional Command, Armed Forces of the Philippines, to immediately assign sufficient number of men to maintain peace and order in the Municipality of Madalum, Lanao del Sur, and to escort and secure the safety of the COMELEC Investigating Team during the conduct of ocular inspections and investigations.

(2) finds Padain Togoran as ghost precinct and shall be excluded from the special election to be conducted in Madalum.

(3) Order the Investigating Team, thru Madatu, to immediately resume the investigation, the remaining ghost precincts in Madalum and to submit its findings to the Commission with dispatch, allowing it to submit partial findings if necessary.

The Law Department of this Commission is hereby directed to implement this order.

SO ORDERED. (emphasis supplied) 10

On November 3, 1998, Sultan Usman Sarangani, Soraida M. Sarangani and Hadji Nor Hassan, in their respective capacity as former Municipal Mayor, incumbent Mayor and Vice-Mayor of Madalum filed the instant petition forcertiorari and mandamus urging us to nullify the Order issued by the COMELEC, for having been issued with grave abuse of discretion. Likewise, petitioners moved to consolidate this case with G.R. No. 134456 entitled "Sultan Sarangani, et. al vs. COMELEC, et. al" alleging that G.R. No. 134456 also involves a COMELEC decision declaring the precinct corresponding to eight (8) barangays in Madalum, Lanao del Sur as ghosts precincts.

In a resolution 11 issued by this Court on January 19, 1999, we denied the motion to consolidate, considering that G.R. No. 134456 had already been dismissed in our resolutions of August 4, 1998 and August 18, 1998.

The basic issue to be resolved in this petition is whether or not the respondent COMELEC committed grave abuse of discretion in declaring Padian-Torogan as ghost precinct. 12

On a preliminary matter, though not clear, it appears from the records that Padian Torogan is a barangay in Madalum, Lanao del Sur and it was erroneous for the COMELEC to consider Padian-Torogan as a ghost precinct. In any case, the court is not tasked to determine whether the so-called Padian Torogan is a barangay or a mere election. The petition states that precinct No. 27A located in Barangay Padian Torogan was the one declared as a ghost precinct by the COMELEC although the assailed Order did not mention any specific precinct but simply declared "Padian Torogan as ghost precinct." To be clear, what was necessarily contemplated by the assailed Order would be the election precinct in the said place.

It must be noted that under the Omnibus Election Code, there should be at least one precinct per barangay. 1 In designating election precincts, the COMELEC usually refers to them by number. Nevertheless, the determination of whether a certain election precinct actually exists or not and whether the voters registered in said precinct are real voters is a factual matter. On such issue, it is a time-honored precept that factual findings of the COMELEC based on its own assessments and duly supported by evidence, are conclusive upon this Court, more so, in the absence of a substantiated attack on the validity of the same. 14 Upon review of the records, the Court finds that the COMELEC had exerted

efforts to investigate the facts and verified that there were no public or private buildings in the said place, hence its conclusion that there were no inhabitants. If there were no inhabitants, afortiori, there can be no registered voters, or the registered voters may have left the place. It is not impossible for a certain barangay not to actually have inhabitants considering that people migrate. A barangay may officially exist on record and the fact that nobody resides in the place does not result in its automatic cessation as a unit of local government. Under the Local Government Code of 1991, the abolition of a local government unit (LGU) may be done by Congress in the case of a province, city, municipality, or any other political subdivision. 15 In the case of a barangay, except in Metropolitan Manila area and in cultural communities, it may be done by the Sangguniang Panlalawigan or Sangguniang Panglunsod concerned subject to the mandatory requirement of a plebiscite 16conducted for the purpose in the political units affected. 1awphil

The findings of the administrative agency cannot be reversed on appeal or certiorari particularly when no significant facts and circumstances are shown to have been overlooked or disregarded which when considered would have substantially affected the outcome of the case. The COMELEC has broad powers to ascertain the true results of an election by means available to it. 17 The assailed order having been issued pursuant to COMELEC's administrative powers and in the absence of any finding of grave abuse of discretion in declaring a precinct as non-existent, said order shall stand. Judicial interference is unnecessary and uncalled for. 18 No voter is disenfranchised because no such voter exist. The sacred right of suffrage guaranteed by the Constitution 19 is not tampered when a list of fictitious voters is excluded from an electoral exercise. Suffrage is conferred by the Constitution only on citizens who are qualified to vote and are not otherwise disqualified by law. On the contrary, such exclusion of non-existent voters all the more protects the validity and credibility of the electoral process as well as the right of suffrage because the "electoral will" would not be rendered nugatory by the inclusion of some ghost votes. Election laws should give effect to, rather than frustrate the will of the people. 20

WHEREFORE, the petition is hereby DISMISSED, and the assailed Order dated June 29, 1998 of the Commission on Elections is UPHELD. No pronouncement as to costs. 1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.Vitug, J., on official business.Pardo, J., no part, was COMELEC Chairman at the time.

G.R. No. 146319            October 26, 2001

BENJAMIN E. CAWALING, JR., petitioner, vs.THE COMMISSION ON ELECTIONS, and Rep. Francis Joseph G. Escudero, respondents.

x---------------------------------------------------------x

G.R. No. 146342            October 26, 2001

BENJAMIN E. CAWALING, JR., petitioner, vs.THE EXECUTIVE SECRETARY TO THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, SOLICITOR GENERAL, PROVINCE OF SORSOGON, MUNICIPALITY OF SORSOGON, MUNICIPALITY OF BACON, respondents.

SANDOVAL-GUTIERREZ, J.:

Before us are two (2) separate petitions challenging the constitutionality of Republic Act No. 8806 which created the City of Sorsogon and the validity of the plebiscite conducted pursuant thereto.

On August 16, 2000, former President Joseph E. Estrada signed into law R.A. No. 8806, an "Act Creating The City Of Sorsogon By Merging The Municipalities Of Bacon And Sorsogon In The Province Of Sorsogon, And Appropriating Funds Therefor."1

Pursuant to Section 10, Article X of the Constitution,2 the Commission on Elections (COMELEC), on December 16, 2000, conducted a plebiscite in the Municipalities of Bacon and Sorsogon and submitted the matter for ratification.

On December 17, 2000, the Plebiscite City Board of Canvassers (PCBC) proclaimed3 the creation of the City of Sorsogon as having been ratified and approved by the majority of the votes cast in the plebiscite.4

Invoking his right as a resident and taxpayer of the former Municipality of Sorsogon, Benjamin E. Cawaling, Jr. filed on January 2, 2001 the present petition for certiorari (G.R. No. 146319) seeking the annulment of the plebiscite on the following grounds:

A. The December 16, 2000 plebiscite was conducted beyond the required 120-day period from the approval of R.A. 8806, in violation of Section 54 thereof; and

B. Respondent COMELEC failed to observe the legal requirement of twenty (20) day extensive information campaign in the Municipalities of Bacon and Sorsogon before conducting the plebiscite.

Two days after filing the said action, or on January 4, 2001, petitioner instituted another petition (G.R. No. 146342), this time for prohibition seeking to enjoin the further implementation of R.A. No. 8806 for being unconstitutional, contending, in essence, that:

1. The creation of Sorsogon City by merging two municipalities violates Section 450(a) of the Local Government Code of 1991 (in relation to Section 10, Article X of the Constitution) which requires that only "a municipality or a cluster of barangays may be converted into a component city"; and

2. R.A. No. 8806 contains two (2) subjects, namely, the (a) creation of the City of Sorsogon and the (b) abolition of the Municipalities of Bacon and Sorsogon, thereby violating the "one subject-one bill" rule prescribed by Section 26(1), Article VI of the Constitution.

Hence, the present petitions which were later consolidated.5

Significantly, during the pendency of these cases, specifically during the May 14, 2001 elections, the newly-created Sorsogon City had the first election of its officials. Since then, the City Government of Sorsogon has been regularly discharging its corporate and political powers pursuant to its charter, R.A. No. 8806.

We shall first delve on petitioner's constitutional challenge against R.A. No. 8806 in G.R No. 146342.

Every statute has in its favor the presumption of constitutionality.6 This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other's acts.7 The theory is that every law, being the joint act of the Legislature and the Executive, has passed careful scrutiny to ensure that it is in accord with the fundamental law.8 This Court, however, may declare a law, or portions thereof, unconstitutional where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one.9 In other words the grounds for nullity must be beyond reasonable doubt,10 for to doubt is to sustain.11

Petitioner initially reject R.A. No. 8806 because it violates Section 10, Article X of the Constitution which provides,inter alia:

"SECTION 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected." (Emphasis ours)

The criteria for the creation of a city is prescribed in Section 450 of the Local Government Code of 1991 (the Code), thus:

"SECTION 450. Requisites for Creation. — (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites:

(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund, exclusive of specific funds, transfers, and non-recurring income." (Emphasis ours)

Petitioner is not concerned whether the creation of Sorsogon City through R.A. No. 8806 complied with the criteria set by the Code as to income, population and land area. What he is assailing is its mode of creation. He contends that under Section 450(a) of the Code, a component city may be created only by converting "a municipality or a cluster of barangays," not by merging two municipalities, as what R.A. No. 8806 has done.

This contention is devoid of merit.

Petitioner's constricted reading of Section 450(a) of the Code is erroneous. The phrase "A municipality or a cluster of barangays may be converted into a component city" is not a criterion but simply one of the modes by which a city may be created. Section 10, Article X of the Constitution, quoted earlier and which petitioner cited in support of his posture, allows the merger of local government units to create a province city, municipality or barangay in accordance with the criteria established by the Code. Thus, Section 8 of the Code distinctly provides:

"SECTION 8. Division and Merger. — Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, That the income classification of the original local government unit or units shall not fall below its current income classification prior to such division. . . . ." (Emphasis ours)

Verily, the creation of an entirely new local government unit through a division or a merger of existing local government units is recognized under the Constitution, provided that such merger or division shall comply with the requirements prescribed by the Code.

Petitioner further submits that, in any case, there is no "compelling" reason for merging the Municipalities of Bacon and Sorsogon in order to create the City of Sorsogon considering that the Municipality of Sorsogon alone already qualifies to be upgraded to a component city. This argument goes into the wisdom of R.A. No. 8806, a matter which we are not competent to rule. In Angara v. Electoral Commission,12 this Court, through Justice Jose P. Laurel, made it clear that "the judiciary does not pass upon questions of wisdom, justice or expediency of legislation." In the exercise of judicial power, we are allowed only "to settle actual controversies involving rights which are legally demandable and enforceable,"13 and "may not annul an act of the political departments simply because we feel it is unwise or impractical. "14

Next, petitioner assails R.A. No. 8806 since it contravenes the "one subject-one bill" rule enunciated in Section 26 (1), Article VI of the Constitution, to wit:

"SECTION 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof." (Emphasis ours)

Petitioner contends that R.A. No. 8806 actually embraces two principal subjects which are: (1) the creation of the City of Sorsogon, and (2) the abolition of the Municipalities of Bacon and Sorsogon. While the title of the Act sufficiently informs the public about the creation of Sorsogon City, petitioner claims that no such information has been provided on the abolition of the Municipalities of Bacon and Sorsogon.

The argument is far from persuasive. Contrary to petitioner's assertion, there is only one subject embraced in the title of the law, that is, the creation of the City of Sorsogon. The abolition/cessation of the corporate existence of the Municipalities of Bacon and Sorsogon due to their merger is not a subject separate and distinct from the creation of Sorsogon City. Such abolition/cessation was but the logical, natural and inevitable consequence of the merger. Otherwise put, it is the necessary means by which the City of Sorsogon was created. Hence, the title of the law, "An Act Creating the City of Sorsogon by Merging the Municipalities of Bacon and Sorsogon in the Province of Sorsogon, and Appropriating Funds Therefor," cannot be said to exclude the incidental effect of abolishing the two municipalities, nor can it be considered to have deprived the public of fair information on this consequence.

It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of the enactment language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein.15 The rule is sufficiently complied with if the title is comprehensive enough as to include the general object which the statute seeks to effect,16 and where, as here, the persons interested are informed of the nature, scope and consequences of the proposed law and its operation.17 Moreover, this Court has invariably adopted a liberal rather than technical construction of the rule "so as not to cripple or impede legislation."18

Consequently, we hold that petitioner has failed to present clear and convincing proof to defeat the presumption of constitutionality of R.A. No. 8806.

We now turn to G.R. No. 146319 wherein petitioner assails the validity of the plebiscite conducted by the COMELEC for the ratification of the creation of Sorsogon City.

Petitioner asserts that the plebiscite required by R.A. No. 8806 should be conducted within 120 days from the "approval" of said Act per express provision of its Section 54, viz:

"SECTION 54. Plebiscite. — The City of Sorsogon shall acquire corporate existence upon the ratification of its creation by a majority of the votes cast by the qualified voters in a plebiscite to be conducted in the present municipalities of Bacon and Sorsogon within one hundred twenty (120) days from the approval of this Act. x x x ." (Emphasis ours)

The Act was approved on August 16, 2000 by former President Joseph E. Estrada. Thus, petitioner claims, the December 16, 2000 plebiscite was conducted one (1) day late from the expiration of the 120-day period after theapproval of the Act. This 120-day period having expired without a plebiscite being conducted, the Act itself expired and could no longer be ratified and approved in the plebiscite held on December 16, 2000.

In its comment, the COMELEC asserts that it scheduled the plebiscite on December 16, 2000 based on the date of the effectivity of the Act. Section 65 of the Act states:

"SECTION 65. Effectivity. — This Act shall take effect upon its publication in at least two (2) newspapers of general and local circulation."

The law was first published in the August 25, 2000 issue of TODAY a newspaper of general circulation. Then on September 01, 2000, it was published in a newspaper of local circulation in the Province of Sorsogon. Thus, the publication of the law was completed on September 1, 2000, which date, according to the COMELEC, should be the reckoning point in determining the 120-day period within which to conduct the plebiscite, not from the date of its approval (August 16, 2000) when the law had not yet been published. The COMELEC argues that since publication is indispensable for the effectivity of a law, citing the landmark case of Tañada vs. Tuvera,19 it could only schedule the plebiscite after the Act took effect. Thus, the COMELEC concludes, the December 16, 2000 plebiscite was well within the 120-day period from the effectivity of the law on September 1, 2000.

The COMELEC is correct.

In addition, Section 10 of the Code provides:

"SECTION 10. Plebiscite Requirement. — No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Such plebiscite shall be conducted by the Commission on Elections within one hundred twenty (120) days from the date of the effectivity of the law or ordinance affecting such action, unless said law or ordinance fixes another date." (Emphasis ours)

Quite plainly, the last sentence of Section 10 mandates that the plebiscite shall be conducted within 120 days from the date of the effectivity of the law, not from its approval. While the same provision allows a law or ordinance to fix "another date" for conducting a plebiscite, still such date must be reckoned from the date of the effectivity of the law.

Consequently, the word "approval" in Section 54 of R.A. No. 8806, which should be read together with Section 65 (effectivity of the Act) thereof, could only mean "effectivity" as used and contemplated in Section 10 of the Code. This construction is in accord with the fundamental rule that all provisions of the laws relating to the same subject should be read together and reconciled to avoid inconsistency or repugnancy to established jurisprudence. As we stated in Tañada:

"ARTICLE 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.

After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant motion, we have come to the conclusion, and so hold, that the clause 'unless it is otherwise provided' refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, without its previous publication." (Emphasis supplied)

To give Section 54 a literal and strict interpretation would in effect make the Act effective even before its publication, which scenario is precisely abhorred in Tañada.

Lastly, petitioner alleges that the COMELEC failed to conduct an extensive information campaign on the proposed Sorsogon cityhood 20 days prior to the scheduled plebiscite as required by Article 11 (b.4.ii), Rule II of the Rules and Regulations Implementing the Code. However, no proof whatsoever was presented by petitioner to substantiate his allegation. Consequently, we sustain the presumption20 that the COMELEC regularly performed or complied with its duty under the law in conducting the plebiscite.

WHEREFORE, the instant petitions are DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.

Davide, Jr., CJ., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur.Vitug, J., on official leave.

G.R. No. 177597               July 16, 2008

BAI SANDRA S. A. SEMA, Petitioner, vs.COMMISSION ON ELECTIONS and DIDAGEN P. DILANGALEN, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178628

PERFECTO F. MARQUEZ, Petitioner, vs.COMMISSION ON ELECTIONS, Respondent.

D E C I S I O N

CARPIO, J.:

The Case

These consolidated petitions1 seek to annul Resolution No. 7902, dated 10 May 2007, of the Commission on Elections (COMELEC) treating Cotabato City as part of the legislative district of the Province of Shariff Kabunsuan.2

The Facts

The Ordinance appended to the 1987 Constitution apportioned two legislative districts for the Province of Maguindanao. The first legislative district consists of Cotabato City and eight municipalities.3 Maguindanao forms part of the Autonomous Region in Muslim Mindanao (ARMM), created under its Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA 9054).4 Although under the Ordinance, Cotabato City forms part of Maguindanao’s first legislative district, it is not part of the ARMM but of Region XII, having voted against its inclusion in the ARMM in the plebiscite held in November 1989.

On 28 August 2006, the ARMM’s legislature, the ARMM Regional Assembly, exercising its power to create provinces under Section 19, Article VI of RA 9054,5 enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of the eight municipalities in the first district of Maguindanao. MMA Act 201 provides:

Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated from the Province of Maguindanao and constituted into a distinct and independent province, which is hereby created, to be known as the Province of Shariff Kabunsuan.

x x x x

Sec. 5. The corporate existence of this province shall commence upon the appointment by the Regional Governor or election of the governor and majority of the regular members of the Sangguniang Panlalawigan.

The incumbent elective provincial officials of the Province of Maguindanao shall continue to serve their unexpired terms in the province that they will choose or where they are residents: Provided, that where an elective position in both provinces becomes vacant as a consequence of the creation of the Province of Shariff Kabunsuan, all incumbent elective provincial officials shall have preference for appointment to a higher elective vacant position and for the time being be appointed by the Regional Governor, and shall hold office until their successors shall have been elected and qualified in the next local elections; Provided, further, that they shall continue to receive the salaries they are receiving at the time of the approval of this Act until the new readjustment of salaries in accordance with law. Provided, furthermore, that there shall be no diminution in the number of the members of the Sangguniang Panlalawigan of the mother province.

Except as may be provided by national law, the existing legislative district, which includes Cotabato as a part thereof, shall remain.

Later, three new municipalities6 were carved out of the original nine municipalities constituting Shariff Kabunsuan, bringing its total number of municipalities to 11. Thus, what was left of Maguindanao were the municipalities constituting its second legislative district. Cotabato City, although part of Maguindanao’s first legislative district, is not part of the Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuan’s creation in a plebiscite held on 29 October 2006.

On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No. 3999 requesting the COMELEC to "clarify the status of Cotabato City in view of the conversion of the First District of Maguindanao into a regular province" under MMA Act 201.

In answer to Cotabato City’s query, the COMELEC issued Resolution No. 07-0407 on 6 March 2007 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao." Resolution No. 07-0407, which adopted the recommendation of the COMELEC’s Law Department under a Memorandum dated 27 February 2007,7 provides in pertinent parts:

Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt the recommendation of the Law Department that pending the enactment of the appropriate law by Congress, to maintain the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao. (Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on 29 March 2007 Resolution No. 7845 stating that Maguindanao’s first legislative district is composed only of Cotabato City because of the enactment of MMA Act 201.8

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions, amending Resolution No. 07-0407 by renaming the legislative district in question as "Shariff Kabunsuan Province with Cotabato City (formerly First District of Maguindanao with Cotabato City)."9

1avvphi1

In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for Representative of "Shariff Kabunsuan with Cotabato City," prayed for the nullification of COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes cast in Cotabato City for that office. Sema contended that Shariff Kabunsuan is entitled to one representative in Congress under Section 5 (3), Article VI of the Constitution10 and Section 3 of the Ordinance appended to the Constitution.11 Thus, Sema asserted that the COMELEC acted without or in excess of its jurisdiction in issuing Resolution No. 7902 which maintained the status quo in Maguindanao’s first legislative district despite the COMELEC’s earlier directive in Resolution No. 7845 designating Cotabato City as the lone component of Maguindanao’s reapportioned first legislative district.12 Sema further claimed that in issuing Resolution No. 7902, the COMELEC usurped Congress’ power to create or reapportion legislative districts.

In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose not to reach the merits of the case and merely contended that (1) Sema wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902 because the COMELEC issued the same in the exercise of its administrative, not quasi-judicial, power and (2) Sema’s prayer for the writ of prohibition in G.R. No. 177597 became moot with the proclamation of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1 June 2007 as representative of the legislative district of Shariff Kabunsuan Province with Cotabato City.

In his Comment, respondent Dilangalen countered that Sema is estopped from questioning COMELEC Resolution No. 7902 because in her certificate of candidacy filed on 29 March 2007, Sema indicated that she was seeking election as representative of "Shariff Kabunsuan including Cotabato City." Respondent Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it did not apportion a legislative district for Shariff Kabunsuan or reapportion the legislative districts in Maguindanao but merely renamed Maguindanao’s first legislative district. Respondent Dilangalen further claimed that the COMELEC could not reapportion Maguindanao’s first legislative district to make Cotabato City its sole component unit as the power to reapportion legislative districts lies exclusively with Congress, not to mention that Cotabato City does not meet the minimum population requirement under Section 5 (3), Article VI of the Constitution for the creation of a legislative district within a city.13

Sema filed a Consolidated Reply controverting the matters raised in respondents’ Comments and reiterating her claim that the COMELEC acted ultra vires in issuing Resolution No. 7902.

In the Resolution of 4 September 2007, the Court required the parties in G.R. No. 177597 to comment on the issue of whether a province created by the ARMM Regional Assembly under Section 19, Article VI of RA 9054 is entitled to one representative in the House of

Representatives without need of a national law creating a legislative district for such new province. The parties submitted their compliance as follows:

(1) Sema answered the issue in the affirmative on the following grounds: (a) the Court in Felwa v. Salas14stated that "when a province is created by statute, the corresponding representative district comes into existence neither by authority of that statute — which cannot provide otherwise — nor by apportionment, but by operation of the Constitution, without a reapportionment"; (b) Section 462 of Republic Act No. 7160 (RA 7160) "affirms" the apportionment of a legislative district incident to the creation of a province; and (c) Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution mandate the apportionment of a legislative district in newly created provinces.

(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier stance on the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined causes with Sema, contending that Section 5 (3), Article VI of the Constitution is "self-executing." Thus, every new province created by the ARMM Regional Assembly is ipso facto entitled to one representative in the House of Representatives even in the absence of a national law; and

(3) Respondent Dilangalen answered the issue in the negative on the following grounds: (a) the "province" contemplated in Section 5 (3), Article VI of the Constitution is one that is created by an act of Congress taking into account the provisions in RA 7160 on the creation of provinces; (b) Section 3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the power to enact measures relating to national elections, which encompasses the apportionment of legislative districts for members of the House of Representatives; (c) recognizing a legislative district in every province the ARMM Regional Assembly creates will lead to the disproportionate representation of the ARMM in the House of Representatives as the Regional Assembly can create provinces without regard to the requirements in Section 461 of RA 7160; and (d) Cotabato City, which has a population of less than 250,000, is not entitled to a representative in the House of Representatives.

On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments on the following issues: (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, is constitutional; and (2) if in the affirmative, whether a province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such new province.15

In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597 filed their respective Memoranda on the issues raised in the oral arguments.16 On the question of the constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted the following positions:

(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a valid delegation by Congress to the ARMM of the power to create provinces under Section 20 (9), Article X of the Constitution granting to the autonomous regions, through their organic acts, legislative powers over "other matters as may be authorized by law for the promotion of the general welfare of the people of the region" and (b) as an amendment to Section 6 of RA 7160.17 However, Sema concedes that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to "prescribe standards lower than those mandated" in RA 7160 in the creation of provinces contravenes Section 10, Article X of the Constitution.18 Thus, Sema proposed that Section 19 "should be construed as prohibiting the Regional Assembly from prescribing standards x x x that do not comply with the minimum criteria" under RA 7160.19

(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is unconstitutional on the following grounds: (a) the power to create provinces was not among those granted to the autonomous regions under Section 20, Article X of the Constitution and (b) the grant under Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to prescribe standards lower than those mandated in Section 461 of RA 7160 on the creation of provinces contravenes Section 10, Article X of the Constitution and the Equal Protection Clause; and

(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen (thus effectively abandoning the position the COMELEC adopted in its Compliance with the Resolution of 4 September 2007) and contended that Section 19, Article VI of RA 9054 is unconstitutional because (a) it contravenes Section 10 and Section 6,20 Article X of the Constitution and (b) the power to create provinces was withheld from the autonomous regions under Section 20, Article X of the Constitution.

On the question of whether a province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such new province, Sema and respondent Dilangalen reiterated in their Memoranda the positions they adopted in their Compliance with the Resolution of 4 September 2007. The COMELEC deemed it unnecessary to submit its position on this issue considering its stance that Section 19, Article VI of RA 9054 is unconstitutional.

The pendency of the petition in G.R. No. 178628 was disclosed during the oral arguments on 27 November 2007. Thus, in the Resolution of 19 February 2008, the Court ordered G.R. No. 178628 consolidated with G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's contention that the COMELEC acted ultra vires in issuing Resolution No. 7902 depriving the voters of Cotabato City of a representative in the House of Representatives. In its Comment to the petition in G.R. No. 178628, the COMELEC, through the OSG, maintained the validity of COMELEC Resolution No. 7902 as a temporary measure pending the enactment by Congress of the "appropriate law."

The Issues

The petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily –

(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the constitutionality of COMELEC Resolution No. 7902; and

(2) whether the proclamation of respondent Dilangalen as representative of Shariff Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.

(B) On the merits –

(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays, is constitutional; and

(2) if in the affirmative, whether a province created by the ARMM Regional Assembly under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative district for such province.

II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902 is valid for maintaining the status quo in the first legislative district of Maguindanao (as "Shariff Kabunsuan Province with Cotabato City [formerly First District of Maguindanao with Cotabato City]"), despite the creation of the Province of Shariff Kabunsuan out of such district (excluding Cotabato City).

The Ruling of the Court

The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is unconstitutional insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities; (2) MMA Act 201 creating the Province of Shariff Kabunsuan is void; and (3) COMELEC Resolution No. 7902 is valid.

On the Preliminary Matters

The Writ of Prohibition is Appropriateto Test the Constitutionality ofElection Laws, Rules and Regulations

The purpose of the writ of Certiorari is to correct grave abuse of discretion by "any tribunal, board, or officer exercising judicial or quasi-judicial functions."21 On the other hand, the writ of Mandamus will issue to compel a tribunal, corporation, board, officer, or person to perform an act "which the law specifically enjoins as a duty."22True, the COMELEC did not issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial functions.23Nor is there a law which specifically enjoins the COMELEC to exclude from canvassing the votes cast in Cotabato City for representative of "Shariff Kabunsuan Province with Cotabato City." These, however, do not justify the outright dismissal of the petition in G.R. No. 177597 because Sema also prayed for the issuance of the writ of Prohibition and we have long recognized this writ as proper for testing the constitutionality of election laws, rules, and regulations.24

Respondent Dilangalen’s ProclamationDoes Not Moot the Petition

There is also no merit in the claim that respondent Dilangalen’s proclamation as winner in the 14 May 2007 elections for representative of "Shariff Kabunsuan Province with Cotabato City" mooted this petition. This case does not concern respondent Dilangalen’s election. Rather, it involves an inquiry into the validity of COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and Section 19, Article VI of RA 9054. Admittedly, the outcome of this petition, one way or another, determines whether the votes cast in Cotabato City for representative of the district of "Shariff Kabunsuan Province with Cotabato City" will be included in the canvassing of ballots. However, this incidental consequence is no reason for us not to proceed with the resolution of the novel issues raised here. The Court’s ruling in these petitions affects not only the recently concluded elections but also all the other succeeding elections for the office in question, as well as the power of the ARMM Regional Assembly to create in the future additional provinces.

On the Main IssuesWhether the ARMM Regional Assembly

Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10, Article X of the Constitution, which provides:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Thus, the creation of any of the four local government units – province, city, municipality or barangay – must comply with three conditions. First, the creation of a local government unit must follow the criteria fixed in the Local Government Code. Second, such creation must not conflict with any provision of the Constitution. Third, there must be a plebiscite in the political units affected.

There is neither an express prohibition nor an express grant of authority in the Constitution for Congress to delegate to regional or local legislative bodies the power to create local government units. However, under its plenary legislative powers, Congress can delegate to local legislative bodies the power to create local government units, subject to reasonable standards and provided no conflict arises with any provision of the Constitution. In fact, Congress has delegated to provincial boards, and city and municipal councils, the power to create barangays within their jurisdiction,25 subject to compliance with the criteria established in the Local Government Code, and the plebiscite requirement in Section 10, Article X of the Constitution. However, under the Local Government Code, "only x x x an Act of Congress" can create provinces, cities or municipalities.26

1avvphi1

Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays within the ARMM. Congress made the delegation under its plenary legislative powers because the power to create local government units is not one of the express legislative powers granted by the Constitution to regional legislative bodies.27 In the present case, the question arises whether the delegation to the ARMM Regional Assembly of the power to create provinces, cities, municipalities and barangays conflicts with any provision of the Constitution.

There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities and barangays, provided Section 10, Article X of the Constitution is followed. However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the Constitution provides, "Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative" in the House of Representatives. Similarly, Section 3 of the Ordinance appended to the Constitution provides, "Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member x x x."

Clearly, a province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. For the same reason, a city with a population of 250,000 or more cannot also be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative district because once the city’s population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a province or city inherently involves the power to create a legislative district.

For Congress to delegate validly the power to create a province or city, it must also validly delegate at the same time the power to create a legislative district. The threshold issue then is, can Congress validly delegate to the ARMM Regional Assembly the power to create legislative districts for the House of Representatives? The answer is in the negative.

Legislative Districts are Created or ReapportionedOnly by an Act of Congress

Under the present Constitution, as well as in past28 Constitutions, the power to increase the allowable membership in the House of Representatives, and to reapportion legislative districts, is vested exclusively in Congress. Section 5, Article VI of the Constitution provides:

SECTION 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

x x x x

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. (Emphasis supplied)

Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a law, the allowable membership in the House of Representatives. Section 5 (4) empowers Congress to reapportion legislative districts. The power to reapportion legislative districts necessarily includes the power to create legislative districts out of existing ones. Congress exercises these powers through a law that Congress itself enacts, and not through a law that regional or local legislative bodies enact. The allowable membership of the House of Representatives can be increased, and new legislative districts of Congress can be created, only through a national law passed by Congress. In Montejo v. COMELEC,29 we held that the "power of redistricting x x x is traditionally regarded as part of the power (of Congress) to make laws," and thus is vested exclusively in Congress.

This textual commitment to Congress of the exclusive power to create or reapportion legislative districts is logical. Congress is a national legislature and any increase in its allowable membership or in its incumbent membership through the creation of legislative districts must be embodied in a national law. Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to create or reapportion legislative districts for a national legislature like Congress. An inferior legislative body, created by a superior legislative body, cannot change the membership of the superior legislative body.

The creation of the ARMM, and the grant of legislative powers to its Regional Assembly under its organic act, did not divest Congress of its exclusive authority to create legislative districts. This is clear from the Constitution and the ARMM Organic Act, as amended. Thus, Section 20, Article X of the Constitution provides:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative districts for Congress.

On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act, provides, "The Regional Assembly may exercise legislative power x x x except on the following matters: x x x (k) National elections. x x x." Since the ARMM Regional Assembly has no legislative power to enact laws relating to national elections, it cannot create a legislative district whose representative is elected in national elections. Whenever Congress enacts a law creating a legislative district, the first representative is always elected in the "next national elections" from the effectivity of the law.30

Indeed, the office of a legislative district representative to Congress is a national office, and its occupant, a Member of the House of Representatives, is a national official.31 It would be incongruous for a regional legislative body like the ARMM Regional Assembly to create a national office when its legislative powers extend only to its regional territory. The office of a district representative is maintained by national funds and the salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on the legislative powers of every local or regional legislative body that it can only create local or regional offices, respectively, and it can never create a national office.

To allow the ARMM Regional Assembly to create a national office is to allow its legislative powers to operate outside the ARMM’s territorial jurisdiction. This violates

Section 20, Article X of the Constitution which expressly limits the coverage of the Regional Assembly’s legislative powers "[w]ithin its territorial jurisdiction x x x."

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the exclusive nature of Congress’ power to create or reapportion legislative districts by abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA Act 201 provides that:

Except as may be provided by national law, the existing legislative district, which includes Cotabato City as a part thereof, shall remain. (Emphasis supplied)

However, a province cannot legally be created without a legislative district because the Constitution mandates that "each province shall have at least one representative." Thus, the creation of the Province of Shariff Kabunsuan without a legislative district is unconstitutional.

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the Constitution, which provides:

Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (Emphasis supplied)

and Section 3 of the Ordinance appended to the Constitution, which states:

Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphasis supplied)

serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on 29 October 2006, is automatically entitled to one member in the House of Representatives in the 14 May 2007 elections. As further support for her stance, petitioner invokes the statement in Felwa that "when a province is created by statute, the corresponding representative district comes into existence neither by authority of that statute — which cannot provide otherwise — nor by apportionment, but by operation of the Constitution, without a reapportionment."

The contention has no merit.

First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695), creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and providing for congressional representation in the old and new provinces, was unconstitutional for "creati[ng] congressional districts without the apportionment provided in the Constitution." The Court answered in the negative, thus:

The Constitution ordains:

"The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise as far as practicable, contiguous and compact territory."

Pursuant to this Section, a representative district may come into existence: (a) indirectly, through the creation of a province — for "each province shall have at least one member" in the House of Representatives; or (b) by direct creation of several representative districts within a province. The requirements concerning the apportionment of representative districts and the territory thereof refer only to the second method of creation of representative districts, and do not apply to those incidental to the creation of provinces, under the first method. This is deducible, not only from the general tenor of the provision above quoted, but, also, from the fact that the apportionment therein alluded to refers to that which is made by an Act of Congress. Indeed, when a province is created by statute, the corresponding representative district, comes into existence neither by authority of that statute — which cannot provide otherwise — nor by apportionment, but by operation of the Constitution, without a reapportionment.

There is no constitutional limitation as to the time when, territory of, or other conditions under which a province may be created, except, perhaps, if the consequence thereof were to exceed the maximum of 120 representative districts prescribed in the Constitution, which is not the effect of the legislation under consideration. As a matter of fact, provinces have been created or subdivided into other provinces, with the consequent creation of additional representative districts, without complying with the aforementioned requirements.32 (Emphasis supplied)

Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly created legislative districts "indirectly" through a special law enacted by Congress creating a province and (2) the creation of the legislative districts will not result in breaching the maximum number of legislative districts provided under the 1935 Constitution. Felwa does not apply to the present case because in Felwa the new provinces were created by anational law enacted by Congress itself. Here, the new province was created merely by a regional law enacted by the ARMM Regional Assembly.

What Felwa teaches is that the creation of a legislative district by Congress does not emanate alone from Congress’ power to reapportion legislative districts, but also from Congress’ power to create provinces which cannot be created without a legislative district. Thus, when a province is created, a legislative district is created by operation of the Constitution because the Constitution provides that "each province shall have at least one representative" in the House of Representatives. This does not detract from the constitutional principle that the power to create legislative districts belongs exclusively to Congress. It merely prevents any other legislative body, except Congress, from creating provinces because for a legislative body to create a province such legislative body must have the power to create legislative districts. In short, only an act of Congress can trigger the creation of a legislative district by operation of the Constitution. Thus, only Congress has the power to create, or trigger the creation of, a legislative district.

Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff Kabunsuan upon its creation, this will leave Cotabato City as the lone component of the first legislative district of Maguindanao. However, Cotabato City cannot constitute a legislative district by itself because as of the census taken in 2000, it had a population of only 163,849. To constitute Cotabato City alone as the surviving first legislative district of Maguindanao will violate Section 5 (3), Article VI of the Constitution which requires that "[E]ach city with a population of at least two hundred fifty thousand x x x, shall have at least one representative."

Second. Sema’s theory also undermines the composition and independence of the House of Representatives. Under Section 19,33 Article VI of RA 9054, the ARMM Regional Assembly can create provinces and cities within the ARMM with or without regard to the criteria fixed in Section 461 of RA 7160, namely: minimum annual income of P20,000,000, and minimum contiguous territory of 2,000 square kilometers or minimum population of 250,000.34 The following scenarios thus become distinct possibilities:

(1) An inferior legislative body like the ARMM Regional Assembly can create 100 or more provinces and thus increase the membership of a superior legislative body, the House of Representatives, beyond the maximum limit of 250 fixed in the Constitution (unless a national law provides otherwise);

(2) The proportional representation in the House of Representatives based on one representative for at least every 250,000 residents will be negated because the ARMM Regional Assembly need not comply with the requirement in Section 461(a)(ii) of RA 7160 that every province created must have a population of at least 250,000; and

(3) Representatives from the ARMM provinces can become the majority in the House of Representatives through the ARMM Regional Assembly’s continuous creation of provinces or cities within the ARMM.

The following exchange during the oral arguments of the petition in G.R. No. 177597 highlights the absurdity of Sema’s position that the ARMM Regional Assembly can create provinces:

Justice Carpio:

So, you mean to say [a] Local Government can create legislative district[s] and pack Congress with their own representatives [?]

Atty. Vistan II:35

Yes, Your Honor, because the Constitution allows that.

Justice Carpio:

So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x x and, therefore, they can have thirty-five (35) new representatives in the House of Representatives without Congress agreeing to it, is that what you are saying? That can be done, under your theory[?]

Atty. Vistan II:

Yes, Your Honor, under the correct factual circumstances.

Justice Carpio:

Under your theory, the ARMM legislature can create thirty-five (35) new provinces, there may be x x x [only] one hundred thousand (100,000) [population], x x x, and they will each have one representative x x x to Congress without any national law, is that what you are saying?

Atty. Vistan II:

Without law passed by Congress, yes, Your Honor, that is what we are saying.

x x x x

Justice Carpio:

So, they can also create one thousand (1000) new provinces, sen[d] one thousand (1000) representatives to the House of Representatives without a national law[,] that is legally possible, correct?

Atty. Vistan II:

Yes, Your Honor.36 (Emphasis supplied)

Neither the framers of the 1987 Constitution in adopting the provisions in Article X on regional autonomy,37 nor Congress in enacting RA 9054, envisioned or intended these

disastrous consequences that certainly would wreck the tri-branch system of government under our Constitution. Clearly, the power to create or reapportion legislative districts cannot be delegated by Congress but must be exercised by Congress itself. Even the ARMM Regional Assembly recognizes this.

The Constitution empowered Congress to create or reapportion legislative districts, not the regional assemblies. Section 3 of the Ordinance to the Constitution which states, "[A]ny province that may hereafter be created x x x shall be entitled in the immediately following election to at least one Member," refers to a province created by Congress itself through a national law. The reason is that the creation of a province increases the actual membership of the House of Representatives, an increase that only Congress can decide. Incidentally, in the present 14th Congress, there are 21938 district representatives out of the maximum 250 seats in the House of Representatives. Since party-list members shall constitute 20 percent of total membership of the House, there should at least be 50 party-list seats available in every election in case 50 party-list candidates are proclaimed winners. This leaves only 200 seats for district representatives, much less than the 219 incumbent district representatives. Thus, there is a need now for Congress to increase by law the allowable membership of the House, even before Congress can create new provinces.

It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution. Section 20, Article X of the Constitution expressly provides that the legislative powers of regional assemblies are limited "[w]ithin its territorial jurisdiction and subject to the provisions of the Constitution and national laws, x x x." The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM Government is established "within the framework of the Constitution." This follows Section 15, Article X of the Constitution which mandates that the ARMM "shall be created x x x within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines."

The present case involves the creation of a local government unit that necessarily involves also the creation of a legislative district. The Court will not pass upon the constitutionality of the creation of municipalities and barangays that does not comply with the criteria established in Section 461 of RA 7160, as mandated in Section 10, Article X of the Constitution, because the creation of such municipalities and barangays does not involve the creation of legislative districts. We leave the resolution of this issue to an appropriate case.

In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities, is void for being contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 3 of the Ordinance appended to the Constitution. Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district. Moreover, the ARMM Regional Assembly cannot enact a law creating a national office like the office of a district representative of Congress because the legislative powers of the

ARMM Regional Assembly operate only within its territorial jurisdiction as provided in Section 20, Article X of the Constitution. Thus, we rule that MMA Act 201, enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void.

Resolution No. 7902 Complies with the Constitution

Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic and legislative district of the First District of Maguindanao with Cotabato City, is valid as it merely complies with Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 1 of the Ordinance appended to the Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054 UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the Autonomous Region in Muslim Mindanao the power to create provinces and cities. Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives.

SO ORDERED.

G.R. No. 176970             December 8, 2008

ROGELIO Z. BAGABUYO, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

D E C I S I O N

BRION, J.:

Before us is the petition for certiorari, prohibition, and mandamus,1 with a prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, filed by Rogelio Bagabuyo (petitioner) to prevent the Commission on Elections (COMELEC) from implementing Resolution No. 7837 on the ground that Republic Act No. 93712 - the law that Resolution No. 7837 implements - is unconstitutional.

BACKGROUND FACTS

On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula filed and sponsored House Bill No. 5859: "An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro."3 This law eventually became Republic Act (R.A.) No. 9371.4 It increased Cagayan de Oro's legislative district from one to two.

For the election of May 2007, Cagayan de Oro's voters would be classified as belonging to either the first or the second district, depending on their place of residence. The constituents of each district would elect their own representative to Congress as well as eight members of the Sangguniang Panglungsod.

Section 1 of R.A. No. 9371 apportioned the City's barangays as follows:

Legislative Districts - The lone legislative district of the City of Cagayan De Oro is hereby apportioned to commence in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo, and Balubal and all urban barangays from Barangay 1 to Barangay 40 shall comprise the second district.5

On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 78376 implementing R.A. No. 9371.

Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March 27, 2007.7 On 10 April 2008, the petitioner amended the petition to include the following as respondents: Executive Secretary Eduardo Ermita; the Secretary of the Department of Budget and Management; the Chairman of the Commission on Audit; the Mayor and the members of the Sangguniang Panglungsod of Cagayan de Oro City; and its Board of Canvassers.8

In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional grounds, the petitioner argued that the COMELEC cannot implement R.A. No. 9371 without providing for the rules, regulations and guidelines for the conduct of a plebiscite which is indispensable for the division or conversion of a local government unit. He prayed for the issuance of an order directing the respondents to cease and desist from implementing R.A. No. 9371 and COMELEC Resolution No. 7837, and to revert instead to COMELEC Resolution No. 7801 which provided for a single legislative district for Cagayan de Oro.

Since the Court did not grant the petitioner's prayer for a temporary restraining order or writ of preliminary injunction, the May 14 National and Local Elections proceeded according to R.A. No. 9371 and Resolution No. 7837.

The respondent's Comment on the petition, filed through the Office of the Solicitor General, argued that: 1) the petitioner did not respect the hierarchy of courts, as the Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases assailing the constitutionality of a statute; 2) R.A. No. 9371 merely increased the representation of Cagayan de Oro City in the House of Representatives and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution; 3) the criteria

established under Section 10, Article X of the 1987 Constitution only apply when there is a creation, division, merger, abolition or substantial alteration of boundaries of a province, city, municipality, or barangay; in this case, no such creation, division, merger, abolition or alteration of boundaries of a local government unit took place; and 4) R.A. No. 9371 did not bring about any change in Cagayan de Oro's territory, population and income classification; hence, no plebiscite is required.

The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v. PAGCOR,9 the Court may take cognizance of this petition if compelling reasons, or the nature and importance of the issues raised, warrant the immediate exercise of its jurisdiction; 2) Cagayan de Oro City's reapportionment under R.A. No. 9371 falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of cities under Section 10, Article X of the Constitution; 3) the creation, division, merger, abolition or substantial alteration of boundaries of local government units involve a common denominator - the material change in the political and economic rights of the local government units directly affected, as well as of the people therein; 4) a voter's sovereign power to decide on who should be elected as the entire city's Congressman was arbitrarily reduced by at least one half because the questioned law and resolution only allowed him to vote and be voted for in the district designated by the COMELEC; 5) a voter was also arbitrarily denied his right to elect the Congressman and the members of the city council for the other legislative district, and 6) government funds were illegally disbursed without prior approval by the sovereign electorate of Cagayan De Oro City.10

THE ISSUES

The core issues, based on the petition and the parties' memoranda, can be limited to the following contentious points:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant petition be dismissed on this ground?

2) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de Oro City, or does it involve the division and conversion of a local government unit?

3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING

Except for the issue of the hierarchy of courts rule, we find the petition totally without merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, andhabeas corpus.11 It was pursuant to this original jurisdiction that the petitioner filed the present petition.

While this jurisdiction is shared with the Court of Appeals12 and the RTCs,13 a direct invocation of the Supreme Court's jurisdiction is allowed only when there are special and important reasons therefor, clearly and especially set out in the petition. Reasons of practicality, dictated by an increasingly overcrowded docket and the need to prioritize in favor of matters within our exclusive jurisdiction, justify the existence of this rule otherwise known as the "principle of hierarchy of courts." More generally stated, the principle requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court.14

Among the cases we have considered sufficiently special and important to be exceptions to the rule, are petitions for certiorari, prohibition, mandamus and quo warranto against our nation's lawmakers when the validity of their enactments is assailed.15 The present petition is of this nature; its subject matter and the nature of the issues raised - among them, whether legislative reapportionment involves a division of Cagayan de Oro City as a local government unit - are reasons enough for considering it an exception to the principle of hierarchy of courts. Additionally, the petition assails as well a resolution of the COMELEC en banc issued to implement the legislative apportionment that R.A. No. 9371 decrees. As an action against a COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that in turn requires a review by this Court via a Rule 65 petition forcertiorari.16 For these reasons, we do not see the principle of hierarchy of courts to be a stumbling block in our consideration of the present case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as a local government unit, and does not merely provide for the City's legislative apportionment. This argument essentially proceeds from a misunderstanding of the constitutional concepts of apportionment of legislative districts and division of local government units.

Legislative apportionment is defined by Black's Law Dictionary as the determination of the number of representatives which a State, county or other subdivision may send to a legislative body.17It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts.18 Reapportionment, on the other hand, is the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation.19

Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules on legislative apportionment under its Section 5 which provides:

Sec. 5(1). (1) The House of Representatives shall be composed of not more than two hundred fifty members unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as

provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations.

x x x

(3) Each legislative district shall comprise, as far as practicable, continuous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

Separately from the legislative districts that legal apportionment or reapportionment speaks of, are the local government units (historically and generically referred to as "municipal corporations") that the Constitution itself classified into provinces, cities, municipalities and barangays.20 In its strict and proper sense, a municipality has been defined as "a body politic and corporate constituted by the incorporation of the inhabitants of a city or town for the purpose of local government thereof."21 The creation, division, merger, abolition or alteration of boundary of local government units, i.e., of provinces, cities, municipalities, and barangays, are covered by the Article on Local Government (Article X). Section 10 of this Article provides:

No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political unit directly affected.

Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the authority to act has been vested in the Legislature. The Legislature undertakes the apportionment and reapportionment of legislative districts,22and likewise acts on local government units by setting the standards for their creation, division, merger, abolition and alteration of boundaries and by actually creating, dividing, merging, abolishing local government units and altering their boundaries through legislation. Other than this, not much commonality exists between the two provisions since they are inherently different although they interface and relate with one another.

The concern that leaps from the text of Article VI, Section 5 is political representation and the means to make a legislative district sufficiently represented so that the people can be effectively heard. As above stated, the aim of legislative apportionment is "to equalize population and voting power among districts."23 Hence, emphasis is given to the number of people represented; the uniform and progressive ratio to be observed among the representative districts; and accessibility and commonality of interests in terms of each district being, as far as practicable, continuous, compact and adjacent territory. In terms of the people represented, every city with at least 250,000 people and every province (irrespective of population) is entitled to one representative. In this sense, legislative districts, on the one hand, and provinces and cities, on the other, relate and interface with

each other. To ensure continued adherence to the required standards of apportionment, Section 5(4) specifically mandates reapportionment as soon as the given standards are met.

In contrast with the equal representation objective of Article VI, Section 5, Article X, Section 10 expressly speaks of how local government units may be "created, divided, merged, abolished, or its boundary substantially altered." Its concern is the commencement, the termination, and the modification of local government units' corporate existence and territorial coverage; and it speaks of two specific standards that must be observed in implementing this concern, namely, the criteria established in the local government code and the approval by a majority of the votes cast in a plebiscite in the political units directly affected. Under the Local Government Code (R.A. No. 7160) passed in 1991, the criteria of income, population and land area are specified as verifiable indicators of viability and capacity to provide services.24 The division or merger of existing units must comply with the same requirements (since a new local government unit will come into being), provided that a division shall not reduce the income, population, or land area of the unit affected to less than the minimum requirement prescribed in the Code.25

A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the requirement of a plebiscite. The Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local government unit.26 In contrast, no plebiscite requirement exists under the apportionment or reapportionment provision. In Tobias v. Abalos,27 a case that arose from the division of the congressional district formerly covering San Juan and Mandaluyong into separate districts, we confirmed this distinction and the fact that no plebiscite is needed in a legislative reapportionment. The plebiscite issue came up because one was ordered and held for Mandaluyong in the course of its conversion into a highly urbanized city, while none was held for San Juan. In explaining why this happened, the Court ruled that no plebiscite was necessary for San Juan because the objective of the plebiscite was the conversion of Mandaluyong into a highly urbanized city as required by Article X, Section 10 the Local Government Code; the creation of a new legislative district only followed as a consequence. In other words, the apportionment alone and by itself did not call for a plebiscite, so that none was needed for San Juan where only a reapportionment took place.

The need for a plebiscite under Article X, Section 10 and the lack of requirement for one under Article VI, Section 5 can best be appreciated by a consideration of the historical roots of these two provisions, the nature of the concepts they embody as heretofore discussed, and their areas of application.

A Bit of History.

In Macias v. COMELEC,28 we first jurisprudentially acknowledged the American roots of our apportionment provision, noting its roots from the Fourteenth Amendment29 of the U.S. Constitution and from the constitutions of some American states. The Philippine Organic Act of 1902 created the Philippine Assembly,30 the body that acted as the lower house of the bicameral legislature under the Americans, with the Philippine Commission acting as the upper house. While the members of the Philippine Commission were appointed by the U.S. President with the conformity of the U.S. Senate, the members of the Philippine

Assembly were elected by representative districts previously delineated under the Philippine Organic Act of 1902 pursuant to the mandate to apportion the seats of the Philippine Assembly among the provinces as nearly as practicable according to population. Thus, legislative apportionment first started in our country.

The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment provision, dividing the country into 12 senate districts and 90 representative districts electing one delegate each to the House of Representatives. Section 16 of the Act specifically vested the Philippine Legislature with the authority to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative apportionment together with "district" as the basic unit of apportionment; the concern was "equality of representation . . . as an essential feature of republican institutions" as expressed in the leading case of Macias v. COMELEC.31 The case ruled that inequality of representation is a justiciable, not a political issue, which ruling was reiterated in Montejo v. COMELEC.32 Notably, no issue regarding the holding of a plebiscite ever came up in these cases and the others that followed, as no plebiscite was required.

Article VIII, Section 2 of the 1973 Constitution retained the concept of equal representation "in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio" with each district being, as far as practicable, contiguous, compact and adjacent territory. This formulation was essentially carried over to the 1987 Constitution, distinguished only from the previous one by the presence of party-list representatives. In neither Constitution was a plebiscite required.

The need for a plebiscite in the creation, division, merger, or abolition of local government units was not constitutionally enshrined until the 1973 Constitution. However, as early as 1959, R.A. No. 226433 required, in the creation of barrios by Provincial Boards, that the creation and definition of boundaries be "upon petition of a majority of the voters in the areas affected." In 1961, the Charter of the City of Caloocan (R.A. No. 3278) carried this further by requiring that the "Act shall take effect after a majority of voters of the Municipality of Caloocan vote in favor of the conversion of their municipality into a city in a plebiscite." This was followed up to 1972 by other legislative enactments requiring a plebiscite as a condition for the creation and conversion of local government units as well as the transfer of sitios from one legislative unit to another.34 In 1973, the plebiscite requirement was accorded constitutional status.

Under these separate historical tracks, it can be seen that the holding of a plebiscite was never a requirement in legislative apportionment or reapportionment. After it became constitutionally entrenched, a plebiscite was also always identified with the creation, division, merger, abolition and alteration of boundaries of local government units, never with the concept of legislative apportionment.

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a political unit because it is the basis for the election of a member of the House of Representatives and members of the local legislative body. It is not, however, a political subdivision through which functions of government are carried out. It can more appropriately be described as a representative unit that may or may not encompass the whole of a city or a province, but unlike the latter, it is not a corporate unit. Not being a corporate unit, a district does not act for and in behalf of the people comprising the district; it merely delineates the areas occupied by the people who will choose a representative in their national affairs. Unlike a province, which has a governor; a city or a municipality, which has a mayor; and a barangay, which has a punong barangay, a district does not have its own chief executive. The role of the congressman that it elects is to ensure that the voice of the people of the district is heard in Congress, not to oversee the affairs of the legislative district. Not being a corporate unit also signifies that it has no legal personality that must be created or dissolved and has no capacity to act. Hence, there is no need for any plebiscite in the creation, dissolution or any other similar action on a legislative district.

The local government units, on the other hand, are political and corporate units. They are the territorial and political subdivisions of the state.35 They possess legal personality on the authority of the Constitution and by action of the Legislature. The Constitution defines them as entities that Congress can, by law, create, divide, abolish, merge; or whose boundaries can be altered based on standards again established by both the Constitution and the Legislature.36 A local government unit's corporate existence begins upon the election and qualification of its chief executive and a majority of the members of its Sanggunian.37

As a political subdivision, a local government unit is an "instrumentality of the state in carrying out the functions of government."38 As a corporate entity with a distinct and separate juridical personality from the State, it exercises special functions for the sole benefit of its constituents. It acts as "an agency of the community in the administration of local affairs"39 and the mediums through which the people act in their corporate capacity on local concerns.40 In light of these roles, the Constitution saw it fit to expressly secure the consent of the people affected by the creation, division, merger, abolition or alteration of boundaries of local government units through a plebiscite.

These considerations clearly show the distinctions between a legislative apportionment or reapportionment and the division of a local government unit. Historically and by its intrinsic nature, a legislative apportionment does not mean, and does not even imply, a division of a local government unit where the apportionment takes place. Thus, the plebiscite requirement that applies to the division of a province, city, municipality or barangay under the Local Government Code should not apply to and be a requisite for the validity of a legislative apportionment or reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in accordance with the authority granted to Congress under Article VI, Section 5(4) of the Constitution. Its core provision - Section 1 - provides:

SECTION 1. Legislative Districts. - The lone legislative district of the City of Cagayan de Oro is hereby apportioned to commence in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from Barangay 1 to Barangay 40 shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a political and corporate entity takes place or is mandated. Cagayan de Oro City politically remains a single unit and its administration is not divided along territorial lines. Its territory remains completely whole and intact; there is only the addition of another legislative district and the delineation of the city into two districts for purposes of representation in the House of Representatives. Thus, Article X, Section 10 of the Constitution does not come into play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two districts.

Admittedly, the legislative reapportionment carries effects beyond the creation of another congressional district in the city by providing, as reflected in COMELEC Resolution No. 7837, for additional Sangguniang Panglunsod seats to be voted for along the lines of the congressional apportionment made. The effect on the Sangguniang Panglunsod, however, is not directly traceable to R.A. No. 9371 but to another law - R.A. No. 663641 - whose Section 3 provides:

SECTION 3. Other Cities. - The provision of any law to the contrary notwithstanding the City of Cebu, City of Davao, and any other city with more than one representative district shall have eight (8) councilors for each district who shall be residents thereof to be elected by the qualified voters therein, provided that the cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo and other cities comprising a representative district shall have twelve (12) councilors each and all other cities shall have ten (10) councilors each to be elected at large by the qualified voters of the said cities: Provided, That in no case shall the present number of councilors according to their charters be reduced.

However, neither does this law have the effect of dividing the City of Cagayan de Oro into two political and corporate units and territories. Rather than divide the city either territorially or as a corporate entity, the effect is merely to enhance voter representation by giving each city voter more and greater say, both in Congress and in the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro had only one congressman and 12 city council members citywide for its population of approximately 500,000.42 By having two legislative districts, each of them with one congressman, Cagayan de Oro now effectively has two congressmen, each one representing 250,000 of the city's population. In terms of services for city residents, this easily means better access to their congressman since each one now services only 250,000 constituents as against the

500,000 he used to represent. The same goes true for the Sangguniang Panglungsod with its ranks increased from 12 to 16 since each legislative district now has 8 councilors. In representation terms, the fewer constituents represented translate to a greater voice for each individual city resident in Congress and in the Sanggunian; each congressman and each councilor represents both a smaller area and fewer constituents whose fewer numbers are now concentrated in each representative. The City, for its part, now has twice the number of congressmen speaking for it and voting in the halls of Congress. Since the total number of congressmen in the country has not increased to the point of doubling its numbers, the presence of two congressman (instead of one) from the same city cannot but be a quantitative and proportional improvement in the representation of Cagayan de Oro City in Congress.

Equality of representation.

The petitioner argues that the distribution of the legislative districts is unequal. District 1 has only 93,719 registered voters while District 2 has 127,071. District 1 is composed mostly of rural barangays while District 2 is composed mostly of urban barangays.43 Thus, R.A. No. 9371 violates the principle of equality of representation.

A clarification must be made. The law clearly provides that the basis for districting shall be the number of the inhabitants of a city or a province, not the number of registered voters therein. We settled this very same question in Herrera v. COMELEC44 when we interpreted a provision in R.A. No. 7166 and COMELEC Resolution No. 2313 that applied to the Province of Guimaras. We categorically ruled that the basis for districting is the number of inhabitants of the Province of Guimaras by municipality based on the official 1995 Census of Population as certified to by Tomas P. Africa, Administrator of the National Statistics Office.

The petitioner, unfortunately, did not provide information about the actual population of Cagayan de Oro City. However, we take judicial notice of the August 2007 census of the National Statistics Office which shows thatbarangays comprising Cagayan de Oro's first district have a total population of 254,644, while the second district has 299,322 residents. Undeniably, these figures show a disparity in the population sizes of the districts.45 The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation.46 In fact, for cities, all it asks is that "each city with a population of at least two hundred fifty thousand shall have one representative," while ensuring representation for every province regardless of the size of its population. To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact, and adjacent territory. Thus, the Constitution leaves the local government units as they are found and does not require their division, merger or transfer to satisfy the numerical standard it imposes. Its requirements are satisfied despite some numerical disparity if the units are contiguous, compact and adjacent as far as practicable.

The petitioner's contention that there is a resulting inequality in the division of Cagayan de Oro City into two districts because the barangays in the first district are mostly rural barangays while the second district is mostly urban, is largely unsubstantiated. But

even if backed up by proper proof, we cannot question the division on the basis of the difference in the barangays' levels of development or developmental focus as these are not part of the constitutional standards for legislative apportionment or reapportionment. What the components of the two districts of Cagayan de Oro would be is a matter for the lawmakers to determine as a matter of policy. In the absence of any grave abuse of discretion or violation of the established legal parameters, this Court cannot intrude into the wisdom of these policies.47

WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the petitioner.

SO ORDERED.

G.R No. 188078               March 15, 2010

VICTORINO B. ALDABA, CARLO JOLETTE S. FAJARDO, JULIO G. MORADA, and MINERVA ALDABA MORADA, Petitioners, vs.COMMISSION ON ELECTIONS, Respondent.

R E S O L U T I O N

CARPIO, J.:

This resolves the motion for reconsideration of respondent Commission on Elections (COMELEC) of the Decision dated 25 January 2010.1

The COMELEC grounds its motion on the singular reason, already considered and rejected in the Decision, that Congress’ reliance on the Certification of Alberto N. Miranda (Miranda), Region III Director, National Statistics Office (NSO), projecting Malolos City’s population in 2010, is non-justiciable. The COMELEC also calls attention to the other sources of Malolos City’s population indicators as of 2007 (2007 Census of Population – PMS 3 – Progress Enumeration Report2) and as of 2008 (Certification of the City of Malolos’ Water District, dated 31 July 2008,3 and Certification of the Liga ng Barangay, dated 22 August 20084) which Congress allegedly used in enacting Republic Act No. 9591 (RA 9591). The COMELEC extends its non-justiciability argument to these materials.

We find no reason to grant the motion.

First. It will not do for the COMELEC to insist that the reliability and authoritativeness of the population indicators Congress used in enacting RA 9591 are non-justiciable. If laws creating legislative districts are unquestionably within the ambit of this Court’s judicial review power,5 then there is more reason to hold justiciable subsidiary questions impacting

on their constitutionality, such as their compliance with a specific constitutional limitation under Section 5(3), Article VI of the 1987 Constitution that only cities with at least 250,000 constituents are entitled to representation in Congress. To fulfill this obligation, the Court, of necessity, must inquire into the authoritativeness and reliability of the population indicators Congress used to comply with the constitutional limitation. Thus, nearly five decades ago, we already rejected claims of non-justiciability of an apportionment law alleged to violate the constitutional requirement of proportional representation:

It is argued in the motion to reconsider, that since Republic Act 3040 improves existing conditions, this Court could perhaps, in the exercise of judicial statesmanship, consider the question involved as purely political and therefore non-justiciable. The overwhelming weight of authority is that district apportionment laws are subject to review by the courts[:]

The constitutionality of a legislative apportionment act is a judicial question, and not one which the court cannot consider on the ground that it is a political question.

It is well settled that the passage of apportionment acts is not so exclusively within the political power of the legislature as to preclude a court from inquiring into their constitutionality when the question is properly brought before it.

It may be added in this connection, that the mere impact of the suit upon the political situation does not render it political instead of judicial.

The alleged circumstance that this statute improves the present set-up constitutes no excuse for approving a transgression of constitutional limitations, because the end does not justify the means. Furthermore, there is no reason to doubt that, aware of the existing inequality of representation, and impelled by its sense of duty, Congress will opportunely approve remedial legislation in accord with the precepts of the Constitution.6 (Emphasis supplied; internal citations omitted)

To deny the Court the exercise of its judicial review power over RA 9591 is to contend that this Court has no power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government," a duty mandated under Section 1, Article VIII of the Constitution. Indeed, if we subscribe to the COMELEC’s theory, this Court would be reduced to rubberstamping laws creating legislative districts no matter how unreliable and non-authoritative the population indicators Congress used to justify their creation. There can be no surer way to render meaningless the limitation in Section 5(3), Article VI of the 1987 Constitution.7

Second. Under Executive Order No. 135 (EO 135), the population indicators Congress used to measure Malolos City’s compliance with the constitutional limitation are unreliable and non-authoritative. On Miranda’s Certification, (that the "projected population of the [City] of Malolos will be 254,030 by the year 2010 using the population growth rate of 3.78[%] between 1995 and 2000"), this fell short of EO 135’s requirements that (a) for intercensal years, the certification should be based on a set of demographic

projections and estimates declared official by the National Statistical and Coordination Board (NSCB); (b) certifications on intercensal population estimates will be as of the middle of every year; and (c) certifications based on projections or estimates must be issued by the NSO Administrator or his designated certifying officer. Further, using Miranda’s own growth rate assumption of 3.78%, Malolos City’s population as of 1 August 2010 will only be 249,333, below the constitutional threshold of 250,000 (using as base Malolos City’s population as of 1 August 2007 which is 223,069). That Miranda issued his Certification "by authority of the NSO administrator" does not make the document reliable as it neither makes Miranda the NSO Administrator’s designated certifying officer nor cures the Certification of its fatal defects for failing to use demographic projections and estimates declared official by the NSCB or make the projection as of the middle of 2010. 1avvphi1

Nor are the 2007 Census of Population – PMS 3 – Progress Enumeration Report, the Certification of the City of Malolos’ Water District, dated 31 July 2008 and the Certification of the Liga ng Barangay, dated 22 August 2008, reliable because none of them qualifies as authoritative population indicator under EO 135. The 2007 Census of Population – PMS 3 – Progress Enumeration Report merely contains preliminary data on the population census of Bulacan which were subsequently adjusted to reflect actual population as indicated in the 2007 Census results (showing Malolos City’s population at 223,069). The COMELEC, through the Office of the Solicitor General (OSG), adopts Malolos City’s claim that the 2007 census for Malolos City was "sloped to make it appear that come Year 2010, the population count for Malolos would still fall short of the constitutional requirement."8 This unbecoming attack by the government’s chief counsel on the integrity of the processes of the government’s census authority has no place in our judicial system. The OSG ought to know that absent convincing proof of so-called data "sloping," the NSO enjoys the presumption of the regularity in the performance of its functions.

The Certification of the City of Malolos’ Water District fares no better. EO 135 excludes from its ambit certifications from a public utility gathered incidentally in the course of pursuing its business. To elevate the water district’s so-called population census to the level of credibility NSO certifications enjoy is to render useless the existence of NSO. This will allow population data incidentally gathered by electric, telephone, sewage, and other utilities to enter into legislative processes even though these private entities are not in the business of generating statistical data and thus lack the scientific training, experience and competence to handle, collate and process them.

Similarly, the Certification of the Liga ng Barangay is not authoritative because much like the Malolos City Water District, the Liga ng Barangay is not authorized to conduct population census, much less during off-census years. The non-NSO entities EO 135 authorizes to conduct population census are local government units (that is, province, city, municipality or barangay) subject to the prior approval of the NSCB and

under the technical supervision of the NSO from planning to data processing.9

By presenting these alternative population indicators with their widely divergent population figures,10 the COMELEC unwittingly highlighted the danger of relying on non-

NSO authorized certifications. EO 135’s stringent standards ensuring reliability of population census cannot be diluted as these data lie at the core of crucial government decisions and, in this case, the legislative function of enforcing the constitutional mandate of creating congressional districts in cities with at least 250,000 constituents.

There can be no doubt on the applicability of EO 135 to test the constitutionality of RA 9591. The COMELEC invoked EO 135 to convince the Court of the credibility and authoritativeness of Miranda’s certificate.11 It is hardly alien for the Court to adopt standards contained in a parallel statute to fill gaps in the law in the absence of an express prohibition.12 Indeed, one is hard-pressed to find any distinction, statistically speaking, on the reliability of an NSO certification of a city’s population for purposes of creating its legislative district and for purposes of converting it to a highly-urbanized or an independent component city.13 Congress itself confirms the wisdom and relevance of EO 135’s paradigm of privileging NSO certifications by mandating that compliance with the population requirement in the creation and conversion of local government units shall be proved exclusively by an NSO certification.14 Unquestionably, representation in Congress is no less important than the creation of local government units in enhancing our democratic institutions, thus both processes should be subject to the same stringent standards.

Third. Malolos City is entitled to representation in Congress only if, before the 10 May 2010 elections, it breaches the 250,000 population mark following the mandate in Section 3 of the Ordinance appended to the 1987 Constitution that "any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member." COMELEC neither alleged nor proved that Malolos City is in compliance with Section 3 of the Ordinance.

Fourth. Aside from failing to comply with Section 5(3), Article VI of the Constitution on the population requirement, the creation by RA 9591 of a legislative district for Malolos City, carving the city from the former First Legislative District, leaves the town of Bulacan isolated from the rest of the geographic mass of that district.15 This contravenes the requirement in Section 5(3), Article VI that each legislative district shall "comprise, as far as practicable, contiguous, compact, and adjacent territory." It is no argument to say, as the OSG does, that it was impracticable for Congress to create a district with contiguous, compact, and adjacent territory because Malolos city lies at the center of the First Legislative District. The geographic lay-out of the First Legislative District is not an insuperable condition making compliance with Section 5(3) impracticable. To adhere to the constitutional mandate, and thus maintain fidelity to its purpose of ensuring efficient representation, the practicable alternative for Congress was to include the municipality of Bulacan in Malolos City’s legislative district. Although unorthodox, the resulting contiguous and compact district fulfills the constitutional requirements of geographic unity and population floor, ensuring efficient representation of the minimum mass of constituents.

WHEREFORE, the Supplemental Motion for Reconsideration of respondent Commission on Elections dated 22 February 2010 is DENIED WITH FINALITY. Let no further pleadings be allowed.

SO ORDERED.

G.R. No. 189793               April 7, 2010

SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE ROBREDO, Petitioners, vs.COMMISSION ON ELECTIONS represented by its Chairman JOSE A.R. MELO and its Commissioners, RENE V. SARMIENTO, NICODEMO T. FERRER, LUCENITO N. TAGLE, ARMANDO VELASCO, ELIAS R. YUSOPH AND GREGORIO LARRAZABAL, Respondents.

D E C I S I O N

PEREZ, J.:

This case comes before this Court by way of a Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court. In this original action, petitioners Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the nullification as unconstitutional of Republic Act No. 9716, entitled "An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment." Petitioners consequently pray that the respondent Commission on Elections be restrained from making any issuances and from taking any steps relative to the implementation of Republic Act No. 9716.

Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by President Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31 October 2009, or fifteen (15) days following its publication in the Manila Standard, a newspaper of general circulation.1 In substance, the said law created an additional legislative district for the Province of Camarines Sur by reconfiguring the existing first and second legislative districts of the province.

Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to have a population of 1,693,821,2distributed among four (4) legislative districts in this wise:

District Municipalities/Cities Population

1st District Del GallegoRagayLupiSipocotCabusao

LibmananMinalabacPamplonaPasacaoSan Fernando

417,304

2nd District GainzaMilaorNagaPiliOcampo

CanamanCamaliganMagarao BombonCalabanga

474,899

3rd District CaramoanGarchitorenaGoaLagonoyPresentacion

SangaySan JoseTigaonTinambaSiruma

372,548

4th District IrigaBaaoBalatanBato

BuhiBulaNabua

429,070

Following the enactment of Republic Act No. 9716, the first and second districts of Camarines Sur were reconfigured in order to create an additional legislative district for the province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona, Pasacao, and San Fernando were combined with the second district municipalities of Milaor and Gainza to form a new second legislative district. The following table3 illustrates the reapportionment made by Republic Act No. 9716:

District Municipalities/Cities Population

1st District Del GallegoRagayLupiSipocotCabusao

  176,383

2nd District LibmananMinalabacPamplonaPasacao

San FernandoGainzaMilaor

276,777

3rd District (formerly 2nd District)

NagaPiliOcampoCanaman

CamaliganMagaraoBombonCalabanga

439,043

4th District (formerly 3rd District) CaramoanGarchitorenaGoaLagonoyPresentacion

SangaySan JoseTigaonTinambaSiruma

372,548

5th District (formerly 4th District) IrigaBaaoBalatanBato

BuhiBulaNabua

429,070

Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of the origins of the bill that became the law show that, from the filing of House Bill No. 4264 until its approval by the Senate on a vote of thirteen (13) in favor and two (2) against, the process progressed step by step, marked by public hearings on the sentiments and position of the local officials of Camarines Sur on the creation of a new congressional district, as well as argumentation and debate on the issue, now before us, concerning the stand of the oppositors of the bill that a population of at least 250,000 is required by the Constitution for such new district.4

Petitioner Aquino III was one of two senators who voted against the approval of the Bill by the Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was a part of the former second district from which the municipalities of Gainza and Milaor were taken for inclusion in the new second district. No other local executive joined the two; neither did the representatives of the former third and fourth districts of the province.

Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs afoul of the explicit constitutional standard that requires a minimum population of two hundred fifty thousand (250,000) for the creation of a legislative district.5 The petitioners claim that the reconfiguration by Republic Act No. 9716 of the first and second districts of Camarines Sur is unconstitutional, because the proposed first district will end up with a population of less than 250,000 or only 176,383.

Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited 250,000 minimum population standard.6 The provision reads:

Article VI

Section 5. (1) x x x x

(2) x x x x

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory.Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) x x x x (Emphasis supplied).

The petitioners posit that the 250,000 figure appearing in the above-cited provision is the minimum population requirement for the creation of a legislative district.7 The petitioners theorize that, save in the case of a newly created province, each legislative district created by Congress must be supported by a minimum population of at least 250,000 in order to be

valid.8 Under this view, existing legislative districts may be reapportioned and severed to form new districts, provided each resulting district will represent a population of at least 250,000. On the other hand, if the reapportionment would result in the creation of a legislative seat representing a populace of less than 250,000 inhabitants, the reapportionment must be stricken down as invalid for non-compliance with the minimum population requirement.

In support of their theory, the petitioners point to what they claim is the intent of the framers of the 1987 Constitution to adopt a population minimum of 250,000 in the creation of additional legislative seats.9 The petitioners argue that when the Constitutional Commission fixed the original number of district seats in the House of Representatives to two hundred (200), they took into account the projected national population of fifty five million (55,000,000) for the year 1986.10 According to the petitioners, 55 million people represented by 200 district representatives translates to roughly 250,000 people for every one (1) representative.11 Thus, the 250,000 population requirement found in Section 5(3), Article VI of the 1987 Constitution is actually based on the population constant used by the Constitutional Commission in distributing the initial 200 legislative seats.

Thus did the petitioners claim that in reapportioning legislative districts independently from the creation of a province, Congress is bound to observe a 250,000 population threshold, in the same manner that the Constitutional Commission did in the original apportionment.

Verbatim, the submission is that:

1. Republic Act 9716 is unconstitutional because the newly apportioned first district of Camarines Sur failed to meet the population requirement for the creation of the legislative district as explicitly provided in Article VI, Section 5, Paragraphs (1) and (3) of the Constitution and Section 3 of the Ordinance appended thereto; and

2. Republic Act 9716 violates the principle of proportional representation as provided in Article VI, Section 5 paragraphs (1), (3) and (4) of the Constitution.12

The provision subject of this case states:

Article VI

Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations.

(2) x x x x

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

On the other hand, the respondents, through the Office of the Solicitor General, seek the dismissal of the present petition based on procedural and substantive grounds.

On procedural matters, the respondents argue that the petitioners are guilty of two (2) fatal technical defects: first, petitioners committed an error in choosing to assail the constitutionality of Republic Act No. 9716 via the remedy of Certiorari and Prohibition under Rule 65 of the Rules of Court; and second, the petitioners have no locus standi to question the constitutionality of Republic Act No. 9716.

On substantive matters, the respondents call attention to an apparent distinction between cities and provinces drawn by Section 5(3), Article VI of the 1987 Constitution. The respondents concede the existence of a 250,000 population condition, but argue that a plain and simple reading of the questioned provision will show that the same has no application with respect to the creation of legislative districts in provinces.13 Rather, the 250,000 minimum population is only a requirement for the creation of a legislative district in a city.

In sum, the respondents deny the existence of a fixed population requirement for the reapportionment of districts in provinces. Therefore, Republic Act No. 9716, which only creates an additional legislative district within the province of Camarines Sur, should be sustained as a perfectly valid reapportionment law.

We first pass upon the threshold issues.

The respondents assert that by choosing to avail themselves of the remedies of Certiorari and Prohibition, the petitioners have committed a fatal procedural lapse. The respondents cite the following reasons:

1. The instant petition is bereft of any allegation that the respondents had acted without or in excess of jurisdiction, or with grave abuse of discretion. 1avvphi1

2. The remedy of Certiorari and Prohibition must be directed against a tribunal, board, officer or person, whether exercising judicial, quasi-judicial, or ministerial functions. Respondents maintain that in implementing Republic Act No. 9716, they were not acting as a judicial or quasi-judicial body, nor were they engaging in the performance of a ministerial act.

3. The petitioners could have availed themselves of another plain, speedy and adequate remedy in the ordinary course of law. Considering that the main thrust of the instant petition is the declaration of unconstitutionality of Republic Act No.

9716, the same could have been ventilated through a petition for declaratory relief, over which the Supreme Court has only appellate, not original jurisdiction.

The respondents likewise allege that the petitioners had failed to show that they had sustained, or is in danger of sustaining any substantial injury as a result of the implementation of Republic Act No. 9716. The respondents, therefore, conclude that the petitioners lack the required legal standing to question the constitutionality of Republic Act No. 9716.

This Court has paved the way away from procedural debates when confronted with issues that, by reason of constitutional importance, need a direct focus of the arguments on their content and substance.

The Supreme Court has, on more than one occasion, tempered the application of procedural rules,14 as well as relaxed the requirement of locus standi whenever confronted with an important issue of overreaching significance to society.15

Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR)16 and Jaworski v. PAGCOR,17this Court sanctioned momentary deviation from the principle of the hierarchy of courts, and took original cognizance of cases raising issues of paramount public importance. The Jaworski case ratiocinates:

Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental importance of the issues involved in this case warrants that we set aside the technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive influence on the social and moral well being of this nation, specially the youth; hence, their proper and just determination is an imperative need. This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial justice, must always be eschewed. (Emphasis supplied)

Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan v. Guingona,18 Tatad v. Executive Secretary,19 Chavez v. Public Estates Authority20 and Bagong Alyansang Makabayan v. Zamora,21 just to name a few, that absence of direct injury on the part of the party seeking judicial review may be excused when the latter is able to craft an issue of transcendental importance. In Lim v. Executive Secretary,22 this Court held that in cases of transcendental importance, the cases must be settled promptly and definitely, and so, the standing requirements may be relaxed. This liberal stance has been echoed in the more recent decision on Chavez v. Gonzales.23

Given the weight of the issue raised in the instant petition, the foregoing principles must apply. The beaten path must be taken. We go directly to the determination of whether or not a population of 250,000 is an indispensable constitutional requirement for the creation of a new legislative district in a province.

We deny the petition.

We start with the basics. Any law duly enacted by Congress carries with it the presumption of constitutionality.24Before a law may be declared unconstitutional by this Court, there must be a clear showing that a specific provision of the fundamental law has been violated or transgressed. When there is neither a violation of a specific provision of the Constitution nor any proof showing that there is such a violation, the presumption of constitutionality will prevail and the law must be upheld. To doubt is to sustain.25

There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose a legislative district.

As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI of the 1987 Constitution, coupled with what they perceive to be the intent of the framers of the Constitution to adopt a minimum population of 250,000 for each legislative district.

The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: "Each city with a population of at least two hundred fifty thousand, or each province, shall

have at least one representative."

The provision draws a plain and clear distinction between the entitlement of a city to a district on one hand, and the entitlement of a province to a district on the other. For while a province is entitled to at least a representative, with nothing mentioned about population, a city must first meet a population minimum of 250,000 in order to be similarly entitled.

The use by the subject provision of a comma to separate the phrase "each city with a population of at least two hundred fifty thousand" from the phrase "or each province" point to no other conclusion than that the 250,000 minimum population is only required for a city, but not for a province. 26

Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for a city to be entitled to a representative, but not so for a province.

The 250,000 minimum population requirement for legislative districts in cities was, in turn, the subject of interpretation by this Court in Mariano, Jr. v. COMELEC.27

In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which was the law that converted the Municipality of Makati into a Highly Urbanized City. As it happened, Republic Act No. 7854 created an additional legislative district for Makati, which at that time was a lone district. The petitioners in that case argued that the creation of an additional district would violate Section 5(3), Article VI of the Constitution, because the resulting districts would be supported by a population of less than 250,000, considering that Makati had a total population of only 450,000. The Supreme Court sustained the constitutionality of the law and the validity of the newly created district, explaining the operation of the Constitutional phrase "each city with a population of at least two hundred fifty thousand," to wit:

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance appended to the Constitution provides that a city whose population has   increased to more than two hundred fifty thousand (250,000)   shall be entitled to   at least one congressional representative . 28(Emphasis supplied)

The Mariano case limited the application of the 250,000 minimum population requirement for cities only to its initial legislative district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district.

There is no reason why the Mariano case, which involves the creation of an additional district within a city, should not be applied to additional districts in provinces. Indeed, if an additional legislative district created within a city is not required to represent a population

of at least 250,000 in order to be valid, neither should such be needed for an additional district in a province, considering moreover that a province is entitled to an initial seat by

the mere fact of its creation and regardless of its population.

Apropos for discussion is the provision of the Local Government Code on the creation of a province which, by virtue of and upon creation, is entitled to at least a legislative district. Thus, Section 461 of the Local Government Code states:

Requisites for Creation. – (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office.

Notably, the requirement of population is not an indispensable requirement, but is merely an alternative addition to the indispensable income requirement.

Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the deliberations on the words and meaning of Section 5 of Article VI.

The whats, whys, and wherefores of the population requirement of "at least two hundred fifty thousand" may be gleaned from the records of the Constitutional Commission which,

upon framing the provisions of Section 5 of Article VI, proceeded to form an ordinance that would be appended to the final document. The Ordinance is captioned "APPORTIONING THE SEATS OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE PHILIPPINES TO THE DIFFERENT LEGISLATIVE DISTRICTS IN PROVINCES AND CITIES AND THE METROPOLITAN MANILA AREA." Such records would show that the 250,000 population benchmark was used for the 1986 nationwide apportionment of legislative districts among provinces, cities and Metropolitan Manila. Simply put, the population figure was used to determine how many districts a province, city, or Metropolitan Manila should have. Simply discernible too is the fact that, for the purpose, population had to be the determinant. Even then, the requirement of 250,000 inhabitants was not taken as an absolute minimum for one legislative district. And, closer to the point herein at issue, in the determination of the precise district within the province to which, through the use of the population benchmark, so many districts have been apportioned, population as a factor was not the sole,though it was among, several determinants.

From its journal,29 we can see that the Constitutional Commission originally divided the entire country into two hundred (200) districts, which corresponded to the original number of district representatives. The 200 seats were distributed by the Constitutional Commission in this manner: first, one (1) seat each was given to the seventy-three (73) provinces and the ten (10) cities with a population of at least 250,000;30 second, the remaining seats were then redistributed among the provinces, cities and the Metropolitan Area "in accordance with the number of their inhabitants on the basis of a uniform and progressive ratio."31 Commissioner Davide, who later became a Member and then Chief Justice of the Court, explained this in his sponsorship remark32 for the Ordinance to be appended to the 1987 Constitution:

Commissioner Davide: The ordinance fixes at 200 the number of legislative seats which are, in turn, apportioned among provinces and cities with a population of at least 250, 000 and the Metropolitan Area in accordance with the number of their respective inhabitants on the basis of a uniform and progressive ratio. The population is based on the 1986 projection, with the 1980 official enumeration as the point of reckoning. This projection indicates that our population is more or less 56 million. Taking into account the mandate that each city with at least 250, 000 inhabitants and each province shall have at least one representative, we first allotted one seat for each of the 73 provinces, and each one for all cities with a population of at least 250, 000, which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter, we then proceed[ed] to increase whenever appropriate the number of seats for the provinces and cities in accordance with the number of their inhabitants on the basis of a uniform and progressive ratio. (Emphasis supplied).

Thus was the number of seats computed for each province and city. Differentiated from this, the determination of the districts within the province had to consider "all protests and complaints formally received" which, the records show, dealt with determinants other than population as already mentioned.

Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates:

INTERPELLATION OF MR. NOLLEDO:

Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns when it was more affinity with the southern town of Aborlan, Batarasa, Brooke’s Point, Narra, Quezon and Marcos. He stated that the First District has a greater area than the Second District. He then queried whether population was the only factor considered by the Committee in redistricting.

Replying thereto, Mr. Davide explained that the Committee took into account the standards set in Section 5 of the Article on the Legislative Department, namely: 1) the legislative seats should be apportioned among the provinces and cities and the Metropolitan Manila area in accordance with their inhabitants on the basis of a uniform and progressive ratio; and 2) the legislative district must be compact, adjacent and contiguous.

Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was included with the northern towns. He then inquired what is the distance between Puerto Princesa from San Vicente.

x x x x

Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based on the apportionment, its inclusion with the northern towns would result in a combined population of 265,000 as against only 186,000 for the south. He added that Cuyo and Coron are very important towns in the northern part of Palawan and, in fact, Cuyo was the capital of Palawan before its transfer to Puerto Princesa. He also pointed out that there are more potential candidates in the north and therefore if Puerto Princesa City and the towns of Cuyo and Coron are lumped together, there would be less candidates in the south, most of whose inhabitants are not interested in politics. He then suggested that Puerto Princesa be included in the south or the Second District.

Mr. Davide stated that the proposal would be considered during the period of amendments. He requested that the COMELEC staff study said proposal.33

"PROPOSED AMENDMENT OF MR. NOLLEDO

On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the interpellations that District I has a total population of 265,358 including the City of Puerto Princesa, while the Second District has a total population of 186,733. He proposed, however, that Puerto Princesa be included in the Second District in order to satisfy the contiguity requirement in the Constitution considering that said City is nearer the southern towns comprising the Second District.

In reply to Mr. Monsod’s query, Mr. Nolledo explained that with the proposed transfer of Puerto Princesa City to the Second District, the First District would only have a total population of 190,000 while the Second District would have 262,213, and there would be no substantial changes.

Mr. Davide accepted Mr. Nolledo’s proposal to insert Puerto Princesa City before the Municipality of Aborlan.

There being no objection on the part of the Members the same was approved by the Body.

APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN

There being no other amendment, on motion of Mr. Davide, there being no objection, the apportionment and districting for the province of Palawan was approved by the Body.34

The districting of Palawan disregarded the 250,000 population figure. It was decided by the importance of the towns and the city that eventually composed the districts.

Benguet and Baguio are another reference point. The Journal further narrates:

At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation with the Committee for the possible reopening of the approval of Region I with respect to Benguet and Baguio City.

REMARKS OF MR. REGALADO

Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are placed in one district. He stated that he was toying with the idea that, perhaps as a special consideration for Baguio because it is the summer capital of the Philippines, Tuba could be divorced from Baguio City so that it could, by itself, have its own constituency and Tuba could be transferred to the Second District together with Itogon. Mr. Davide, however, pointed out that the population of Baguio City is only 141,149.

Mr. Regalado admitted that the regular population of Baguio may be lower during certain times of the year, but the transient population would increase the population substantially and, therefore, for purposes of business and professional transactions, it is beyond question that population-wise, Baguio would more than qualify, not to speak of the official business matters, transactions and offices that are also there.

Mr. Davide adverted to Director de Lima’s statement that unless Tuba and Baguio City are united, Tuba will be isolated from the rest of Benguet as the place can only be reached by passing through Baguio City. He stated that the Committee would submit the matter to the Body.

Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated that the Body should have a say on the matter and that the considerations he had given are not on the demographic aspects but on the fact that Baguio City is the summer capital, the venue and situs of many government offices and functions.

On motion of Mr. Davide, there being no objection, the Body approved the reconsideration of the earlier approval of the apportionment and districting of Region I, particularly Benguet.

Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr. Regalado was put to a vote. With 14 Members voting in favor and none against, the amendment was approved by the Body.

Mr. Davide informed that in view of the approval of the amendment, Benguet with Baguio City will have two seats. The First District shall comprise of the municipalities of Mankayan, Buguias, Bakun, Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan, Itogon and Tuba. The Second District shall comprise of Baguio City alone.

There being no objection, the Body approved the apportionment and districting of Region I.35

Quite emphatically, population was explicitly removed as a factor.

It may be additionally mentioned that the province of Cavite was divided into districts based on the distribution of its three cities, with each district having a city: one district "supposed to be a fishing area; another a vegetable and fruit area; and the third, a rice growing area," because such consideration "fosters common interests in line with the standard of compactness."36 In the districting of Maguindanao, among the matters discussed were "political stability and common interest among the people in the area" and the possibility of "chaos and disunity" considering the "accepted regional, political, traditional and sectoral leaders."37 For Laguna, it was mentioned that municipalities in the highland should not be grouped with the towns in the lowland. For Cebu, Commissioner Maambong proposed that they should "balance the area and population."38

Consistent with Mariano and with the framer deliberations on district apportionment, we stated in Bagabuyo v. COMELEC39 that:

x x x Undeniably, these figures show a disparity in the population sizes of the districts. The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x. To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent territory. (Emphasis supplied).

This 2008 pronouncement is fresh reasoning against the uncompromising stand of petitioner that an additional provincial legislative district, which does not have at least a 250,000 population is not allowed by the Constitution.

The foregoing reading and review lead to a clear lesson.

Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the petition find support. And the formulation of the Ordinance in the implementation of the provision, nay, even the Ordinance itself, refutes the contention that a population of 250,000 is a constitutional sine qua non for the formation of an additional legislative district in a province, whose population growth has increased beyond the 1986 numbers.

Translated in the terms of the present case:

1. The Province of Camarines Sur, with an estimated population of 1,693,821 in 2007 is ─ based on the formula and constant number of 250,000 used by the Constitutional Commission in nationally apportioning legislative districts among provinces and cities ─ entitled to two (2) districts in addition to the four (4) that it was given in the 1986 apportionment. Significantly, petitioner Aquino concedes this point.40 In other words, Section 5 of Article VI as clearly written allows and does not prohibit an additional district for the Province of Camarines Sur, such as that provided for in Republic Act No. 9786;

2. Based on the pith and pitch of the exchanges on the Ordinance on the protests and complaints against strict conformity with the population standard, and more importantly based on the final districting in the Ordinance on considerations other than population, the reapportionment or the recomposition of the first and second legislative districts in the Province of Camarines Sur that resulted in the creation of a new legislative district is valid even if the population of the new district is 176,383 and not 250,000 as insisted upon by the petitioners.

3. The factors mentioned during the deliberations on House Bill No. 4264, were:

(a) the dialects spoken in the grouped municipalities;

(b) the size of the original groupings compared to that of the regrouped municipalities;

(c) the natural division separating the municipality subject of the discussion from the reconfigured District One; and

(d) the balancing of the areas of the three districts resulting from the redistricting of Districts One and Two.41

Each of such factors and in relation to the others considered together, with the increased population of the erstwhile Districts One and Two, point to the utter absence of abuse of discretion, much less grave abuse of discretion,42 that would warrant the invalidation of Republic Act No. 9716.

To be clear about our judgment, we do not say that in the reapportionment of the first and second legislative districts of Camarines Sur, the number of inhabitants in the resulting additional district should not be considered. Our ruling is that population is not the only factor but is just one of several other factors in the composition of the additional district.

Such settlement is in accord with both the text of the Constitution and the spirit of the letter, so very clearly given form in the Constitutional debates on the exact issue presented by this petition.1avvphi1

WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled "An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment" is a VALID LAW.

SO ORDERED.

JOSE PORTUGAL PEREZAssociate Justice

WE CONCUR:

REYNATO S. PUNOChief Justice

ANTONIO T. CARPIOAssociate Justice

RENATO C. CORONAAssociate Justice

CONCHITA CARPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRIONAssociate Justice

DIOSDADO M. PERALTAAssociate Justice

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

(On Official Leave)ROBERTO A. ABAD*

Associate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

JOSE CATRAL MENDOZAAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNOChief Justice

Footnotes

* On Official Leave.

1 Republic Act No. 9716 was published in the 15 October 2009 issue of the Manila Standard.

2 Figures based on the 2007 Census of Population conducted by the National Statistics Office.

3 Figures based on the 2007 Census of Population conducted by the National Statistics Office.

4 Rollo, p. 40.

5 Id. at 12.

6 Id. at 14-15.

7 Id.

8 Id.

9 Id. at 16.

10 Id.

11 Id.

12 Id. at 12-13.

13 Id. at 96.

14 Del Mar v. Philippine Amusement and Gaming Corporation, 400 Phil. 307 (2000); Fortich v. Corona, 352 Phil. 461 (1998).

15 Chavez v. Public Estates Authority, 433 Phil. 506, 528 (2002); Bagong Alyansang Makabayan v. Zamora, 396 Phil. 623, 646 (2000); Lim v. Executive Secretary, 430 Phil. 555, 580 (2002).

16 Id.

17 464 Phil. 375, 385 (2004).

18 G.R. No. 113375, 5 May 1994, 232 SCRA 110.

19 346 Phil. 321 (1997).

20 Supra note 15.

21 Id.

22 Supra note 15 at 580.

23 G.R. No. 168338, 15 February 2008, 545 SCRA 441.

24 Alvarez v. Guingona, 322 Phil. 774, 789 (1996).

25 The Philippine Judges Association v. Prado, G.R. No. 105371, 11 November 1993, 227 SCRA 703, 705-706.

26 Records of the Constitutional Commission, Vol. II, pp. 136-138.

27 312 Phil. 259 (1995).

28 Id. at 272-273.

29 Journal of the Constitutional Commission, Vol. III, pp. 1859-1881.

30 Record of the Constitutional Commission, Vol. V, p. 949.

31 Id.

32 Id.

33 Journal of the Constitutional Commission, Vol. III, p. 1861.

34 Id. at 1867.

35 Id. at 1872.

36 Id. at 1867-1868.

37 Id. at 1861.

38 Id. at 1874.

39 G.R. No. 176970, 8 December 2008, 573 SCRA 290, 309-310.

40 Rollo, p. 4.

41 Sen. Aquino, Mr. President, we have to respond to the last statement. The others that have been recommended together with the Camarines Sur bill were all tested based on one standard, not separate standards for everybody. It is our opinion and that is the source of this discussion and of this debate; that we hold that there is a 250,000-rule embodied in so many provisions of the Constitution. Our distinguished collegue from the Bicol and Makati areas does not agree. I think we have established that we do not agree on our interpretation of the Constitution.

With his permission, Mr. President, since I am against of his time, may we move on to the next point so as not to be accused of delaying the passage of the bill any further?

May we ask: Why was Libmanan not considered to be a portion of the proposed first district? Because having done the same, instead of having the 170,000-figure, we would have a 269,222 population figure.

Sen. Arroyo. All right. Look at that map.

Sen. Aquino. May we just move to another rostrum, Mr. President. We cannot view the details from this particular rostrum, with the indulgence of our distinguished colleague.

Sen. Arroyo. x x x.

x x x x.

Now, the first district of Camarines Sur is so big that it consists of 40% of the province, area-wise. Libmanan is the biggest municipality in the entire or present first district. It stuck in the middle. We cannot move that no matter what – because that is the biggest. Anyway, we move it left, we move it right, it would change the configuration. Those are the practical difficulties in trying to figure out how. That is the situation. As we see, there is a water extension of the gulf. We cannot connect them because they are separated by water. So it is no longer contiguous because it is separated by water and there is nothing we can do about it. That is what I was saying about mathematical formula. We cannot have

mathematical formula when a natural boundary like water cannot make the municipalities contiguous. That is the picture. It is all there.

The violet is the tagalog-speaking province. The green is the Bicol-speaking province so that is the only way to divide it. So much has been done in the Lower House in trying to figure it out. But as long as the three Congressman do not agree, then there is nothing we can do about it. That Representative, what the Congressman say in his district is "king". He is the king there, there is nothing we can do about it. We respect that.

Libmanan is the biggest one. We cannot move that anyway. (TSN, Senate Plenary Debates on H.B. No. 4264, 22 September 2009).

42 Grave abuse of discretion contemplates a situation where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility – so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined by, or to act at all in contemplation of law. (Cabrera v. COMELEC, G.R. No. 182084, 6 October 2008, 567 SCRA 686, 691).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO, J.:

I dissent. The majority opinion wreaks havoc on the bedrock principle of our "democratic and republican State"1that all votes are equal. Instead, the majority opinion introduces the Orwellian concept that some votes are more equal than others. The majority opinion allows, for the first time under the 1987 Constitution, voters in a legislative district created by Congress to send one representative to Congress even if the district has a population of only 176,383. In sharp contrast, all other legislative districts created by Congress send one representative each because they all meet the minimum population requirement of 250,000.

The assailed Republic Act No. 9716 (RA 9716) is unconstitutional for being utterly repugnant to the clear and precise "standards" prescribed in Section 5, Article VI of the 1987 Constitution for the creation of legislative districts. Section 5(4)2 of Article VI mandates that "Congress shall make a reapportionment of legislative districts based on the standards" fixed in Section 5. These constitutional standards, as far as population is concerned, are: (1) proportional representation; (2) minimum population of 250,000 per legislative district; (3) progressive ratio in the increase of legislative districts as the population base increases; and (4) uniformity in apportionment of legislative districts "in

provinces, cities, and the Metropolitan Manila area." The assailed RA 9716 grossly violates these constitutional standards.

Legislators Represent People, Not Provinces or Cities

There was never any debate3 in the design of our government that the members of the House of Representatives, just like the members of the Senate, represent people – not provinces, cities, or any other political unit.4 The only difference is that the members of the Senate represent the people at large while the members of the House represent the people in legislative districts. Thus, population – or the number of inhabitants in a district – is the essential measure of representation in the House of Representatives.5 Section 5(1), Article VI of the 1987 Constitution, just like in the previous Constitutions,6 could not be any clearer:

The House of Representatives shall be composed of x x x members, x x x, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio x x x. (Emphasis supplied)

Evidently, the idea of the people, as individuals, electing their representatives under the principle of "one person, one vote,"7 is the cardinal feature of any polity, like ours, claiming to be a "democratic and republican State."8 A democracy in its pure state is one where the majority of the people, under the principle of "one person, one vote," directly run the government.9 A republic is one which has no monarch, royalty or nobility,10 ruled by a representative government elected by the majority of the people under the principle of "one person, one vote," where all citizens are equally subject to the laws.11 A republic is also known as a representative democracy. The democratic and republican ideals are intertwined, and converge on the common principle of equality -- equality in voting power, and equality under the law.

The constitutional standard of proportional representation is rooted in equality in voting power -- that each vote is worth the same as any other vote,

not more or less. Regardless of race, ethnicity, religion, sex, occupation, poverty, wealth or literacy, voters have an equal vote. Translated in terms of legislative redistricting, this means equal representation for equal numbers of people12 or equal voting weight per legislative district. In constitutional parlance, this means representation for every legislative district "in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" 13 or proportional representation. Thus, the principle of "one person, one vote" or equality in voting power is inherent in proportional representation.

It was in obedience to the rule on proportional representation that this Court unanimously struck down an apportionment law which:

(a) x x x gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) x x x gave Manila four members, while Cotabato with a bigger population

got three only; (c) [gave] Pangasinan with less inhabitants than both Manila and Cotabato x x x more than both, five members having been assigned to it; (d) [gave] Samar (with 871,857) four members while Davao with 903,224 got three only; (e) [gave] Bulacan with 557,691 x x x two only, while Albay with less inhabitants (515,691) got three, and (f) [gave] Misamis Oriental with 387,839 x x x one member only, while Cavite with less inhabitants (379,904) got two.14 x x x x

for being repugnant to the constitutional edict under the 1935 Constitution that the Members of the House of Representatives "shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants."15

Section 5(1), Article VI of the 1987 Constitution is even more precise by providing that the Members of the House "shall be elected from legislative districts

apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio x x x." The phrase "as nearly as may be according to the number of their respective inhabitants" in the 1935 Constitution has been changed in the 1987 Constitution to the more precise "in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio x x x." The addition of the phrase "on the basis of a uniform and progressive ratio" was meant to stress that the rule on proportional representation shall apply uniformly in the apportionment of every legislative district.

The phrase "in accordance with the number of their respective inhabitants," which precedes the phrase "provinces, cities and the Metropolitan Manila area," means that legislative districts in provinces, cities and the Metropolitan Manila area shall be apportioned according to proportional representation or equal representation for equal numbers of people. Thus, there shall be one legislative district for every given number of people, whether inhabiting in provinces, cities or the Metropolitan Manila area.

The phrase "on the basis of a uniform x x x ratio" means that the ratio of one legislative district for every given number of people shall be applied uniformly in all apportionments, whether in provinces, cities or the Metropolitan Manila area. Section 5(3) of Article VI mandates that "[e]ach city with a population of at least two hundred fifty thousand x x x shall have at least one representative." Consequently, a population of 250,000 serves as the default minimum population applicable to every legislative district following the rule on uniformity in the apportionment of legislative districts, whether in provinces, cities or in the Metropolitan Manila area.

The phrase "progressive ratio" means that the number of legislative districts shall increase as the number of the population increases, whether in provinces, cities or the Metropolitan Manila area. Thus, a province shall have one

legislative district if it has a population of 250,000, and two legislative districts if it has 500,000. This insures that proportional representation is maintained if there are increases in the population of a province, city, or the Metropolitan Manila area. This is what is

meant by a "progressive ratio" in the apportionment of legislative districts, a ratio that must also be uniformly applied.

Obviously, the 1987 Constitution has laid down clear and precise standards in the apportionment of legislative districts compared to the 1935 Constitution. What is inescapable is that the 1987 Constitution has strengthened and tightened the requirement of uniformity in the apportionment of legislative districts, whether in provinces, cities or the Metropolitan Manila area.

To now declare, as the majority opinion holds, that apportionment in provinces can disregard the minimum population requirement because the Constitution speaks of a minimum population only in cities is logically flawed, constitutionally repulsive, and fatally corrosive of the bedrock notion that this country is a "democratic and republican State."16 This ruling of the majority strikes a debilitating blow at the heart of our democratic and republican system of government.

Under the majority’s ruling, Congress can create legislative districts in provinces without regard to any minimum population. Such legislative districts can have a population of 150,000, 100,000, 50,000 or even 100, thus throwing out of the window the constitutional standards of proportional representation and uniformity in the creation of legislative districts. To disregard the minimum population requirement of 250,000 in provincial legislative districts while

maintaining it in city legislative districts is to disregard, as a necessary consequence, the constitutional standards of proportional representation and uniformity in the creation of legislative districts in "provinces, cities, and the Metropolitan Manila area." This means that legislative districts in provinces can have a minimum population of anywhere from 100 (or even less) to 250,000, while legislative districts in cities will always have a minimum population of 250,000. This will spell the end of our democratic and republican system of government as we know it and as envisioned in the 1987 Constitution.

Constitutional Standards for Reapportionment:Population and Territory

The Constitution itself provides the "standards" against which reapportionment laws like RA 9716 will be tested, following its command that "Congress shall make a reapportionment of legislative districts based on the standardsprovided in this section,"17 referring to Section 5, Article VI. These standards relate to first, population, and second, territory. Section 5 admits of no other standards.

On population, the standards of the 1987 Constitution have four elements. First is the rule on proportional representation, which is the universal standard in direct representation in legislatures. Second is the rule on a minimum population of 250,000 per legislative district, which was not present in our previous Constitutions. Third is the rule on progressive ratio, which means that the number of legislative districts shall increase as the number of the population increases in accordance with the rule on proportional representation. Fourth is the rule on uniformity, which requires that the first three rules

shall apply uniformly in all apportionments in provinces, cities and the Metropolitan Manila area.

The Constitution18 and the Ordinance19 appended to the 1987 Constitution fixes the minimum population of a legislative district at 250,000. Although textually relating to cities, this minimum population requirement applies equally to legislative districts apportioned in provinces and the Metropolitan Manila area because of the constitutional command that "legislative districts [shall be] apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio." To reiterate, the Constitution commands that this rule on uniformity shall apply to legislative districts in "provinces, cities, and the Metropolitan Manila area." Otherwise, districts apportioned in provinces, if freed from the minimum population requirement, will have constituencies two, four, ten times lower than in districts apportioned in cities, violating the constitutional command that apportionment shall be based on a uniform ratio in "provinces, cities, and the Metropolitan Manila area."

In short, the constitutional "standards" in the apportionment of legislative districts under Section 5 of Article VI, as far as population is concerned, are: (1) proportional representation; (2) a minimum "population of at least two hundred fifty thousand" per legislative district; (3) progressive ratio in the increase of legislative districts as the population base increases; and (4) uniformity in the apportionment of legislative districts in "provinces, cities, and the Metropolitan Manila area."

For territory, the Constitution prescribes the "standards" that a legislative district must be, "as far as practicable, contiguous, compact, and adjacent."

To repeat, other than population and territory, there are no other standards prescribed in Section 5 of Article VI. This Court cannot add other standards not found in Section 5.

The Malapportionment of RA 9716 Floutsthe Constitutional Standards on Population

RA 9716 grossly malapportions Camarines Sur’s proposed five legislative districts by flouting the standards of proportional representation among legislative districts and the minimum population per legislative district.

Based on the 2007 census, the proposed First District under RA 9716 will have a population of only 176,383, which is 29% below the constitutional minimum population of 250,000 per legislative district. In contrast, the remaining four proposed districts have populations way above the minimum with the highest at 439,043 (proposed Third District), lowest at 276,777 (proposed Second District) and an average of 379,359. Indeed, the disparity is so high that three of the proposed districts (Third, Fourth, and Fifth Districts) have populations more than double that of the proposed First District.20 This results in wide variances among the districts’ populations. Still using the 2007 census, the ideal per district population for Camarines Sur is 338,764.21 The populations of the proposed districts swing from this ideal by a high of positive 29.6% (Third

District) to a low of negative 47.9% (First District).22 This means that the smallest proposed district (First District) is underpopulated by nearly 50% of the ideal and the biggest proposed district (Third District) is overpopulated by nearly 30% of the ideal.

The resulting vote undervaluation (for voters in the disfavored districts) and vote overvaluation (for voters in the First District) fails even the most liberal application of the constitutional standards. Votes in the proposed First District are overvalued by more than 200% compared to votes from the Third, Fourth, and Fifth Districts and by more than 60% compared to votes in the Second District. Conversely, votes from the Third, Fourth, and Fifth Districts are undervalued by more than 200% compared to votes in the First District while those in the Second District suffer more than 60% undervaluation.

Proportional representation in redistricting does not mean exact numbers of population, to the last digit, for every legislative district. However, under the assailed RA 9716, the variances swing from negative 47.9% to positive 29.6%. Under any redistricting yardstick, such variances are grossly anomalous and destructive of the concept of proportional representation. In the United States, the Supreme Court there ruled that a variance of even less than 1% is unconstitutional in the absence of proof of a good faith effort to achieve a mathematically exact apportionment.23

Significantly, petitioner Senator Aquino’s attempt to redraw districting lines to make all five proposed districts compliant with the minimum population requirement (and thus lessen the wide variances in population among the districts) was thwarted chiefly for political expediency: his colleagues in the Senate deemed the existing districts in Camarines Sur "untouchable" because "[a Congressman] is king [in his district]."24 This shows a stark absence of a good faith effort to

achieve a more precise proportional representation in the redistricting under the assailed RA 9716. Clearly, RA 9716 tinkers with vote valuation, and consequently with the constitutional standard of proportional representation, based solely on the whims of incumbent Congressmen, an invalid standard for redistricting under Section 5 of Article VI.

Equally important, RA 9716 violates the minimum population requirement of 250,000 in creating the proposed First District, which will have a population of only 176,383. The minimum population of 250,000 per legislative district admits of no variance and must be complied with to the last digit. The Constitution mandates a population of "at least two hundred fifty thousand" for a legislative district in a city, and under the principle of "uniform and progressive ratio," for every legislative district in provinces and in the Metropolitan Manila area.

Entitlement of "Each Province" to "at Least One Representative"No Basis to Ignore Standard of Uniform Population Ratio

The directive in Section 5(3) of Article VI that "each province, shall have at least one representative" means only that when a province is created, a legislative district must also be created with it.25 Can this district have a population below 250,000? To answer in the

affirmative is to ignore the constitutional mandate that districts in provinces be apportioned "in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio." That the Constitution never meant to exclude provinces from the requirement of proportional representation is evident in the opening provision of Section 5(1), which states:

The House of Representatives shall be composed of x x x members, x x x, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio x x x." (Boldfacing and underscoring supplied)

In short, the Constitution clearly mandates that the creation of legislative districts in provinces, cities and the Metropolitan Manila area must comply with proportional representation, on the basis of a uniform and progressive ratio.26

Apportionment in the Ordinance Appended to the 1987 ConstitutionDistinct from Legislative Reapportionments

It will not do to hoist the apportionment under the Ordinance appended to the Constitution or Mariano v. COMELEC27 and Bagabuyo v. COMELEC28 as normative props to shore up the hollow proposition that reapportionment in provinces can dispense with the minimum population of 250,000 as prescribed in Section 5 of Article VI. In the first place, the Constitutional Commission, exercising constituent powers, enjoyed absolute discretion to relax the standards it textualized in Section 5, Article VI, in the interest of creating legislative districts en masse cognizant of legitimate concerns.29 Only the people, through the instrument of ratification, possessed the greater sovereign power to overrule the Constitutional Commission. By overwhelmingly ratifying the 1987 Constitution, the people in the exercise of their sovereign power sanctioned the Constitutional Commission’s discretionary judgments.

In contrast, Congress enacted RA 9716 in the exercise of its legislative powers under the 1987 Constitution and subject to the reapportionment standards in Section 5, Article VI of the Constitution. Congress is strictly bound by the reapportionment standards in Section 5, unlike the Constitutional Commission which could create one-time exceptions subject to ratification by the sovereign people. Until it enacted RA 9716, Congress never deviated from the minimum population requirement of 250,000 in creating a legislative district. Thus, in Republic Act No. 7854 (RA 7854) which doubled the legislative districts in Makati City, the Court in Mariano v. COMELEC took note of the certification by the National Statistics Office that at the time of the enactment of RA 7854, the population of Makati City was 508,174, entitling it to two representatives.30

Footnote 13 in Mariano v. COMELEC states: "As per the certificate issued by Administrator Tomas Africa of the National Census and Statistics Office, the population of Makati as of 1994 stood at 508,174; August 4, 1994, Senate Deliberations on House Bill No. 12240 (converting Makati into a highly urbanized city) x x x."

Similarly, in Republic Act No. 9371 (RA 9371) which also doubled the legislative districts in Cagayan de Oro City, the two districts created complied with the minimum population of 250,000 (254,644 and 299,322, respectively), as the Court noted in Bagabuyo v. COMELEC.31 Contrary to the assertion of the majority opinion, neither Mariano v. COMELEC nor Bagabuyo v. COMELEC supports the claim that Congress can create a legislative district with a population of less than 250,000. On the contrary, these cases confirm that every legislative district must have a minimum population of 250,000. Only very recently, this Court in Aldaba v. COMELEC32 struck down a law creating a legislative district in the City of Malolos, which has a population just short of the 250,000 minimum requirement.

RA 9716 Harbinger for Wave of Malapportionments

More than 20 years after the 1987 Constitution took effect, Congress has yet to comply with the Constitution’s mandate that "[w]ithin three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section."33 Instead, Congress has contented itself with enacting piecemeal reapportionment laws for individual areas, either for this sole purpose34or ancillary to the conversion35 or creation36 of a local government unit, at the behest of legislators representing the area. As movements

of district lines spell doom or salvation for entrenched political interests, this process subjects Congress to intense pressure to keep off certain districts.

Until RA 9716 came along, Congress was able to balance political exigency with constitutional imperatives. RA 9716 marks a tectonic shift by tilting the balance in favor of entrenched interests, sacrificing the Constitution and ultimately, the ideals of representative democracy, at the altar of political expediency. If left unchecked, laws like RA 9716 will fill the House of Representatives with two breeds of legislators, one, representing districts two, four, ten times more populous than other favored districts, elected by voters holding "mickey mouse votes" and another, representing small, favored districts, elected by voters holding "premium votes" two, four, ten times more valuable than the votes in disfavored districts.

Our oath of office as Justices of this Court forbids us from legitimizing this constitutionally abhorrent scheme, a scheme that for the first time under the 1987 Constitution creates a new politically privileged class of legislators in what is supposed to be a "democratic and republican State."37 To uphold RA 9716 is to uphold the blatant violation of the constitutional standards requiring proportional representation and a minimum population in the creation of legislative districts. This will derail our one person, one vote representative democracy from the tracks clearly and precisely laid down in the 1987 Constitution.

And for what end -- to create a special class of legislative districts represented by a new political elite exercising more legislative power than their votes command? Such a grant of privileged political status is the modern day equivalent of a royalty or nobility title, which is banned under the 1987 Constitution. History will not be kind to those who embark on a

grotesquely anomalous constitutional revision that is repulsive to our ideals of a "democratic and republican State."

The ruling of the majority today could sound the death knell for the principle of "one person, one vote" that insures equality in voting power. All votes are equal, and there is no vote more equal than others. This equality in voting power is the essence of our democracy. This Court is supposed to be the last bulwark of our democracy. Sadly, here the Court, in ruling that there are some votes more equal than others, has failed in its primordial constitutional duty to protect the essence of our democracy.

Accordingly, I vote to GRANT the petition and to DECLARE UNCONSTITUTIONAL Republic Act No. 9716 for grossly violating the standards of proportional representation and minimum population in the creation of legislative districts as prescribed in Section 5, Article VI of the 1987 Constitution.

ANTONIO T. CARPIOAssociate Justice

CONCURRING AND DISSENTING OPINION

CARPIO MORALES, J.:

I concur with the ponencia’s discussion on the procedural issue.

"Transcendental importance" doctrine aside, petitioners have the requisite locus standi. Petitioners are suing not only as lawmakers but as taxpayers and citizens as well. At the initiative of a taxpayer, a statute may be nullified, on the supposition that expenditure of public funds for the purpose of administering an unconstitutional act constitutes a misapplication of such funds.1 Republic Act No. 9716 (R.A. 9716) mandates the creation of another legislative district and indubitably involves the expenditure of public funds.

I DISSENT, however, on the ponencia’s conclusion, on the substantive issue, that a population of 250,000 is not an indispensable constitutional requirement for the creation of a new legislative district in a province.

Contrary to the ponencia’s assertion, petitioners do not merely rely on Article VI, Section 5 (3) but also on Section 5 (1) of the same Article. 2 Both provisions must be read together in light of the constitutional requirements of population and contiguity.

Section 5 (3) of Article VI disregards the 250,000 population requirement only with respect to existing provinces whose population does not exceed 250,000 or to newly created provinces under the Local Government Code (as long as the income and territory requirements are met).

The ponencia misinterprets Mariano v. Comelec.3 The actual population of the City of Makati during the Senate deliberations in 1994 on House Bill (H.B.) No. 4264 that was to be enacted into R.A. No. 7854 was 508,174.4 That is why the Court in Mariano declared:

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with Section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative.5 (emphasis in the original)

Nothing in Mariano reflects that the Court disregarded the 250,000 population requirement as it merely stated that Makati’s legislative district may still be increased as long as the minimum population requirement is met. The permissive declaration at that time presupposes that Makati must still meet the constitutional requirements before it can have another congressional district.

The Local Government Code likewise is not in point since Section 461 thereof tackles the creation of a province and not the reapportioning of a legislative district based on increasing population. There is thus no point in asserting that population is merely an alternative addition to the income requirement.

The ponencia likewise misinterprets Bagabuyo v. Comelec.6 Notably, the ponencia spliced that portion of the decision in Bagabuyo which it cited to suit its argument. Thus the ponencia quotes:

x x x Undeniably, these figures show a disparity in the population sizes of the districts. The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent territory. (emphasis and underscoring in the original by the ponente)

It omitted that portion which specified the respective total population of the two districts as above 250,000. Thus the full text of the pertinent portion of the decision reads:

The petitioner, unfortunately, did not provide information about the actual population of Cagayan de Oro City. However, we take judicial notice of the August 2007 census of the National Statistics

Office which shows that barangays comprising Cagayan de Oro’s first district have a total population of 254,644while the second district has 299,322 residents. Undeniably, these figures show a disparity in the population sizes of the districts. The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x (emphasis and underscoring supplied)

The two legislative districts of Cagayan de Oro subject of Bagabuyo met the minimum population requirement at the time of reappportionment. The ponencia’s construal of the disparity in population sizes of the districts involved in Bagabuyo clearly differs from the disparity of population in the present case.

The Record of the Constitutional Commission itself declares that the 250,000 benchmark was used in apportioning the legislative districts in the country. The sponsorship speech of Commissioner Hilario Davide, Jr.7 reflects so.

x x x x. Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory.Each city or each province with a population of at least 250,000 shall have at least one Representative.   This is Section 5 of the Article on the Legislative. x x x x The ordinance fixes at 200 the number of legislative seats which are, in turn, apportioned among the provinces and cities with a population of at least 250,000 and the Metropolitan Manila area in accordance with the number of their respective inhabitants on the basis of a uniform and progressive ratio. The population is based on the 1986 projection, with the 1980 official enumeration as the point of reckoning. This projection indicates that our population is more or less 56 million. Taking into account the mandate that each city with at least 250,000 inhabitants and each province shall have at least one representative, we at first allotted one seat for each of the 73 provinces; and one each for all cities with a population of at least 250,000, which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter,  we

then proceeded to increase whenever appropriate the number of seats for the provinces and cities in accordance with number of their inhabitants on the basis of a uniform and progressive ratio. x x x x. (capitalization, emphasis, italics and underscoring supplied)

The framers of the Constitution intended to apply the minimum population requirement of 250,000 to both cities and provinces in the initial apportionment, in proportion to the country’s total population at that time (56 million).

Yet the ponencia asserts that the 250,000 benchmark was used only for the purpose of the 1986 initial apportionment of the legislative districts, and now disregards the benchmark’s application in the present petition. It is eerily silent, however, on what the present population yardstick is. If the present estimated population of 90 million is to be the dividend,8 then there would roughly be one legislative district representative for every 450,000.

Following the constitutional mandate, the population requirement cannot fall below 250,000. This is the average "uniform and progressive ratio" that should prevail. Thus, using the present population figure, the benchmark should be anywhere between 250,000-

450,000 persons per district. Using anything less than 250,000 is illogical, for it would operate to allow more than 360 representatives of legislative districts alone on some capricious basis other than the variable of population.

A case in point is the congressional reapportionment done in the provinces of Sultan Kudarat and Zamboanga Sibugay effected through Republic Act No. 93579 and Republic Act No. 9360,10 respectively. At the time of the congressional deliberations and effectivity of these laws, the population count in these provinces more than met the basic standard. Sultan Kudarat already had a population of 522,187 during the 1995 census year,11 while Zamboanga Sibugay met the population threshold in 2001 with an estimated 503,700 headcount.12

The ponencia sweepingly declares that "population was explicitly removed as a factor."13 Far from it. Population remains the controlling factor. From the discussions in the initial apportionment and districting of Puerto Princesa, Baguio, Cavite, Laguna, Maguindanao and Cebu in 1986, it is clear that population and contiguity were the primary considerations, and the extraneous factors considered were circumspectly subsumed thereto.

The ponencia harps on petitioners’ admission that Camarines Sur is actually entitled to SIX legislative districts, given its population of 1,693,821, to justify its conclusion that there is nothing wrong in the creation of another legislative district in the province. This is a wrong premise. It bears noting that petitioners raised the legislative entitlement to underscore the GRAVE ABUSE OF DISCRETION committed in the enactment of R.A. 9716.

R.A. 9716 created one legislative district by reconfiguring the first and second districts. It did not, however, touch the third and fourth districts which, when properly reapportioned, can easily form another district. No reasons were offered except Senator Joker Arroyo’s during the Senate Plenary Debates on H.B. No. 4264, viz: "When it comes to their district, congressmen are kings. We cannot touch them. He [referring to Rep. Villafuerte] does not also want it [referring to the district of Rep. Villafuerte] touched... even if they have a pregnant populace or inhabitants, he does not want it touched."14

The resulting population distribution in the present case violates the uniform and progressive ratio prescribed in the Constitution.

Prior to the enactment of R.A. No. 9716, the tally of population percentage per district in Camarines Sur based on its population of 1,693,821 was as follows:

District 1: 24.6%

District 2: 28.03%

District 3: 21.99%

District 4: 25.33%

Compare now the population percentage per district after the passage of R.A. 9716:

District 1: 10.4%

District 2: 16.34%

District 3: 25.9%

District 4: 21.99% (former District 3)

District 5: 25.33% (former District 4)

Remarkably, before R.A. No. 9716, the first district met the 250,000 minimum. After R.A. No. 9716, it suffered a very significant drop in its population from 416,680 to 176,157.

The extraneous factors15 cited by the ponencia do not suffice to justify the redistricting, particularly the inclusion of the municipality of Libmanan in the second district. Linguistic difference is a weak basis to segregate the municipalities in the redistricting. To sanction that as basis would see a wholesale redistricting of the entire country, given the hundreds of dialects being spoken. Imagine Binondo being segregated from the Tagalog-speaking district of Tondo or Sta. Cruz in Manila on the ground that Fookien is largely spoken in Binondo.

The former first district supposedly occupied 40% of the total land area of Camarines Sur. But the former fourth district (which is now the fifth) comprises the same percentage of land area, if not bigger. If land area was a factor, then the former fourth district should have been re-districted also since it is endowed with a big area like the former first district.

The municipality of Libmanan is supposedly isolated by a body of water from the first district. But so is the municipality of Cabusao which is situated northeast of Libmanan and which is bordered by the same body of water. Yet Cabusao is part of the new first district. Considering the similar geographical location of the two municipalities, there is no compelling reason to segregate Libmanan from the first district and tack it to the newly created second district.

The seminal case of Reynolds v. Sims16 had already ruled that these factors cannot be permissively considered in legislative reapportionment.

x x x Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies. x x x [We] hold that, as a basic constitutional standard, [equal protection] requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the [State].

x x x x

[Equal protection] requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement. So long as the divergences from a strict population principle are constitutionally permissible, but neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes. Considerations of area alone provide an insufficient justification for deviations from the equal-population principle. Again, people, not land or trees or pastures, vote. x x x (emphasis and underscoring supplied)

Undoubtedly, Camarines Sur’s malapportionment largely partakes of gerrymandering.17

A final word. By pronouncing that "other factors," aside from population, should be considered in the composition of additional districts, thereby adding other requisites despite the Constitution’s clear limitation to population and contiguity, the ponencia effectively opens the floodgates to opportunistic lawmakers to reconfigure their own principalia and bantam districts. Leaving open Section 5 of Article VI to arbitrary factors, such as economic, political, socio-cultural, racial and even religious ones, is an invitation to a free-for-all.

In light of the foregoing, I vote to GRANT the petition and DECLARE UNCONSTITUTIONAL Republic Act No. 9716.

CONCHITA CARPIO MORALES

Associate Justice

G.R. No. 180050               April 12, 2011

RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners, vs.EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; Senate of the Philippines, represented by the SENATE PRESIDENT; House of Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, Respondents,CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T. MATUGAS, HON. ARTURO CARLOS A. EGAY, JR., HON. SIMEON VICENTE G. CASTRENCE,

HON. MAMERTO D. GALANIDA, HON. MARGARITO M. LONGOS, and HON. CESAR M. BAGUNDOL, Intervenors.

R E S O L U T I O N

NACHURA, J.:

For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated October 20, 2010 filed by Movant-Intervenors1 dated and filed on October 29, 2010, praying that the Court (a) recall the entry of judgment, and (b) resolve their motion for reconsideration of the July 20, 2010 Resolution.

To provide a clear perspective of the instant motion, we present hereunder a brief background of the relevant antecedents—

On October 2, 2006, the President of the Republic approved into law Republic Act (R.A.) No. 9355 (An Act Creating the Province of Dinagat Islands).2 On December 3, 2006, the Commission on Elections (COMELEC) conducted the mandatory plebiscite for the ratification of the creation of the province under the Local Government Code (LGC).3 The plebiscite yielded 69,943 affirmative votes and 63,502 negative votes.4 With the approval of the people from both the mother province of Surigao del

Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set of provincial officials who took their oath of office on January 26, 2007. Later, during the May 14, 2007 synchronized elections, the Dinagatnons elected their new set of provincial officials who assumed office on July 1, 2007.5

On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal and Rene O. Medina, former political leaders of Surigao del Norte, filed before this Court a petition for certiorari and prohibition (G.R. No. 175158) challenging the constitutionality of R.A. No. 9355.6 The Court dismissed the petition on technical grounds. Their motion for reconsideration was also denied.7

Undaunted, petitioners, as taxpayers and residents of the Province of Surigao del Norte, filed another petition for certiorari8 seeking to nullify R.A. No. 9355 for being unconstitutional. They alleged that the creation of Dinagat as a new province, if uncorrected, would perpetuate an illegal act of Congress, and would unjustly deprive the people of Surigao del Norte of a large chunk of the provincial territory, Internal Revenue Allocation (IRA), and rich resources from the area. They pointed out that when the law was passed, Dinagat had a land area of 802.12 square kilometers only and a population of only 106,951, failing to comply with Section 10, Article X of the Constitution and of Section 461 of the LGC, on both counts, viz.—

Constitution, Article X – Local Government

Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria

established in the local government code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected.

LGC, Title IV, Chapter I

Section 461. Requisites for Creation. – (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a continuous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. (Emphasis supplied.)

On February 10, 2010, the Court rendered its Decision9 granting the petition.10 The Decision declared R.A. No. 9355 unconstitutional for failure to comply with the requirements on population and land area in the creation of a province under the LGC. Consequently, it declared the proclamation of Dinagat and the election of its officials as null and void. The Decision likewise declared as null and void the provision on Article 9(2) of the Rules and Regulations Implementing the LGC (LGC-IRR), stating that, "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands" for being beyond the ambit of Article 461 of the LGC, inasmuch as such exemption is not expressly provided in the law.11

The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective motions for reconsideration of the Decision. In its Resolution12 dated May 12, 2010,13 the Court denied the said motions.14

Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court to admit their second motions for reconsideration, accompanied by their second motions for reconsideration. These motions were eventually "noted without action" by this Court in its June 29, 2010 Resolution.15

Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. They alleged that the COMELEC issued Resolution No. 8790, relevant to this case, which provides—

RESOLUTION NO. 8790

WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously components of the First Legislative District of the Province of Surigao del Norte. In December 2006 pursuant to Republic Act No. 9355, the Province of Dinagat Island[s] was created and its creation was ratified on 02 December 2006 in the Plebiscite for this purpose;

WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National and Local Elections, allocated one (1) seat for Governor, one (1) seat for Vice Governor, one (1) for congressional seat, and ten (10) Sangguniang Panlalawigan seats pursuant to Resolution No. 8670 dated 16 September 2009;

WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo Navarro, et al., vs. Executive Secretary Eduardo Ermita, as representative of the President of the Philippines, et al." rendered a Decision, dated 10 February 2010, declaring Republic Act No. 9355 unconstitutional for failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code in relation to Sec. 10, Art. X, of the 1987 Constitution;

WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision of the Supreme Court;

WHEREAS, the electoral data relative to the: (1) position for Member, House of Representatives representing the lone congressional district of Dinagat Islands, (2) names of the candidates for the aforementioned position, (3) position for Governor, Dinagat Islands, (4) names of the candidates for the said position, (5) position of the Vice Governor, (6) the names of the candidates for the said position, (7) positions for the ten (10) Sangguniang Panlalawigan Members and, [8] all the names of the candidates for Sangguniang Panlalawigan Members, have already been configured into the system and can no longer be revised within the remaining period before the elections on May 10, 2010.

NOW, THEREFORE, with the current system configuration, and depending on whether the Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as it hereby RESOLVES, to declare that:

a. If the Decision is reversed, there will be no problem since the current system configuration is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and the Province of Surigao del Norte remain as two (2) separate provinces;

b. If the Decision becomes final and executory before the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District, Surigao del Norte.

But because of the current system configuration, the ballots for the Province of Dinagat Islands will, for the positions of Member, House of Representatives, Governor, Vice Governor and Members, Sangguniang Panlalawigan, bear only the names of the candidates for the said positions.

Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for the position of Governor, Vice Governor, Member, House of Representatives, First District of Surigao del Norte and Members, Sangguniang Panlalawigan, show only candidates for the said position. Likewise, the whole Province of Surigao del Norte, will, for the position of Governor and Vice Governor, bear only the names of the candidates for the said position[s].

Consequently, the voters of the Province of Dinagat Islands will not be able to vote for the candidates of Members, Sangguniang Panlalawigan, and Member, House [of] Representatives, First Legislative District, Surigao del Norte, and candidates for Governor and Vice Governor for Surigao del Norte. Meanwhile, voters of the First Legislative District of Surigao del Norte, will not be able to vote for Members, Sangguniang Panlalawigan and Member, House of Representatives, Dinagat Islands. Also, the voters of the whole Province of Surigao del Norte, will not be able to vote for the Governor and Vice Governor, Dinagat Islands. Given this situation, the Commission will postpone the elections for Governor, Vice Governor, Member, House of Representatives, First Legislative District, Surigao del Norte, and Members, Sangguniang Panlalawigan, First Legislative District, Surigao del Norte, because the election will result in [a] failure to elect, since, in actuality, there are no candidates for Governor, Vice Governor, Members, Sangguniang Panlalawigan, First Legislative District, and Member, House of Representatives, First Legislative District (with Dinagat Islands) of Surigao del Norte.

c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted.

x x x x

SO ORDERED.

They further alleged that, because they are the duly elected officials of Surigao del Norte whose positions will be affected by the nullification of the election results in the event that the May 12, 2010 Resolution is not reversed, they have a legal interest in the instant case and would be directly affected by the declaration of nullity of R.A. No. 9355. Simply put, movants-intervenors’ election to their respective offices would necessarily be annulled since Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte and a special election will have to be conducted for governor, vice governor, and House of Representatives member and Sangguniang Panlalawigan member for the First Legislative District of Surigao del Norte. Moreover, as residents of Surigao del Norte and as public servants representing the interests of their constituents, they have a clear and strong interest in the outcome of this case inasmuch as the reversion of Dinagat as part of the First Legislative District of Surigao del Norte will affect the latter province such that: (1) the whole administrative set-up of the province will have to be restructured; (2) the services of many employees will have to be terminated; (3) contracts will have to be invalidated; and (4) projects and other developments will have to be discontinued. In addition, they claim that their rights cannot be adequately pursued and protected in any other proceeding since their rights would be foreclosed if the May 12, 2010 Resolution would attain finality.

In their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three (3) main arguments to challenge the above Resolution, namely: (1) that the passage of R.A. No. 9355 operates as an act of Congress amending Section 461 of the LGC; (2) that the exemption from territorial contiguity, when the intended province consists of two or more islands, includes the exemption from the application of the minimum land area requirement; and (3) that the Operative Fact Doctrine is applicable in the instant case.

In the Resolution dated July 20, 2010,16 the Court denied the Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 on the ground that the allowance or disallowance of a motion to intervene is addressed to the sound discretion of the Court, and that the appropriate time to file the said motion was before and not after the resolution of this case.

On September 7, 2010, movants-intervenors filed a Motion for Reconsideration of the July 20, 2010 Resolution, citing several rulings17 of the Court, allowing intervention as an exception to Section 2, Rule 19 of the Rules of Court that it should be filed at any time before the rendition of judgment. They alleged that, prior to the May 10, 2010 elections, their legal interest in this case was not yet existent. They averred that prior to the May 10, 2010 elections, they were unaware of the proceedings in this case. Even for the sake of argument that they had notice of the pendency of the case, they pointed out that prior to the said elections, Sol T. Matugas was a simple resident of Surigao del Norte, Arturo Carlos A. Egay, Jr. was a member of the Sangguniang Panlalawigan of the Second District of Surigao del Norte, and Mamerto D. Galanida was the Municipal Mayor of Socorro, Surigao del Norte, and that, pursuant to COMELEC Resolution No. 8790, it was only after they were elected as Governor of Surigao del Norte, Vice Governor of Surigao del Norte

and Sangguniang Panlalawigan Member of the First District of Surigao del Norte, respectively, that they became possessed with legal interest in this controversy.

On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the decision in this case had become final and executory on May 18, 2010. Hence, the above motion.

At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion to Recall Entry of Judgment of movants-intervenors, not on the second motions for reconsideration of the original parties, and neither on Dinagat’s Urgent Omnibus Motion, which our

esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagat’s third motion for reconsideration. Inasmuch as the motions for leave to admit their respective motions for reconsideration of the May 12, 2010 Resolution and the aforesaid motions for reconsideration were already noted without action by the Court, there is no reason to treat Dinagat’s Urgent Omnibus Motion differently. In relation to this, the Urgent Motion to Recall Entry of Judgment of movants-intervenors could not be considered as a second motion for reconsideration to warrant the application of Section 3, Rule 15 of the Internal Rules of the Supreme Court.18 It should be noted that this motion prays for the recall of the entry of judgment and for the resolution of their motion for reconsideration of the July 20, 2010 Resolution which remained unresolved. The denial of their motion for leave to intervene and to admit motion for reconsideration of the May 12, 2010 Resolution did not rule on the merits of the motion for reconsideration of the May 12, 2010 Resolution, but only on the timeliness of the intended intervention. Their motion for reconsideration of this denial elaborated on movants-intervenors’ interest in this case which existed only after judgment had been rendered. As such, their motion for intervention and their motion for reconsideration of the May 12, 2010 Resolution merely stand as an initial reconsideration of the said resolution.

With due deference to Mr. Justice Brion, there appears nothing in the records to support the claim that this was a ploy of respondents’ legal tactician to reopen the case despite an entry of judgment. To be sure, it is actually COMELEC Resolution No. 8790 that set this controversy into motion anew. To reiterate, the pertinent portion of the Resolution reads:

c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted. (Emphasis supplied.)

Indeed, COMELEC Resolution No. 8790 spawned the peculiar circumstance of proper party interest for movants-intervenors only with the specter of the decision in the main case becoming final and executory. More importantly, if the intervention be not entertained, the movants-intervenors would be left with no other remedy as regards to the

impending nullification of their election to their respective positions. Thus, to the Court’s mind, there is an imperative to grant the Urgent Motion to Recall Entry of Judgment by movants-intervenors.

It should be remembered that this case was initiated upon the filing of the petition for certiorari way back on October 30, 2007. At that time, movants-intervenors had nothing at stake in the outcome of this case. While it may be argued that their interest in this case should have commenced upon the issuance of COMELEC Resolution No. 8790, it is obvious that their interest in this case then was more imaginary than real. This is because COMELEC Resolution No. 8790 provides that should the decision in this case attain finality prior to the May 10, 2010 elections, the election of the local government officials stated therein would only have to be postponed. Given such a scenario, movants-intervenors would not have suffered any injury or adverse effect with respect to the reversion of Dinagat as part of Surigao del Norte since they would simply have remained candidates for the respective positions they have vied for and to which they have been elected.

For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question frequently arises as to this interest in the constitutional question raised.19

It cannot be denied that movants-intervenors will suffer direct injury in the event their Urgent Motion to Recall Entry of Judgment dated October 29, 2010 is denied and their Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 is denied with finality. Indeed, they have sufficiently shown that they have a personal and substantial interest in the case, such that if the May 12, 2010 Resolution be not reconsidered, their election to their respective positions during the May 10, 2010 polls and its concomitant effects would all be nullified and be put to naught. Given their unique circumstances, movants-intervenors should not be left without any remedy before this Court simply because their interest in this case became manifest only after the case had already been decided. The consequences of such a decision would definitely work to their disadvantage, nay, to their utmost prejudice, without even them being parties to the dispute. Such decision would also violate their right to due process, a right that cries out for protection. Thus, it is imperative that the movants-intervenors be heard on the merits of their cause. We are not only a court of law, but also of justice and equity, such that our position and the dire repercussions of this controversy should be weighed on the scales of justice, rather than dismissed on account of mootness.

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts from resolving a case. Courts will decide cases, otherwise moot and academic, if: (1) there is a grave violation of the Constitution; (2) there is an exceptional character of the situation and the paramount public interest is involved; (3) the constitutional issue raised requires formation of controlling principles to guide the bench, the bar, and the public; and (4) the case is capable of repetition yet evading review.20 The second exception attends this case.

This Court had taken a liberal attitude in the case of David v. Macapagal-Arroyo,21 where technicalities of procedure on locus standi were brushed aside, because the constitutional issues raised were of paramount public interest or of transcendental importance deserving the attention of the Court. Along parallel lines, the motion for intervention should be given due course since movants-intervenors have shown their substantial legal interest in the outcome of this case, even much more than petitioners themselves, and because of the novelty, gravity, and weight of the issues involved.

Undeniably, the motion for intervention and the motion for reconsideration of the May 12, 2010 Resolution of movants-intervenors is akin to the right to appeal the judgment of a case, which, though merely a statutory right that must comply with the requirements of the rules, is an essential part of our judicial system, such that courts should proceed with caution not to deprive a party of the right to question the judgment and its effects, and ensure that every party-litigant, including those who would be directly affected, would have the amplest opportunity for the proper and just disposition of their cause, freed from the constraints of technicalities.22

Verily, the Court had, on several occasions, sanctioned the recall entries of judgment in light of attendant extraordinary circumstances.23 The power to suspend or even disregard rules of procedure can be so pervasive and compelling as to alter even that which this Court itself had already declared final.24 In this case, the compelling concern is not only to afford the movants-intervenors the right to be heard since they would be adversely affected by the judgment in this case despite not being original parties thereto, but also to arrive at the correct interpretation of the provisions of the LGC with respect to the creation of local government units. In this manner, the thrust of the Constitution with respect to local autonomy and of the LGC with respect to decentralization and the attainment of national goals, as hereafter elucidated, will effectively be realized.

On the merits of the motion for intervention, after taking a long and intent look, the Court finds that the first and second arguments raised by movants-intervenors deserve affirmative consideration.

It must be borne in mind that the central policy considerations in the creation of local government units are economic viability, efficient administration, and capability to deliver basic services to their constituents. The criteria prescribed by the LGC, i.e., income, population and land area, are all designed to accomplish these results. In this light, Congress, in its collective wisdom, has debated on the relative weight of each of these three criteria, placing emphasis on which of them should enjoy preferential consideration.

Without doubt, the primordial criterion in the creation of local government units, particularly of a province, is economic viability. This is the clear intent of the framers of the LGC. In this connection, the following excerpts from congressional debates are quoted hereunder—

HON. ALFELOR. Income is mandatory. We can even have this doubled because we thought…

CHAIRMAN CUENCO. In other words, the primordial consideration here is the economic viability of the new local government unit, the new province?

x x x x

HON. LAGUDA. The reason why we are willing to increase the income, double than the House version, because we also believe that economic viability is really a minimum. Land area and population are functions really of the viability of the area, because you have an income level which would be the trigger point for economic development, population will naturally increase because there will be an immigration. However, if you disallow the particular area from being converted into a province because of the population problems in the beginning, it will never be able to reach the point where it could become a province simply because it will never have the economic take off for it to trigger off that economic development.

Now, we’re saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead and provide a minimum of basic services to the population. Over and above that, the provincial officials should be able to trigger off economic development which will attract immigration, which will attract new investments from the private sector. This is now the concern of the local officials. But if we are going to tie the hands of the proponents, simply by telling them, "Sorry, you are now at 150 thousand or 200 thousand," you will never be able to become a province because nobody wants to go to your place. Why? Because you never have any reason for economic viability.

x x x x

CHAIRMAN PIMENTEL. Okay, what about land area?

HON. LUMAUIG. 1,500 square kilometers

HON. ANGARA. Walang problema ‘yon, in fact that’s not very critical, ‘yong land area because…

CHAIRMAN PIMENTEL. Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah, square kilometers.

HON. LAGUDA. Ne, Ne. A province is constituted for the purpose of administrative efficiency and delivery of basic services.

CHAIRMAN PIMENTEL. Right.

HON. LAGUDA. Actually, when you come down to it, when government was instituted, there is only one central government and then everybody falls under that. But it was later on subdivided into provinces for purposes of administrative efficiency.

CHAIRMAN PIMENTEL. Okay.

HON. LAGUDA. Now, what we’re seeing now is that the administrative efficiency is no longer there precisely because the land areas that we are giving to our governors is so wide that no one man can possibly administer all of the complex machineries that are needed.

Secondly, when you say "delivery of basic services," as pointed out by Cong. Alfelor, there are sections of the province which have never been visited by public officials, precisely because they don’t have the time nor the energy anymore to do that because it’s so wide. Now, by compressing the land area and by reducing the population requirement, we are, in effect, trying to follow the basic policy of why we are creating provinces, which is to deliver basic services and to make it more efficient in administration.

CHAIRMAN PIMENTEL. Yeah, that’s correct, but on the assumption that the province is able to do it without being a burden to the national government. That’s the assumption.

HON. LAGUDA. That’s why we’re going into the minimum income level. As we said, if we go on a minimum income level, then we say, "this is the trigger point at which this administration can take place."25

Also worthy of note are the requisites in the creation of a barangay, a municipality, a city, and a province as provided both in the LGC and the LGC-IRR, viz.—

For a Barangay:

LGC: SEC. 386. Requisites for Creation. – (a) A barangay may be created out of a contiguous territory which has a population of at least two thousand (2,000) inhabitants as certified by the National Statistics Office except in cities and municipalities within Metro Manila and other metropolitan political subdivisions or in highly urbanized cities where such territory shall have a certified population of at least five thousand (5,000) inhabitants: Provided, That the creation thereof shall not reduce the population of the original barangay or barangays to less than the minimum requirement prescribed herein.

To enhance the delivery of basic services in the indigenous cultural communities, barangays may be created in such communities by an Act of Congress, notwithstanding the above requirement.

(b) The territorial jurisdiction of the new barangay shall be properly identified by metes and bounds or by more or less permanent natural boundaries. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The governor or city mayor may prepare a consolidation plan for barangays, based on the criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be submitted to the sangguniang panlalawigan or sangguniang panlungsod concerned for appropriate action. In the case of municipalities within the Metropolitan Manila area and other metropolitan political subdivisions, the barangay consolidation plan can be prepared and approved by the sangguniang bayan concerned.

LGC-IRR: ARTICLE 14. Barangays. – (a) Creation of barangays by the sangguniang panlalawigan shall require prior recommendation of the sangguniang bayan.

(b) New barangays in the municipalities within MMA shall be created only by Act of Congress, subject to the limitations and requirements prescribed in this Article.

(c) Notwithstanding the population requirement, a barangay may be created in the indigenous cultural communities by Act of Congress upon recommendation of the LGU or LGUs where the cultural community is located.

(d) A barangay shall not be created unless the following requisites are present:

(1) Population – which shall not be less than two thousand (2,000) inhabitants, except in municipalities and cities within MMA and other metropolitan political subdivisions as may be created by law, or in highly-urbanized cities where such territory shall have a population of at least five thousand (5,000) inhabitants, as certified by the NSO. The creation of a barangay shall not reduce the population of the original barangay or barangays to less than the prescribed minimum/

(2) Land Area – which must be contiguous, unless comprised by two (2) or more islands. The territorial jurisdiction of a barangay sought to be created shall be properly identified by metes and bounds or by more or less permanent natural boundaries.

Municipality:

LGC: SEC. 442. Requisites for Creation. – (a) A municipality may be created if it has an average annual income, as certified by the provincial treasurer, or at least Two million five hundred thousand pesos (P2,500,000.00) for the last two (2) consecutive years based on the 1991 constant prices; a population of at least twenty-five thousand (25,000) inhabitants as certified by the National Statistics Office; and a contiguous territory of at least fifty (50) square kilometers as certified by the Lands

Management Bureau: Provided, That the creation thereof shall not reduce the land area, population or income of the original municipality or municipalities at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is

composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund of the municipality concerned, exclusive of special funds, transfers and non-recurring income.

(d) Municipalities existing as of the date of effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered regular municipalities.

LGC-IRR: ARTICLE 13. Municipalities. – (a) Requisites for Creation – A municipality shall not be created unless the following requisites are present:

(i) Income – An average annual income of not less than Two Million Five Hundred Thousand Pesos (P2,500,000.00), for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by the provincial treasurer. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income;

(ii) Population – which shall not be less than twenty five thousand (25,000) inhabitants, as certified by NSO; and

(iii) Land area – which must be contiguous with an area of at least fifty (50) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands. The requirement on land area shall not apply where the proposed municipality is composed of one (1) or more islands. The territorial jurisdiction of a municipality sought to be created shall be properly identified by metes and bounds.

The creation of a new municipality shall not reduce the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses incidental to the creation shall be borne by the petitioners.

City:

LGC: SEC. 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisities:

(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or,

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.

LGC-IRR: ARTICLE 11. Cities. – (a) Requisites for creation – A city shall not be created unless the following requisites on income and either population or land area are present:

(1) Income – An average annual income of not less than Twenty Million Pesos (P20,000,000.00), for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and

(2) Population or land area – Population which shall not be less than one hundred fifty thousand (150,000) inhabitants, as certified by the NSO; or land area which must be contiguous with an area of at least one hundred (100) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed city is composed of one (1) or more islands. The territorial jurisdiction of a city sought to be created shall be properly identified by metes and bounds.

The creation of a new city shall not reduce the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses incidental to the creation shall be borne by the petitioners.

Provinces:

LGC: SEC. 461. Requisites for Creation. – (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or,

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office:

Provided, That the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

LGC-IRR: ARTICLE 9. Provinces. – (a) Requisites for creation – A province shall not be created unless the following requisites on income and either population or land area are present:

(1) Income – An average annual income of not less than Twenty Million pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and non-recurring income; and

(2) Population or land area – Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by NSO; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds.

The creation of a new province shall not reduce the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum

requirements. All expenses incidental to the creation shall be borne by the petitioners. (Emphasis supplied.)

It bears scrupulous notice that from the above cited provisions, with respect to the creation of barangays, land area is not a requisite indicator of viability. However, with respect to the creation of municipalities, component cities, and provinces, the three (3) indicators of viability and projected capacity to provide services, i.e., income, population, and land area, are provided for.

But it must be pointed out that when the local government unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local government unit to be created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.

There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or group of islands would form part of the land area of a newly-created province than in most cities or municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461 of the LGC – and to reflect the true legislative intent. It would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR.

This interpretation finds merit when we consider the basic policy considerations underpinning the principle of local autonomy.

Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides—

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units.

This declaration of policy is echoed in Article 3(a) of the LGC-IRR26 and in the Whereas clauses of Administrative Order No. 270,27 which read—

WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure the autonomy of local governments;

WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, affirms, among others, that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals;

WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to convene an Oversight Committee for the purpose of formulating and issuing the appropriate rules and regulations necessary for the efficient and effective implementation of all the provisions of the said Code; and

WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors of society and consideration of the operative principles of local autonomy as provided in the Local Government Code of 1991, has completed the formulation of the implementing rules and regulations; x x x

Consistent with the declared policy to provide local government units genuine and meaningful local autonomy, contiguity and minimum land area requirements for prospective local government units should be liberally construed in order to achieve the desired results. The strict interpretation adopted by the February 10, 2010 Decision could prove to be counter-productive, if not outright absurd, awkward, and impractical. Picture an intended province that consists of several municipalities and component cities which, in themselves, also consist of islands. The component cities and municipalities which consist of islands are exempt from the minimum land area requirement, pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the province would be made to comply with the minimum land area criterion of 2,000 square kilometers, even if it consists of several islands. This would mean that Congress has opted to assign a distinctive preference to create a province with contiguous land area over one composed of islands — and negate the greater imperative of development of self-reliant communities, rural progress, and the delivery of basic services to the constituency. This preferential option would prove more difficult and burdensome if the 2,000-square-kilometer territory of a province is scattered because the islands are separated by bodies of water, as compared to one with a contiguous land mass.

Moreover, such a very restrictive construction could trench on the equal protection clause, as it actually defeats the purpose of local autonomy and decentralization as enshrined in the Constitution. Hence, the land area requirement should be read together with territorial contiguity.

Another look at the transcript of the deliberations of Congress should prove enlightening:

CHAIRMAN ALFELOR. Can we give time to Congressman Chiongbian,28 with respect to his…

CHAIRMAN LINA. Okay.

HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the distinguished Senator about the action taken by the House, on House Bill No. 7166. This was passed about two years ago and has been pending in the Senate for consideration. This is a bill that I am not the only one involved, including our distinguished Chairman here. But then we did want to sponsor the bill, being the Chairman then of the Local Government.

So, I took the cudgels for the rest of the Congressmen, who were more or less interested in the creation of the new provinces, because of the vastness of the areas that were involved.

At any rate, this bill was passed by the House unanimously without any objection. And as I have said a while ago, that this has been pending in the Senate for the last two years. And Sen. Pimentel himself was just in South Cotabato and he delivered a speech that he will support this bill, and he says, that he will incorporate this in the Local Government Code, which I have in writing from him. I showed you the letter that he wrote, and naturally, we in the House got hold of the Senate version. It becomes an impossibility for the whole Philippines to create a new province, and that is quite the concern of the respective Congressmen.

Now, insofar as the constitutional provision is concerned, there is nothing to stop the mother province from voting against the bill, if a province is going to be created.

So, we are talking about devolution of powers here. Why is the province not willing to create another province, when it can be justified. Even Speaker Mitra says, what will happen to Palawan? We won’t have one million people there, and if you look at Palawan, there will be about three or four provinces that will comprise that island. So, the development will be hampered.

Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2, 1989. This was practically about a year after 7166 was approved by the House, House Bill 7166.

On November 2, 1989, the Senator wrote me:

"Dear Congressman Chiongbian:

We are in receipt of your letter of 17 October. Please be informed that your House No. 7166 was incorporated in the proposed Local Government Code, Senate Bill No. 155, which is pending for second reading.

Thank you and warm regards.

Very truly yours,"

That is the very context of the letter of the Senator, and we are quite surprised that the Senate has adopted another position.

So, we would like – because this is a unanimously approved bill in the House, that’s the only bill that is involving the present Local Government Code that we are practically considering; and this will be a slap on the House, if we do not approve it, as approved by the lower House. This can be [an] irritant in the approval of the Conference Committee Report. And I just want to manifest that insofar as the creation of the province, not only in my province, but the other provinces. That the mother province will participate in the plebiscite, they can defeat the province, let’s say, on the basis of the result, the province cannot be created if they lose in the plebiscite, and I don’t see why, we should put this stringent conditions to the private people of the devolution that they are seeking.

So, Mr. Senator, I think we should consider the situation seriously, because, this is an approved version of the House, and I will not be the one to raise up and question the Conference Committee Report, but the rest of the House that are interested in this bill. And they have been approaching the Speaker about this. So, the Speaker reminded me to make sure that it takes the cudgel of the House approved version.

So, that’s all what I can say, Mr. Senator, and I don’t believe that it is not, because it’s the wish of the House, but because the mother province will participate anyhow, you vote them down; and that is provided for in the Constitution. As a matter of fact, I have seen the amendment with regards to the creation of the city to be urbanized, subject to the plebiscite. And why should we not allow that to happen in the provinces! In other words, we don’t want the people who wants to create a new province, as if they are left in the devolution of powers, when they feel that they are far away from civilization.

Now, I am not talking about other provinces, because I am unaware, not aware of their situation. But the province of South Cotabato has a very unique geographical territorial conglomerations. One side is in the other side of the Bay, of Sarangani Bay. The capital town is in the North; while these other municipalities are in the East and in the West. And if they have to travel from the last town in the eastern part of the province, it is about one hundred forty kilometers to the capital town. And from the West side, it is the same distance. And from the North side, it is about one hundred kilometers. So that is the problem there. And besides, they have enough resources and I feel that, not because I am interested in the province, I am after their welfare in the future. Who am I to dictate on those people? I have no interest but then I am looking at the future development of these areas.

As a matter of fact, if I am in politics, it’s incidental; I do not need to be there, but I can foresee what the creation of a new province will bring to these people. It will bring them prosperity; it will bring them more income, and it will encourage even foreign investors. Like the PAP now, they are concentrating in South Cotabato, especially in the City of

General Santos and the neighboring municipalities, and they are quite interested and even the AID people are asking me, "What is holding the creation of a new province when practically you need it?" It’s not 20 or 30 kilometers from the capital town; it’s about 140 kilometers. And imagine those people have to travel that far and our road is not like Metropolitan Manila. That is as far as from here to Tarlac. And there are municipalities there that are just one municipality is bigger than the province of La Union. They have the income. Of course, they don’t have the population because that’s a part of the land of

promise and people from Luzon are migrating everyday because they feel that there are more opportunities here.

So, by creating the new provinces, not only in my case, in the other cases, it will enhance the development of the Philippines, not because I am interested in my province. Well, as far as I am concerned, you know, I am in the twilight years of my life to serve and I would like to serve my people well. No personal or political interest here. I hope the distinguished Chairman of the Committee will appreciate the House Bill 7166, which the House has already approved because we don’t want them to throw the Conference Committee Report after we have worked that the house Bill has been, you know, drawn over board and not even considered by the Senate. And on top of that, we are considering a bill that has not yet been passed. So I hope the Senator will take that into account.

Thank you for giving me this time to explain.

CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the legislative history of the Senate version on this matter of creation of provinces. I am sure there was an amendment. As I said, I’ll look into it. Maybe the House version was incorporated in toto, but maybe during the discussion, their amendments were introduced and, therefore, Senator Pimentel could not hold on to the original version and as a result new criteria were introduced.

But because of the manifestation that you just made, we will definitely, when we reach a book, Title IV, on the matter of provinces, we will look at it sympathetically from your end so that the objective that you want [to] achieve can be realized. So we will look at it with sympathy. We will review our position on the matter, how we arrived at the Senate version and we will adopt an open mind definitely when we come into it.

CHAIRMAN ALFELOR. Kanino ‘yan?

CHAIRMAN LINA. Book III.

CHAIRMAN ALFELOR. Title?

CHAIRMAN LINA. Title IV.

CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on economic stimulation of a certain area. Like our case, because I put myself on our province, our province is quite very big. It’s composed of four (4) congressional districts and I feel it should be five now. But during the Batasan time, four of us talked and conversed proposing to divide the province into two.

There are areas then, when since time immemorial, very few governors ever tread on those areas. That is, maybe you’re acquainted with the Bondoc Peninsula of Quezon, fronting that is Ragay Gulf. From Ragay there is a long stretch of coastal area. From Albay going to Ragay, very few governors ever tread [there] before, even today. That area now is infested with NPA. That is the area of Congressman Andaya.

Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these areas. With a big or a large area of a province, a certain administrator or provincial governor definitely will have no sufficient time. For me, if we really would like to stimulate growth, I believe that an area where there is physical or geographical impossibilities, where administrators can penetrate, I think we have to create certain provisions in the law where maybe we can treat it with special considerations.

Now, we went over the graduate scale of the Philipppine Local Government Data as far as provinces are concerned. It is very surprising that there are provinces here which only composed of six municipalities, eight municipalities, seven municipalities. Like in Cagayan, Tuguegarao, there are six municipalities. Ah, excuse me, Batanes.

CHAIRMAN LINA. Will you look at the case of --- how many municipalities are there in Batanes province?

CHAIRMAN ALFELOR. Batanes is only six.

CHAIRMAN LINA. Six town. Siquijor?

CHAIRMAN ALFELOR. Siquijor. It is region?

CHAIRMAN LINA. Seven.

CHAIRMAN ALFELOR.L Seven. Anim.

CHAIRMAN LINA. Six also.

CHAIRMAN ALFELOR. Six also.

CHAIRMAN LINA. It seems with a minimum number of towns?

CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand, not even one congressional district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon.

CHAIRMAN LINA. Camiguin, Camiguin.

CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities, with a population of 63 thousand. But we do not hold it against the province because maybe that’s one stimulant where growth can grow, can start. The land area for Camiguin is only 229 square kilometers. So if we hard fast on requirements of, we set a minimum for every province, palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very clear that in case we would like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo, eh. Because what is really the thrust of the Local Government Code? Growth. To devolve powers in

order for the community to have its own idea how they will stimulate growth in their respective areas.

So, in every geographical condition, mayroon sariling id[i]osyncracies eh, we cannot make a generalization.

CHAIRMAN LINA. Will the creation of a province, carved out of the existing province because of some geographical id[i]osyncracies, as you called it, stimulate the economic growth in the area or will substantial aid coming from the national government to a particular area, say, to a municipality, achieve the same purpose?

CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a province. Usually, tinitingnan lang yun, provision eh, hindi na yung composition eh. You are entitled to, say, 20% of the area.

There’s a province of Camarines Sur which have the same share with that of Camiguin and Siquijor, but Camiguin is composed only of five municipalities; in Siquijor, it’s composed of six, but the share of Siquijor is the same share with that of the province of Camarines Sur, having a bigger area, very much bigger.

That is the budget in process.

CHAIRMAN LINA. Well, as I said, we are going to consider this very seriously and even with sympathy because of the explanation given and we will study this very carefully.29

The matters raised during the said Bicameral Conference Committee meeting clearly show the manifest intention of Congress to promote development in the previously underdeveloped and uninhabited land areas by allowing them to directly share in the allocation of funds under the national budget. It should be remembered that, under Sections 284 and 285

of the LGC, the IRA is given back to local governments, and the sharing is based on land area, population, and local revenue.30

Elementary is the principle that, if the literal application of the law results in absurdity, impossibility, or injustice, then courts may resort to extrinsic aids of statutory construction, such as the legislative history of the law,31 or may consider the implementing rules and regulations and pertinent executive issuances in the nature of executive and/or legislative construction. Pursuant to this principle, Article 9(2) of the LGC-IRR should be deemed incorporated in the basic law, the LGC.

It is well to remember that the LGC-IRR was formulated by the Oversight Committee consisting of members of both the Executive and Legislative departments, pursuant to Section 53332 of the LGC. As Section 533 provides, the Oversight Committee shall formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of this Code, thereby ensuring compliance with the principles of local autonomy as defined under the Constitution. It was

also mandated by the Constitution that a local government code shall be enacted by Congress, to wit—

Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. (Emphasis supplied.)

These State policies are the very reason for the enactment of the LGC, with the view to attain decentralization and countryside development. Congress saw that the old LGC, Batas Pambansa Bilang 337, had to be replaced with a new law, now the LGC of 1991, which is more dynamic and cognizant of the needs of the Philippines as an archipelagic country. This accounts for the exemption from the land area requirement of local government units composed of one or more islands, as expressly stated under Sections 442 and 450 of the LGC, with respect to the creation of municipalities and cities, but inadvertently omitted from Section 461 with respect to the creation of provinces. Hence, the void or missing detail was filled in by the Oversight Committee in the LGC-IRR.

With three (3) members each from both the Senate and the House of Representatives, particularly the chairpersons of their respective Committees on Local Government, it cannot be gainsaid that the inclusion by the Oversight Committee of the exemption from the land area requirement with respect to the creation of provinces consisting of one (1) or more islands was intended by Congress, but unfortunately not expressly stated in Section 461 of the LGC, and this intent was echoed through an express provision in the LGC-IRR. To be sure, the Oversight Committee did not just arbitrarily and whimsically insert such an exemption in Article 9(2) of the LGC-IRR. The Oversight Committee evidently conducted due deliberation and consultations with all the concerned sectors of society and considered the operative principles of local autonomy as provided in the LGC when the IRR was formulated.33 Undoubtedly, this amounts not only to an executive construction, entitled to great weight and respect from this Court,34 but to legislative construction as well, especially with the inclusion of representatives from the four leagues of local government units as members of the Oversight Committee.

With the formulation of the LGC-IRR, which amounted to both executive and legislative construction of the LGC, the many details to implement the LGC had already been put in place, which Congress understood to be impractical and not too urgent to immediately translate into direct amendments to the LGC. But Congress, recognizing the capacity and viability of Dinagat to become a full-fledged province, enacted R.A. No. 9355, following the exemption from the land area requirement, which, with respect to the creation of provinces, can only be found as an express provision in the LGC-IRR. In effect, pursuant to its plenary legislative powers, Congress breathed flesh and blood into that exemption in Article 9(2) of the LGC-IRR and transformed it into law when it enacted R.A. No. 9355 creating the Island Province of Dinagat.

Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon in both Chambers of Congress. Such acts of both Chambers of Congress definitively show the clear legislative intent to incorporate into the LGC that exemption from the land area requirement, with respect to the creation of a province when it consists of one or more islands, as expressly provided only in the LGC-IRR. Thereby, and by necessity, the LGC was amended by way of the enactment of R.A. No. 9355.

What is more, the land area, while considered as an indicator of viability of a local government unit, is not conclusive in showing that Dinagat cannot become a province, taking into account its average annual income ofP82,696,433.23 at the time of its creation, as certified by the Bureau of Local Government Finance, which is four times more than the minimum requirement of P20,000,000.00 for the creation of a province. The delivery of basic services to its constituents has been proven possible and sustainable. Rather than looking at the results of the plebiscite and the May 10, 2010 elections as mere fait accompli circumstances which cannot operate in favor of Dinagat’s existence as a province, they must be seen from the perspective that Dinagat is ready and capable of becoming a province. This Court should not be instrumental in stunting such capacity. As we have held in League of Cities of the Philippines v. Commission on Elections35 —

Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent, for what is within the spirit is within the statute although it is not within its letter, and that which is within the letter but not within the spirit is not within the statute. Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter, and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers. Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators.

So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of statutes. This presumption finds its roots in the tri-partite system of government and the corollary separation of powers, which enjoins the three great departments of the government to accord a becoming courtesy for each other’s acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end, courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory in context being that the law is the product of earnest studies by Congress to ensure that no constitutional prescription or concept is infringed. Consequently, before a law duly challenged is nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court.

WHEREFORE, the Court resolved to:

1. GRANT the Urgent Motion to Recall Entry of Judgment by movants-intervenors, dated and filed on October 29, 2010;

2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution, and GRANT the Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated July 20, 2010;

3. GRANT the Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. The May 12, 2010 Resolution is RECONSIDERED and SET ASIDE. The provision in Article 9(2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared VALID. Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat Islands) is declared as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared VALID; and

4. The petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

ANTONIO EDUARDO B. NACHURAAssociate Justice

WE CONCUR:

RENATO C. CORONAChief Justice

ANTONIO T. CARPIOAssociate Justice

CONCHITA CARPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRIONAssociate Justice

DIOSDADO M. PERALTAAssociate Justice

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

ROBERTO A. ABADAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

JOSE PORTUGAL PEREZAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

MARIA LOURDES P.A. SERENOAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONAChief Justice

Footnotes

1 Congressman Francisco T. Matugas (incumbent Congressman of the First Legislative District of Surigao del Norte), Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr. (incumbent Governor and Vice Governor, respectively, of the Province of Surigao del Norte), Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol (incumbent Board Members of the First Provincial District of Surigao del Norte).

2 Passed by the House of Representatives and the Senate on August 28, 2006 and August 14, 2006, respectively.

3 R.A. No. 7160, Sec. 10.

SECTION. 10. Plebiscite Requirement. – No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.

4 Rollo, pp. 124-127.

5 Id. at 143.

6 Rollo (G.R. No. 175158), pp. 3-20.

7 Per the November 28, 2006 Resolution, the Court dismissed the petition due to its defective or insufficient verification and certification of non-forum shopping and the failure of petitioners’ counsel to indicate an updated Integrated Bar of the Philippines official receipt. In its February 13, 2007 Resolution, the Court dismissed the petition with finality. On April 11, 2007, an Entry of Judgment was issued. (Id. at 77A and 112.)

8 Rollo, pp. 3-43.

9 Id. at 736-765.

10 Penned by Associate Justice Diosdado M. Peralta, with Chief Justice Reynato S. Puno (now retired) and Associate Justices Antonio T. Carpio, Conchita Carpio Morales, Arturo D. Brion, Mariano C. Del Castillo, Martin S. Villarama, Jr., Jose Portugal Perez, and Jose Catral Mendoza, concurring.

11 Dissented to by Associate Justice Antonio Eduardo B. Nachura, joined by Associate Justices Renato C. Corona (now Chief Justice), Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Lucas P. Bersamin, and Roberto A. Abad.

12 Penned by Associate Justice Diosdado M. Peralta, with Chief Justice Reynato S. Puno (now retired) and Associate Justices Antonio T. Carpio, Conchita Carpio-Morales, Arturo D. Brion, Mariano C. Del Castillo, Martin S. Villarama, Jr., and Jose Catral Mendoza, concurring.

13 Dissented to by Associate Justice Jose Portugal Perez, joined by Associate Justices Renato C. Corona (now Chief Justice), Antonio Eduardo B. Nachura, Teresita J. Leonardo-De Castro, Lucas P. Bersamin, and Roberto A. Abad.

14 Rollo, pp. 984-997.

15 Id. at 1153-1154.

16 Id. at 1155- 1158.

17 Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 613 SCRA 385; Office of the Ombudsman v. Miedes, Sr., G.R. No. 176409, February 27, 2008, 547 SCRA 148; Pinlac v. Court of Appeals, 457 Phil. 527 (2003); Mago v. Court of Appeals, 363 Phil. 225 (1999); Lim v. Pacquing, G.R. No. 115044, January 27, 1995, 240 SCRA 649; Tahanan Development Corporation v. Court of Appeals, 203 Phil. 652 (1982); and Director of Lands v. Court of Appeals, 181 Phil. 432 (1979).

18 Sec. 3. Second Motion for Reconsideration. – The Court shall not entertain a second motion for reconsideration and any exception to this rule can only be granted in the higher interest of just by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration.

19 The Province of North Cotabato v. Republic, G.R. No. 183591, October 14, 2008, 568 SCRA 402, citing Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) and Vicente V. Mendoza, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2004).

20 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.

21 Id. at 223.

22 See Tan Tiac Chiong v. Hon. Rodrigo Cosico, 434 Phil. 753 (2002); People v. Hon. Chavez, 411 Phil. 482 (2001).

23 Id.

24 Manotok IV v. Heirs of Homer L. Barque, G.R. Nos. 162335 & 162605, December 18, 2008, 574 SCRA 468, 492.

25 Bicameral Conference Committee Meeting of the Committee on Local Government, May 22, 1991, 4th Regular Session, pp. 57-67.

26 ARTICLE 3. Declaration of Policy. – (a) It is hereby declared the policy of the Sate that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units (LGUs) shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the LGUs.

27 Prescribing the Implementing Rules and Regulations of the Local Government Code of 1991.

28 Congressman Chiongbian is one of the sponsors of House Bill No. 34061, the House of Representatives version of the proposed Local Government Code.

29 Bicameral Conference Committee on Local Government (Book III), March 13, 1991, pp. 18-28.

30 Section 284. Allotment of Internal Revenue Taxes. – Local government units shall have a share in the national internal revenue taxes based on the collection of the third fiscal year preceding the current fiscal year as follows:

(a) On the first year of the effectivity of this Code, thirty percent (30%);

(b) On the second year, thirty-five percent (35%); and

(c) On the third year and thereafter, forty percent (40%):

Provided, That in the event that the National Government incurs an unmanageable public sector deficit, the President of the Philippines is hereby authorized, upon the recommendation of the Secretary of Finance, Secretary of Interior and Local Government, and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the "liga", to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current fiscal year: Provided, further, That in the first year of the effectivity of this Code, the local government units shall, in addition to the thirty percent (30%) internal revenue allotment which shall include the cost of devolved functions for essential public services, be entitled to receive the amount equivalent to the cost of devolved personal services.

Section 285. Allocation to Local Government Units. – The share of local government units in the internal revenue allotment shall be allocated in the following manner:

(a) Provinces – Twenty-three percent (23%);

(b) Cities – Twenty-three percent (23%);

(c) Municipalities – Thirty-four percent (34%); and

(d) Barangays – Twenty percent (20%):

Provided, however, That the share of each province, city, and municipality shall be determined on the basis of the following formula:

(a) Population – Fifty percent (50%);

(b) Land Area – Twenty-five percent (25%) and

(c) Equal Sharing – Twenty-five percent (25%):

Provided, further, That the share of each barangay with a population of not less than one hundred (100) inhabitants shall not be less than Eighty thousand pesos (P80,000.00) per annum chargeable against the twenty percent (20%) share of the barangay from the internal revenue allotment, and the balance to be allocated on the basis of the following formula:

(a) On the first year of the effectivity of this Code:

(1) Population – Forty percent (40%); and

(2) Equal Sharing – Sixty percent (60%)

(b) On the second year:

(1) Population – Fifty percent (50%); and

(2) Equal Sharing – Fifty percent (50%)

(c) On the third year and thereafter:

(1) Population – Sixty percent (60%); and

(2) Equal Sharing – Forty percent (40%):

Provided, finally, That the financial requirements of barangays created by local government units after the effectivity of this Code shall be the responsibility of the local government unit concerned.

31 Commissioner of Internal Revenue v. Solidbank Corp., 462 Phil. 96, 129-131, 416 SCRA 436 (2003); Republic v. Court of Appeals, 359 Phil. 530, 559; 299 SCRA 199 (1998).

32 Sec. 533. Formulation of Implementing Rules and Regulations.—(a) Within one (1) month after the approval of this Code, the President shall convene the Oversight Committee as herein provided for. The said Committee shall formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of this Code, thereby ensuring compliance with the principles of local autonomy as defined under the Constitution.

(b) The Committee shall be composed of the following:

(1) The Executive Secretary, who shall be the Chairman;

(2) Three (3) members of the Senate to be appointed by the President of the Senate, to include the Chairman of the Committee on Local Government;

(3) Three (3) members of the House of Representatives to be appointed by the Speaker, to include the Chairman of the Committee on Local Government;

(4) The Cabinet, represented by the following:

(i) Secretary of the Interior and Local Government;

(ii) Secretary of Finance;

(iii) Secretary of Budget and Management; and

(5) One (1) representative from each of the following;

(i) The League of Provinces;

(ii) The League of Cities;

(iii) The League of Municipalities; and

(iv) The Liga ng mga Barangay.

(c) The Committee shall submit its report and recommendation to the President within two (2) months after its organization. If the President fails to act within thirty (30) days from receipt thereof, the recommendation of the Oversight Committee shall be deemed approved. Thereafter, the Committee shall supervise the transfer of such powers and functions mandated under this Code to the local government units, together with the corresponding personnel, properties, assets and liabilities of the offices or agencies concerned, with the least possible disruptions to existing programs and projects. The Committee shall likewise recommend the corresponding appropriations necessary to effect the said transfer.

For this purpose, the services of a technical staff shall be enlisted from among the qualified employees of Congress, the government offices, and the leagues constituting the Committee.

(d) The funding requirements and the secretariat of the Committee shall be provided by the Office of the Executive Secretary.

(e) The sum of Five million pesos (P5,000,000.00), which shall be charged against the Contingent Fund, is hereby allotted to the Committee to fund the undertaking of an information campaign on this Code. The Committee shall formulate the guidelines governing the conduct of said campaign, and shall determine the national agencies or offices to be involved for this purpose. (Emphasis supplied.)

33 As found in the Whereas clauses of Administrative Order No. 270 prescribing the Implementing Rules and Regulations of the Local Government Code of 1991, viz.:

WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors of society and consideration of the operative principles of local autonomy as provided in the Local Government Code of 1991, has completed the formulation of the implementing rules and regulations. (Emphasis supplied.)

34 Galarosa v. Valencia, G.R. No. 109455, November 11, 1993, 227 SCRA 728.

35 G.R. Nos. 176951, 177499, and 178056, December 21, 2009, 608 SCRA 636, 644-645.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO, J.:

I join Justice Diosdado M. Peralta and Justice Arturo D. Brion in their dissents. I file this separate dissenting opinion because the majority’s ruling today, legitimizing the creation of a province in blatant violation of the Constitution and the Local Government Code, opens the floodgates to the proliferation of pygmy provinces and legislative districts, mangling sacred and fundamental principles governing our democratic way of life and exacerbating the scourge of local dynastic politics.

First. The Dinagat Islands province simply does not meet the criteria for the creation of a province. To implement the Constitution and for reasons of political practicality and economic viability, Section 461 of the Local Government Code bars the creation of provinces unless two of three minimum requirements are met. Section 461 of the Code provides:

SEC. 461. Requisites for Creation. - (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty

million pesos (P20,000,000.00) based on 1991 prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office:

Provided, that the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. (Emphasis supplied)

Section 461 requires a province to meet the minimum income requirement and either the minimum land area or minimum population requirement. In short, two of the three minimum requirements must be satisfied, with the minimum income requirement one of the two. The Dinagat Islands province, whose income at the time of its creation in 2006 was P82,696,433.22, satisfies only the minimum income requirement. The Dinagat Islands province does not meet either the minimum land area requirement or the minimum population requirement. Indisputably, Dinagat Islands cannot qualify as a province under Section 461 of the Local Government Code, the law that governs the creation of provinces.

Based on the 2000 census, Dinagat Islands’ population stood only at 106,951, less than half of the statutory minimum of 250,000. In the census conducted seven years later in 2007, one year after its creation, its population grew by only 13,862, reaching 120,813, still less than half of the minimum population required. The province does not fare any better in land area, with its main island, one sub-island and around 47 islets covering only 802.12 square kilometers, less than half of the 2,000 square kilometers minimum land area required.

The Local Government Code contains no exception to the income and population or land area requirements in creating provinces. What the Code relaxed was the contiguity rule for provinces consisting of "two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province." The minimum land area of 2,000 square kilometers in the Code for the creation of a province was never changed, andno exception was ever created by law. Hence, the exception created in the implementing rule1 of the Local Government Code, exempting provinces "composed of one (1) or more islands" from the minimum land area requirement, is void for being ultra vires, granting a

statutory exception that the Local Government Code clearly withheld. The implementing rule, being a mere administrative regulation to implement the Local Government Code, cannot amend the Code but must conform to the Code. Only Congress, and not any other body, is constitutionally empowered to create, through amendatory legislation, exceptions to the land area requirement in Section 461 of the Code.

The majority argues that since the exception of island provinces from the minimum land area requirement was inserted in the implementing rules by the congressional Oversight Committee, the Court should extend great weight to this "legislative construction" of the Code. This is gross error. First, in Macalintal v. Comelec,2 we ruled that a congressional oversight committee has no power to approve or disapprove the implementing rules of laws because the implementation of laws is purely an executive function. The intrusion of the congressional Oversight Committee in the drafting of implementing rules is a violation of the separation of powers enshrined in the Constitution. This Court cannot allow such intrusion without violating the Constitution. Second, Congress has no power to construe the law. Only the courts are vested with the power to construe the law. Congress may provide in the law itself a definition of terms but it cannot define or construe the law through its Oversight Committee after it has enacted the law because such power belongs to the courts.

It is not difficult to see why Congress allowed an exception to the land area requirement in the creation of municipalities3 and cities4 but withheld it for provinces. The province, as the largest political and corporate subdivision of local governance in this country, serves as the geographic base from which municipalities, cities and even another province will be carved, fostering local development. Today’s majority ruling, allowing the creation of an island province irrespective of population and land area so long as it has P20 million annual income, wipes away the territorial and population tiering among provinces, cities and municipalities the Local Government Code has carefully structured, reducing provinces to the level of a rich municipality,5 unable to host otherwise qualified new smaller local government units for sheer lack of space.

Despite the majority’s ingenious resort to "legislative construction" in the implementing rules to exempt Dinagat Islands from the minimum land area requirement, the majority cannot escape one glaring fact: Dinagat Islands province satisfies only the minimum income requirement under Section 461 of the Local Government Code. Even assuming that the minimum land area requirement does not apply to island provinces, an assumption that is devoid of any legal basis, Dinagat Islands still fail to meet the minimum population requirement.Under Section 461 of the Code, two of the three minimum requirements must be satisfied in the creation of a province, with the income requirement being one of the two minimum requirements. The majority’s ruling today creates the Dinagat Islands province despite the indisputable fact that it satisfies only one of the two necessary requirements prescribed in Section 461. The majority’s ruling clearly violates Section 461 of the Code, no question about it.

Second. It is mandatory that a province must have a population of at least 250,000. The 1987 Constitution mandates that "each province[,] shall have at least one representative."6 In Sema v. Commission on Elections,7 we categorically ruled that "the power to create a province or city inherently involves the power to create a legislative

district." Thus, when Congress creates a province it necessarily creates at the same time a legislative district. The province must comply with the minimum population of 250,000 because the Constitution mandates that 250,000 shall be the minimum population for the creation of legislative districts.8

The Constitution provides for proportional representation in the House of Representatives when it declares that "legislative districts [shall be] apportioned among provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants x x x ." This means that for every given number of inhabitants, "provinces, cities and the Metropolitan Manila area" will be entitled to one representative. In consonance with this constitutional rule on proportional representation and in compliance with the Equal Protection Clause, the minimum population for the creation of legislative districts in provinces and cities must be the same. Since the Constitution expressly provides that the minimum population of legislative districts in cities shall be 250,000,9 then it necessarily follows that the minimum population of legislative districts in provinces shall also be 250,000. Otherwise, there will be a blatant violation of two fundamental principles of our democratic system – the constitutional requirement of proportional representation in the House of Representatives for "provinces, cities and the Metropolitan Manila area" and the "one person, one vote" rule rooted in the Equal Protection Clause.

Moreover, to treat land area as an alternative to the minimum population requirement (based on the conjunctive "either" in Section 461) destroys the supremacy of the Constitution, making the statutory text prevail over the clear constitutional language mandating a minimum population through the requirement of proportional representation in the apportionment of all legislative districts. In short, in the creation of a province neither Congress nor the Executive can replace the minimum population requirement with a land area requirement because the creation of a province necessarily creates at the same time a legislative district, which under the Constitution must have a minimum population of 250,000.

Because of the majority’s ruling today, the House of Representatives will now count among its members a representative of a "premium" district consisting, as of the 2007 census, of only 120,813 constituents, well below the minimum population of 250,000 his peers from the other regular districts represent. This malapportionment tolerates, on the one hand, vote undervaluation in overpopulated districts, and, on the other hand, vote overvaluation in underpopulated ones, in clear breach of the "one person, one vote" rule rooted in the Equal Protection Clause. To illustrate, the 120,813 inhabitants of Dinagat Islands province are entitled to send one representative to the House of Representatives. In contrast, a legislative district in Metro Manila needs 250,000 inhabitants to send one representative to the House of Representatives. Thus, one vote in Dinagat Islands has the weight of more than two votes in Metro Manila for the purpose of representation in the House of Representatives. This is not what our "one person, one vote" representative democracy is all about.

What special and compelling circumstances have the majority found that entitle the inhabitants of Dinagat Islands to such a privileged position? Do the inhabitants of Dinagat Islands have more than twice the IQ of inhabitants of Metro Manila? Do the inhabitants of

Dinagat Islands pay more than twice the amount of taxes that inhabitants of Metro Manila pay? Are the inhabitants of Dinagat Islands the chosen people of God to lead this country to greatness? Have the Filipino people, in a plebiscite, agreed to confer on the inhabitants of Dinagat Islands such privileged position, which is the only constitutionally justifiable way to grant such privileged status? Indeed, the gross malapportionment this case presents is just as constitutionally damaging as that in Aquino v. Commission on Elections10 where the population of the reapportioned five legislative districts in Camarines Sur, based on relevant census, fluctuated from a high of 439,043 (Third District) to a low of 176,383 (First District).

Aquino v. Commission on Elections, and now this Dinagat Islands province case, will mangle beyond recognition the bedrock constitutional principles of proportional representation in the House of Representatives, as well as the egalitarian rule of "one person, one vote" universally honored in all modern civilized societies and rooted in the Equal Protection Clause. With Aquino v. Commission on Elections, a legislative district in provinces can be created with no minimum population requirement. Thus, a municipality with a population of only 25,000 can have a legislative district. With this Dinagat Islands province case, a province, and necessarily a legislative district, can be created with a population of only 120,000 or even less. In fact, under both Aquino v. Commission on Electionsand this Dinagat Islands province case, there is no minimum population requirement whatsoever in the creation of legislative districts in provinces, and thus even a barangay with a population of 1,000 can be a legislative district. In sharp contrast, a legislative district in cities can only be created with a minimum population of 250,000 as expressly required in the Constitution. To repeat, the majority has thrown into the dustbin of history the bedrock democratic principles of proportional representation in the House of Representatives and the "one person, one vote" rule rooted in the Equal Protection Clause − both of which are enshrined in our Constitution and in our democratic way of life. Where is the majority of this Court bringing our representative democracy?

Third. Quasi-malapportionment laws like RA 9355 are double-edged knives thrust at the heart of the anti-dynastic vision of the 1987 Constitution – it fosters entrenchment of political dynasties and fuels feudalistic practices by assuring political dynasties easy access to public funds.

Members of Congress are entitled to an equal share of pork barrel funds regardless of the size of their constituencies. Thus, each seat in the House of Representatives translates to a potent platform for congressmen to cultivate patronage by doling out development, livelihood and support projects using pork barrel funds allocated in annual budgets. For each new province created – entailing at the same time the creation of a legislative district – a pipeline to a huge pool of resources is opened, with the Congressman enjoying wide discretion on how and where he will dispense such legislative largesse.

Under the majority’s ruling, not only land area but also population is immaterial in creating island provinces. This is an open invitation to ruling political clans strategically situated in this country’s thousands of islands to sponsor the creation of more underpopulated provinces within their political bailiwicks,11 enabling them to capture more pork barrel funds, thus tightening their grip on the levers of power. This inevitably fuels the feudal practices plaguing Philippine local politics by fortifying patron (congressman)

— ward (constituents) relations upon which dynastic politics thrive. All this at the expense of taxpayers, mostly residing in city legislative districts with minimum populations of 250,000, who surely would not want their taxes to be spent as pork barrel funds of political dynasties in underpopulated legislative districts in island provinces.

The 1987 Constitution is not neutral on the scourge of dynastic politics, a phenomenon that concentrates political power and public resources within the control of few families whose members alternately hold elective offices, deftly skirting term limits. Its exclusionary effect on access to public service led the framers of the 1987 Constitution to mandate that the State "guarantee equal access to opportunities for public service" and that Congress "prohibit political dynasties x x x."12 To the Filipino people’s misfortune, Congress’ non-implementation of this constitutional directive is now aggravated by this Court’s wantonly loose translation of the Constitution’s apportionment standard of proportional representation.13 Thus, instead of ensuring compliance with the Constitution’s mandate prohibiting political dynasties, this Court has turned complicit to local politicians’ predilection for dynastic entrenchment.

Fourth. Far from being dispensable components in the creation of local government units, population and land area – not income – are the pivotal factors in funding local government units. Under the Local Government Code, these components determine 75% of the share from the national taxes (Internal Revenue Allotment or IRA) each local government unit receives, the lifeblood of their operations, based on the following formula:

1. Population – Fifty percent (50%)

2. Land Area – Twenty-five percent (25%)

3. Equal sharing – Twenty-five percent (25%).14

x x x x

Thus, population, with a weight of 50%, ranks first in importance in determining the financial entitlement of local government units, followed by land area with a weight of 25%.

By treating Dinagat Islands’ land area of 802.12 square kilometers as compliant with the 2,000 square kilometers minimum under Section 461, the majority effectively included in their land area computation the enclosed marine area or waters of Dinagat Islands. This disposition not only reverses, without cause, decades’ old jurisprudence,15 it also wreaks havoc on the national government’s allocation of the internal revenue allotment to existing island provinces which would be justified in invoking today’s ruling to clamor for increased revenue shares due to increased "land area." In short, other island provinces, like Romblon, Marinduque, Sulu, Tawi-Tawi and Palawan, can now claim their enclosed marine areas as part of their "land area" in computing their share of the IRA.16

On the part of landlocked provinces hosting large bodies of water, like Rizal, Laguna, Batangas, Cavite and Lanao del Sur, the situation is reversed. Finding themselves holding, but not surrounded by, water, the submerged territory, no matter how large, is excluded from the computation of their land area, thus proportionately lowering their share in the revenue allotment compared to their island counterparts.

Thus, in its zeal to legalize the creation of an obviously disqualified local government unit, the majority unwittingly creates classes of elite and disadvantaged provinces, using the most arbitrary factor of geographic accident as basis for classification. Even under the most benign equal protection analysis, this does not pass constitutional muster.

Fifth. The Constitution and the Local Government Code are normative guides for courts to reasonably interpret and give expression to the will of the Filipino people as encoded in their provisions. Members of this Court go beyond the bounds of their sworn duties when they second guess the intent of the Constitution’s framers and the people’s elected representatives, pretending to act as if they themselves have been accorded electoral mandate to amend statutes as they see fit. No amount of rhetoric singing paeans to the virtues of promoting local autonomy can hide the blatant judicial legislation the majority has succeeded in doing here today, to the detriment of the Constitution’s requirements of proportional representation in the House of Representatives, equal protection under the law and the prohibition against political dynasties, not to mention the blatant violation of Section 461 of the Local Government Code.

Accordingly, I vote to DENY the Motion to Recall Entry of Judgment, the Motion for Leave to Intervene and to File and Admit Intervenors’ Motion for Reconsideration of the Resolution dated 20 July 2010, and the Motion for Reconsideration of the Resolution dated 12 May 2010 filed by the intervenors.

ANTONIO T. CARPIOAssociate Justice

Footnotes

1 Article 9, paragraph 2 ("[T]he land area requirement shall not apply where the proposed province is composed of one or more islands. x x x x")

2 G.R. No. 157013, 10 July 2003.

3Section 442 (b) ("The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. x x x x") (emphasis supplied).

4Section 450 (b) ("The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. x x x x") (emphasis supplied).

5 Which, under Section 442, must have minimum income, population and land area of P2.5 million (based on 1991 prices), 25,000 and 50 square kilometers (contiguous), respectively.

6Section 5(3), Article VI of the 1987 Constitution provides: "Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative." (Emphasis supplied)

7 G.R. Nos. 177597 & 178628, 16 July 2008.

8 Id.

9 Id.

10 G.R. No. 189793, 617 SCRA 623 (2010).

11 Much like in the creation of legislative districts, the creation of local government units is done at the behest of legislators representing the relevant locality.

12 Section 26, Article II (emphasis supplied).

13 Paradigmatically shown in Aquino v. Commission on Elections, G.R. No. 189793, 617 SCRA 623 (2010).

14 Section 285.

15In Tan v. Commission on Elections (No. L-73155, 11 July 1986, 142 SCRA 727), we rejected as baseless the claim that "territory" for purposes of the creation of a province, includes submerged land: "The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control." (Id. at 749; emphasis supplied).

16 Others island provinces would be Cebu, Bohol, Masbate, Catanduanes, Batanes, Basilan, Siquijor, and Camiguin.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

BRION, J.:

I join the Dissents of Justices Antonio T. Carpio and Diosdado M. Peralta on the strict merits of the case – on why, based on the merits, Republic Act No. 9355 (RA 9355), otherwise known as An Act Creating the Province of Dinagat Islands, should be declared unconstitutional.

Additionally, I submit this Dissenting Opinion to express my objections in the strongest terms against the transgressions the Court committed in ruling on this case. The result, which is obvious to those who have been following the developments in this case and current Supreme Court rulings, is another flip-flop, made worse by the violations of the Court’s own Internal Rules.1 This is not, of course, the Court’s first flip-flop in recent memory; we did a couple of remarkable somersaults in our rulings in the case of League of Cities of the Philippines, et al. v. Comelec.2 This Dissent is written in the hope that the Court’s violation of its own rules in this case will be the last, and that the Court will re-think its disposition of this case.

The Court rendered its Decision in this case on February 10, 2010, declaring RA 9355 unconstitutional. The Office of the Solicitor General (OSG), in behalf of the respondents, and respondent Governor Geraldine Ecleo-Villaroman filed their separate Motions for Reconsideration. These were their first motions for reconsideration.

On May 12, 2010, the Court denied these motions for lack of merit.

On May 26 and 28, 2010, respondent Governor Ecleo-Villaroman and the OSG respectively filed their 2nd Motions for Reconsideration. The Court simply noted these motions without action as they are prohibited pleadings under Section 2, Rule 52 of the Rules of Court. This procedural rule states:

Sec. 2. Second Motion for Reconsideration. – No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.

The Court’s Decision of February 10, 2010 became final and executory, and Entry of Judgment was made by the Clerk of Court on May 18, 2010. At that point, the Decision of the Court should have been beyond recall.

On June 18, 2010 (or a full month after entry of judgment), new parties, namely – Congressman Francisco T. Matugas, Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr., Hon. Vicente G. Castrence, Hon. Mamerto D. Galamida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol, filed a Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010.

They prayed that they be allowed to intervene in the case since they were the newly elected officials of Surigao del Norte in the May 10, 2010 elections, who were in danger of losing their positions once the Court's February 10, 2010 decision, declaring R.A. No. 9355 unconstitutional, attained finality. Effectively, they took up the cause of the original respondent Province of Surigao del Norte then represented by former Governor Robert Ace Barbers.

The Court denied the motion in its Resolution of July 20, 2010, pursuant to Section 2, Rule 19 of the Rules of Court which allows a motion for intervention only before the rendition of judgment by the trial court. Applying this rule to an action originally filed with the Court, we ruled that a motion for intervention could only be filed before, and not after, the final judgment in the case.

Respondent Governor Ecleo-Villaroman filed, on October 22, 2010, an Urgent Omnibus Motion (To Resolve Motion for Leave of Court to Admit 2nd Motion for Reconsideration and, to Set Aside Entry of Judgment). Thus, despite the Entry of Judgment, she sought the Court’s ruling on her 2nd Motion for Reconsideration that had simply been Noted Without Action by the Court for being a prohibited pleading. The ploy to reopen the case and escape from the consequences of the final judgment was apparent from the move to set aside the Entry of Judgment. Effectively, she was moving for the third time to secure the review of the February 10, 2010 Decision that had been declared final, and to re-submit the case for another deliberation on the merits.

Side by side with the original respondent, the would-be intervenors - despite the lack of personality to act on the case - filed on October 29, 2010 an Urgent Motion to Recall Entry of Judgment. Of course, this move was duly orchestrated with the respondents whose own motions were filed a week earlier. This was a motion the would-be intervenors had no personality to file since their proposed intervention, at that point, stood denied.

The Court en banc deliberated on the case and by a vote of 9 in favor and 6 against, decided to lift the entry of judgment and allow the intervention of the new parties. By the same vote, it voted to completely reverse the Decision of February 10, 2010 and declare RA 9355, entitled An Act Creating the Province of Dinagat Islands, constitutional.

In acting as it did, the Court did not hesitate, by a 9-6 vote, to disregard existing rules that the Court itself created.

After this vote, the ponente modified the majority resolution in reaction to the original version of this Dissent. This time, the majority Resolution claimed that it was acting only on the would-be intervenors' Motion to Lift Entry of Judgment, not on the original respondents' motion to set aside judgment. The ploy apparently was to avoid the Dissent's position that the Court acted on a prohibited 2nd motion for reconsideration without the required vote.

The Court, for reasons of its own, has chosen to live with the public fiction that 2nd motions for reconsideration are prohibited pleadings pursuant to Section 2, Rule 52 of the

Rules of Court, cited and quoted above. In actual practice, exceptions to this Rule are allowed and what governs is Section 3, Rule 15 of the Internal Rules of the Supreme Court which provides:

Sec. 3. Second Motion for Reconsideration. – The Court shall not entertain a second motion for reconsideration and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration. [Emphases supplied.]

In the present case, the Court simply noted without action respondent Governor Ecleo-Villaroman’s and the OSG’s 2nd motions for reconsideration because they are prohibited pleadings. The Court thereafter declared its judgment final, and entry of judgment followed. Thus, when Governor Ecleo-Villaroman sought to lift the entry of judgment, her motion – which sought to reopen the case for another review – was effectively a third motion for reconsideration that should have been governed by Section 3, Rule 15 of the Internal Rules. With the modified position that the Court was acting on the movants-intervenors' motion to lift entry of judgment, the majority sought to avoid the restrictive rule on 2nd motions for reconsideration.

How the Court acted on the respondents’ and would-be intervenors' motions is interesting.

a. Violation of the Rule on Reconsideration. By a 9-6 vote, the Court declared the entry of judgment lifted. In so doing, it completely disregarded its own rule that any 2nd motion for reconsideration can only be entertained through a vote of 2/3 of the actual membership, or of 10 members, of the Court. It likewise disregarded the rule that a second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration. It conveniently forgot, too, when it subsequently claimed that the motion it was considering was not by respondent Governor Ecleo but by the would-be intervenors, that what an original party could no longer do with respect to a final decision, would-be intervenors – practically representing the same interests and who had not even been recognized by this Court – cannot also do; otherwise, what is directly prohibited is allowed through indirect means. Unbelievably, among the majority's supporting arguments to support their violation, was that (1) a motion to lift entry of final judgment is not a motion for reconsideration of the decision sought to be declared non-final; and that (2) no exact provision of the Internal Rules covers the lifting of an entered final judgment.

b. Violation of the Rule on Finality of Judgments. Worse than the above transgression, the Court turned a blind eye to the finality of the judgment it had reached in the case.

The judgment in a case becomes final by operation of law (after the lapse of fifteen [15] days from the parties’ receipt of the judgment) or upon the Court’s declaration of the judgment’s finality. Entry of Judgment by the Clerk of Court follows the finality of a judgment, i.e., if no motion for reconsideration is filed with the Court within fifteen (15) days from the parties’ receipt of the judgment.

As mentioned above, no second motion for reconsideration can be entertained once a judgment has become final. In this case, the Court disregarded its own rules and entertained a motion to lift the entry of judgment and to reopen the case. It was not an ordinary violation as the judgment lifted was already final. The respondent Governor's motion to lift entry of judgment was effectively a third motion for reconsideration (as its objective is to open the final decision for another consideration) and its consequences need no elaborate argument to be understood. For the would-be intervenors, it was a matter of putting the cart before the horse – a move to lift the entry of judgment even before the would-be intervenors had their personality recognized by the Court.

The principle of immutability of a final judgment stands as one of the pillars supporting a strong, credible and effective court. To quote what this Court has repeatedly stated on this principle:

"It is a hornbook rule that once a judgment has become final and executory, it may no longer be modified in any respect, even if the modification is meant to correct an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land, as what remains to be done is the purely ministerial enforcement or execution of the judgment.

The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice that at the risk of occasional errors, the judgment of adjudicating bodies must become final and executory on some definite date fixed by law. [x x x ], the Supreme Court reiterated that the doctrine of immutability of judgment is adhered to by necessity notwithstanding occasional errors that may result thereby, since litigations must somehow come to an end for otherwise, it would "be even more intolerable than the wrong and injustice it is designed to protect."3 [Emphases supplied.]

This same principle, incidentally, is what we teach students in law schools as a basic bedrock principle in the administration of justice. This is the same principle, too, that is often asked in the bar examinations. Unfortunately, this is the same principle that the Court violated, through a 9-6 vote, when it decided to lift its Entry of Judgment and to entertain the reopening of the final judgment in the case for renewed consideration. This, indeed, is a most unusual move. Did the Majority truly fail to appreciate that the lifting of the entry of judgment is no different in effect from entertaining a motion for reconsideration, and can be made, if at all, by the actual parties, not by would-be intervenors? If a 2nd motion for reconsideration is prohibited and requires a 2/3 vote, can a vote that removes the character of finality from a judgment be any less?

c. Violation of the Rule on Intervention. The Court disregarded as well the rule on interventions.4 The motion for intervention was initially denied since the Court’s decision

was already final, and intervention could no longer be allowed. To go around this rule, the would-be intervenors, without first successfully securing leave to intervene, instead filed its own motion to lift entry of judgment – the same 2nd motion from the original respondents that the Court previously simply noted without action. The Court granted the motion to lift judgment by a 9-6 vote, under the fiction that it was an intervening party, not the barred original respondents, who had asked for it.

To complete this blow-by-blow account, the respondents’ legal tactician used the ploy of first reopening the case (initially through the original respondents, and subsequently solely through the would-be intervenors), and thereafter moved to allow intervention since the original respondents had by then exhausted their arguments for the constitutionality of RA 9355. On two previous attempts, the original respondents had failed. To get around the insurmountable block posed by the rule on 2nd motions for reconsideration, they fell back on their modified Resolution with the position that another party – the would-be intervenors – wanted to lift the entry of judgment. Once the entry of judgment was lifted and intervention was allowed, it was an easy step to reopen the arguments, add to what the original respondents presented, and submit the case for a ruling on the merits. The same magic numbers of course prevailed all throughout: 9 to 6.

In this manner, the original and final ruling of the Court, in what is commonly known as the "Dinagat case" was reversed. Unlike the case of Lazarus who rose from the dead through a miracle, Dinagat resurrected because the Court disregarded its own rules and established jurisprudential principles. Of course, it can similarly be called a miracle as no reversal could have taken place if just one of the series of transgressions pointed out did not take place. How such resurrection can happen in the Supreme Court is a continuing source of wonder!

ARTURO D. BRIONAssociate Justice

Footnotes

1 A.M. No. 10-4-20-SC, The Internal Rules of the Supreme Court, effective May 22, 2010.

2 G.R. Nos. 176951, 177499 & 178056, February 15, 2011.

3 Vios v. Pantangco, Jr., G.R. No. 163103, February 6, 2009, citing Coca-Cola Bottlers Philippines, Inc., Sales Force Union-PTGWO-BALAIS v. Coca-Cola Bottlers, Philippines, Inc., G.R. No. 155651, July 28, 2005, 464 SCRA 507, 513-514; Apo Fruits Corp. v. CA, G.R. No. 164195, December 4, 2009, citing Siy v. National Labor Relations Commission, G.R. No. 158971, August 25, 2005, 468 SCRA 154, 161-162, Kline v. Murray, 257 P. 465, 79 Mont. 530, Flores v. Court of Appeals, G.R. Nos. 97556 & 101152, July 29, 1996,Land Bank of the

Philippines v. Arceo, G.R. No. 158270, July 21, 2008, 559 SCRA 85, Temic Semiconductors, Inc. Employees Union (TSIEU)-FFW v. Federation of Free Workers (FFW), G.R. No. 160993, May 20, 2008, 554 SCRA 122, 134; Session Delights Ice and Cream Fast Foods v. CA, G.R. No. 172149, February 8, 2010, citing Equitable Bank Corp. v. Sadac, G.R. No. 164772, June 8, 2006, 490 SCRA 380, 417; and Navarro v. Metropolitan Bank and Trust Company, G.R. No. 165697, August 4, 2009, citing Yau v. Silverio, Sr., G.R. No. 158848, February 4, 2008, 543 SCRA 520, Social Security System v. Isip, G.R. No. 165417, April 4, 2007, 520 SCRA 310, Lim v. Jabalde, G.R. No. 36786, April 17, 1989, 172 SCRA 211 (1983).

4 Section 2, Rule 19 of the 1997 Rules of Civil Procedure reads: Time to intervene. – The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

PERALTA, J.:

With due respect to the ponente, I register my dissent.

On February 10, 2010, the Court rendered a Decision in the instant case, the dispositive portion of which reads:

WHEREFORE, the petition is GRANTED. Republic Act No. 9355, otherwise known as An Act Creating the Province of Dinagat Islands, is hereby declared unconstitutional. The proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared NULL and VOID. The provision in Article 9 (2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared NULL and VOID.

The Office of the Solicitor General (OSG) filed a motion for reconsideration in behalf of public respondents, and respondent Governor Geraldine Ecleo-Villaroman, representing the New Province of Dinagat Islands, also filed a separate motion for reconsideration of the Decision dated February 10, 2010.

On May 12, 2010, the Court issued a Resolution denying the motions for reconsideration of the OSG and respondent Governor Geraldine Ecleo- Villaroman, representing the New Province of Dinagat Islands, for lack of merit. A copy of the Resolution dated May 12,

2010 was received by the OSG on May 13, 2010, while respondent Governor Geraldine Ecleo-Villaroman, representing the New Province of Dinagat Islands, received a copy of the said Resolution on May 14, 2010.

The Decision dated February 10, 2010 became final and executory on May 18, 2010, as evidenced by the Entry of Judgment1 issued by the Clerk of Court.

On May 26, 2010, respondent New Province of Dinagat Islands, represented by Governor Geraldine Ecleo-Villaroman, filed a Motion for Leave to Admit Motion for Reconsideration (of the Resolution dated May 12, 2010) and the said Motion for Reconsideration, while on May 28, 2010, the OSG filed a Motion for Leave to File the Attached 2nd Motion for Reconsideration (of the Resolution dated May 12, 2010) and the aforesaid Motion for Reconsideration. On June 29, 2010, the Court noted without action the foregoing motions of respondents, as the said pleadings were considered second motions for reconsideration of the Decision, which shall not be entertained by the Court, in accordance with Section 2, Rule 52 of the Rules of Court, thus:

SEC. 2. Second motion for reconsideration. — No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.

On June 18, 2010, movants-intervenors Congressman Francisco T. Matugas, Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr., Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol filed a Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010.

Movants-intervenors claimed that they have legal interest in this case as they are the duly elected officials2 of Surigao del Norte in the May 10, 2010 elections, and their positions will be affected by the nullification of the election results in the event that the Resolution dated May 12, 2010 in this case is not reversed and set aside.

On March 9, 2010, the Commission on Elections issued Resolution No. 8790,3 the pertinent portion of which reads:

x x x x

NOW, THEREFORE, with the current system configuration, and depending on whether the Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as it hereby RESOLVES, to declare that:

a. If the Decision is reversed, there will be no problem since the current system configuration is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and the Province of Surigao del Norte remain as two separate provinces;

b. If the Decision becomes final and executory before the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District, Surigao del Norte.

x x x x

c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte.

The result of the election will have to be nullified for the same reasons given in item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted.

Since movants-intervenors’ elective positions would be adversely affected if the Resolution dated May 12, 2010 would not be reversed, they prayed that they be allowed to intervene in this case and to file their Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010, and that their motion for reconsideration be admitted by the Court.

In a Resolution dated July 20, 2010, the Court denied the Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. The Court held that, fundamentally, the allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court.4 Under Section 2, Rule 19 of the Rules of Court, a motion to intervene may be filed at any time before rendition of judgment by the trial court. The Court ruled that since this case originated from an original action filed before this Court, the appropriate time to file the motion-in-intervention is before and not after resolution of this case, citing Republic v. Gingoyon.5

It should be noted that this case was decided on February 10, 2010, and the motions for reconsideration of the Decision were denied in the Resolution dated May 12, 2010. The Decision dated February 10, 2010 became final and executory on May 18, 2010. Movants-intervenors’ Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 was filed only on June 18, 2010, clearly after the Decision dated February 10, 2010 had became final and executory; hence, the said motion was correctly denied.

The ponente submits that the Court should grant movants-intervenors’ motion for reconsideration of the July 20, 2010 Resolution, in full agreement with their position that their interest in this case arose only after they were elected to their respective positions during the May 10, 2010 elections.

As stated by the ponente, in their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three main arguments: (1) that the passage of R.A. No. 9355 operates as an act of Congress amending Section 461 of R.A. No. 7160 (the

Local Government Code of 1991); (2) that the exemption from territorial contiguity, when the intended province consists of two or more islands, includes the exemption from the application of the minimum land area requirement; and (3) that the Operative Fact Doctrine is applicable in the instant case.

On the merits of the motion for intervention, the ponente urges the Court to take a hard and intent look at the first and second arguments raised by movants-intervenors.

Movants-intervenors contended that R.A. No. 9355 is equivalent to the passage of an amendatory law to the Local Government Code, as

instructed in the case of League of Cities of the Phils., et al. v. COMELEC, et al.:6

Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the already codified income requirement from PhP 20 million to PhP 100 million. At the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s ,   effectively decreased the already codified indicators. (Emphasis and [u]nderscoring supplied [by movants-intervenors].)

Defining legislative power, movants-intervenors cited Yakazi Torres Manufacturing, Inc. v. Court of Appeals,7 thus:

The legislative power has been described generally as the power to make, alter, and repeal laws. The authority to amend, change, or modify a law is thus part of such legislative power. It is the peculiar province of the legislature to prescribe general rules for the government of society. (Emphasis and [u]nderscoring supplied [by movants-intervenors].)

In view of the foregoing, movants-intervenors argued that the Local Government Code is susceptible to all legislative processes, including amendments, repeals or modifications. They asserted that there is no impediment for another statute, including R.A. No. 9355, to amend or modify the Local Government Code as regards the criteria established for the creation of a province. They noted that R.A. No 9355 relied on Article 9 (paragraph 2) of the Rules and Regulations Implementing the Local Government Code of 1991, particularly the provision that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands." Movants-intervenors asserted that the said provision should be deemed incorporated in R.A. No. 9355; hence, they purported that the land area requirement in the Local Government Code was modified by R.A. No. 9355. They contended that "R.A. No. 9355, with the incorporated Article 9 (2) of the IRR of the Local Government Code, became part of the Local Government Code."

Movants-intervenors’ argument is unmeritorious. As cited in Yakazi Torres Manufacturing, Inc. v. Court of Appeals, legislative power is the power to make, alter, and repeal laws; thus, the authority to amend, change, or modify a law is part of such legislative power. However, in this case, R.A. No. 9355, is not a law amending the Local Government Code on the criteria for the creation of a province. Instead, R.A. No. 9355 is a statute creating the Province of Dinagat Islands; hence, subject to the constitutional provision on the creation of a province. The constitutional provision on the creation of a province found in Section 10, Article X of the Constitution states:

SEC. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.8

Pursuant to the Constitution, the Local Government Code of 1991, in Section 461 thereof, prescribed the criteria for the creation of a province.9 Hence, R.A. No. 9355 did not amend the Local Government Code, but was subject to the criteria contained in Section 461 of the Local Government Code in creating the Province of Dinagat Islands.

Moreover, Section 6 of the Local Government Code provides:

SEC. 6. Authority to Create Local Government Units. – A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code. (Emphasis and underscoring supplied.)

Thus, even the Local Government Code clearly provides that Congress may enact a law creating a local government unit, which in this case involves the creation of a province, but such creation is subject to such limitations and requirements prescribed in the Local Government Code. Hence, the creation of the Province of Dinagat Islands is subject to the requirements contained in Section 461 of the Local Government Code. Since R.A. No. 9355 failed to comply with the land area or population requirement in the creation of the province, it was declared unconstitutional in the Decision dated February 10, 2010.

League of Cities of the Philippines v. Commission on Elections, which was cited by movants-intervenors, does not apply to this case. The Court held in its Resolution dated May 12, 2010, thus:

In League of Cities of the Philippines v. Commission on Elections, the Court held that the 16 cityhood laws, whose validity were questioned therein, were constitutional mainly because it found that the said cityhood laws merely carried out the intent of R.A. No. 9009, now Sec. 450 of the Local Government Code, to exempt therein respondents local government units (LGUs) from the P100 million income requirement since the said LGUs had pending cityhood bills long before the enactment of R.A. No. 9009. Each one of the 16

cityhood laws contained a provision exempting the municipality covered from the P100 million income requirement.

In this case, R.A. No. 9355 was declared unconstitutional because there was utter failure to comply with either the population or territorial requirement for the creation of a province under Section 461 of the Local Government Code.

Contrary to the contention of the movants-intervenors, Article 9 (2) of the Rules and Regulations Implementing the Local Government Code, which exempts a proposed province from the land area requirement if it is composed of one or more islands, cannot be deemed incorporated in R.A. No. 9355, because rules and regulations cannot go beyond the terms and provisions of the basic law. Thus, in the Decision dated February 10, 2010, the Court held that Article 9 (2) of the Implementing Rules of the Local Government Code is null and void, because the exemption is not found in Section 461 of the Local Government Code.10 There is no dispute that in case of discrepancy between the basic law and the rules and regulations implementing the said law, the basic law prevails, because the rules and regulations cannot go beyond the terms and provisions of the basic law.11

Next, movants-intervenors stated that assuming that Section 461 of the Local Government Code was not amended by R.A. No. 9355, they still sought reconsideration of the Resolution dated May 12, 2010, as they adopted the interpretation of the ponente and Justice Perez of Section 461 of the Local Government Code in their respective dissenting opinions. They asserted that the correct interpretation of Section 461 of the Local Government Code is that of Justice Nachura.

It must be stressed that the movants-intervenors’ assertion was already answered in the Resolution dated May 12, 2010, denying the motions for reconsideration of the OSG and Governor Geraldine Ecleo-Villaroman, representing the Province of Dinagat Islands. The Court, in the said Resolution, answered the same contention, thus:

The movants now argue that the correct interpretation of Sec. 461 of the Local Government Code is the one stated in the Dissenting Opinion of Associate Justice Antonio B. Nachura.

In his Dissenting Opinion, Justice Nachura agrees that R.A. No. 9355 failed to comply with the population requirement. However, he contends that the Province of Dinagat Islands did not fail to comply with the territorial requirement because it is composed of a group of islands; hence, it is exempt from compliance not only with the territorial contiguity requirement, but also with the 2,000-square- kilometer land area criterion in Sec. 461 of the Local Government Code, which is reproduced for easy reference:

SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

Justice Nachura contends that the stipulation in paragraph (b) qualifies not merely the word "contiguous" in paragraph (a) (i) in the same provision, but rather the entirety of paragraph (a) (i) that reads:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau[.]

He argues that the whole paragraph on contiguity and land area in paragraph (a) (i) above is the one being referred to in the exemption from the territorial requirement in paragraph (b). Thus, he contends that if the province to be created is composed of islands, like the one in this case, then, its territory need not be contiguous and need not have an area of at least 2,000 square kilometers. He asserts that this is because as the law is worded, contiguity and land area are not two distinct and separate requirements, but they qualify each other. An exemption from one of the two component requirements in paragraph (a) (i) allegedly necessitates an exemption from the other component requirement because the non-attendance of one results in the absence of a reason for the other component requirement to effect a qualification.

Similarly, the OSG contends that when paragraph (b) of Section 461 of the Local Government Code provides that the "territory need not be contiguous if it comprises two (2) or more islands," it necessarily dispenses the 2,000 sq. km. land area requirement, lest such exemption would not make sense. The OSG argues that in stating that a "territory need not be contiguous if it comprises two (2) or more islands," the law could not have meant to define the obvious. The land mass of two or more island will never be contiguous as it is covered by bodies of water. It is then but logical that the territory of a proposed province that is composed of one or more islands need not be contiguous or be at least 2,000 sq. km.

The Court is not persuaded.

Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government Units) of the Local Government Code provides:

SEC. 7. Creation and Conversion.—As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators   of viability and projected capacity to provide services , to wit:

(a) Income.—It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned;

(b) Population.—It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c) Land area.—It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).

It must be emphasized that Section 7 above, which provides for the general rule in the creation of a local government unit, states in paragraph ( c ) thereof that the land area must be contiguous and sufficient to provide for such basic services and facilities to meet the requirements of its populace.

Therefore, there are two requirements for land area: (1) The land area must be contiguous; and (2) the land area must be sufficient to provide for such basic services and facilities to meet the requirements of its populace. A sufficient land area in the creation of a province is at least 2,000 square kilometers, as provided by Section 461 of the Local Government Code.

Thus, Section 461 of the Local Government Code, providing the requisites for the creation of a province, specifically states the requirement of "a contiguous territory of at least two thousand (2,000) square kilometers."

Hence, contrary to the arguments of both movants, the requirement of a contiguous territory and the requirement of a land area of at least 2,000 square kilometers are distinct and separate requirements for land area under paragraph (a) (i) of Section 461 and Section 7 (c) of the Local Government Code.

However, paragraph (b) of Section 461 provides two instances of exemption from the requirement of territorial contiguity, thus:

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

Contrary to the contention of the movants, the exemption above pertains only to the requirement of territorial contiguity. It clearly states that the requirement of territorial contiguity may be dispensed with in the case of a province comprising two or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

Nowhere in paragraph (b) is it expressly stated or may it be implied that when a province is composed of two or more islands or when the territory of a province is separated by a chartered city or cities, such province need not comply with the land area requirement of at least 2,000 square kilometers or the requirement in paragraph (a) (i) of Section 461of the Local Government Code.

Where the law is free from ambiguity, the court may not introduce exceptions or conditions where none is provided from considerations of convenience, public welfare, or for any laudable purpose; neither may it engraft into the law qualifications not contemplated, nor construe its provisions by taking into account questions of expediency, good faith, practical utility and other similar reasons so as to relax non-compliance therewith. Where the law speaks in clear and categorical language, there is no room for interpretation, but only for application.1avvphi1

Further, movants-intervenors pointed out that pursuant to R.A. No. 9355, the Province of Dinagat Islands has been organized and is functioning as a province, which cannot just be ignored. Thus, a more realistic and pragmatic view should have been adopted by the Court in its Resolution

dated May 12, 2010 following the Operative Fact Doctrine, citing Planters Products, Inc. v. Fertiphil Corporation.12

In Planters Products, Inc. v. Fertiphil Corporation, petitioner Planters Products, Inc. (PPI) and private respondent Fertiphil were private corporations, which were both engaged in the importation and distribution of fertilizers, pesticides and agricultural chemicals. On June 3, 1985, then President Ferdinand Marcos issued LOI No. 1465, which provides:

3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital contribution component of not less than   P 10 per bag. This capital contribution shall be collected until adequate capital is raised to make PPI viable. Such capital contribution shall be applied by FPA to all domestic sales of fertilizers in the Philippines. (Underscoring supplied)

Pursuant to the LOI, Fertiphil paid P10.00 for every bag of fertilizer it sold in the domestic market to the Fertilizer and Pesticide Authority (FPA), which amount FPA remitted to the depositary bank of PPI. Fertiphil paid FPAP6,689,144.00 from July 8, 1985 to January 24, 1986.

After the 1986 EDSA Revolution, FPA voluntarily stopped the imposition of the P10.00 levy. Fertiphil demanded from PPI a refund of the amounts it paid under LOI No. 1465, but PPI refused to accede to the demand. Fertiphil filed a complaint for collection and damages against FPA and PPI with the Regional Trial Court (RTC) of Makati City. It questioned the constitutionality of LOI No. 1465 for being unjust, unreasonable, oppressive, invalid and an unlawful imposition that amounted to a denial of due process of law. Fertiphil alleged that the LOI solely favored PPI, a privately owned corporation, which used the proceeds to maintain its monopoly of the fertilizer industry.

The RTC ruled in favor of Fertiphil, and ordered PPI to pay Fertiphil the sum of P6,698,144.00 with interest at 12% from the time of judicial demand; the sum of P100,000.00 as attorney’s fees; and the cost of suit. Ruling that the imposition of the P10.00 levy was an exercise of the State’s inherent power of taxation, the RTC invalidated the levy for violating the basic principle that taxes can only be levied for public purpose. On appeal, the Court of Appeals affirmed the RTC Decision, but deleted the award of attorney’s fees.

The Court upheld the decision of the Court of Appeals as LOI No. 1465 failed to comply with the public purpose requirement for tax laws. As regards the argument of PPI that Fertiphil cannot seek a refund based on the Operative Fact Doctrine, the Court held:

The general rule is that an unconstitutional law is void; the doctrine of operative fact is inapplicable.

PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared unconstitutional. It banks on the doctrine of operative fact, which provides that an unconstitutional law has an effect before being declared unconstitutional. PPI wants to retain the levies paid under LOI No. 1465 even if it is subsequently declared to be unconstitutional.

We cannot agree. It is settled that no question, issue or argument will be entertained on appeal, unless it has been raised in the court a quo. PPI did not raise the applicability of the doctrine of operative fact with the RTC and the CA. It cannot belatedly raise the issue with Us in order to extricate itself from the dire effects of an unconstitutional law.

At any rate, We find the doctrine inapplicable. The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides:

ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.

Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid by Fertiphil under LOI No. 1465. It unduly benefited from the levy. It was proven during the trial that the levies paid were remitted and deposited to its bank account. Quite the reverse, it would be inequitable and unjust not to order a refund. To do so would unjustly enrich PPI at the expense of Fertiphil. Article 22 of the Civil Code explicitly provides that "every person who, through an act of performance by another comes into possession of something at the expense of the latter without just or legal ground shall return the same to him." We cannot allow PPI to profit from an unconstitutional law. Justice and equity dictate that PPI must refund the amounts paid by Fertiphil.13

In this case, the general rule applies that an unconstitutional law is void, and produces no legal effect. As stated in the decision above, the doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. The said doctrine recognizes that the actual existence of a statute prior to a determination of unconstitutionality is an operative fact, and may have consequences which cannot always be ignored. The doctrine was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy14 or would put in limbo the acts done by a municipality in reliance upon a law creating it in the case of Municipality of Malabang v. Benito.15

In Municipality of Malabang v. Benito, the Court ruled that Executive Order 386 creating the Municipality of Malabang is void, and respondent officials were permanently restrained from performing the duties and functions of their respective offices. Nevertheless, the Court stated there was no basis for respondent officials’ apprehension that the invalidation of the executive order creating Balabagan would have the effect of unsettling many an act done in reliance upon the validity of the creation of that municipality, citing Chicot County Drainage District v. Baxter State Bank, thus:16

x x x The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects – with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is

manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.17

Therefore, based on the foregoing, any question on the validity of acts done before the invalidation of R.A. No. 9355 may be raised before the courts.

Lastly, movants-intervenors contended that the inhabitants of the Province of Dinagat Islands have expressed their will, through their votes in a plebiscite, to be a province; hence, the Court should uphold the will of the people and uphold the validity of R.A. No. 9355.

The contention does not persuade. The validity of R.A. No. 9355 creating the province of Dinagat Islands depends on its compliance with Section 10, Article X of the Constitution, which states:

SEC. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.18

Although the political units directly affected by the creation of the Province of Dinagat Islands approved the creation of the said province, R.A. No. 9355 failed to comply with the criteria for the creation of the province contained in Section 461 of the Local Government Code; hence, it was declared unconstitutional.

As cited in the Resolution dated May 12, 2010, Tan v. Comelec19 held:

x x x [T]he fact that such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetuation of such wrong. For this court to yield to the respondents’ urging that, as there has been fait accompli, then this Court should passively accept and accede to the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief. Respondents’ submission will create a dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what the law is and should be, this might tempt again those who strut about in the corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts if they manage to bring about a fait accompli.

In view of the foregoing, the Court acted in accordance with its sound discretion in denying movants-intervenors’ Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 as the issues raised by them lacked merit or had already been resolved by the Court in its

Decision dated February 10, 2010 and its Resolution dated May 12, 2010 denying respondents’ Motion for Reconsideration. Moreover, under Section 2, Rule 19 of the Rules of Court, a motion to intervene may be filed at any time before rendition of judgment by the trial court. Since this case originated from an original action filed before this Court, the Court properly ruled that the appropriate time to file the motion-in-intervention is before and not after resolution of this case, citing Republic v. Gingoyon.20 Further, when movants-intervenors filed their Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 on June 18, 2010, the Decision of February 10, 2010 had already become final and executory on May 18, 2010.

Aside from urging the Court to take a hard look on the first and second arguments raised by movants-intervenors, the ponente also wants the Court to consider his arguments for a reconsideration of the Decision in this case.

The ponente states that the Court must bear in mind that the central policy considerations in the creation of local government units are economic viability, efficient administration and capability to deliver basic services, and the criteria prescribed by the Local Government Code, i.e., income, population and land area, are all designed to accomplish these results. He adds that in this light, Congress, in its collective wisdom, has debated on the relative weight of each of these three criteria, placing emphasis on which of them should enjoy preferential consideration. The ponente calls the attention of the majority to the primordial criterion of economic viability in the creation of local government units, particularly of a province, as intended by the framers of R.A. No. 7160.

The argument of the ponente has been discussed in his earlier Dissenting Opinion. It must be pointed out that from the congressional debates cited by the ponente, the framers of R.A. No. 7160 or the Local Government Code of 1991 finally came out with the end result, that is, Section 461 of R.A. No. 7160, which is the basis for the creation of a province. Section 461 of R.A. No. 7160 provides:

SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.

Thus, the requisites for the creation of a province, as provided by R.A. No. 7160, is an annual income of not less than P20 million and either a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau, or a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office. As the wordings of the law are plain and clear, compliance with the territorial requirement or population requirement cannot be made light of or disregarded.

In this case, R.A. 9355 creating the Province of Dinagat Islands failed to comply with either the territorial or the population requirement of the Local Government Code. The Court stated in its Resolution dated May 12, 2010, thus:

As the law-making branch of the government, indeed, it was the Legislature that imposed the criteria for the creation of a province as contained in Sec. 461 of the Local Government Code. No law has yet been passed amending Sec. 461 of the Local Government Code, so only the criteria stated therein are the bases for the creation of a province. The Constitution clearly mandates that the criteria in the Local Government Code must be followed in the creation of a province; hence, any derogation of or deviation from the criteria prescribed in the Local Government Code violates Section 10, Art. X of the Constitution.

Further, the ponente states that the provisions of both R.A. No 7160 and the Rules and Regulations Implementing the Local Government Code of 1991 (LGC-IRR) show that with respect to the creation of municipalities, component cities, and provinces, the three indicators of viability and projected capacity to provide services, i.e.,income, population, and land area, are provided for. He points out that the exemption from the land area requirement when the local government unit to be created consists of one (1) or more islands is expressly provided in Section 442 and Section 450 of R.A. No. 7160 and the LGC-IRR with respect to the creation of municipalities and component cities, respectively, but the exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of R.A. No. 7160, but is expressly stated under Article 9 (2) of the LGC-IRR.

The ponente opines that there does not appear any rhyme or reason why this exemption should apply to cities and municipalities, but not to provinces. He stated that considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or groups of islands would form part of the land area of a newly-created province than in most cities or municipalities. According to the ponente, it is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and Section 450 (for cities) of R.A. No. 7160, but was inadvertently omitted in Section 461 (for provinces).

The ponente submits that when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461 of R.A. No. 7160 -- and reflect the true legislative intent; thus, it would be in order for the Court to uphold the validity of Article 9(2), LGC-IRR.

The ponente also submits that Article 9(2) of the LGC-IRR amounts to an executive construction of the provisions, policies, and principles of R.A. No. 7160, entitled to great weight and respect. He contends that it is actually a detail expressly provided by the Oversight Committee to fill in the void, honest mistake and oversight committed by Congress in Section 461 of R.A. No. 7160, taking into account the spirit and intent of the law.

The ponente’s argument does not persuade. The Local Government Code took effect on January 1, 1992, so 19 years have lapsed since its enactment. If the Legislature committed the "congressional oversight in Section 461 of R.A. No. 7160" as alleged by Justice Nachura, it would have amended Section 461, which is a function of Congress. Substantial "oversights" in the basic law, particularly as alleged with respect to Section 461 of R.A. No. 7160, cannot be corrected in the implementing rules thereof, as it is settled rule that the implementing rules of the basic law cannot go beyond the scope of the basic law. 1awphi1

Moreover, it should be pointed out that a province is "composed of a cluster of municipalities, or municipalities and component cities,"21 and, therefore, has a bigger land area than that of a municipality and a city, as provided by law. It is noted that the former Local Government Code (Batas Pambansa Blg. 337) did not provide for a required land area in the creation of a municipality and a city, but provided for a required land area in the creation of a province, which is 3,500 square kilometers, now lessened to 2,000 square kilometers in the present Local Government Code. If only the income matters in the creation of a province, then there would be no need for the distinctions in the population and land area requirements provided for a municipality, city and province in the present Local Government Code. It may be stated that unlike a municipality and a city, the territorial requirement of a province contained in Section 46122 of the Local Government Code follows the general rule in Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government Units) of the same Code, thus:

SEC. 7. Creation and Conversion.—As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit:

(a) Income.—It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned;

(b) Population.—It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c) Land area.—It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).23

Moreover, the argument that Article 9(2) of the LGC-IRR amounts to an executive construction of the provisions, policies, and principles of R.A. No. 7160, entitled to great weight and respect, citing the case of Galarosa v. Valencia,24 has already been ruled upon in the Decision dated February 10, 2010, thus:

Further, citing Galarosa v. Valencia, the Office of the Solicitor General contends that the IRRs issued by the Oversight Committee composed of members of the legislative and executive branches of the government are entitled to great weight and respect, as they are in the nature of executive construction.

The case is not in point. In Galarosa, the issue was whether or not Galarosa could continue to serve as a member of the Sangguniang Bayan beyond June 30, 1992, the date when the term of office of the elective members of theSangguniang Bayan of Sorsogon expired. Galarosa was the incumbent president of the Katipunang Bayan or Association of Barangay Councils (ABC) of the Municipality of Sorsogon, Province of Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB) of Sorsogon pursuant to Executive Order No. 342 in relation to Section 146 of Batas Pambansa Blg. 337, the former Local Government Code.

Section 494 of the Local Government Code of 1991 states that the duly elected presidents of the liga [ng mga barangay] at the municipal, city and provincial levels, including the component cities and municipalities of Metropolitan Manila, shall serve as ex officio members of the sangguniang bayan, sangguniang panglungsod, and sangguniang panlalawigan, respectively. They shall serve as such only during their term of office as presidents of the liga chapters which, in no case, shall be beyond the term of office of the sanggunian concerned. The section, however, does not fix the specific duration of their term as liga president. The Court held that this was left to the by-laws of the liga pursuant to Article 211(g) of the Rules and Regulations Implementing the Local Government Code of 1991. Moreover, there was no indication that Sections 491 and 494 should be given retroactive effect to adversely affect the presidents of the ABC; hence, the said provisions were to be applied prospectively.

The Court stated that there is no law that prohibits ABC presidents from holding over as members of theSangguniang Bayan. On the contrary, the IRR, prepared and issued by the Oversight Committee upon specific mandate of Section 533 of the Local Government Code, expressly recognizes and grants the hold-over authority to the ABC presidents under Article 210, Rule XXIX. The Court upheld the application of the hold-over doctrine in the

provisions of the IRR and the issuances of the DILG, whose purpose was to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office.

The Court held that Section 494 of the Local Government Code could not have been intended to allow a gap in the representation of the barangays, through the presidents of the ABC, in the sanggunian. Since the term of office of the punong barangays elected in the March 28, 1989 election and the term of office of the presidents of the ABC had not yet expired, and taking into account the special role conferred upon, and the broader powers and functions vested in the barangays by the Code, it was inferred that the Code never intended to deprive thebarangays of their representation in the sangguniang bayan during the interregnum when the liga had yet to be formally organized with the election of its officers.

Under the circumstances prevailing in Galarosa, the Court considered the relevant provisions in the IRR formulated by the Oversight Committee and the pertinent issuances of the DILG in the nature of executive construction, which were entitled to great weight and respect.

Courts determine the intent of the law from the literal language of the law within the law’s four corners. If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law, or may consider the implementing rules and regulations and pertinent executive issuances in the nature of executive construction.

In this case, the requirements for the creation of a province contained in Section 461 of the Local Government Code are clear, plain and unambiguous, and its literal application does not result in absurdity or injustice. Hence, the provision in Article 9(2) of the IRR exempting a proposed province composed of one or more islands from the land-area requirement cannot be considered an executive construction of the criteria prescribed by the Local Government Code. It is an extraneous provision not intended by the Local Government Code, and is, therefore, null and void.

The ponente also stated that it may be well to remember basic policy considerations underpinning the principle of local autonomy, and cited Section 2, R.A. No 7160, which provides:

Sec. 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the local government units.

Indeed, the policy of the State is that "the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals."

However, it must stressed that in the creation of the territorial and political subdivisions of the State, the requirements provided by the Local Government Code must also be complied with, which R.A. No. 9355 failed to do.

Further, the ponente states that consistent with the declared policy to provide local government units local autonomy, he submits that the territory, contiguity and minimum land area requirements for prospective local government units should be construed liberally in order to achieve the desired results. He adds that this liberal interpretation is more appropriate, taking into account the rules on construction of the LGC, viz:

SEC. 5. Rules of Interpretation. - In the interpretation of the provisions of this Code, the following rules shall apply:

x x x x

(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community;

The ponente seeks for a liberal interpretation as regards the territorial requirement in the creation of a province based on the rules of interpretation of the general welfare provisions of the Local Government Code. General welfare is clarified in Section 16 of the Local Government Code, thus:

Sec. 16. General Welfare.—Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

The Local Government Code provides that it is "[t]he general welfare provisions in this Code which shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community." Nowhere is it stated therein that the provisions for the creation of a local government unit, the province in particular, should be liberally interpreted. Moreover, since the criteria for the creation of a province under the Local Government Code are clear, there is no room for interpretation, but only application.

To reiterate, the constitutional basis for the creation of a province is laid down in Section 10, Article X of the Constitution, which provides that no province may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. The criteria for the creation of a province are found in Section 461 of the Local Government Code. Moreover, Section 6 of the Local Government Code provides that "[a] local government unit may be created xxx by law enacted by congress in the case of a province xxx subject to such limitations and requirements prescribed in this Code."

Based on the criteria for the creation of a province provided for in Section 461 of the Local Government, the Court found that R.A. No. 9355 creating the Province of Dinagat Islands failed to comply with the population or territorial requirement; hence, R.A. No. 9355 was declared unconstitutional.

The Decision in this case was promulgated on February 10, 2010. The motions for reconsideration of the Decision was denied on May 12, 2010. The Decision of February 10, 2010 became final and executory on May 18, 2010, as evidenced by the Entry of Judgment25 issued by the Clerk of Court. Movants-intervenors filed their Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 201 only on June 18, 2010, or after the resolution of the case and one month after the Decision in this case already became final and executory. Hence, the Court properly denied the said motion.

The ponente contends that there is an imperative to grant the Urgent Motion to Recall Entry of Judgment filed on October 29, 2010 by movants-intervenors for the simple reason that the Entry of Judgment was prematurely issued on October 5, 2010 in view of the pendency of the movants-intervenor’s motion for reconsideration of the July 20, 2010 Resolution, which was filed on September 7, 2010.

I cannot agree with such contention. Although Entry of Judgment was made on October 5, 2010, it must be borne in mind that the Decision in this case became final and executory on May 18, 2010, as evidenced by the Entry of Judgment26 issued by the Clerk of Court. If the Court follows Section 2, Rule 36 of the Rules of Court, the date of finality of the judgment is deemed to be the date of its entry, thus:

Sec. 2. Entry of judgments and final orders.—If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment of final order has become final and executory.

The amendment in Section 2 above makes finality and entry simultaneous by operation of law, and eliminates the confusion and guesswork whenever the parties could not have access, for one reason or another, to the Book of Entries of Judgments.27 It also avoids the

usual problem where the physical act of writing out the entry is delayed by neglect or sloth.28

In addition, the Court properly denied on July 20, 2010 the movants-intervenors’ Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010, since it was filed after the resolution of the case and after the Decision in this case had become final and executory on May 18, 2010. With the denial of the Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010, the movants-intervenors’ did not have legal standing to intervene; hence, their motion for reconsideration of the July 20, 2010 Resolution has no bearing on the validity of the Entry of Judgment that was recorded in the Book of Entries of Judgments on October 5, 2010. Therefore, the Entry of Judgment cannot be recalled on the ground of pendency of the movants-intervenor’s motion for reconsideration of the July 20, 2010 Resolution.

Since movants-intervenors’ Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 was denied in the Resolution dated July 20, 2010, the motion for reconsideration of the July 20, 2010 Resolution filed on September 7, 2010 by movants-intervenors was recommended to also be denied, but has yet to be acted on by the Court.

Further, on October 22, 2010, respondent New Province of Dinagat Islands, represented by Governor Geraldine Ecleo-Villaroman, filed an Urgent Omnibus Motion (To resolve Motion for Leave of Court to Admit Second Motion for Reconsideration and, to set aside Entry of Judgment). Respondent admitted that it filed the Motion for Leave of Court to Admit Second Motion for Reconsideration on May 26, 2010, twelve (12) days after receipt of the Resolution dated May 12, 2010 denying respondents’ motion for reconsideration.

It should be pointed out that the Court has acted on respondent New Province of Dinagat Islands’ Motion for Leave of Court to Admit Second Motion for Reconsideration and the aforesaid Motion for Reconsideration, which were filed on May 26, 2010 (after the Decision had become final and executory on May 18, 2010), in the Court’s Resolution dated June 26, 2010. Treated as a second motion for reconsideration of the Decision, which is disallowed, the Court resolved to note without action the said motions in view of the Resolution dated May 12, 2010 denying the motions for reconsideration of the February 10, 2010 Decision. Section 2, Rule 52 of the Rules of Court states:

SEC. 2. Second motion for reconsideration.—No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.

As the decision in this case became final and executory on May 18, 2010, the decision is unalterable.1avvphi1 In Gomez v. Correa,29 the Court held:

It is settled that when a final judgment is executory, it becomes immutable and unalterable. The judgment may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the

highest Court of the land. The doctrine is founded on considerations of public policy and sound practice that, at the risk of occasional errors, judgments must become final at some definite point in time.

The only recognized exceptions are the correction of clerical errors or the making of so-called nunc pro tunc entries in which case there is no prejudice to any party, and where the judgment is void.

To stress, the motion for reconsideration filed by movants-intervenors on the denial of the motion for internvention should have been denied since to grant the same would be tantamount to reopening a case which is already final. Worse, movants-intervenors are not even original parties to the present case and therefore are not in a position to file a motion to recall a judgment which is already final and executory.

In view of the foregoing, I maintain that the movants-intervenors’ Motion for Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010, which was filed only on June 18, 2010 or after resolution of the case and after the Decision of February 10, 2010 had become final and executory on May 18, 2010, was properly denied in the Resolution dated July 20, 2010. Consequently, I maintain my stand that movants-intervenor’s Motion for Reconsideration of the Resolution dated July 20, 2010, which motion was filed on September 7, 2010, be denied for lack of merit. Further, it is recommended that movants-intervenors’ Urgent Motion to Recall Entry of Judgment filed on October 29, 2010, and the Omnibus Motion (To resolve Motion for Leave of Court to Admit Second Motion for Reconsideration and to set aside Entry of Judgment) filed on October 22, 2010 by respondent New Province of Dinagat Islands, represented by Governor Geraldine Ecleo-Villaroman, be likewise denied for lack of merit.

DIOSDADO M. PERALTAAssociate Justice

CONCURRING OPINION

DEL CASTILLO, J.:

Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

Justice Oliver Wendell Holmes

Northern Securities Co. v. United States 1

On the abstract principles which govern courts in construing legislative acts, no difference of opinion can exist. It is only in the application of those principles that the difference discovers itself.

Chief Justice John Marshall

United States v. Fisher2

Considering the circumstances which supervened after the promulgation of the Decision on February 10, 2010 and Resolution dated May 12, 2010, I find myself reconsidering my previous position. Mr. Justice Antonio Eduardo B. Nachura has himself identified factors not previously considered by this Court, which, in my view, warrant a reversal of our previous rulings.

The case before us concerns the proper interpretation of Section 461 of Republic Act (RA) No. 7160, also known as the Local Government Code (LGC), which prescribes the criteria for the creation of a province as follows:

SEC. 461. Requisites for Creation. – (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.3 (Underscoring supplied)

To implement the provisions of the LGC, the Oversight Committee (created pursuant to Sec. 533 of the LGC) formulated the Implementing Rules and Regulations to carry out the provisions of the law. Article 9 of said Rules and Regulations provides:

Art. 9 Provinces – (a) Requisites for Creation. – A province shall not be created unless the following requisites on income and either population or land area are present:

(i) Income - An average annual income of not less than Twenty million pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by the DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and non-recurring income; and

(ii) Population or land area – Population shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by NSO; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds.

Since our May 12, 2010 ruling (which denied respondents’ respective Motions for Reconsideration), the Office of the Solicitor General (representing the Republic of the Philippines) and Gov. Geraldine Ecleo Villaroman (representing the new Province of the Dinagat Islands), each sought leave to file a Second Motion for Reconsideration on May 27, 2010 and May 26, 2010, respectively, which motions were noted without action. The winning candidates for provincial and congressional seats in Surigao del Norte also sought to intervene in this case; however, their motion for intervention was denied on July 20, 2010.

Subsequent to the Motions for Reconsideration, Justice Nachura has taken pains to compare the requisites for the creation of the different local government units (LGUs) in order to highlight what, in my view, is a glaring inconsistency in the provisions of the law. To summarize:

LGU Land Area Requirement

Barangay No minimum land area requirement. Rather, the barangay must be created out of a contiguous territory with a population of at least two thousand (2,000) inhabitants [Sec. 386(a), LGC]

The territory need not be contiguous if it comprises two (2) or more islands. [Sec. 386(b), LGC]

Municipality Contiguous territory of at least fifty (50) square kilometers

Note – the land area requirement is IN ADDITION to the income requirement of at least Two Million Five Hundred Thousand Pesos (PhP2,500,000.00) in average annual income for the last 2 consecutive years

AND the population requirement of at least Twenty Five Thousand (25,000) inhabitants. [Sec. 442(a), LGC]

The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. [Sec. 442(b), LGC]

City Contiguous territory of at least one hundred (100) square kilometers

Note – a city must have an average annual income of at least Twenty Million Pesos (PhP20,000,000.00) for the last 2 consecutive years AND comply with either the land area requirement OR have a population of at least one hundred fifty thousand (150,000) inhabitants. [Sec. 450(a), LGC]

The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. [Sec 450(b), LGC]

Province Contiguous territory of at least two thousand (2,000) square kilometers.

Note – a province must have an average annual income of at least Twenty Million Pesos (PhP20,000,000.00) AND comply with either the land area requirement OR have a population of at least two hundred fifty thousand (250,000) inhabitants. [Sec. 461(a), LGC]

The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. [Sec 461(b), LGC]

As Justice Nachura points out, as regards the creation of barangays, land area is not included as a requirement. However, a minimum land area is provided for the creation of municipalities, cities, and provinces. Furthermore, while an exemption4 is provided for municipalities and cities in cases where the LGU concerned is composed of one or more islands, in stark contrast, no such exemption exists with respect to provinces.

It is not difficult to see why no exemption is needed for barangays – why exempt them from a requirement that does not even apply to them? In fact, the inclusion of the clause "[t]he territory need not be contiguous if it comprises two (2) or more islands" in Sec. 386(b) of the LGC appears to be surplusage. But I cannot see why there would be a difference in treatment between cities and municipalities, on one hand, and provinces, on the other. In fact, as Justice Nachura points out, this may lead to anomalous results. This leads me to conclude that Justice Nachura’s interpretation is indeed correct – that the legislature fully intended to exempt LGUs from the land area requirement in cases where the LGU concerned encompassed two or more islands, as provided in Section 442 (for municipalities) and Section 450 (for cities), but this legislative policy was not carried over

to Section 461 (for provinces). Consequently, Article 9(2) of the LGC’s Implementing Rules and Regulations were precisely enacted in order to correct the congressional oversight.

Our esteemed colleague, Mr. Justice Diosdado M. Peralta, suggests that this interpretation is implausible because even if there were any such oversight, Congress had every opportunity in the last 19 years to correct its mistake. To this I would only observe that Congress has never, in the last 19 years, been faced with a situation where an amendment to Section 461 of the LGC was necessary or desirable, and no case concerning the land area requirement for provinces has ever been brought before this Court since the LGC’s enactment.5 The only case that has mentioned the land area requirement for provinces, Tan v. Commission on Elections,6 (regarding the invalidation of Batas Pambansa Bilang 885 which created the province of Negros Del Norte) dealt with the matter only tangentially, at best.7

Justice Peralta also opines that there is no need to search for the legislative intent, since the language of the law is plain, clear, and unambiguous. I would submit, however, that it is equally true that the statute must be read as a whole, that its clauses and phrases are not detached and isolated expressions, but that each and every part must be considered in order to ascertain its meaning.8

Therefore, the statute, read as a whole, in the light of its legislative history, cannot be said to preclude the interpretation placed on it by the majority. But in interpreting a statute [such as the Local Government Code], we cannot take one sentence, one section, or even the entire statute alone and say that it has a "plain meaning" as if there were an objective formula in the few words simply waiting to be grasped by the courts. Instead the statute must be read as a whole, taking all of its provisions and reading them in the context of the legal fabric to which they are to be applied. An interpretation that creates an admittedly anomalous result is not salved by the majority's apologia that, if we read the statute in that fashion, Congress created the anomaly. Instead the question is whether the statute read as a whole was intended by Congress to create such results. The law is not an isolated bundle of capricious and inconsistent commands by a legislature presumed to react mindlessly.9

It is also relevant that the Senate and the House of Representatives, represented by the Office of the Solicitor General, have asserted that Congress intended that provinces composed of one or more islands should be exempted from the 2,000 sq. km. land area requirement. Surely, the legislature’s will in this case should be given deference, as a co-equal branch of government operating within its area of constitutional authority.

I also cannot help but note that the Dinagat Islands is not the first small island-province which has been separated from a larger province through legislative imprimatur. The Court may take judicial notice of the fact that the island-provinces of Batanes (previously annexed to Cagayan),10 Camiguin (previously a sub-province of Misamis Oriental),11 Siquijor (previously a sub-province of Negros Oriental),12 Biliran (previously a sub-province of Leyte),13 Guimaras (previously a sub-province of Iloilo),14 and Marinduque (previously annexed to Tayabas)15also have land areas of well below 1,000 square kilometers each.

To be clear, I am not making an equal protection argument, since none of these provinces were created under the auspices of the LGC. I only point this out to show that Congress, in drafting the LGC, was cognizant of the special circumstances surrounding the creation of island-provinces, and evidently intended that economic development be a more significant consideration than size. The Congressional deliberations bear this out:

CHAIRMAN LINA:

Will you look at the case of – how many municipalities are there in Batanes province?

CHAIRMAN ALFELOR:

Batanes is only six.

CHAIRMAN LINA:

Six town. Siquijor?

CHAIRMAN ALFELOR:

Siquijor. It is region?

CHAIRMAN LINA:

Seven.

CHAIRMAN ALFELOR:

Seven. Anim.

CHAIRMAN LINA:

Six also.

CHAIRMAN ALFELOR:

Six also.

CHAIRMAN LINA:

It seems with a minimum number of towns?

CHAIRMAN ALFELOR:

The population of Siquijor is only 70 thousand, not even one congressional district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon.

CHAIRMAN LINA:

Camiguin, Camiguin.

CHAIRMAN ALFELOR:

That is region? Camiguin has five municipalities, with a population of 63 thousand. But we do not hold it against the province because maybe that’s one stimulant where growth can grow, can start. The land area for Camiguin is only 229 square kilometers. So if we hard fast on requirements of, we set a minimum for every province, palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very clear that in case we would like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo eh. Because what is really the thrust of the Local Government Code? Growth. To devolve powers in order for the community to have its own idea how they will stimulate growth in their respective areas.

So in every geographical condition, mayroong sariling idiosyncrasies eh. We cannot make a generalization.16

Though this Court certainly has the authority to override the legislative interpretation, I do not believe it is appropriate or necessary in this instance. Rather, we should acknowledge the "strong presumption that a legislature understands and correctly appreciates the needs of its own people [and] that its laws are directed to problems made manifest by experience."17

I do not propose that the Court overturn its settled precedent to the effect that Implementing Rules and Regulations cannot go beyond the terms of the statute. But under these limited circumstances – where a reading of the entire law reveals inconsistencies which this Court must reconcile, where the legislature has informed the Court of its intentions in drafting the law, and where the legislative history of the LGC leads one to the inescapable conclusion that the primary consideration in the creation of provinces is actually administrative convenience, economic viability, and capacity for development - then it would be far more just to give effect to the will of the legislature in this case.

In the words of Mr. Justice Isagani Cruz:

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them." While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to give effect to the law maker's will.

The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read according to its spirit or intent. For what is within the spirit is within the letter but although it is not within the letter thereof, and that which is within the letter but not within the spirit is not within the statute. Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as if within the letter; and a thing

which is within the letter of the statute is not within the statute unless within the intent of the lawmakers.18

For these reasons, I thus concur in the opinion of Justice Nachura.

MARIANO C. DEL CASTILLOAssociate Justice

G.R. No. 176951               June 28, 2011

League of Cities of the Philippines (LCP), represented by LCP National President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners, vs.Commission on Elections; Municipality of Baybay, Province of Leyte; Municipality of Bogo, Province of Cebu; Municipality of Catbalogan, Province of Western Samar; Municipality of Tandag, Province of Surigao del Sur; Municipality of Borongan, Province of Eastern Samar; and Municipality of Tayabas, Province of Quezon, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 177499

League of Cities of the Philippines (LCP), represented by LCP National President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners, vs.Commission on Elections; Municipality of Lamitan, Province of Basilan; Municipality of Tabuk, Province of Kalinga; Municipality of Bayugan, Province of Agusan del Sur; Municipality of Batac, Province of Ilocos Norte; Municipality of Mati, Province of Davao Oriental; and Municipality of Guihulngan, Province of Negros Oriental, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178056

League of Cities of the Philippines (LCP), represented by LCP National President Jerry P. Treñas; City of Calbayog, represented by Mayor Mel Senen S. Sarmiento; and Jerry P. Treñas, in his personal capacity as Taxpayer, Petitioners, vs.Commission on Elections; Municipality of Cabadbaran, Province of Agusan del Norte; Municipality of Carcar, Province of Cebu; Municipality of El Salvador,

Province of Misamis Oriental; Municipality of Naga, Cebu; and Department of Budget and Management, Respondents.

R E S O L U T I O N

BERSAMIN, J.:

We hereby consider and resolve:– (a) the petitioners’ Motion for Leave to File Motion for Reconsideration of the Resolution of 12 April 2011, attached to which is a Motion for Reconsideration of the Resolution dated 12 April 2011 dated April 29, 2011 (Motion For Reconsideration), praying that the resolution of April 12, 2011 be reconsidered and set aside; and (b) the respondents’ Motion for Entry of Judgment dated May 9, 2011.

After thorough consideration of the incidents, we deny the Motion for Reconsideration and grant the Motion for Entry of Judgment.

As its prayer for relief shows, the Motion for Reconsideration seeks the reconsideration, reversal, or setting aside of the resolution of April 12, 2011.1 In turn, the resolution of April 12, 2011 denied the petitioners’ Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011).2 Clearly, the Motion for Reconsideration is really a second motion for reconsideration in relation to the resolution dated February 15, 2011.3

Another indicium of its being a second motion for reconsideration is the fact that the Motion for Reconsiderationraises issues entirely identical to those the petitioners already raised in their Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011). The following tabulation demonstrates the sameness of issues between the motions, to wit:

Motion for Reconsiderationof April 29, 2011

Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011)

March 8, 2011

I. With due respect, neither the Rules of Court nor jurisprudence allows the Honorable Court to take cognizance of Respondent Municipalities multiple motions. By doing so, the Honorable Court therefore acted contrary to the Rules of Court and its internal procedures.

II. The Resolution Contravenes The 1997 Rules Of Civil Procedure And Relevant Supreme Court Issuances.

II. Contrary to the ruling of the Honorable Court in the Assailed Resolution, the controversy involving the Sixteen (16) Cityhood laws had long been resolved with finality;thus, the principles of immutability of judgment and res judicata are applicable and operate to

I. The Honorable Court Has No Jurisdiction To Promulgate The Resolution Of 15 February 2011, Because There is No Longer Any Actual Case Or Controversy To Settle.

III. The Resolution Undermines The Judicial

deprive the Honorable Court of jurisdiction.System In Its Disregard Of The Principles Of Res Judicata And The Doctrine of Immutability of Final Judgments.

III. Contrary to the Assailed Resolution of the Honorable Court, the sixteen (16) Cityhood laws neither repealed nor amended the Local Government Code. The Honorable Court committed an error when it failed to rule in the Assailed Resolution that the Sixteen (16) Cityhood Laws violated Article X, Sections 6 and 10 of the Constitution.

IV. The Resolution Erroneously Ruled That The Sixteen (16) Cityhood Bills Do Not Violate Article X, Sections 6 and 10 Of The 1987 Constitution.

V. The Sixteen (16) Cityhood Laws Violate The Equal Protection Clause Of The Constitution And The Right Of Local Government Units To A Just Share In The National Taxes.

IV. With due respect, the constitutionality of R.A. 9009 is not an issue in this case. It was error on the part of the Honorable Court to consider the law arbitrary.

That Issue No. IV (i.e., the constitutionality of Republic Act No. 9009) appears in the Motion for Reconsiderationbut is not found in the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011) is of no consequence, for the constitutionality of R.A. No. 9009 is neither relevant nor decisive in this case, the reference to said legislative enactment being only for purposes of discussion.

The Motion for Reconsideration, being a second motion for reconsideration, cannot be entertained. As to that, Section 24 of Rule 51 of the Rules of Court is unqualified. The Court has firmly held that a second motion for reconsideration is a prohibited pleading,5 and only for extraordinarily persuasive reasons and only after an express leave has been first obtained may a second motion for reconsideration be entertained.6 The restrictive policy against a second motion for reconsideration has been re-emphasized in the recently promulgated Internal Rules of the Supreme Court, whose Section 3, Rule 15 states:

Section 3. Second motion for reconsideration. – The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration.

In the Division, a vote of three Members shall be required to elevate a second motion for reconsideration to the Court En Banc.

We observe, too, that the prescription that a second motion for reconsideration "can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration" even renders the denial of the petitioners’ Motion for Reconsideration more compelling. As the resolution of April 12, 2011 bears out,7 the ruling sought to be reconsidered became final by the Court’s express declaration. Consequently, the denial of the Motion for Reconsideration is immediately warranted.

Still, the petitioners seem to contend that the Court had earlier entertained and granted the respondents’ own second motion for reconsideration. There is no similarity between then and now, however, for the Court en banc itself unanimously declared in the resolution of June 2, 2009 that the respondents’ second motion for reconsideration was "no longer a prohibited pleading."8 No similar declaration favors the petitioners’ Motion for Reconsideration.

Finally, considering that the petitioners’ Motion for Reconsideration merely rehashes the issues previously put forward, particularly in the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011), the Court, having already passed upon such issues with finality, finds no need to discuss the issues again to avoid repetition and redundancy.

Accordingly, the finality of the resolutions upholding the constitutionality of the 16 Cityhood Laws now absolutely warrants the granting of respondents’ Motion for Entry of Judgment.

WHEREFORE, the Court denies the petitioners’ Motion for Leave to File Motion for Reconsideration of the Resolution of 12 April 2011 and the attached Motion for Reconsideration of the Resolution of 12 April 2011; grants the respondents’ Motion for Entry of Judgment dated May 9, 2011; and directs the Clerk of Court to forthwith issue the Entry of Judgment in this case.

No further pleadings or submissions by any party shall be entertained.

SO ORDERED.

LUCAS P. BERSAMINAssociate Justice

WE CONCUR:

RENATO C. CORONAChief Justice

ANTONIO T. CARPIOAssociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRIONAssociate Justice

DIOSDADO M. PERALTAAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

ROBERTO A. ABADAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

JOSE PORTUGAL PEREZAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

MARIA LOURDES P. A. SERENOAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONAChief Justice

Footnotes

1 The prayer for relief of the Motion for Reconsideration states:

WHEREFORE, Petitioners most respectfully pray that the Resolution dated 12 April 2011 be forthwith RECONSIDERED, REVERSED or SET ASIDE.

2 The dispositive portion of the resolution of April 12, 2011 reads:

WHEREFORE, the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011) is denied with finality.

SO ORDERED.

3 The dispositive portion of the resolution of February 15, 2011 says:

WHEREFORE, the Motion for Reconsideration of the "Resolution" dated August 24, 2010, dated and filed on September 14, 2010 by respondents Municipality of Baybay, et al. is GRANTED. The Resolution dated August 24, 2010 is REVERSED and SET ASIDE. The Cityhood Laws—Republic Acts Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436, and 9491—are declared CONSTITUTIONAL.

SO ORDERED.

4 Section 2. Second motion for reconsideration. – No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.

5 Securities and Exchange Commission v. PICOP Resources, Inc., 566 SCRA 451 (2008); APO Fruits corporation v. Land Bank of the Philippines, G.R. No. 164195, April 5, 2011; Ortigas and Company Limited Partnership v. Velasco, 254 SCRA 234.

6 Ortigas and Company Limited Partnership v. Velasco, supra.

7 Supra, note 2.

8 The resolution of June 2, 2009 pertinently declared:

xxx

In the present case, the Court voted on the second motion for reconsideration filed by the respondent cities. In effect, the Court allowed the filing of the second motion for reconsideration. Thus, the second motion for reconsideration was no longer a prohibited pleading. However, for lack of the required number of votes to overturn the 18 November 2009 Decision and 31 March 2009 Resolution, the Court denied the second motion for reconsideration in its 28 April 2009 Resolution.

xxx

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO, J.:

The majority decision upheld the constitutionality of the Cityhood Laws because (1) of the pendency of the conversion bills during the 11th Congress; and (2) compliance with the requirements of the Local Government Code prior to its amendment by Republic Act No. 9009.

I reiterate my dissent.

I.The Cityhood Laws violate Section 10, Article X of the Constitution.

Section 10, Article X of the 1987 Constitution provides:

No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government codeand subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied)

The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code itself and not in any other law. There is only one Local Government Code.1 To avoid discrimination and ensure uniformity and equality, the Constitution expressly requires Congress to stipulate in the Local Government Code itself all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws.

Notably, each Cityhood Law provides in its Separability Clause that if any of its provisions is "inconsistent with the Local Government Code," the other consistent provisions "shall continue to be in full force and effect."The clear and inescapable implication is that any provision in each Cityhood Law that is "inconsistent with the Local Government Code" has no force and effect – in short, void and ineffective. Each Cityhood Law expressly and unequivocally acknowledges the superiority of the Local Government Code, and thatin case of conflict, the Local Government Code shall prevail over the Cityhood Law. The clear intent and express language of the Cityhood Laws is for these laws to conform to the Local Government Code and not the other way around.

Moreover, Congress, in providing in the Separability Clause that the Local Government Code shall prevail over the Cityhood Laws, treats the Cityhood Laws as separate and distinct from the Local Government Code. In other words, the Cityhood Laws do not form integral parts of the Local Government Code but are separate and distinct laws. There is therefore no question that the Cityhood Laws are laws other than the Local Government Code. As such, the Cityhood Laws cannot stipulate an exception from the requirements for the creation of cities, prescribed in the Local Government Code, without running afoul of the explicit mandate of Section 10, Article X of the 1987 Constitution.

Contrary to the faulty conclusion of the majority, the Cityhood Laws do not amend the Local Government Code. The Legislature never intended the Cityhood Laws to amend the Local Government Code. Nowhere in the plain language of the Cityhood Laws can this

interpretation be discerned. Neither the title nor the body of the Cityhood Laws sustains such conclusion. Simply put, there is absolutely nothing in the Cityhood Laws to support the majority decision that the Cityhood Laws amended the Local Government Code.

II.The Cityhood Laws violate the equal protection clause.

There is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11th Congress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion − mere pendency of a cityhood bill in the 11th Congress − is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities.

The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never happen again. This violates the requirement that a valid classification must not be limited to existing conditions only.

In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date − the filing of their cityhood bills before the end of the 11th Congress – as against all other municipalities that want to convert into cities after the effectivity of RA 9009.

Further, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, is unconstitutional for violation of the equal protection clause.

III.Respondent municipalities must comply with the

P100 million income requirement under the prevailing LGC.

RA No. 9009 amended the Local Government Code precisely because the criteria in the old Local Government Code were no longer sufficient. In short, RA No. 9009 repealed the old income requirement of P20 million, a requirement that no longer exists in our statute books. Compliance with the old income requirement is compliance with a repealed, dead, and non-existent law – a totally useless, futile, and empty act. Worse, compliance with the old requirement is an outright violation of the Constitution which expressly commands that "no x x x city x x x shall be created x x x except in accordance with the criteria established in the local government code." Therefore, respondent municipalities in order

to validly convert into cities must comply with the P100 million income requirement under the prevailing Local Government Code, as amended by RA 9009, and not with the oldP20 million income requirement. Otherwise, such compliance with the old P20 million income requirement is void for being unconstitutional.

There must be strict compliance with the express command of the Constitution that "no city x x x shall be created x x x except in accordance with the criteria established in the local government code." Substantial compliance is insufficient because it will discriminate against all other cities that were created before and after the enactment of the Cityhood Laws in strict compliance with the criteria in the Local Government Code, as amended by RA No. 9009. The conversion of municipalities into new cities means an increase in the Internal Revenue Allotment of the former municipalities and a corresponding decrease in the Internal Revenue Allotment of all other existing cities. There must be strict, not only substantial, compliance with the constitutional requirement because the economic lifeline of existing cities may be seriously affected.

IV.The increased income requirement of P100 million

is neither arbitrary nor difficult to comply.

According to the majority, "the imposition of the income requirement of P100 million from local sources under R.A. No. 9009 was arbitrary. x x x no research or empirical data buttressed the figure. Nor was there proof that the proposal took into account the after-effects that were likely to arise."

This is glaring error.

The Legislature, in enacting RA No. 9009, is not required by the Constitution to show the courts data like inflation figures to support the increased income requirement. As long as the increased income requirement is not impossible to comply, such increase is a policy determination involving the wisdom of the law, which exclusively lies within the province of the Legislature. When the Legislature enacts laws increasing taxes, tax rates, or capital requirements for businesses, the Court cannot refuse to apply such laws on the ground that there is no economic justification for such increases. Economic, political or social justifications for the enactment of laws go into the wisdom of the law, outside the purview of judicial review. This Court cannot refuse to apply the law unless the law violates a specific provision of the Constitution. There is plainly nothing unconstitutional in increasing the income requirement from P20 million to P100 million because such increase does not violate any express or implied provision of the Constitution.

V.Failure of 59 existing cities to post P100 million annual income

does not render the P100 million income requirementdifficult to comply.

Suffice it to state that there is no Constitutional or statutory requirement for the 59 existing cities to comply with the P100 million income requirement. Obviously, these

cities were already cities prior to the amendment of the Local Government Code providing for the increased income requirement of P100 million. In other words, at the time of their creation, these cities have complied with the criteria prescribed under the old Local Government Code for the creation of cities, and thus are not required to comply with the P100 million income requirement of the prevailing Local Government Code. It is utterly misplaced and grossly erroneous to cite the "non-compliance" by the 59 existing cities with the increased income requirement of P100 million to conclude that the P100 million income requirement is arbitrary and difficult to comply.

Moreover, as stated, the increased income requirement of P100 million is neither unconstitutional nor unlawful. Unless the P100 million income requirement violates a provision of the Constitution or a law, such requirement for the creation of a city must be strictly complied with. Any local government unit applying for cityhood, whether located in or outside the metropolis and whether within the National Capital Region or not, must meet the P100 million income requirement prescribed by the prevailing Local Government Code. There is absolutely nothing unconstitutional or unlawful if the P100 million income requirement is easily complied with by local government units within or near the National Capital Region. The majority’s groundless and unfair discrimination against these metropolis-located local government units must necessarily fail.

VI.The Cityhood Laws violate Section 6, Article X of the Constitution.

Uniform and non-discriminatory criteria as prescribed in the Local Government Code are essential to implement a fair and equitable distribution of national taxes to all local government units. Section 6, Article X of the Constitution provides:

Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Emphasis supplied)

If the criteria in creating local government units are not uniform and discriminatory, there can be no fair and just distribution of the national taxes to local government units.

A city with an annual income of only P20 million, all other criteria being equal, should not receive the same share in national taxes as a city with an annual income of P100 million or more. The criteria of land area, population and income, as prescribed in Section 450 of the Local Government Code, must be strictly followed because such criteria, prescribed by law, are material in determining the "just share" of local government units in national taxes. Since the Cityhood Laws do not follow the income criterion in Section 450 of the Local Government Code, they prevent the fair and just distribution of the Internal Revenue Allotment in violation of Section 6, Article X of the Constitution.

As pointed out by petitioners, "respondent municipalities have a total population equivalent to that of Davao City only, or around 1.3 million people. Yet, the IRA that pertains to the 16 municipalities (P4,019,776,072) is more than double that for Davao City (P1,874,175,271). x x x As a result, the per capita IRA alloted for the individual denizen of

Davao is even less than half of the average per capita IRA of the inhabitants of the sixteen (16) municipalities (P1,374.70 divided by P3,117.24)."

This indisputable fact vividly reveals the economic inequity that will inevitably result from the unjust allocation of the IRA as a consequence of the conversion of respondent municipalities into cities. Clearly, if the existing cities’ share in the Internal Revenue Allotment is unreasonably reduced, it is possible, even expected, that these cities may have to lay-off workers and abandon projects, greatly hampering, or worse paralyzing, the delivery of much needed public services in their respective territorial jurisdictions.

VII.

Conclusion

The Constitution expressly requires Congress to stipulate in the Local Government Code itself all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. To avoid discrimination and ensure uniformity and equality, such criteria cannot be embodied in any other law except the Local Government Code. In this case, the Cityhood Laws, which are unmistakably laws other than the Local Government Code, provide an exemption from the increased income requirement for the creation of cities under Section 450 of the Local Government Code, as amended by RA No. 9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of the Constitution. In addition, the Cityhood Laws violate the equal protection clause and Section 6, Article X of the Constitution on the fair and equitable distribution of national taxes to all local government units. Without any doubt, the Cityhood Laws must be striken down for being unconstitutional.

Accordingly, I vote to GRANT the motion for reconsideration of the League of Cities of the Philippines.

ANTONIO T. CARPIOAssociate Justice

Footnote

1 Republic Act No. 7160, as amended.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

SERENO, J.:

"If changing judges changes laws, it is not even clear what law is."

- Richard A. Posner1

I maintain my dissent that the sixteen Cityhood Laws are unconstitutional. In questioning the Court’s latest Resolution,2 petitioners have raised concerns over the "highly irregular and unprecedented" acts of entertaining several motions for reconsideration.3 In response to these concerns, I wish to expound on the effects of the "flip-flopping" decisions on the Court’s role in our democratic system and its decision-making process, in order that it may "serve to bulwark the fortifications of an orderly government of laws."4

Our system of democracy is committed irrevocably to a government of laws,5 and not of men.6 Laws give witness to society’s moral values7 and are the depositories of what the sovereign as a whole has agreed to uphold as the minimum standards of conduct that will govern relationships and transactions within that society. In a representative democracy, the Filipino people, through their elected representatives, deliberate, distill and make moral judgments, which are crystallized into written laws that are made public, accessible and binding to all.8Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner.9

Obedience to the rule of law forms the bedrock of our system of justice.10 Once the sovereign people’s "soft" moral choices are hardened through the constitutionally mandated legislative process,11 statutory laws perform an equalizing function of imposing a knowable standard of conduct or behavior to which all members of society must conform to – a social contract which everyone regardless of class, sex or religion is bound.12 Legislative enactments are ordinarily prospective and general in character insofar as they prescribe limitations on an individual’s future conduct. Under the rule of law,13 ordinary people can reasonably assume that another person’s future conduct will be in observance of the laws and can conceivably expect that any deviation therefrom will be punished accordingly by responsible authorities. Thus, written constitutions and statutory laws allow citizens a minimum confidence in a world of uncertainty:

Through constitutionalism we placed limits on both our political institutions and ourselves, hoping that democracies, historically always turbulent, chaotic, and even despotic, might now become restrained, principled, thoughtful and just. So we bound ourselves over to a law that we made and promised to keep. And though a government of laws did not displace governance by men, it did mean that now men, democratic men, would try to live by their word.14

As man-made creations, however, laws are not always entirely encompassing, as future conditions may change – conditions that could not have been perceived or accounted for by the legislators. Actual situations may arise between two conflicting claims by specific

parties with differing interpretations of the law. In those instances in which a gray area or an unintended gap exists in the implementation or execution of laws, the judicial department is charged with the duty of determining the limitations that the law places upon all actions of individuals.15 Hence, the court’s primary adjudicatory function is to mark the metes and bounds of the law in specific areas of application, as well as to pass judgment on the competing positions in a case properly brought before it.

The Court not only functions to adjudicate rights among the parties, but also serves the purpose of a supreme tribunal of last resort that establishes uniform rules of civil justice.16 Jurisprudence "narrows the field of uncertainty"17 in the application of an unclear area of the law. The certainty of judicial pronouncement lends respect for and adherence to the rule of law – "the idea that all citizens and all organs of government are bound by rules fixed in advance, which make it possible to foresee how the coercive powers of government will be used, whether in its own interests or in aid of citizens who call on them, in particular circumstances."18 The Court’s historic role of pronouncing what the law is between the parties19 is the cornerstone of a government of laws, and not of men.20 Justice Antonin Scalia of the United States Supreme Court expounded on the objectives of uniformity and predictability of judicial decisions, to wit:

This last point suggests another obvious advantage of establishing as soon as possible a clear, general principle of decision: predictability. Even in simpler times uncertainty has been regarded as incompatible with the Rule of Law. Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes. It is said that one of emperor Nero's nasty practices was to post his edicts high on the columns so that they would be harder to read and easier to transgress. As laws have become more numerous, and as people have become increasingly ready to punish their adversaries in the courts, we can less and less afford protracted uncertainty regarding what the law may mean. Predictability, or as Llewellyn put it, "reckonability," is a needful characteristic of any law worthy of the name. There are times when even a bad rule is better than no rule at all.21(Emphasis supplied)

Certainty and "reckonability" in the law are the major objectives of the legal system, and judicial decisions serve the important purpose of providing stability to the law and to the society governed by that law.22 If we are to subscribe to Justice Oliver Wendell Holmes’ theory of a bad man,23 then law provides reasonable predictability in the consequences of one’s actions relative to the law, if performed in a just and orderly society. As judicial decisions form part of the law of the land,24 there is a strong public interest in stability and in the orderly conduct of our affairs, an end served by a consistent course of adjudication.25 Thus, once a court has decided upon a rule of law, "that decision should continue to govern the same issues in subsequent stages" of the same case26 and thus offers to the people some measure of conviction about the legal effects of their actions. In the absence of extraordinary circumstances, courts should be loathe to revisit prior decisions.27

In the instant case, the public confusion, sown by the pendulum swing of the Court’s decisions, has yielded unpredictability in the judicial decision-making process and has spawned untold consequences upon the public’s confidence in the enduring stability of the rule of law in our jurisdiction.

The Court has been entrusted by the sovereign with the duty of voicing out and sharpening with finality society’s collective ideals in its written decisions. Yet, if cases are litigated in perpetuity, and judgments are clouded with continuous uncertainty, the public’s confidence in the stability of judicial precedents promulgated by the Court would be greatly diminished. In this case, the Court has reviewed and reconsidered, no less than five times already,28 the constitutionality of the sixteen Cityhood Laws.29 During this time, the public has been made to endure an inordinate degree of indecision that has disturbed the conduct of local government affairs with respect not only to the municipalities asking to become cities, but also with respect to cities genuinely fearful of the destruction of the standards for the creation of cities and the correlative diminution of the internal revenue allotments of existing cities. The Court’s commitment to provide constant and steadfast rules on the creation of cities has been inevitably weakened by the "flip-flopping" in the case that has opened the doors to rabid criticisms of the Court’s failure to abide by its own internal rules and, thus, diminishing reliance on the certainty of its decisions.

To be sure, the Court is not precluded from rectifying errors of judgment if blind and stubborn adherence to the doctrine of immutability30 would involve the sacrifice of justice for technicality.31 The Court has previously provided for exceptions to the rule on immutability of final judgments, as follows: (1) the correction of clerical errors;32 (2) nunc pro tunc entries which cause no prejudice to any party;33 (3) void judgments;34 and (4) supervening events.35 As exceptions to the general rule, their application to instances wherein a review of a final and executory decision is called are to be strictly construed.36 No convincing argument or extraordinary circumstance has been raised to justify and support the application of any of these exceptions to warrant a reversal of the Court’s First Decision. Reversing previous, final, and executory decisions are to be done only under severely limited circumstances. Although new and unforeseen circumstances may arise in the future to justify a review of an established legal principle in a separate and distinct case, the extension of a principle must be dealt with exceptionally and cautiously.

Undeniably, the Court in the past has overturned prior decisions even on a second or third motion for reconsideration and recalled entries of judgment on the ground of substantial interest of justice and special and compelling reasons.37 The Court bows to "the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function."38 Notable reversals in recent memory include the cases involving the request for extradition of Mark Jimenez,39 the constitutionality of the Philippine Mining Act of 1995,40 the land title covering the Piedad Estate in Quezon City,41 the just compensation due to Apo Fruits Corporation,42 and the "deemed resigned" provision for public appointive officials in the recent May 2010 election.43 Although no prohibition exists that would prevent this Court from changing its mind in the light of compelling reasons and in the interest of substantial justice as abovedemonstrated, extreme retrospect and caution must accompany such review.

In the instant case, there is no substantial interest of justice or compelling reason that would warrant the reversal of the First Decision declaring the Cityhood Laws unconstitutional. There is no injustice in preventing the conversion of the sixteen municipalities into cities at this point in time. In fact, justice is more equitably dispensed by the stringent application of the current legislative criteria under the Local Government

Code (LGC),44 as amended by Republic Act No. 9009 (RA 9009), for creating cities without distinction or exception. It must be remembered that the declaration of unconstitutionality is not an absolute ban on these municipalities prohibiting them from pursuing cityhood in the future once they are able to achieve the PhP100,000,000 income requirement under RA 9009.45 Alternatively, their congressional representatives can also press for another amendatory law of the LGC that would include an explicit exception to the income requirement for municipalities with pending cityhood bills prior to the enactment of RA 9009. The route purportedly chosen by Congress to indirectly amend the LGC through the exemption of annual income requirements in the Cityhood Laws is improper. If Congress believes that the minority’s construction of its intention in increasing the annual income requirement is erroneous, then the legislature can show its disapproval by directly enacting amendatory legislation of the LGC. In both cases, the remedy available to the sixteen municipalities is not with the Court, but with the legislature, which is constitutionally empowered to determine the standards for the creation of a local government unit. The reasoning and substantial justice arguments expounded to reverse the initial finding of the Court that the Cityhood Laws are unconstitutional are poorly founded.

The LGC is a distinctly normative law that regulates the legislative power to create cities and establishes the standards by which the power is exercised. Unlike other statutes that prohibit undesirable conduct of ordinary citizens and are ends by themselves, the LGC prescribes the means by which congressional power is to be exercised and local government units are brought into legal existence. Its purpose is to avoid the arbitrary and random creation of provinces, cities and municipalities. By encapsulating the criteria for cityhood in the LGC, Congress provided objective, equally applicable and fairly ascertainable standards and reduced the emphasis on currying political favor from its members to approvingly act on the proposed cityhood law. Otherwise, cities chartered under a previous Congress can be unmade, at a whim, by a subsequent Congress, regardless of its compliance with the LGC’s requirements. Fairness and equity demand that the criteria established by the LGC be faithfully and strictly enforced, most especially by Congress whose power is the actual subject of legislative delimitation.

In granting it the power to fix the criteria for the creation of a city, the Constitution, of course, did not preclude Congress from revising the standards imposed under the LGC. Congress shall enjoy the freedom to reconsider the minimum standards under the LGC, if future circumstances call for it. However, the method of revising the criteria must be directly done through an amendatory law of the LGC (such as RA 9009), and not through the indirect route of creating cities and exempting their compliance with the established and prevailing standards. By indiscriminately carving out exemptions in the charter laws themselves, Congress enfeebled the normative function of the LGC on the legislative power to create cities. Taking the argument to the extreme, a single barangay now has the chance of being chartered as a component city without compliance with the income, territorial or population requirements under the LGC, for as long as enough Congressional support is mustered to push for its exemption – not in a general amendatory law, but through its own specific legislative charter. The selective disregard of the norms under the LGC in favor of some municipalities cannot be sanctioned in a system where the rule of law remains dominant. Unless prevented by the Court, Congress will now be emboldened

to charter new cities wholesale and arbitrarily relax the stringent standards under the LGC, which it imposed on itself.

It must be emphasized that no inconsistency arises from the present minority’s continued participation in the disposition of the second or subsequent motions for reconsideration of the parties with the avowed purpose of predictability of judicial pronouncements. The reiteration of the minority’s position that the Cityhood Laws are unconstitutional is an expression that none of the "new" or rehashed arguments in the subsequent motions have merited a change in their stand and appreciation of the facts and the law. For the minority to abandon their involvement from the proceedings in a mechanical adherence to the rule that the second and subsequent motions for reconsideration are prohibited pleadings that do not warrant the Court’s attention is to capitulate to the sixteen municipalities’ abhorrent strategy of insistent prayer for review of re-hashed arguments, already passed on, repeatedly.

If stability in the Court’s decisions46 is to be maintained, then parties should not be encouraged to tirelessly seek reexamination of determined principles and speculate on the fluctuation of the law with every change of its expounders.47 In Clavano v. Housing and Land Use Regulatory Board, the Court explained that:

"The tendency of the law," observes Justice Oliver Wendell Holmes, "must always be to narrow the field of uncertainty." And so was the judicial process conceived to bring about the just termination of legal disputes. The mechanisms for this objective are manifold but the essential precept underlying them is the immutability of final and executory judgments.

This fundamental principle in part affirms our recognition of instances when disputes are inadequately presented before the courts and addresses situations when parties fail to unravel what they truly desire and thus fail to set forth all the claims which they want the courts to resolve. It is only when judgments have become final and executory, or even when already deemed satisfied, that our negligent litigants belatedly come forth to pray for more relief. The distilled wisdom and genius of the ages would tell us to reject their pleas, for the loss to litigants in particular and to society in general would in the long run be greater than the gain if courts and judges were clothed with power to revise their final decisions at will.48 (Emphasis supplied)

Unlike that of the other two political branches whose mandates are regularly renewed through direct election, the Court’s legitimacy must be painstakingly earned with every decision that puts voice to the cherished value judgments of the sovereign. The judicial function in an organized and cohesive society governed by the rule of law is placed in serious peril if the people cannot rely on the finality of court decisions to regulate their affairs. There is no reason for the Court to bend over backwards to accommodate the parties’ requests for reconsideration, yet again, of the unconstitutionality of the sixteen Cityhood Laws as borne by the First Decision, especially if the result would lead to the fracturing of central tenets of the justice system. The people’s sense of an orderly government will find it unacceptable if the Supreme Court, which is tasked to express enduring values through its judicial pronouncements, is founded on sand, easily shifting with the changing tides.

The legal process of creating cities – as enacted and later amended by the legislature, implemented by the executive, and interpreted by the judiciary –serves as the people’s North Star: certain, stable and predictable. Absent the three branches’ adherence to the rule of law, our society would denigrate into uncertainty, instability and even anarchy. Indeed, the law is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy and to observe the limitations it imposes upon the exercise of the authority that it gives.49 No public officer is held to these highest of normative standards than those whose duties are to adjudicate the rights of the people and to articulate on enduring principles of law applicable to all.

As Justice Robert Jackson eloquently expressed,50 the Supreme Court is not final because it is infallible; it is infallible because it is final. And because its decisions are final, even if faulty, there must be every energy expended to ensure that the faulty decisions are few and far between. The integrity of the judiciary rests not only upon the fact that it is able to administer justice, but also upon the perception and confidence of the community that the people who run the system have done justice.51

The determination of the correctness of a judicial decision turns on far more than its outcome.52 Rather, it turns on whether its outcome evolved from principles of judicial methodology, since the judiciary’s function is not to bring about some desired state of affairs, but to find objectively the right decision by adhering to the established general system of rules.53

What we are dealing with in this case is no longer limited to the question of constitutionality of Cityhood Laws; we are also confronted with the question of certainty and predictability in the decisions of the Court under a democratic system governed by law and rules and its ability to uphold the Constitution and normative legislation such as the LGC.

The public has unduly suffered from the repeated "flip-flopping" in this case, especially since it comes from the branch of government tasked to embody in a clear form enduring rules of civil justice that are to govern them. In expressing these truths, I echo the sentiment of a judicial colleague from a foreign jurisdiction who once said, "I write these words, not as a jeremiad,54 but in the belief that unless the courts adhere to the guidance of fixed principles, we will soon bring objective law to its sepulcher."55

MARIA LOURDES P. A. SERENOAssociate Justice