PoliRev/LGC
Larano at buong pagkakaisang sinangayunan ng lahat ng dumalo sa
SECOND DIVISION
[G.R. No. 129093. August 30, 2001]
HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF
LAGUNA, and HON. CALIXTO CATAQUIZ, petitioners, vs.
HON. FRANCISCO DIZON PAO and TONY
CALVENTO, respondents.
DECISION
QUISUMBING, J.:
For our resolution is a petition for review on certiorari seeking the
reversal of the decision[1] dated February 10, 1997 of the Regional Trial
Court of San Pedro, Laguna, Branch 93, enjoining petitioners from
implementing or enforcing Kapasiyahan Bilang 508, Taon 1995, of
the Sangguniang Panlalawigan of Laguna and its subsequent
Order[2] dated April 21, 1997 denying petitioners motion for reconsideration.
On December 29, 1995, respondent Tony Calvento was appointed
agent by the Philippine Charity Sweepstakes Office (PCSO) to install
Terminal OM 20 for the operation of lotto. He asked Mayor Calixto Cataquiz,
Mayor of San Pedro, Laguna, for a mayors permit to open the lotto
outlet. This was denied by Mayor Cataquiz in a letter dated February 19,
1996. The ground for said denial was an ordinance passed by
the Sangguniang Panlalawigan of Laguna entitled Kapasiyahan Blg. 508,
T. 1995 which was issued on September 18, 1995. The ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA ILLEGAL GAMBLING
LALO NA ANG LOTTO SA LALAWIGAN NG LAGUNA
SAPAGKAT, ang sugal dito sa lalawigan ng Laguna ay talamak na;
SAPAGKAT, ang sugal ay nagdudulot ng masasamang impluwensiya lalot
higit sa mga kabataan;
KUNG KAYAT DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico
at Kgg. Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C.
pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano
mang uri ng sugal dito sa lalawigan ng Laguna lalot higit ang Lotto;
IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang
pinuno ng Philippine National Police (PNP) Col. [illegible] na mahigpit na
pag-ibayuhin ang pagsugpo sa lahat ng uri ng illegal na sugal sa buong
lalawigan ng Laguna lalo na ang Jueteng.[3]
As a result of this resolution of denial, respondent Calvento filed a
complaint for declaratory relief with prayer for preliminary injunction and
temporary restraining order. In the said complaint, respondent Calvento
asked the Regional Trial Court of San Pedro Laguna, Branch 93, for the
following reliefs: (1) a preliminary injunction or temporary restraining order,
ordering the defendants to refrain from implementing or
enforcing Kapasiyahan Blg. 508, T. 1995; (2) an order requiring Hon.
Municipal Mayor Calixto R. Cataquiz to issue a business permit for the
operation of a lotto outlet; and (3) an order annulling or declaring as
invalid Kapasiyahan Blg. 508, T. 1995.
On February 10, 1997, the respondent judge, Francisco Dizon Pao,
promulgated his decision enjoining the petitioners from implementing or
enforcing resolution or Kapasiyahan Blg. 508, T. 1995. The dispositive
portion of said decision reads:
WHEREFORE, premises considered, defendants, their agents and
representatives are hereby enjoined from implementing or enforcing
resolution or kapasiyahan blg. 508, T. 1995 of the Sangguniang
Panlalawigan ng Laguna prohibiting the operation of the lotto in the province
of Laguna.
SO ORDERED.[4]
Petitioners filed a motion for reconsideration which was subsequently
denied in an Order dated April 21, 1997, which reads:
Acting on the Motion for Reconsideration filed by defendants Jose D. Lina,
Jr. and the Sangguniang Panlalawigan of Laguna, thru counsel, with the
opposition filed by plaintiffs counsel and the comment thereto filed by
counsel for the defendants which were duly noted, the Court hereby denies
the motion for lack of merit.
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SO ORDERED.[5]
On May 23, 1997, petitioners filed this petition alleging that the
following errors were committed by the respondent trial court:
I case, these councils, as delegates, cannot be superior to the principal or
THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM
IMPLEMENTING KAPASIYAHAN BLG. 508, T. 1995 OF THE
SANGGUNIANG PANLALAWIGAN OF LAGUNA PROHIBITING THE
OPERATION OF THE LOTTO IN THE PROVINCE OF LAGUNA.
II
THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT
POSITED BY THE PETITIONERS THAT BEFORE ANY GOVERNMENT
PROJECT OR PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL
AGENCIES OR OFFICES, PRIOR CONSULTATION AND APPROVAL BY
THE LOCAL GOVERNMENT UNITS CONCERNED AND OTHER
CONCERNED SECTORS IS REQUIRED.
Petitioners contend that the assailed resolution is a valid policy
declaration of the Provincial Government of Laguna of its vehement
objection to the operation of lotto and all forms of gambling. It is likewise a
valid exercise of the provincial governments police power under the General
Welfare Clause of Republic Act 7160, otherwise known as the Local
Government Code of 1991.[6] They also maintain that respondents lotto
operation is illegal because no prior consultations and approval by the local
government were sought before it was implemented contrary to the express
provisions of Sections 2 (c) and 27 of R.A. 7160.[7]
For his part, respondent Calvento argues that the questioned
resolution is, in effect, a curtailment of the power of the state since in this
case the national legislature itself had already declared lotto as legal and
permitted its operations around the country.[8] As for the allegation that no
prior consultations and approval were sought from the sangguniang
panlalawigan of Laguna, respondent Calvento contends this is not
mandatory since such a requirement is merely stated as a declaration of
policy and not a self-executing provision of the Local Government Code of
1991.[9] He also states that his operation of the lotto system is legal because
of the authority given to him by the PCSO, which in turn had been granted
a franchise to operate the lotto by Congress.[10]
The Office of the Solicitor General (OSG), for the State, contends that
the Provincial Government of Laguna has no power to prohibit a form of
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gambling which has been authorized by the national government.[11] He
argues that this is based on the principle that ordinances should not
contravene statutes as municipal governments are merely agents of the
national government. The local councils exercise only delegated legislative
powers which have been conferred on them by Congress. This being the
exercise powers higher than those of the latter. The OSG also adds that the
question of whether gambling should be permitted is for Congress to
determine, taking into account national and local interests. Since Congress
has allowed the PCSO to operate lotteries which PCSO seeks to conduct
in Laguna, pursuant to its legislative grant of authority, the
provinces Sangguniang Panlalawigan cannot nullify the exercise of said
authority by preventing something already allowed by Congress.
The issues to be resolved now are the following: (1)
whether Kapasiyahan Blg. 508, T. 1995 of the Sangguniang
Panlalawigan of Laguna and the denial of a mayors permit based thereon
are valid; and (2) whether prior consultations and approval by the
concerned Sanggunian are needed before a lotto system can be operated
in a given local government unit.
The entire controversy stemmed from the refusal of Mayor Cataquiz to
issue a mayors permit for the operation of a lotto outlet in favor of private
respondent. According to the mayor, he based his decision on an existing
ordinance prohibiting the operation of lotto in the province of Laguna. The
ordinance, however, merely states the objection of the council to the said
game. It is but a mere policy statement on the part of the local council, which
is not self-executing. Nor could it serve as a valid ground to prohibit the
operation of the lotto system in the province of Laguna. Even petitioners
admit as much when they stated in their petition that:
5.7. The terms of the Resolution and the validity thereof are express and
clear. The Resolution is a policy declaration of the Provincial Government
of Laguna of its vehement opposition and/or objection to the operation of
and/or all forms of gambling including the Lotto operation in the Province of
Laguna.[12]
As a policy statement expressing the local governments objection to
the lotto, such resolution is valid. This is part of the local governments
autonomy to air its views which may be contrary to that of the national
governments. However, this freedom to exercise contrary views does not
mean that local governments may actually enact ordinances that go against
laws duly enacted by Congress. Given this premise, the assailed resolution
in this case could not and should not be interpreted as a measure or
ordinance prohibiting the operation of lotto.
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The game of lotto is a game of chance duly authorized by the national
government through an Act of Congress. Republic Act 1169, as amended
by Batas Pambansa Blg. 42, is the law which grants a franchise to the
PCSO and allows it to operate the lotteries. The pertinent provision reads:
Section 1. The Philippine Charity Sweepstakes Office.- The Philippine
Charity Sweepstakes Office, hereinafter designated the Office, shall be the
principal government agency for raising and providing for funds for health
programs, medical assistance and services and charities of national
character, and as such shall have the general powers conferred in section
thirteen of Act Numbered One thousand four hundred fifty-nine, as
amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries, and other
similar activities, in such frequency and manner, as shall be determined,
and subject to such rules and regulations as shall be promulgated by the
Board of Directors.
This statute remains valid today. While lotto is clearly a game of
chance, the national government deems it wise and proper to permit
it. Hence, the Sangguniang Panlalawigan of Laguna, a local government
unit, cannot issue a resolution or an ordinance that would seek to prohibit
permits. Stated otherwise, what the national legislature expressly allows by
law, such as lotto, a provincial board may not disallow by ordinance or
resolution.
In our system of government, the power of local government units to
legislate and enact ordinances and resolutions is merely a delegated power
coming from Congress. As held in Tatel vs. Virac,[13] ordinances should not
contravene an existing statute enacted by Congress. The reasons for this
is obvious, as elucidated in Magtajas v. Pryce Properties Corp.[14]
Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred upon them by
Congress as the national lawmaking body.The delegate cannot be superior
to the principal or exercise powers higher than those of the latter. It is a
heresy to suggest that the local government units can undo the acts of
Congress, from which they have derived their power in the first place, and
negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and
rights wholly from the legislature. It breathes into them the breath of life,
without which they cannot exist. As it creates, so it may destroy. As it may
destroy, it may abridge and control. Unless there is some constitutional
limitation on the right, the legislature might, by a single act, and if we can
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suppose it capable of so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the state, and the corporation
could not prevent it. We know of no limitation on the right so far as the
corporation themselves are concerned. They are, so to phrase it, the mere
tenants at will of the legislature (citing Clinton vs. Ceder Rapids, etc.
Railroad Co., 24 Iowa 455).
Nothing in the present constitutional provision enhancing local
autonomy dictates a different conclusion.
The basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without meaning to
detract from that policy, we here confirm that Congress retains control of
the local government units although in significantly reduced degree now
than under our previous Constitutions. The power to create still includes the
power to destroy. The power to grant still includes the power to withhold or
recall. True, there are certain notable innovations in the Constitution, like
the direct conferment on the local government units of the power to tax
(citing Art. X, Sec. 5, Constitution), which cannot now be withdrawn by mere
statute. By and large, however, the national legislature is still the principal
of the local government units, which cannot defy its will or modify or violate
it.[15]
Ours is still a unitary form of government, not a federal state. Being so,
any form of autonomy granted to local governments will necessarily be
limited and confined within the extent allowed by the central
authority. Besides, the principle of local autonomy under the 1987
Constitution simply means decentralization. It does not make local
governments sovereign within the state or an imperium in imperio.[16]
To conclude our resolution of the first issue, respondent mayor of San
Pedro, cannot avail of Kapasiyahan Bilang 508, Taon 1995, of the
Provincial Board of Laguna as justification to prohibit lotto in his
municipality. For said resolution is nothing but an expression of the local
legislative unit concerned. The Boards enactment, like spring water, could
not rise above its source of power, the national legislature.
As for the second issue, we hold that petitioners erred in declaring that
Sections 2 (c) and 27 of Republic Act 7160, otherwise known as the Local
Government Code of 1991, apply mandatorily in the setting up of lotto
outlets around the country. These provisions state:
Section 2. Declaration of Policy. x x x
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 PoliRev/LGC

(c) It is likewise the policy of the State to require all national agencies and
offices to conduct periodic consultations with appropriate local government
units, non-governmental and peoples organizations, and other concerned
sectors of the community before any project or program is implemented in
their respective jurisdictions.
Section 27. Prior Consultations Required. No project or program shall be
implemented by government authorities unless the consultations mentioned
in Section 2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained; Provided, that occupants in areas where
such projects are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the provisions of
the Constitution.
From a careful reading of said provisions, we find that these apply only
to national programs and/or projects which are to be implemented in a
particular local community. Lotto is neither a program nor a project of the
national government, but of a charitable institution, the PCSO. Though
sanctioned by the national government, it is far fetched to say that lotto falls
within the contemplation of Sections 2 (c) and 27 of the Local Government
Code.
Section 27 of the Code should be read in conjunction with Section 26
thereof.[17] Section 26 reads:
of a particular group of people residing in the locality where these will be
implemented. Obviously, none of these effects will be produced by the
introduction of lotto in the province of Laguna.
Moreover, the argument regarding lack of consultation raised by
petitioners is clearly an afterthought on their part. There is no indication in
the letter of Mayor Cataquiz that this was one of the reasons for his refusal
to issue a permit. That refusal was predicated solely but erroneously on the
provisions of Kapasiyahan Blg. 508, Taon 1995, of the Sangguniang
Panlalawigan of Laguna.
In sum, we find no reversible error in the RTC decision enjoining Mayor
Cataquiz from enforcing or implementing the Kapasiyahan Blg. 508, T.
1995, of the Sangguniang Panlalawigan of Laguna. That resolution
expresses merely a policy statement of the Laguna provincial board. It
possesses no binding legal force nor requires any act of implementation. It
provides no sufficient legal basis for respondent mayors refusal to issue the
permit sought by private respondent in connection with a legitimate
business activity authorized by a law passed by Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of
the Regional Trial Court of San Pedro, Laguna enjoining the petitioners from
implementing or enforcing Resolution or Kapasiyahan Blg. 508, T. 1995, of
the Provincial Board of Laguna is hereby AFFIRMED. No costs.
SO ORDERED.

Section 26. Duty of National Government Agencies in the Maintenance of Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
Ecological Balance. It shall be the duty of every national agency or
government-owned or controlled corporation authorizing or involved in the
planning and implementation of any project or program that may cause
pollution, climatic change, depletion of non-renewable resources, loss of
crop land, range-land, or forest cover, and extinction of animal or plant
species, to consult with the local government units, nongovernmental
organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the
community in terms of environmental or ecological balance, and the
measures that will be undertaken to prevent or minimize the adverse effects
thereof.

Thus, the projects and programs mentioned in Section 27 should be

interpreted to mean projects and programs whose effects are among those
enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution;
(2) may bring about climatic change; (3) may cause the depletion of non-
renewable resources; (4) may result in loss of crop land, range-land, or
forest cover; (5) may eradicate certain animal or plant species from the face
of the planet; and (6) other projects or programs that may call for the eviction

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EN BANC
[G.R. No. 130775. September 27, 2004]
THE NATIONAL LIGA NG MGA BARANGAY, represented by ALEX L.
DAVID in his capacity as National President and for his own
Person, President ALEX L. DAVID, petitioners, vs. HON.
VICTORIA ISABEL A. PAREDES, Presiding Judge, Regional
Trial Court, Branch 124, Caloocan City, and THE
DEPARTMENT OF INTERIOR and LOCAL GOVERNMENT,
represented the HON. SECRETARY ROBERT Z. BARBERS and
MANUEL A. RAYOS, respondents.
[G.R. No. 131939. September 27, 2004]
LEANDRO YANGOT, BONIFACIO LACWASAN and BONY
TACIO, petitioners, vs. DILG Secretary ROBERT Z. BARBERS
and DILG Undersecretary MANUEL SANCHEZ, respondents.
DECISION
Tinga, J.:
At bottom, the present petition inquires into the essential nature of
the Liga ng mga Barangay and questions the extent of the power of
Secretary of the Department of Interior and Local Government (DILG),
as alter ego of the President. More immediately, the petition disputes the
validity of the appointment of the DILG as the interim caretakerof the Liga
ng mga Barangay.
On 11 June 1997, private respondent Manuel A. Rayos [as petitioner
therein], Punong Barangay of Barangay 52, District II, Zone 5, District II,
Caloocan City, filed a petition for prohibition and mandamus, with prayer for
a writ of preliminary injunction and/or temporary restraining order and
damages before the Regional Trial Court (RTC) of Caloocan,[1] alleging that
respondent therein Alex L. David [now petitioner], Punong
Barangay of Barangay 77, Zone 7, Caloocan City and then president of
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the Liga Chapter of Caloocan City and of the Liga ng mga
Barangay National Chapter, committed certain irregularities in the notice,
venue and conduct of the proposed synchronized Liga ng mga
Barangay elections in 1997. According to the petition, the irregularities
consisted of the following: (1) the publication of the notice in the Manila
Bulletin but without notifying in writing the individual punong barangays of
Caloocan City;[2] (2) the Notice of Meeting dated 08 June 1997 for the Liga
Chapter of Caloocan City did not specify whether the meeting scheduled on
14 June 1997 was to be held at 8:00 a.m. or 8:00 p.m., and worse, the
meeting was to be held in Lingayen, Pangasinan;[3] and (3) the deadline for
the filing of the Certificates of Candidacy having been set at 5:00 p.m. of the
third day prior to the above election day, or on 11 June 1997,[4] Rayos failed
to meet said deadline since he was not able to obtain a certified true copy
of the COMELEC Certificate of Canvas and Proclamation of Winning
Candidate, which were needed to be a delegate, to vote and be voted for in
the Liga election. On 13 June 1997, the Executive Judge issued a
temporary restraining order (TRO), effective for seventy-two (72) hours,
enjoining the holding of the general membership and election meeting
of Liga Chapter of Caloocan City on 14 June 1975.[5]
However, the TRO was allegedly not properly served on herein
petitioner David, and so the election for the officers of the Liga-Caloocan
was held as scheduled.[6] Petitioner David was proclaimed President of
the Liga-Caloocan, and thereafter took his oath and assumed the position
of ex-officio member of the Sangguniang Panlungsod of Caloocan.
On 17 July 1997, respondent Rayos filed a second petition, this time
for quo warranto, mandamus and prohibition, with prayer for a writ of
preliminary injunction and/or temporary restraining order and damages,
against David, Nancy Quimpo, Presiding Officer of the Sangguniang
Panlungsod of Caloocan City, and Secretary Barbers.[7] Rayos alleged that
he was elected President of the Liga Caloocan Chapter in the elections held
on 14 June 1997 by the members of the Caloocan Chapter pursuant to their
Resolution/Petition No. 001-97.[8] On 18 July 1997, the presiding judge
granted the TRO, enjoining therein respondents David, Quimpo and
Secretary Barbers from proceeding with the synchronized elections for the
Provincial and Metropolitan Chapters of the Liga scheduled on 19 July
1997, but only for the purpose of maintaining the status quo and effective
for a period not exceeding seventy-two (72) hours.[9]
Eventually, on 18 July 1997, at petitioner Davids instance, Special Civil
Action (SCA) No. C-512 pending before Branch 126 was consolidated with
SCA No. C-508 pending before Branch 124.[10]
Before the consolidation of the cases, on 25 July 1997, the DILG
through respondent Secretary Barbers, filed in SCA No. C-512 an Urgent
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Motion,[11] invoking the Presidents power of general supervision over all
local government units and seeking the following reliefs:
WHEREFORE, in the interest of the much-needed delivery of basic services
to the people, the maintenance of public order and to further protect the
interests of the forty-one thousand barangays all over the country, herein
respondent respectfully prays:
a) That the Department of the Interior and Local Government
(DILG), pursuant to its delegated power of general
supervision, be appointed as the Interim Caretaker to manage
and administer the affairs of the Liga, until such time that the
new set of National Liga Officers shall have been duly elected
and assumed office; ...[12]
The prayer for injunctive reliefs was anchored on the following
grounds: (1) the DILG Secretary exercises the power of general supervision
over all government units by virtue of Administrative Order No. 267 dated
18 February 1992; (2) the Liga ng mga Barangay is a government
organization; (3) undue interference by some local elective officials during
the Municipal and City Chapter elections of the Liga ng mga Barangay; (4)
improper issuance of confirmations of the elected Liga Chapter officers by
petitioner David and the National Liga Board; (5) the need for the DILG to
provide remedies measured in view of the confusion and chaos sweeping
the Liga ng mga Barangay and the incapacity of the National Liga Board to
address the problems properly.
On 31 July 1997, petitioner David opposed the DILGs Urgent Motion,
claiming that the DILG, being a respondent in the case, is not allowed to
seek any sanction against a co-respondent like David, such as by filing a
cross-claim, without first seeking leave of court.[13] He also alleged that the
DILGs request to be appointed interim caretaker constitutes undue
interference in the internal affairs of the Liga, since the Liga is not subject
to DILG control and supervision.[14]
Three (3) days after filing its Urgent Motion, on 28 July 1997, and
before it was acted upon by the lower court, the DILG through then
Undersecretary Manuel Sanchez, issued Memorandum Circular No. 97-
176.[15] It cited the reported violations of the Liga ng mga
Barangay Constitution and By-Laws by David and widespread chaos and
confusion among local government officials as to who were the qualified ex-
officio Liga members in their respective sangunians.[16] Pending the
appointment of the DILG as the Interim Caretaker of the Liga ng mga
Barangay by the court and until the officers and board members of the
national Liga Chapter have been elected and have assumed office, the
Memorandum Circular directed all provincial governors, vice governors, city
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mayors, city vice mayors, members of the sangguniang
panlalawigan and panlungsod, DILG regional directors and other
concerned officers, as follows:
1. All concerned are directed not to recognize and/or honor any Liga
Presidents of the Provincial and Metropolitan Chapters as ex-officio
members of the sanggunian concerned until further notice from the Courts
or this Department;
2. All concerned are directed to disregard any pronouncement and/or
directive issued by Mr. Alex David on any issue or matter relating to the
affairs of the Liga ng mga Barangay until further notice from the Courts or
this Department.[17]
On 04 August 1997, public respondent Judge Victoria Isabel A.
Paredes issued the assailed order,[18] the pertinent portions of which read,
thus:
The authority of the DILG to exercise general supervisory jurisdiction over
local government units, including the different leagues created under the
Local Government Code of 1991 (RA 7160) finds basis in Administrative
Order No. 267 dated February 18, 1992. Specifically, Section 1 (a) of the
said Administrative Order provides a broad premise for the supervisory
power of the DILG.Administratively, the DILGs supervision has been tacitly
recognized by the local barangays, municipalities, cities and provinces as
shown by the evidences presented by respondent David himself (See
Annexes A to C). The fact that the DILG has sought to refer the matters
therein to the National Liga Board/Directorate does not ipso facto mean that
it has lost jurisdiction to act directly therein. Jurisdiction is conferred by law
and cannot be claimed or lost through agreements or inaction by
individuals. What respondent David may term as interference should
caretakership be allowed, this Court would rather view as a necessary and
desirable corollary to the exercise of supervision.[19]
Political motivations must not preclude, hamper, or obstruct the delivery of
basic services and the perquisites of public service. In this case, the fact of
confusion arising from conflicting appointments, non-action, and
uninformed or wavering decisions of the incumbent National Liga
Board/Directorate, having been satisfactorily established, cannot simply be
brushed aside as being politically motivated or arising therefrom. It is
incumbent, therefore, that the DILG exercise a more active role in the
supervision of the affairs and operations of the National Liga Board/
Directorate at least until such time that the regular National Liga
Board/Directorate may have been elected, qualified and assumed office.[20]
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xxx
WHEREFORE, premises considered, the Urgent Motion of the DILG for
appointment as interim caretaker, until such time that the regularly elected
National Liga Board of Directors shall have qualified and assumed office, to
manage and administer the affairs of the National Liga Board, is hereby
GRANTED.[21]
On 11 August 1997, petitioner David filed an urgent motion for the
reconsideration of the assailed order and to declare respondent Secretary
Barbers in contempt of Court.[22] David claimed that the 04 August 1997
order divested the duly elected members of the Board of Directors of
the Liga National Directorate of their positions without due process of
law. He also wanted Secretary Barbers declared in contempt for having
issued, through his Undersecretary, Memorandum Circular No. 97-176,
even before respondent judge issued the questioned order, in mockery of
the justice system. He implied that Secretary Barbers knew about
respondent judges questioned order even before it was promulgated. [23]
On 11 August 1997, the DILG issued Memorandum Circular No. 97-
193,[24] providing supplemental guidelines for the 1997 synchronized
elections of the provincial and metropolitan chapters and for the election of
the national chapter of the Liga ng mga Barangay. The Memorandum
Circular set the synchronized elections for the provincial and metropolitan
chapters on 23 August 1997 and for the national chapter on 06 September
1997.
On 12 August 1997, the DILG issued a Certificate of Appointment[25] in
favor of respondent Rayos as president of the Liga ng mga
Barangay of Caloocan City. The appointment purportedly served as
Rayoss legal basis for ex-officio membership in the Sangguniang
Panlungsod of Caloocan City and to qualify and participate in the
forthcoming National Chapter Election of the Liga ng mga Barangay.[26]
On 23 August 1997, the DILG conducted the synchronized elections of
Provincial and Metropolitan Liga Chapters. Thereafter, on 06 September
1997, the National Liga Chapter held its election of officers and board of
directors, wherein James Marty L. Lim was elected as President of the
National Liga.[27]
On 01 October 1997, public respondent judge denied Davids motion
for reconsideration,[28] ruling that there was no factual or legal basis to
reconsider the appointment of the DILG as interim caretaker of the
National Liga Board and to cite Secretary Barbers in contempt of court.[29]
On 10 October 1997, petitioners filed the instant Petition for
Certiorari[30] under Rule 65 of the Rules of Court, seeking to annul public
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respondent judges orders of 04 August 1997 and 01 October 1997. They
dispute the latters opinion on the power of supervision of the President
under the Constitution, through the DILG over local governments, which is
the same as that of the DILGs as shown by its application of the power on
the Liga ng mga Barangay. Specifically, they claim that the public
respondent judgesdesignation of the DILG as interim caretaker and the acts
which the DILG sought to implement pursuant to its designation as such are
beyond the scope of the Chief Executives power of supervision.
To support the petition, petitioners argue that under Administrative
Order No. 267, Series of 1992, the power of general supervision of the
President over local government units does not apply to the Liga and its
various chapters precisely because the Liga is not a local government unit,
contrary to the stance of the respondents.[31]
Section 507 of the Local Government Code (Republic Act No.
7160)[32] provides that the Liga shall be governed by its own Constitution
and By-laws. Petitioners posit that the duly elected officers and directors of
the National Liga elected in 1994 had a vested right to their positions and
could only be removed therefrom for cause by affirmative vote of two-thirds
(2/3) of the entire membership pursuant to the Liga Constitution and By-
Laws, and not by mere issuances of the DILG, even if bolstered by the
dubious authorization of respondent judge.[33] Thus, petitioners claim that
the questioned order divested the then incumbent officers and directors of
the Liga of their right to their respective offices without due process of law.
Assuming the Liga could be subsumed under the term local
governments, over which the President, through the DILG Secretary, has
the power of supervision,[34] petitioners point out that still there is no legal or
constitutional basis for the appointment of the DILG as interim
caretaker.[35] They stress that the actions contemplated by the DILG as
interim caretaker go beyond supervision, as what it had sought and
obtained was authority to alter, modify, nullify or set aside the actions of
the Liga Board of Directors and even to substitute its judgment over that of
the latter which are all clearly one of control.[36] Petitioners question the
appointment of Rayos as Liga-Caloocan President since at that time
petitioner David was occupying that position which was still the subject of
the quo warranto proceedings Rayos himself had instituted.[37] Petitioners
likewise claim that DILG Memorandum Circular No. 97-193, providing
supplemental guidelines for the synchronized elections of the Liga,
replaced the implementing rules adopted by the Ligapursuant to its
Constitution and By-laws.[38] In fact, even before its appointment as interim
caretaker, DILG specifically enjoined all heads of government units from
recognizing petitioner David and/or honoring any of his pronouncements
relating to the Liga.[39]
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Petitioners rely on decision in Taule v. Santos,[40] which, they claim,
already passed upon the extent of authority of the then Secretary of Local
Government over the katipunan ng mga barangay or the barangay councils,
as it specifically ruled that the Secretary [of Local Government] has no
authority to pass upon the validity or regularity of the election of officers of
the katipunan.[41]
For his part, respondent Rayos avers that since the Secretary of the
DILG supervises the acts of local officials by ensuring that they act within
the scope of their prescribed powers and functions and since members of
the various leagues, such as the Liga in this case, are themselves officials
of local government units, it follows that the Liga members are subject to
the power of supervision of the DILG.[42] He adds that as the DILGs
management and administration of the Liga affairs was limited only to the
conduct of the elections, its actions were consistent with its rule-making
power and power of supervision under existing laws. [43] He asserts that in
assailing the appointment of the DILG as interim caretaker, petitioners failed
to cite any provision of positive law in support of their stance. Thus, he adds,
if a law is silent, obscure or insufficient, a judge may apply a rule he sees fit
to resolve the issue, as long as the rule chosen is in harmony with general
interest, order, morals and public policy,[44] in consonance with Article 9 of
the Civil Code.[45]
On the other hand, it is quite significant that the Solicitor General has
shared petitioners position. He states that the DILGs act of managing and
administering the affairs of the National Liga Board are not merely acts of
supervision but plain manifestations of control and direct takeover of the
functions of the National Liga Board,[46] going beyond the limits of the power
of general supervision of the President over local
governments.[47] Moreover, while the Liga may be deemed a government
organization, it is not strictly a local government unit over which the DILG
has supervisory power.[48]
Meanwhile, on 24 September 1998, James Marty L. Lim, the newly
elected President of the National Liga, filed a Motion for Leave to File
Comment in Intervention,[49] with his Comment in
[50]
Intervention attached, invoking the validity of the DILGs actions relative
to the conduct of the Liga elections.[51] In addition, he sought the dismissal
of the instant petition on the following grounds: (1) the issue of validity or
invalidity of the questioned order has been rendered moot and academic by
the election of Liga officers; (2) the turn-over of the administration and
management of Liga affairs to the Liga officers; and (3) the recognition and
acceptance by the members of the Liga nationwide.[52]
In the interim, another petition, this time for Prohibition with Prayer for
a Temporary Restraining Order, [53] was filed by several presidents
of Liga Chapters, praying that this Court declare the DILG Secretary and
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Undersecretary are not vested with any constitutional or legal power to
exercise control or even supervision over the National Liga ng mga
Barangay, nor to take over the functions of its officers or suspend its
constitution; and declare void any and all acts committed by respondents
therein in connection with their caretakership of the Liga.[54] The petition
was consolidated with G.R. No. 130775, but it was eventually dismissed
because the petitioners failed to submit an affidavit of service and proof of
service of the petition.[55]
Meanwhile, on 01 December 1998, petitioner David died and was
substituted by his legal representatives.[56]
Petitioners have raised a number of issues.[57] Integrated and
simplified, these issues boil down to the question of whether or not
respondent Judge acted with grave abuse of discretion in appointing the
DILG as interim caretaker to administer and manage the affairs of the
National Liga Board, per its order dated 04 August 1997.[58] In turn, the
resolution of the question of grave abuse of discretion entails a couple of
definitive issues, namely: (1) whether the Liga ng mga Barangay is a
government organization that is subject to the DILG Secretarys power of
supervision over local governments as the alter ego of the President, and
(2) whether the respondent Judges designation of the DILG as interim
caretaker of the Liga has invested the DILG with control over the Liga and
whether DILG Memorandum Circular No. 97-176, issued before it was
designated as such interim caretaker, and DILG Memorandum Circular No.
97-193 and other acts which the DILG made in its capacity as
interim caretaker of the Liga, involve supervision or control of the Liga.
However, the Court should first address the question of mootness
which intervenor Lim raised because, according to him, during the
pendency of the present petition a general election was held; the new set
of officers and directors had assumed their positions; and that supervening
events the DILG had turned-over the management and administration of
the Liga to new Liga officers and directors.[59] Respondent Rayos has
joined him in this regard.[60] Forthwith, the Court declares that these
supervening events have not rendered the instant petition moot, nor
removed it from the jurisdiction of this Court.
This case transcends the elections ordered and conducted by the DILG
as interim caretaker of the Liga and the Liga officers and directors who were
elected to replace petitioner David and the former officers. At the core of the
petition is the validity of the DILGs caretakership of the Liga and the official
acts of the DILG as such caretaker which exceeded the bounds of
supervision and were exercise of control. At stake in this case is the
realization of the constitutionally ensconced principle of local government
autonomy;[61] the statutory objective to enhance the capabilities of
barangays and municipalities by providing them opportunities to participate
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actively in the implementation of national programs and projects;[62] and the
promotion of the avowed aim to ensure the independence and non-
partisanship of the Liga ng mga Barangay. The mantle of local autonomy
would be eviscerated and remain an empty buzzword if unconstitutional,
illegal and unwarranted intrusions in the affairs of the local governments are
tolerated and left unchecked.
Indeed, it is the declared policy of the State that its territorial and
political subdivisions should enjoy genuine 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.[63] In the case of De Leon v. Esguerra,[64] the Court ruled that even
barangays are meant to possess genuine and meaningful local autonomy
so that they may develop fully as self-reliant communities.[65]
Furthermore, well-entrenched is the rule that courts will decide a
question otherwise moot and academic if it is capable of repetition, yet
evading review.[66] For the question of whether the DILG may validly be
appointed as interim caretaker, or assume a similar position and perform
acts pursuant thereto, is likely to resurrect again, and yet the question may
not be decided before the actual assumption, or the termination of said
assumption even.
So too, dismissing the petition on the ground of mootness could lead
to the wrong impression that the challenged order and issuances are valid.
Verily, that does not appear to be the correct conclusion to make since by
applying opposite precedents to the issues the outcome points to
invalidating the assailed order and memorandum circulars.
The resolution of the issues of whether the Liga ng mga Barangay is
subject to DILG supervision, and whether the questioned caretakership
order of the respondent judge and the challenged issuances and acts of the
DILG constitute control in derogation of the Constitution, necessitates a
brief overview of the barangay, as the lowest LGU, and the Liga, as a
vehicle of governance and coordination.
As the basic political unit, the barangay serves as the primary planning
and implementing unit of government policies, plans, programs, projects
and activities in the community, and as a forum wherein the collective views
of the people may be expressed, crystallized and considered, and where
disputes may be amicably settled.[67]
On the other hand, the Liga ng mga Barangay[68] is the organization of
all barangays, the primary purpose of which is the determination of the
representation of the Liga in the sanggunians, and the ventilation,
articulation, and crystallization of issues affecting barangay government
administration and securing solutions thereto, through proper and legal
means.[69] The Liga ng mga Barangay shall have chapters at the municipal,
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city and provincial and metropolitan political subdivision levels. [70] The
municipal and city chapters of the Liga are composed of
the barangay representatives from the municipality or city concerned. The
presidents of the municipal and city chapters of the Liga form the provincial
or metropolitan political subdivision chapters of the Liga. The presidents of
the chapters of the Liga in highly urbanized cities, provinces and the Metro
Manila area and other metropolitan political subdivisions constitute the
National Liga ng mga Barangay.[71]
As conceptualized in the Local Government Code, the barangay is
positioned to influence and direct the development of the entire
country. This was heralded by the adoption of the bottom-to-top approach
process of development which requires the development plans of
the barangay to be considered in the development plans of the municipality,
city or province,[72] whose plans in turn are to be taken into account by the
central government[73] in its plans for the development of the entire
country.[74] The Liga is the vehicle assigned to make this new development
approach materialize and produce results.
The presidents of the Liga at the municipal, city and provincial levels,
automatically become ex-officio members of the Sangguniang Bayan,
Sangguniang Panlungsod 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.[75]
The Liga ng mga Barangay has one principal aim, namely: to promote
the development of barangays and secure the general welfare of their
inhabitants.[76] In line with this, the Liga is granted the following functions
and duties:
a) Give priority to programs designed for the total development of
the barangays and in consonance with the policies, programs
and projects of the national government;
b) Assist in the education of barangay residents for peoples
participation in local government administration in order to
promote untied and concerted action to achieve country-wide
development goals;
c) Supplement the efforts of government in creating gainful
employment within the barangay;
d) Adopt measures to promote the welfare of barangay officials;
e) Serve as forum of the barangays in order to forge linkages with
government and non-governmental organizations and thereby
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promote the social, economic and political well-being of the
barangays; and
f) Exercise such other powers and perform such other duties and
functions which will bring about stronger ties between
barangays and promote the welfare of the barangay
inhabitants.[77]
The Ligas are primarily governed by the provisions of the Local
Government Code. However, they are empowered to make their own
constitution and by-laws to govern their operations. Sec. 507 of the Code
provides:
Sec. 507. Constitution and By-Laws of the Liga and the Leagues. - All other
matters not herein otherwise provided for affecting the internal organization
of the leagues of local government units shall be governed by their
respective constitution and by-laws which are hereby made suppletory to
the provision of this Chapter: Provided, That said Constitution and By-laws
shall always conform to the provision of the Constitution and existing laws.
Pursuant to the Local Government Code, the Liga ng mga
Barangay adopted its own Constitution and By-Laws. It provides that the
corporate powers of the Liga, expressed or implied, shall be vested in the
board of directors of each level of the Liga which shall:
a) Have jurisdiction over all officers, directors and committees of the said
Liga; including the power of appointment, assignment and delegation;
b) Have general management of the business, property, and funds of said
Liga;
c) Prepare and approve a budget showing anticipated receipts and
expenditures for the year, including the plans or schemes for funding
purposes; and
d) Have the power to suspend or remove from office any officer or member
of the said board on grounds cited and in the manner provided in
hereinunder provisions.[78]
The National Liga Board of Directors promulgated the rules for the
conduct of its Ligas general elections.[79] And, as early as 28 April 1997,
the Liga National Chapter had already scheduled its general elections on
14 June 1997.[80]
PoliRev/LGC
The controlling provision on the issues at hand is Section 4, Article X
of the Constitution, which reads in part:
Sec. The President of the Philippines shall exercise general supervision
over local governments.
The 1935, 1973 and 1987 Constitutions uniformly differentiate the
Presidents power of supervision over local governments and his power of
control of the executive departments bureaus and offices. [81] Similar to the
counterpart provisions in the earlier Constitutions, the provision in the 1987
Constitution provision has been interpreted to exclude the power of
control.[82]
In the early case of Mondano v. Silvosa, et al.,[83] this Court defined
supervision as overseeing, or the power or authority of an officer to see that
subordinate officers perform their duties, and to take such action as
prescribed by law to compel his subordinates to 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 had done in the
performance of his duties and to substitute the judgment of the former for
that of the latter.[84] In Taule v. Santos,[85] the Court held that the
Constitution permits the President to wield no more authority than that of
checking whether a local government or its officers perform their duties as
provided by statutory enactments.[86] 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.[87]
The case of Drilon v. Lim[88] clearly defined the extent of supervisory
power, thus:
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 the doing of the act. He has
no judgment on this matter except to see that the rules are followed[89]
In Section 4, Article X of the Constitution applicable to the Liga ng mga
Barangay? Otherwise put, is the Liga legally susceptible to DILG
suspension?
This question was resolved in Bito-Onon v. Fernandez,[90] where the
Court ruled that the Presidents power of the general supervision, as
exercised therein by the DILG Secretary as his alter ego, extends to
the Liga ng mga Barangay.
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Does the Presidents power of general supervision extend to the liga ng mga
barangay, which is not a local government unit?
We rule in the affirmative. In Opinion No. 41, Series of 1995, the
Department of Justice ruled that the liga ng mga barangay is a government
organization, being an association, federation, league or union created by
law or by authority of law, whose members are either appointed or elected
government officials. The Local Government Code defines the liga ng mga
barangay as an organization of all barangays for the primary purpose of
determining the representation of the liga in the sanggunians, and for
ventilating, articulating and crystallizing issues affecting barangay
government administration and securing, through proper and legal means,
solutions thereto.[91]
The rationale for making the Liga subject to DILG supervision is quite
evident, whether from the perspectives of logic or of practicality. The Liga is
an aggroupment of barangays which are in turn represented therein by their
respective punong barangays. The representatives of the Liga sit in an ex
officio capacity at the municipal, city and provincial sanggunians. As such,
they enjoy all the powers and discharge all the functions of regular municipal
councilors, city councilors or provincial board members, as the case may
be. Thus, the Liga is the vehicle through which the barangay participates in
the enactment of ordinances and formulation of policies at all the legislative
local levels higher than the sangguniang barangay, at the same time
serving as the mechanism for the bottom-to-top approach of development.
In the case at bar, even before the respondent Judge designated the
DILG as interim caretaker of the Liga, on 28 July 1997, it issued
Memorandum Circular No. 97-176, directing local government officials not
to recognize David as the National Liga President and his pronouncements
relating to the affairs of the Liga. Not only was the action premature, it even
smacked of superciliousness and injudiciousness. The DILG is the topmost
government agency which maintains coordination with, and exercises
supervision over local government units and its multi-level leagues. As
such, it should be forthright, circumspect and supportive in its dealings with
the Ligas especially the Liga ng mga Barangay. The indispensable role
played by the latter in the development of the barangays and the promotion
of the welfare of the inhabitants thereof deserve no less than the full support
and respect of the other agencies of government. As the Court held in the
case of San Juan v. Civil Service Commission, [92] our national officials
should not only comply with the constitutional provisions on local autonomy
but should also appreciate the spirit of liberty upon which these provisions
are based.[93]
When the respondent judge eventually appointed the DILG as interim
caretaker to manage and administer the affairs of the Liga, she effectively
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removed the management from the National Liga Board and vested control
of the Liga on the DILG. Even a cursory glance at the DILGs prayer for
appointment as interim caretaker of the Liga to manage and administer
the affairs of the Liga, until such time that the new set of
National Liga officers shall have been duly elected and assumed office
reveals that what the DILG wanted was to take control over the Liga. Even
if said caretakership was contemplated to last for a limited time, or only until
a new set of officers assume office, the fact remains that it was a conferment
of control in derogation of the Constitution.
With his Department already appointed as interim caretaker of
the Liga, Secretary Barbers nullified the results of the Liga elections and
promulgated DILG Memorandum Circular No. 97-193 dated 11 August
1997, where he laid down the supplemental guidelines for the 1997
synchronized elections of the provincial and metropolitan chapters and for
the election of the national chapter of the Liga ng mga Barangay; scheduled
dates for the new provincial, metropolitan and national chapter elections;
and appointed respondent Rayos as president of Liga-Caloocan Chapter.
These acts of the DILG went beyond the sphere of general supervision
and constituted direct interference with the political affairs, not only of
the Liga, but more importantly, of the barangay as an institution. The
election of Liga officers is part of the Ligas internal organization, for which
the latter has already provided guidelines. In succession, the DILG
assumed stewardship and jurisdiction over the Liga affairs, issued
supplemental guidelines for the election, and nullified the effects of the Liga-
conducted elections.Clearly, what the DILG wielded was the power of
control which even the President does not have.
Furthermore, the DILG assumed control when it appointed respondent
Rayos as president of the Liga-Caloocan Chapter prior to the newly
scheduled general Liga elections, although petitioner Davids term had not
yet expired. The DILG substituted its choice, who was Rayos, over the
choice of majority of the punong barangay of Caloocan, who was the
incumbent President, petitioner David. The latter was elected and had in
fact been sitting as an ex-officio member of the sangguniang panlungsod in
accordance with the Liga Constitution and By-Laws. Yet, the DILG
extended the appointment to respondent Rayos although it was aware that
the position was the subject of a quo warranto proceeding instituted by
Rayos himself, thereby preempting the outcome of that case. It was bad
enough that the DILG assumed the power of control, it was worse when it
made use of the power with evident bias and partiality.
As the entity exercising supervision over the Liga ng mga Barangay,
the DILGs authority over the Liga is limited to seeing to it that the rules are
followed, but it cannot lay down such rules itself, nor does it have the
discretion to modify or replace them. In this particular case, the most that
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the DILG could do was review the acts of the incumbent officers of
the Liga in the conduct of the elections to determine if they committed any
violation of the Ligas Constitution and By-laws and its implementing rules.
If the National Liga Board and its officers had violated Liga rules, the DILG
should have ordered the Liga to conduct another election in accordance
with the Ligas own rules, but not in obeisance to DILG-dictated
guidelines. Neither had the DILG the authority to remove the incumbent
officers of the Liga and replace them, even temporarily, with
unelected Ligaofficers.
Like the local government units, the Liga ng mga Barangay is not
subject to control by the Chief Executive or his alter ego.
In the Bito-Onon[94] case, this Court held that DILG Memorandum
Circular No. 97-193, insofar as it authorized the filing of a petition for review
of the decision of the Board of Election Supervisors (BES) with the regular
courts in a post-proclamation electoral protest, involved the exercise of
control as it in effect amended the guidelines already promulgated by
the Liga. The decision reads in part:
xxx. Officers in control, lay down the rules in the doing of an act. If they are
not followed, it is discretionary on his part to order the act undone or redone
by his subordinate or he may even decide to do it himself. Supervision does
not cover such authority. Supervising officers merely see 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 to conform for to the prescribed rules.
He cannot prescribe his own manner the doing of the act.
xxx
xxx. The amendment of the GUIDELINES is more than an exercise of the
power of supervision but is an exercise of the power of control, which the
President does not have over the LIGA.Although the DILG is given the
power to prescribe rules, regulations and other issuances, the
Administrative Code limits its authority to merely monitoring compliance by
local government units of such issuances. To monitor means to watch,
observe or check and is compatible with the power of supervision of the
DILG Secretary over local governments, which is limited to checking
whether the local government unit concerned or the officers thereof perform
their duties as per statutory enactments. Besides, any doubt as to the power
of the DILG Secretary to interfere with local affairs should be resolved in
favor of the greater autonomy of the local government.[95]
PoliRev/LGC
In Taule,[96] the Court ruled that the Secretary of Local Government
had no authority to pass upon the validity or regularity of the election of
officers of katipunan ng mga barangay or barangay councils. In that case,
a protest was lodged before the Secretary of Local Government regarding
several irregularities in, and seeking the nullification of, the election of
officers of the Federation of Associations of Barangay Councils (FABC) of
Catanduanes. Then Local Government Secretary Luis Santos issued a
resolution nullifying the election of officers and ordered a new one to be
conducted. The Court ruled:
Construing the constitutional limitation on the power of general supervision
of the President over local governments, We hold that respondent Secretary
has no authority to pass upon the validity or regularity of the officers of
the katipunan. To allow respondent Secretary to do so will give him more
power than the law or the Constitution grants. It will in effect give him control
over local government officials for it will permit him to interfere in a purely
democratic and non-partisan activity aimed at strengthening the barangay
as the basic component of local governments so that the ultimate goal of
fullest autonomy may be achieved. In fact, his order that the new elections
to be conducted be presided by the Regional Director is a clear and direct
interference by the Department with the political affairs of the barangays
which is not permitted by the limitation of presidential power to general
supervision over local governments.[97]
All given, the Court is convinced that the assailed order was issued
with grave abuse of discretion while the acts of the respondent Secretary,
including DILG Memorandum Circulars No. 97-176 and No. 97-193, are
unconstitutional and ultra vires, as they all entailed the conferment or
exercise of control a power which is denied by the Constitution even to the
President.
WHEREFORE, the Petition is GRANTED. The Order of the Regional
Trial Court dated 04 August 1997 is SET ASIDE for having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction. DILG
Memorandum Circulars No. 97-176 and No. 97-193, are declared VOID for
being unconstitutional and ultra vires.
No pronouncements as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., and Azcuna, JJ., concur.
Chico-Nazario, J., on leave.
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FIRST DIVISION
[G.R. No. 131442. July 10, 2003]
BANGUS FRY FISHERFOLK DIWATA MAGBUHOS, ANGELITA BINAY,
ELMA GARCIA, VIRGILIO PANGUIO, ARSENIO CASTILLO,
ARIEL PANGUIO, ANTONIO PANGUIO, ANTONIO BUNQUIN,
GENEROSO BUNQUIN, CHARLIE DIMAYACYAC, RENATO
PANGUIO, ATILANO BUNQUIN, CARLOS CHAVEZ, JUAN
DIMAYACYAC, FILEMON BUNQUIN, MARIO MAGBUHOS,
MAURO MAGBUHOS, NORA MAGBUHOS, JEOVILYN,
GENALYN and JORVAN QUIMUEL, minors, represented by
their parents FELICIANA and SABINO QUIMUEL, MARICAR
MAGBUHOS, minor, represented by her parents CARMELITA
and ANTONIO MAGBUHOS, MARLO BINAY, minor,
represented by his parents EFRENITA and CHARLITO BINAY,
and the BANGUS, BANGUS FRY and other MARINE LIFE OF
MINOLO COVE, petitioners, vs. THE HONORABLE ENRICO
LANZANAS as Judge of the Regional Trial Court of Manila,
Branch VII, THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES Region IV, represented by its
Regional Executive Director and its Regional Director for
Environment, THE NATIONAL POWER CORPORATION,
ORIENTAL MINDORO ELECTRIC COOPERATIVE,
PROVINCIAL GOVERNMENT OF ORIENTAL MINDORO, herein
represented by GOVERNOR RODOLFO VALENCIA, PUERTO
GALERA MAYOR GREGORIO DELGADO, VICE MAYOR
ARISTEO ATIENZA, and MEMBERS OF THE SANGGUNIANG
BAYAN OF PUERTO GALERA, JUAN ASCAN, JR., RAFAEL
ROMEY, CENON SALCEDO, JERRY DALISAY, SIMON
BALITAAN, RENATO CATAQUIS, MARCELINO BANAAG,
DANIEL ENRIQUEZ, AMELYN MARCO, GABRIEL ILAGAN,
MUNICIPAL ENGINEER RODEL RUBIO, and MUNICIPAL
PLANNING and DEVELOPMENT COORDINATOR WILHELMINA
LINESES, respondents.
DECISION
CARPIO, J.:
PoliRev/LGC
The Case
This is a petition for review[1] of the Order[2] dated 7 November 1997 of
the Regional Trial Court of Manila, Branch 7 (Manila RTC), dismissing
petitioners complaint for lack of cause of action and lack of jurisdiction.
The Facts
On 30 June 1997, Regional Executive Director Antonio G. Principe
(RED Principe) of Region IV, Department of Environment and Natural
Resources (DENR), issued an Environmental Clearance Certificate (ECC)
in favor of respondent National Power Corporation (NAPOCOR). The ECC
authorized NAPOCOR to construct a temporary mooring facility in Minolo
Cove, Sitio Minolo, Barangay San Isidro, Puerto Galera, Oriental Mindoro.
The Sangguniang Bayan of Puerto Galera has declared Minolo Cove, a
mangrove area and breeding ground for bangus fry, an eco-tourist zone.[3]
The mooring facility would serve as the temporary docking site of
NAPOCORs power barge, which, due to turbulent waters at its former
mooring site in Calapan, Oriental Mindoro, required relocation to a safer site
like Minolo Cove. The 14.4 megawatts power barge would provide the main
source of power for the entire province of Oriental Mindoro pending the
construction of a land-based power plant in Calapan, Oriental Mindoro. The
ECC for the mooring facility was valid for two years counted from its date of
issuance or until 30 June 1999.[4]
Petitioners, claiming to be fisherfolks from Minolo, San Isidro, Puerto
Galera,[5] sought reconsideration of the ECC issuance. RED Principe,
however, denied petitioners plea on 15 July 1997. On 21 July 1997,
petitioners filed a complaint with the Regional Trial Court of Manila, Branch
7, for the cancellation of the ECC and for the issuance of a writ of injunction
to stop the construction of the mooring facility. Impleaded as defendants
were the following: (1) NAPOCOR, (2) RED Principe, (3) DENR Region IV
Technical Director for Environment Oscar Dominguez, (4) Oriental Mindoro
Electric Cooperative (ORMECO), which is engaged in the distribution of
electricity in Oriental Mindoro, and (5) certain officials of Puerto
Galera.[6] Petitioners subsequently amended their complaint to include as
additional defendants the elective officials of Oriental Mindoro represented
by then Governor Rodolfo G. Valencia. Petitioners further prayed for the
demolition of mooring structures that respondents had already built.
On 28 July 1997, prior to the filing of the amended complaint, the trial
court issued a 20-day temporary restraining order enjoining the construction
Page | 13

of the mooring facility. However, the trial court lifted the same on 6 August
1997 on NAPOCORs manifestation that the provincial government of
Oriental Mindoro was the one undertaking the construction of the mooring
facility.[7]
On 28 August 1997, before filing their answers, respondents ORMECO
and the provincial officials of Oriental Mindoro moved to dismiss the
complaint. These respondents claimed that petitioners failed to exhaust
administrative remedies, rendering the complaint without cause of
action. They also asserted that the Manila RTC has no jurisdiction to enjoin
the construction of the mooring facility in Oriental Mindoro, which lies
outside the Manila RTCs territorial jurisdiction.
Petitioners opposed the motion on the ground that there was no need
to exhaust administrative remedies. They argued that the issuance of the
ECC was in patent violation of Presidential Decree No. 1605,[8] Sections 26
and 27 of Republic Act No. 7160,[9] and the provisions of DENR Department
Administrative Order No. 96-37 (DAO 96-37) on the documentation of ECC
applications. Petitioners also claimed that the implementation of the ECC
was in patent violation of its terms.
In its order of 7 November 1997, the trial court granted the motion and
dismissed petitioners complaint.
Hence, this petition.
The Ruling of the Trial Court
The trial courts order dismissing the complaint reads in part:
After careful evaluation and analysis, this Court finds the Motion to Dismiss
tenable and meritorious.
Petitioners have clearly failed to exhaust all administrative remedies before
taking this legal action in Court x x x.
It is x x x worth mentioning that the decision of the Regional Director may
still be x x x elevated to the Office of the Secretary of the DENR to fully
comply with the process of exhaustion of administrative remedies. And well
settled is the rule in our jurisdiction that before bringing an action in or
resorting to the Courts of Justice, all remedies of administrative character
affecting or determinative of the controversy at that level should first be
exhausted by the aggrieved party (Pestanas vs. Dyogi, L-25786, February
27, 1978). And petitioners failure to exhaust administrative remedies
PoliRev/LGC
renders his [sic] petition dismissible (Chia vs. Acting Collector of Customs,
177 SCRA 755). And a dismissal on the ground of failure to exhaust
administrative remedies is tantamount to a dismissal based on lack of cause
of action (Baguiro vs. Basa, Jr., 214 SCRA 437; Pineda vs. CFI of Davao,
111 Phil. 643; Sarabia vs. Secretary of Agriculture & Natural Resources, L-
16002, May 23, 1961; Gone, et al. vs. District Engineer, et. al., L-22782,
August 29, 1975; Abe-Abe, et al. vs. Manta, et. al., L-4827, May 31, 1979)
although it does not affect the jurisdiction of the court over the subject matter
(Mun. of La Trinidad, et al. vs. CFI of Baguio-Benguet, et al., L-33889, June
28, 1983).
Moreover, this Court finds the Opposition of the Petitioners highly untenable
and bereft of merits that the controverted act in question is patently illegal
and there was an immediate need for judicial intervention.
The ECC in question was issued by the Regional Office of the DENR which
has jurisdiction and authority over the same x x x. And corollary to this, the
issue as to whether or not the Minolo Cove is within the enclosed coves and
waters embraced by Puerto Galera bay and protected by Medio island is a
clear question of fact which the DENR may appropriately resolve before
resorting to [the] Court[s].
This Court is likewise aware and cognizant of its territorial jurisdiction in the
enforcement of Writ of Injunction. That truly, [a] writ of injunction can only
be enforced within [the] territorial jurisdiction of this Court but not for acts
which are being or about to be committed outside its territorial
jurisdiction. Thus, in Philippine National Bank vs. Pineda, 197 SCRA 1, the
Honorable Supreme Court ruled: Regional Trial Courts can only enforce
their writs of injunction within their respective designated
territories. Furthermore, we find the issuance of the preliminary injunction
directed against the Provincial Sheriff of Negros Occidental a jurisdictional
paux [sic] pas (from Black Dictionary means jurisdictional falsity) as the
Courts of First Instance now Regional Trial Court[s], can only enforce their
writs of injunction within their respective designated territories.
And finally, this Court is not unmindful of the relevant and square application
in the case at bar of Presidential Decree No. 1818, Executive Order No. 380
dated November 27, 1989, and Circular No. 2-91 of the Supreme Court that
the National Power Corporation (NPC) is a public utility, created under
special legislation, engaged in the generation and distribution of electric
power and energy. The mooring site of NPC in Puerto Galera, Oriental
Mindoro is one of its infrastructure projects falling within the mantle of
Executive Order No. 380, November 27, 1989 x x x.
Page | 14

And as held by the Supreme Court in the case of National Power
Corporation vs. Honorable Abraham P. Vera, et al., 170 SCRA 721, courts
are without jurisdiction to issue injunctive writs against [the] National Power
Corporation. The latter enjoys the protective mantle of P.D. 1818, (Circular
No. 2-91).
xxx
Injunction in this case is not a mere ancillary [sic] writ but the main action
itself together with the Annulment of the Environmental Clearance
Certificate (ECC). Even assuming arguendo that the court [can] annul the
ECC how can the latter enforce the same against the Provincial
Government of Oriental Mindoro which was impleaded by the petitioners as
a necessary party together with the Oriental Mindoro Electric Cooperative
and the government officials of Puerto Galera, Oriental Mindoro, whose acts
and functions are being performed outside the territorial jurisdiction of this
court? x x x Indisputably, the injunction and annulment of ECC as prayed
for in the petition are inseparable x x x.
The conclusion, therefore, is inescapable that petitioners have failed to
exhaust all the available administrative remedies and this Court has no
jurisdiction to issue the injunctive writ prayed for in the Amended
[Complaint].[10]
The Issue
The issue is whether the trial court erred in dismissing petitioners
complaint for lack of cause of action and lack of jurisdiction.
The Ruling of the Court
The petition has no merit.
Jurisdiction of the Manila RTC over the Case
Jurisdiction over the subject matter of a case is conferred by law. Such
jurisdiction is determined by the allegations in the complaint, irrespective of
whether the plaintiff is entitled to all or some of the reliefs sought.[11]
PoliRev/LGC
A perusal of the allegations in the complaint shows that petitioners
principal cause of action is the alleged illegality of the issuance of the
ECC. The violation of laws on environmental protection and on local
government participation in the implementation of environmentally critical
projects is an issue that involves the validity of NAPOCORs ECC. If the
ECC is void, then as a necessary consequence, NAPOCOR or the
provincial government of Oriental Mindoro could not construct the mooring
facility. The subsidiary issue of non-compliance with pertinent local
ordinances in the construction of the mooring facility becomes immaterial
for purposes of granting petitioners main prayer, which is the annulment of
the ECC. Thus, if the court has jurisdiction to determine the validity of the
issuance of the ECC, then it has jurisdiction to hear and decide petitioners
complaint.
Petitioners complaint is one that is not capable of pecuniary
estimation. It falls within the exclusive and original jurisdiction of the
Regional Trial Courts under Section 19(1) of Batas Pambansa Blg. 129, as
amended by Republic Act No. 7691. The question of whether petitioners
should file their complaint in the Regional Trial Court of Manila or Oriental
Mindoro then becomes a matter of venue, to be determined by the
residence of the parties.[12]
Petitioners main prayer is the annulment of the ECC. The principal
respondent, DENR Region IV, has its main office at the L & S Building,
Roxas Boulevard, Manila.Regional Executive Director Principe of the DENR
Region IV, who issued the ECC, holds office there. Plainly, the principal
respondent resides in Manila, which is within the territorial jurisdiction of the
Manila RTC. Thus, petitioners filed their complaint in the proper venue.
On the other hand, the jurisdiction of Regional Trial Courts to issue
injunctive writs is limited to acts committed or about to be committed within
their judicial region.[13]Moreover, Presidential Decree No. 1818 (PD No.
1818) prohibited[14] courts from issuing injunctive writs against government
infrastructure projects like the mooring facility in the present case. Republic
Act No. 8975 (RA No. 8975), which took effect on 26 November 2000,
superseded PD No. 1818 and delineates more clearly the coverage of the
prohibition, reserves the power to issue such writs exclusively with this
Court, and provides penalties for its violation.[15] Obviously, neither the
Manila RTC nor the Oriental Mindoro RTC can issue an injunctive writ to
stop the construction of the mooring facility. Only this Court can do so under
PD No. 1818 and later under RA No. 8975. Thus, the question of whether
the Manila RTC has jurisdiction over the complaint considering that its
injunctive writ is not enforceable in Oriental Mindoro is academic.
Clearly, the Manila RTC has jurisdiction to determine the validity of the
issuance of the ECC, although it could not issue an injunctive writ against
the DENR or NAPOCOR. However, since the construction of the mooring
Page | 15

facility could not proceed without a valid ECC, the validity of the ECC
remains the determinative issue in resolving petitioners complaint.
Exhaustion of Administrative Remedies
The settled rule is before a party may seek the intervention of the
courts, he should first avail of all the means afforded by administrative
processes. Hence, if a remedy within the administrative machinery is still
available, with a procedure prescribed pursuant to law for an administrative
officer to decide the controversy, a party should first exhaust such remedy
before resorting to the courts. The premature invocation of a courts
intervention renders the complaint without cause of action and dismissible
on such ground.[16]
RED Principe of the DENR Region IV Office issued the ECC based on
(1) Presidential Decree No. 1586 (PD No. 1586) and its implementing rules
establishing the Environmental Impact Statement System, (2) DAO 96-
37[17] and (3) the Procedural Manual of DAO 96-37. Section 4[18] of PD No.
1586 requires a proponent of an environmentally critical project, or a project
located within an environmentally critical area as declared by the President,
to secure an ECC prior to the projects operation.[19]NAPOCOR thus secured
the ECC because the mooring facility in Minolo Cove, while not an
environmentally critical project, is located within an environmentally critical
area under Presidential Proclamation No. 2146, issued on 14 December
1981.[20]
The rules on administrative appeals from rulings of the DENR Regional
Directors on the implementation of PD No. 1586 are found in Article VI of
DAO 96-37, which provides:
SECTION 1.0. Appeal to the Office of the Secretary. Any party aggrieved
by the final decision of the RED may, within 15 days from receipt of such
decision, file an appeal with the Office of the Secretary. The decision of the
Secretary shall be immediately executory.
SECTION 2.0. Grounds for Appeal. The grounds for appeal shall be limited
to grave abuse of discretion and serious errors in the findings of fact which
would cause grave or irreparable injury to the aggrieved party. Frivolous
appeals shall not be countenanced.
SECTION 3.0. Who May Appeal. The proponent or any stakeholder,
including but not limited to, the LGUs concerned and affected communities,
may file an appeal.
PoliRev/LGC
The DENR Procedural Manual for DAO 96-37 explains these
provisions thus:
Final decisions of the RED may be appealed. These decisions include those
relating to the issuance or non-issuance of an ECC, and the imposition of
fines and penalties. By inference, the decision of the Secretary on the
issuance or non-issuance of the ECC may also be appealed based on this
provision. Resort to courts prior to availing of this remedy would make the
appellants action dismissible on the ground of non-exhaustion of
administrative remedies.
The right to appeal must be exercised within 15 days from receipt by the
aggrieved party of such decision. Failure to file such appeal within the
requisite period will result in the finality of the REDs or Secretarys
decision(s), which can no longer be disturbed.
An appeal shall not stay the effectivity of the REDs decision, unless the
Secretary directs otherwise.
The right to appeal does not prevent the aggrieved party from first resorting
to the filing of a motion for reconsideration with the RED, to give the RED
an opportunity to re-evaluate his decision. (Emphasis added)
Instead of following the foregoing procedure, petitioners bypassed the
DENR Secretary and immediately filed their complaint with the Manila RTC,
depriving the DENR Secretary the opportunity to review the decision of his
subordinate, RED Principe. Under the Procedural Manual for DAO 96-37
and applicable jurisprudence, petitioners omission renders their complaint
dismissible for lack of cause of action.[21] Consequently, the Manila RTC did
not err in dismissing petitioners complaint for lack of cause of action.
On the Alleged Patent Illegality of the ECC
Petitioners nevertheless contend that they are exempt from filing an
appeal with the DENR Secretary because the issuance of the ECC was in
patent violation of existing laws and regulations. These are (1) Section 1 of
Presidential Decree No. 1605, as amended, (2) Sections 26 and 27 of
Republic Act No. 7160 (Local Government Code of 1991), and (3) the
provisions of DAO 96-37 on the documentary requirements for the zoning
permit and social acceptability of the mooring facility.
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Petitioners contention is without merit. While the patent illegality of an
act exempts a party from complying with the rule on exhaustion of
administrative remedies,[22] this does not apply in the present case.
Presidential Decree No. 1605
Presidential Decree No. 1605 (PD No. 1605),[23] as amended by
Presidential Decrees Nos. 1605-A and 1805, declares as ecologically
threatened zone the coves and waters embraced by Puerto Galera Bay as
protected by Medio Island. This decree provides in part:
Section 1. Any provision of law to the contrary notwithstanding, the
construction of marinas, hotels, restaurants, other commercial structures;
commercial or semi-commercial wharfs [sic]; commercial docking within the
enclosed coves of Puerto Galera; the destruction of its mangrove stands;
the devastation of its corals and coastline by large barges, motorboats,
tugboat propellers, and any form of destruction by other human activities
are hereby prohibited.
Section 2. x x x
No permit for the construction of any wharf, marina, hotel, restaurants and
other commercial structures in Puerto Galera shall be issued without prior
approval of the Office of the President upon the recommendation of the
Philippine Tourism Authority. (Emphasis supplied)
NAPOCOR claims that since Minolo Cove lies outside of Puerto Galera
Bay as protected by Medio Island,[24] PD No. 1605 does not apply to this
case. However, petitioners assert that Minolo Cove is one of the enclosed
coves of Puerto Galera[25] and thus protected under PD No. 1605. This is a
question of fact that the DENR Secretary should have first resolved. In any
event, there is no dispute that NAPOCOR will use the mooring facility for its
power barge that will supply 14.4 megawatts of electricity to the entire
province of Oriental Mindoro, including Puerto Galera. The mooring facility
is obviously a government-owned public infrastructure intended to serve a
basic need of the people of Oriental Mindoro. The mooring facility is not a
commercial structure; commercial or semi-commercial wharf or commercial
docking as contemplated in Section 1 of PD No. 1605. Therefore, the
issuance of the ECC does not violate PD No. 1605 which applies only to
commercial structures like wharves, marinas, hotels and restaurants.
PoliRev/LGC
Sections 26 and 27 of RA No. 7160
Congress introduced Sections 26 and 27 in the Local Government
Code to emphasize the legislative concern for the maintenance of a sound
ecology and clean environment.[26] These provisions require every
national government agency or government-owned and controlled
corporation to hold prior consultations with the local government unit
concerned and to secure the prior approval of its sanggunian before
implementing any project or program that may cause pollution, climatic
change, depletion of non-renewable resources, loss of cropland, rangeland,
or forest cover and extinction of animal or plant species. Sections 26 and
27 respectively provide:
Section 26. Duty of National Government Agencies in the Maintenance of
Ecological Balance. - It shall be the duty of every national agency or
government-owned or controlled corporation authorized or involved in the
planning and implementation of any project or program that may
cause pollution, climatic change, depletion of non-renewable resources,
loss of crop land, rangeland, or forest cover and extinction of animal or plant
species, to consult with the local government units, non-governmental
organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the
community in terms of environmental or ecological balance, and the
measures that will be undertaken to prevent or minimize the adverse effects
thereof.
Section 27. Prior Consultations Required. - No project or program shall be
implemented by government authorities unless the consultations mentioned
in Section x x x 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas
where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the
provisions of the Constitution.
In Lina, Jr. v. Pao,[27] the Court interpreted these provisions in this
manner:
Section 27 of the Code should be read in conjunction with Section 26 thereof
x x x.
Thus, the projects and programs mentioned in Section 27 should be
interpreted to mean projects and programs whose effects are among those
enumerated in Sections 26 and 27, to wit, those that: (1) may cause
Page | 17

pollution; (2) may bring about climatic change; (3) may cause the depletion
of non-renewable resources; (4) may result in loss of crop land, rangeland,
or forest cover; (5) may eradicate certain animal or plant species; and (6)
other projects or programs that may call for the eviction of a particular group
of people residing in the locality where these will be implemented.
Again, Sections 26 and 27 do not apply to this case because as
petitioners admit,[28] the mooring facility itself is not environmentally critical
and hence does not belong to any of the six types of projects mentioned in
the law. There is no statutory requirement for the concerned sanggunian to
approve the construction of the mooring facility. It is another matter if the
operation of the power barge is at issue. As an environmentally critical
project that causes pollution, the operation of the power barge needs the
prior approval of the concerned sanggunian. However, what is before this
Court is only the construction of the mooring facility, not the operation of the
power barge. Thus, the issuance of the ECC does not violate Sections 26
and 27 of RA No. 7160.
Documentary Requirements for
ECC Applications
Under DAO 96-37, an ECC applicant for a project located within an
environmentally critical area is required to submit an Initial Environment
Examination, which must contain a brief description of the environmental
setting and a documentation of the consultative process undertaken, when
appropriate.[29] As part of the description of the environmental setting, the
ECC applicant must submit a certificate of locational clearance or zoning
certificate.
Petitioners further contend that NAPOCOR, in applying for the ECC,
did not submit to the DENR Region IV Office the documents proving the
holding of consultations and the issuance of a locational clearance or zoning
certificate. Petitioners assert that this omission renders the issuance of the
ECC patently illegal.
The contention is also without merit. While such documents are part of
the submissions required from a project proponent, their mere absence
does not render the issuance of the ECC patently illegal. To justify non-
exhaustion of administrative remedies due to the patent illegality of the
ECC, the public officer must have issued the ECC [without any] semblance
of compliance, or even an attempt to comply, with the pertinent laws; when
manifestly, the officer has acted without jurisdiction or has exceeded his
PoliRev/LGC
jurisdiction, or has committed a grave abuse of discretion; or when his act
is clearly and obviously devoid of any color of authority.[30]
RED Principe, as chief of DENR Region IV, is the officer duly
authorized under DAO 96-37[31] to issue ECCs for projects located within
environmentally critical areas. RED Principe issued the ECC on the
recommendation of Amelia Supetran, the Director of the Environmental
Management Bureau. Thus, RED Principe acted with full authority pursuant
to DENR regulations. Moreover, the legal presumption is that he acted with
the requisite authority.[32] This clothes RED Principes acts with presumptive
validity and negates any claim that his actions are patently illegal or that he
gravely abused his discretion. While petitioners may present proof to the
contrary, they must do so before the proper administrative forum before
resorting to judicial remedies.
On the Alleged Non-Compliance with the Terms of the ECC
Lastly, petitioners claim that they are justified in immediately seeking
judicial recourse because NAPOCOR is guilty of violating the conditions of
the ECC, which requires it to secure a separate ECC for the operation of
the power barge. The ECC also mandates NAPOCOR to secure the usual
local government permits, like zoning and building permits, from the
municipal government of Puerto Galera.
The contention is similarly without merit. The fact that NAPOCORs
ECC is subject to cancellation for non-compliance with its conditions does
not justify petitioners conduct in ignoring the procedure prescribed in DAO
96-37 on appeals from the decision of the DENR Executive
Director. Petitioners vigorously insist that NAPOCOR should comply with
the requirements of consultation and locational clearance prescribed in
DAO 96-37. Ironically, petitioners themselves refuse to abide with the
procedure for filing complaints and appealing decisions laid down in DAO
96-37.
DAO 96-37 provides for a separate administrative proceeding to
address complaints for the cancellation of an ECC. Under Article IX of DAO
96-37, complaints to nullify an ECC must undergo an administrative
investigation, after which the hearing officer will submit his report to the EMB
Director or the Regional Executive Director, who will then render his
decision. The aggrieved party may file an appeal to the DENR Secretary,
who has authority to issue cease and desist orders. Article IX also classifies
the types of violations covered under DAO 96-37, including projects
operating without an ECC or violating the conditions of the ECC. This is the
Page | 18
 PoliRev/LGC

applicable procedure to address petitioners complaint on NAPOCORs

alleged violations and not the filing of the instant case in court.

A Final Word

The Court commends petitioners for their courageous efforts to

safeguard and maintain the ecological balance of Minolo Cove. This Court
recognizes the utmost importance of protecting the environment.[33] Indeed,
we have called for the vigorous prosecution of violators of environmental
laws.[34] Legal actions to achieve this end, however, must be done in
accordance with established rules of procedure that were intended, in the
first place, to achieve orderly and efficient administration of justice.
WHEREFORE, we DENY the petition for lack of merit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Ynares-Santiago, and Azcuna,
JJ., concur.

Page | 19

EN BANC
G.R. No. 195390 December 10, 2014
GOV. LUIS RAYMUND F. VILLAFUERTE, JR., and the PROVINCE OF
CAMARINES SUR, Petitioners,
vs.
HON. JESSE M. ROBREDO, in his capacity as Secretary of the
Department of the Interior and Local Government, Respondent.
DECISION
REYES, J.:
This is a petition for certiorari and prohibition1 under Rule 65 of the 1997
Revised Rules of Court filed by former Governor Luis Raymund F.
Villafuerte, Jr. (Villafuerte) and the Province of Camarines Sur (petitioners),
seeking to annul and set aside the following issuances of the late Honorable
Jesse M. Robredo (respondent), in his capacity as then Secretary of the
Department of the Interior and Local Government (DILG), to wit:
(a) Memorandum Circular (MC) No. 2010-83dated August 31,
2010, pertaining to the full disclosure of local budget and finances,
and bids and public offerings;2
(b) MC No. 2010-138 dated December 2, 2010, pertaining to the
use of the 20% component of the annual internal revenue allotment
shares;3 and
(c) MC No. 2011-08 dated January 13, 2011, pertaining to the strict
adherence to Section 90 of Republic Act (R.A.) No. 10147 or the
General Appropriations Act of 2011.4
The petitioners seek the nullification of the foregoing issuances on the
ground of unconstitutionality and for having been issued with grave abuse
of discretion amounting to lack orexcess of jurisdiction.
The Facts
In 1995, the Commission on Audit (COA) conducted an examination and
audit on the manner the local government units (LGUs) utilized their Internal
Revenue Allotment (IRA) for the calendar years 1993-1994. The
examination yielded an official report,showing that a substantial portion of
PoliRev/LGC
the 20% development fund of some LGUs was not actually utilized for
development projects but was diverted to expenses properly chargeable
against the Maintenance and Other Operating Expenses (MOOE), in stark
violation of Section 287 of R.A. No. 7160, otherwise known as the Local
Government Code of 1991 (LGC). Thus, on December 14, 1995, the DILG
issued MC No. 95-216,5 enumerating the policies and guidelines on the
utilization of the development fund component of the IRA. It likewise carried
a reminder to LGUs of the strict mandate to ensure that public funds, like
the 20% development fund, "shall bespent judiciously and only for the very
purpose or purposes for which such funds are intended."6
On September 20, 2005, then DILG Secretary Angelo T. Reyes and
Department of Budget and Management Secretary Romulo L. Neri issued
Joint MC No. 1, series of 2005,7 pertaining to the guidelines on the
appropriation and utilization of the 20% of the IRA for development projects,
which aims to enhance accountability of the LGUs in undertaking
development projects. The said memorandum circular underscored that the
20% of the IRA intended for development projects should be utilized for
social development, economic development and environmental
management.8
On August 31, 2010, the respondent, in his capacity as DILG Secretary,
issued the assailed MC No. 2010-83,9entitled "Full Disclosure of Local
Budget and Finances, and Bids and Public Offerings," which aims to
promote good governance through enhanced transparency and
accountability of LGUs. The pertinent portion of the issuance reads:
Legal and Administrative Authority
Section 352 of the Local Government Code of 1991 requires the posting
within 30 days from the end of eachfiscal year in at least three (3) publicly
accessible and conspicuous places in the local government unit a summary
of all revenues collected and funds received including the appropriations
and disbursements of such funds during the preceding fiscal year.
On the other hand, Republic Act No. 9184, known as the Government
Procurement Reform Act, calls for the posting of the Invitation to Bid, Notice
of Award, Notice to Proceed and Approved Contract in the procuring entity’s
premises, in newspapers of general circulation, the Philippine Government
Electronic Procurement System (PhilGEPS) and the website of the
procuring entity. The declared policy of the State to promote good local
governance also calls for the posting of budgets, expenditures, contracts
and loans, and procurement plans of local government units in conspicuous
Page | 20

places within public buildings in the locality, inthe web, and in print media of
community or general circulation.
Furthermore, the President, in his first State of the Nation Address, directed
all government agencies and entities to bring to an end luxurious spending
and misappropriation ofpublic funds and to expunge mendacious and
erroneous projects, and adhere to the zero-based approach budgetary
principle.
Responsibility of the Local Chief Executive
All Provincial Governors, City Mayors and Municipal Mayors, are directed
to faithfully comply with the above cited [sic] provisions of laws, and existing
national policy, by posting in conspicuous places within public buildings in
the locality, or inprint media of community or general circulation, and in their
websites, the following:
1. CY 2010 Annual Budget, information detail to the level of
particulars of personal services, maintenance and other operating
expenses and capital outlay per individual offices (Source
Document - Local Budget Preparation Form No. 3, titled, Program
Appropriation and Obligation by Object of Expenditure, limited to
PS, MOOE and CO. For sample form, please visit
www.naga.gov.ph);
2. Quarterly Statement of Cash Flows, information detail to the level
of particulars of cash flows from operating activities (e.g. cash
inflows, total cash inflows, total cash outflows), cash flows from
investing activities (e.g. cash outflows), net increase in cash and
cash at the beginning of the period (Source Document - Statement
of Cash Flows Form);
3. CY 2009 Statement of Receipts and Expenditures, information
detail to the level of particulars of beginning cash balance, receipts
or income on local sources (e.g., tax revenue, non-tax revenue),
external sources, and receipts from loans and borrowings, surplus
of prior years, expenditures on general services, economic
services, social services and debt services, and total expenditures
(Source Document - Local Budget Preparation Form No. 2, titled,
Statement of Receipts and Expenditures);
4. CY 2010 Trust Fund (PDAF) Utilization, information detail to the
level of particulars of object expenditures (Source Document - Local
PoliRev/LGC
Budget Preparation Form No. 3, titled, Program Appropriation and
Obligation by Object of Expenditure, limited to PDAF Utilization);
5. CY 2010 Special Education Fund Utilization, information detail to
the level of particulars of object expenditures (Source Document -
Local Budget Preparation Form No. 3, titled, Program Appropriation
and Obligation by Object of Expenditure, limited to Special
Education Fund);
6. CY 2010 20% Component of the IRA Utilization, information
detail to the level of particulars of objects of expenditure on social
development, economic development and environmental
management (Source Document - Local Budget Preparation Form
No. 3, titled, Program Appropriation and Obligation by Object of
Expenditure, limited to 20% Component of the Internal Revenue
Allotment);
7. CY 2010 Gender and Development Fund Utilization, information
detail to the level of particulars of object expenditures (Source
Document - Local Budget Preparation Form No. 3, titled, Program
Appropriation and Obligation by Object of Expenditure, limited to
Gender and Development Fund);
8. CY 2010 Statement of Debt Service, information detail to the
level of name of creditor, purpose of loan, date contracted, term,
principal amount, previous payment made on the principal and
interest, amount due for the budget year and balance of the
principal (Source Document - Local Budget Preparation Form No.
6, titled, Statement of Debt Service);
9. CY 2010 Annual Procurement Plan or Procurement List,
information detail to the level ofname of project, individual item or
article and specification or description of goods and services,
procurement method, procuring office or fund source, unit price or
estimated cost or approved budget for the contract and
procurement schedule (Source Document - LGU Form No. 02,
Makati City. For sample form, please visit www.makati.gov.ph.)[;]
10. Items to Bid, information detail to the level of individual Invitation
to Bid, containing information as prescribed in Section 21.1 of
Republic Act No. 9184, or The Government Procurement Reform
Act, to be updated quarterly (Source Document - Invitation to Apply
for Eligibility and to Bid, as prescribed in Section 21.1 of R.A. No.
9184. For sample form, please visit www.naga.gov.ph);
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11. Bid Results on Civil Works, and Goods and Services,
information detail to the level of project reference number, name
and location of project, name (company and proprietor) and
address of winning bidder, bid amount, approved budget for the
contract, bidding date, and contract duration, to be updated
quarterly (Source Document – Infrastructure Projects/Goods and
Services Bid-Out (2010), Naga City. For sample form, please visit
www.naga.gov.ph); and
12. Abstract of Bids as Calculated, information detail to the level of
project name, location, implementing office, approved budget for
the contract, quantity and items subject for bidding, and bids of
competing bidders, to be updated quarterly (Source Document -
Standard Form No. SF-GOOD-40, Revised May 24, 2004, Naga
City. For sample form, please visit www.naga.gov.ph).
The foregoing circular also statesthat non-compliance will be meted
sanctions in accordance with pertinent laws, rules and regulations. 10
On December 2, 2010, the respondent issued MC No. 2010-138,11
reiterating that 20% component of the IRA shall be utilized for desirable
social, economic and environmental outcomes essential to the attainment
of the constitutional objective of a quality oflife for all. It also listed the
following enumeration of expenses for which the fund must not be utilized,
viz:
1. Administrative expenses such ascash gifts, bonuses, food
allowance, medical assistance, uniforms, supplies, meetings,
communication, water and light, petroleum products, and the like;
2. Salaries, wages or overtime pay;
3. Travelling expenses, whether domestic or foreign;
4. Registration or participation feesin training, seminars,
conferences or conventions;
5. Construction, repairor refinishing of administrative offices;
6. Purchase of administrative office furniture, fixtures, equipment or
appliances; and
7. Purchase, maintenance or repair of motor vehicles or
motorcycles, except ambulances.12 On January 13, 2011, the
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respondent issued MC No. 2011-08,13 directing for the strict
adherence toSection 90 of R.A. No. 10147 or the General
Appropriations Act of 2011. The pertinent portion of the issuance
reads as follows:
Legal and Administrative Authority
● Section 90 of Republic Act No. 10147 (General Appropriations Act) FY
2011 re "Use and Disbursement of Internal Revenue Allotment of LGUs",
[sic] stipulates: The amount appropriated for the LGU’s share in the Internal
Revenue Allotment shall be used in accordance with Sections 17 (g) and
287 of R.A. No 7160. The annual budgets of LGUs shall be prepared in
accordance with the forms, procedures, and schedules prescribed by the
Department of Budget and Management and those jointly issued with the
Commission on Audit. Strict compliance with Sections 288 and 354 of R.A.
No. 7160 and DILG Memorandum Circular No. 2010-83, entitled "Full
Disclosure of Local Budget and Finances, and Bids and Public offering" is
hereby mandated; PROVIDED, That in addition to the publication or posting
requirement under Section 352 of R.A. No. 7160 in three (3) publicly
accessible and conspicuous places in the local government unit, the LGUs
shall also post the detailed information on the use and disbursement, and
status of programs and projects in the LGUS websites. Failure to comply
with these requirements shall subject the responsible officials to disciplinary
actions in accordance with existing laws. x x x14
xxxx
Sanctions
Non-compliance with the foregoing shall be dealt with in accordance with
pertinent laws, rules and regulations. In particular, attention is invited to the
provision of the Local Government Code of 1991, quoted as follows:
Section 60. Grounds for Disciplinary Actions - An elective local official may
be disciplined, suspended, or removed from office on: (c) Dishonesty,
oppression, misconduct in office, gross negligence, or dereliction of duty. x
x x15(Emphasis and underscoring in the original)
On February 21, 2011, Villafuerte, then Governor of Camarines Sur, joined
by the Provincial Government of Camarines Sur, filed the instant petition for
certiorari, seeking to nullify the assailed issuances of the respondent for
being unconstitutional and having been issued with grave abuse of
discretion.
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On June 2, 2011, the respondent filed his Comment on the petition.16 Then,
on June 22, 2011, the petitioners filed their Reply (With Urgent Prayer for
the Issuance of a Writ of Preliminary Injunction and/or Temporary
Restraining Order).17 In the Resolution18 dated October 11, 2011, the Court
gave due course to the petition and directed the parties to file their
respective memorandum. In compliance therewith, the respondent and the
petitioners filed their Memorandum on January 19, 201219 and on February
8, 201220 respectively.
The petitioners raised the following issues:
Issues
I
THE HON. SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN HEISSUED THE ASSAILED
MEMORANDUM CIRCULARS IN VIOLATION OF THE PRINCIPLES OF
LOCAL AUTONOMY AND FISCAL AUTONOMY ENSHRINED IN THE
1987 CONSTITUTION AND THE LOCAL GOVERNMENT CODE OF
1991[.]
II
THE HON. SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN HEINVALIDLY ASSUMED
LEGISLATIVE POWERS IN PROMULGATING THE ASSAILED
MEMORANDUM CIRCULARS WHICH WENT BEYOND THE CLEAR AND
MANIFEST INTENT OF THE 1987 CONSTITUTION AND THE LOCAL
GOVERNMENT CODE OF 1991[.]21
Ruling of the Court
The present petition revolves around the main issue: Whether or not the
assailed memorandum circulars violate the principles of local and fiscal
autonomy enshrined in the Constitution and the LGC.
The present petition is ripe for judicial review.
At the outset, the respondent is questioning the propriety of the exercise of
the Court’s power of judicial review over the instant case. He argues that
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the petition is premature since there is yet any actual controversy that is ripe
for judicial determination. He points out the lack of allegation in the petition
that the assailed issuances had been fully implemented and that the
petitioners had already exhausted administrative remedies under Section
25 of the Revised Administrative Code before filing the same in court. 22
It is well-settled that the Court’s exercise of the power of judicial review
requires the concurrence of the following elements: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have the standing to question the validity
of the subject act or issuance; otherwise stated, he must have a personal
and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue
of constitutionality must be the very lis motaof the case.23
The respondent claims that there isyet any actual case or controversy that
calls for the exercise of judicial review. He contends that the mere
expectation of an administrative sanction does not give rise to a justiciable
controversy especially, in this case, that the petitioners have yet to exhaust
administrative remedies available.24
The Court disagrees.
In La Bugal-B’laan Tribal Association, Inc. v. Ramos,25 the Court
characterized an actual case or controversy, viz:
An actual case or controversy means an existing case or controversy that
is appropriate or ripe for determination, not conjectural or anticipatory, lest
the decision of the court would amount to an advisory opinion. The power
does not extend to hypothetical questions since any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities.26 (Citations omitted)
The existence of an actual controversy in the instant case cannot be
overemphasized. At the time of filing of the instant petition, the respondent
had already implemented the assailed memorandum circulars. In fact, on
May 26, 2011, Villafuerte received Audit Observation Memorandum (AOM)
No. 2011-009 dated May 10, 201127 from the Office of the Provincial Auditor
of Camarines Sur, requiring him to comment on the observation of the audit
team, which states:
The Province failed to post the transactions and documents required under
Department of Interior and Local Government (DILG) Memorandum
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Circular No. 2010-83, thereby violating the mandate of full disclosure of
Local Budget and Finances, and Bids and Public Offering.
xxxx
The local officials concerned are reminded of the sanctions mentioned in
the circular which is quoted hereunder, thus:
"Non compliance with the foregoing shall be dealt with in accordance with
pertinent laws, rules and regulations. In particular, attention is invited to the
provision of Local Government Code of 1991, quoted as follows:
Section 60. Grounds for Disciplinary Actions – An elective local official may
be disciplined, suspended or removed from office on: (c) Dishonesty,
oppression, misconduct in office, gross negligence or dereliction of duty." 28
The issuance of AOM No. 2011-009 to Villafuerte is a clear indication that
the assailed issuances of the respondent are already in the full course of
implementation. The audit memorandum specifically mentioned of
Villafuerte’s alleged non-compliance with MCNo. 2010-83 regarding the
posting requirements stated in the circular and reiterated the sanctions that
may be imposed for the omission. The fact that Villafuerte is being required
to comment on the contents of AOM No. 2011-009 signifies that the process
of investigation for his alleged violation has already begun. Ultimately, the
investigation is expected to end in a resolution on whether a violation has
indeed been committed, together with the appropriate sanctions that come
with it. Clearly, Villafuerte’s apprehension is real and well-founded as he
stands to be sanctioned for non-compliance with the issuances.
There is likewise no merit in the respondent’s claim that the petitioners’
failure to exhaust administrative remedies warrants the dismissal of the
petition. It bears emphasizing that the assailed issuances were issued
pursuant to the rule-making or quasi-legislative power of the DILG. This
pertains to "the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting
statute."29 Not to be confused with the quasi-legislative or rule-making
power of an administrative agency is its quasi-judicial or administrative
adjudicatory power. This is the power to hear and determine questions of
fact to which the legislative policy is to apply and to decide in accordance
with the standards laid down by the law itself in enforcing and administering
the same law.30 In challenging the validity of anadministrative issuance
carried out pursuant to the agency’s rule-making power, the doctrine of
exhaustion of administrative remedies does not stand as a bar in promptly
resorting to the filing of a case in court. This was made clear by the Court
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in Smart Communications, Inc. (SMART) v. National Telecommunications
Commission (NTC),31 where it was ruled, thus:
In questioning the validity or constitutionality of a rule or regulation issued
by an administrative agency, a party need not exhaust administrative
remedies before going to court. This principle applies only where the act of
the administrative agency concerned was performed pursuant to its quasi-
judicial function, and not when the assailed act pertained to its rule-making
orquasi-legislative power. x x x.32
Considering the foregoing clarification, there is thus no bar for the Court to
resolve the substantive issues raised in the petition.
The assailed memorandum
circulars do not transgress the local
and fiscal autonomy granted to
LGUs.
The petitioners argue that the assailed issuances of the respondent
interfere with the local and fiscal autonomy of LGUs embodied in the
Constitution and the LGC. In particular, they claim that MC No. 2010-138
transgressed these constitutionally-protected liberties when it restricted the
meaning of "development" and enumerated activities which the local
government must finance from the 20% development fund component of
the IRA and provided sanctions for local authorities who shall use the said
component of the fund for the excluded purposes stated therein.33 They
argue that the respondent cannot substitute his own discretion with that of
the local legislative council in enacting its annual budget and specifying the
development projects that the 20% component of its IRA should fund.34
The argument fails to persuade.
The Constitution has expressly adopted the policy of ensuring the autonomy
of LGUs.35 To highlight its significance, the entire Article X of the
Constitution was devoted to laying down the bedrock upon which this policy
is anchored.
It is also pursuant to the mandate of the Constitution of enhancing local
autonomy that the LGC was enacted. Section 2 thereof was a reiteration of
the state policy. It reads, thus:
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
Page | 24

development as self-reliant communities and make them more effective
partners in the attainment ofnational 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.
Verily, local autonomy means a more responsive and accountable local
government structure instituted through a system of decentralization.36 In
Limbona v. Mangelin,37 the Court elaborated on the concept of
decentralization, thus:
[A]utonomy is either decentralization of administration ordecentralization 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.
x x x. Decentralization of power, on the other hand, involves an abdication
of political power in the favor of local governments [sic] units declared to be
autonomous. In thatcase, the autonomous government is free to chart its
own destiny and shape its future with minimum intervention from central
authorities. x x x.38 (Citations omitted)
To safeguard the state policy on local autonomy, the Constitution confines
the power of the President over LGUs to mere supervision.39 "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." 40 Thus,
Section 4, Article X of the Constitution, states:
Section 4. 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 Province of Negros Occidental v. Commissioners, Commission on
Audit,41 the Court distinguished general supervision from executive control
in the following manner:
PoliRev/LGC
The President’s power of general supervision means the power of a
superior officer to see to it that subordinates perform their functions
according to law. This is distinguished from the President’s power of control
which is the power 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 President over that of the subordinate officer. The power of control gives
the President the power to revise or reverse the acts or decisions of a
subordinate officer involving the exercise of discretion. 42 (Citations omitted)
It is the petitioners’ contention that the respondent went beyond the confines
of his supervisory powers, asalter ego of the President, when he issued MC
No. 2010-138. They arguethat the mandatory nature of the circular, with the
threat of imposition of sanctions for non-compliance, evinces a clear desire
to exercise control over LGUs.43
The Court, however, perceives otherwise.
A reading of MC No. 2010-138 shows that it is a mere reiteration of an
existing provision in the LGC. It was plainly intended to remind LGUs to
faithfully observe the directive stated in Section 287 of the LGC to utilize the
20% portion of the IRA for development projects. It was, at best, an advisory
to LGUs to examine themselves if they have been complying with the law.
It must be recalled that the assailed circular was issued in response to the
report of the COA that a substantial portion of the 20% development fund
of some LGUs was not actually utilized for development projects but was
diverted to expenses more properly categorized as MOOE, in violation of
Section 287 of the LGC. This intention was highlighted in the very first
paragraph of MC No. 2010-138, which reads:
Section 287 of the Local Government Code mandates every local
government to appropriate in its annual budget no less than 20% of its
annual revenue allotment for development projects. In common
understanding, development means the realization of desirable social,
economic and environmental outcomes essential in the attainment of the
constitutional objective of a desired quality of life for all. 44 (Underscoring in
the original)
That the term developmentwas characterized asthe "realization of desirable
social, economic and environmental outcome" does not operate as a
restriction of the term so as to exclude some other activities that may bring
about the same result. The definition was a plain characterization of the
concept of development as it is commonly understood. The statement of a
general definition was only necessary to illustrate among LGUs the nature
of expenses that are properly chargeable against the development fund
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component of the IRA. It is expected to guide them and aid them in
rethinking their ways so that they may be able to rectify lapses in judgment,
should there be any, or it may simply stand as a reaffirmation of an already
proper administration of expenses.
The same clarification may be said of the enumeration of expenses in MC
No. 2010-138. To begin with, it is erroneous to call them exclusions because
such a term signifies compulsory disallowance of a particular item or
activity. This is not the contemplation of the enumeration. Again, it is helpful
to retrace the very reason for the issuance of the assailed circular for a
better understanding. The petitioners should be reminded that the issuance
of MC No. 2010-138 was brought about by the report of the COA that the
development fund was not being utilized accordingly. To curb the alleged
misuse of the development fund, the respondent deemed it proper to remind
LGUs of the nature and purpose of the provision for the IRA through MC
No. 2010-138. To illustrate his point, heincluded the contested enumeration
of the items for which the development fund must generallynot be used. The
enumerated items comprised the expenses which the COA perceived to
have been improperly earmarked or charged against the development fund
based on the audit it conducted.
Contrary to the petitioners’ posturing, however, the enumeration was not
meant to restrict the discretion of the LGUs in the utilization of their funds.
It was meant to enlighten LGUs as to the nature of the development fund
by delineating it from other types of expenses. It was incorporated in the
assailed circular in order to guide them in the proper disposition of the IRA
and avert further misuse of the fund by citing current practices which
seemed to be incompatible with the purpose of the fund. Even then, LGUs
remain at liberty to map out their respective development plans solely on
the basis of their own judgment and utilize their IRAs accordingly, with the
only restriction that 20% thereof be expended for development projects.
They may even spend their IRAs for some of the enumerated items should
they partake of indirect costs of undertaking development projects. In such
case, however, the concerned LGU must ascertain that applicable rules and
regulations on budgetary allocation have been observed lest it be inviting
an administrative probe.
The petitioners likewise misread the issuance by claiming that the provision
of sanctions therein is a clear indication of the President’s interference in
the fiscalautonomy of LGUs. The relevant portion of the assailed issuance
reads, thus:
All local authorities are further reminded that utilizing the 20% component
of the Internal Revenue Allotment, whether willfully or through negligence,
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for any purpose beyond those expressly prescribed by law or public policy
shall be subject to the sanctions provided under the Local Government
Code and under such other applicable laws.45
Significantly, the issuance itself did not provide for sanctions. It did not
particularly establish a new set ofacts or omissions which are deemed
violations and provide the corresponding penalties therefor. It simply stated
a reminder to LGUs that there are existing rules to consider in the
disbursement of the 20% development fund and that non-compliance
therewith may render them liable to sanctions which are provided in the
LGC and other applicable laws. Nonetheless, this warning for possible
imposition of sanctions did not alter the advisory nature of the issuance. At
any rate, LGUs must be reminded that the local autonomy granted to them
does not completely severe them from the national government or turn them
into impenetrable states. Autonomy does not make local governments
sovereign within the state.46 InGanzon v. Court of Appeals,47 the Court
reiterated:
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.1avvphi1 Local governments, under the
Constitution, are subject to regulation, however limited, and for no other
purpose than precisely, albeit paradoxically, to enhance self-government.48
Thus, notwithstanding the local fiscal autonomy being enjoyed by LGUs,
they are still under the supervision of the President and maybe held
accountable for malfeasance or violations of existing laws. "Supervision is
not incompatible with discipline. And the power to discipline and ensure that
the laws be faithfully executed must be construed to authorize the President
to order an investigation of the act or conduct of local officials when in his
opinion the good of the public service so requires."49
Clearly then, the President’s power of supervision is not antithetical to
investigation and imposition of sanctions. In Hon. Joson v. Exec. Sec.
Torres,50 the Court pointed out, thus: "Independently of any statutory
provision authorizing the President to conduct an investigation of the nature
involved in this proceeding, and in view of the nature and character of the
executive authority with which the President of the Philippines is invested,
the constitutional grant to him of power to exercise general supervision over
all local governments and to take care that the laws be faithfully executed
must be construed to authorize him to order an investigation of the act or
conduct of the petitioner herein. Supervision is not a meaningless thing. It
is an active power. It is certainly not without limitation, but it at least implies
Page | 26

authority to inquire into facts and conditions in order to render the power
real and effective. x x x."51(Emphasis ours and italics in the original)
As in MC No. 2010-138, the Court finds nothing in two other questioned
issuances of the respondent, i.e., MC Nos. 2010-83 and 2011-08, that can
be construed as infringing onthe fiscal autonomy of LGUs. The petitioners
claim that the requirement to post other documents in the mentioned
issuances went beyond the letter and spirit of Section 352 of the LGC and
R.A. No. 9184, otherwise known as the Government Procurement Reform
Act, by requiring that budgets, expenditures, contracts and loans, and
procurement plans of LGUs be publicly posted as well.52
Pertinently, Section 352 of the LGC reads:
Section 352. Posting of the Summary of Income and Expenditures.– Local
treasurers, accountants, budget officers, and other accountable officers
shall, within thirty (30) days from the end of the fiscal year, post in at least
three (3) publicly accessible and conspicuous places in the local
government unit a summary of all revenues collected and funds received
including the appropriations and disbursements of such funds during the
preceding fiscal year.
R.A. No. 9184, on the other hand, requires the posting of the invitation to
bid, notice of award, notice to proceed, and approved contract in the
procuring entity’s premises, in newspapers of general circulation, and the
website of the procuring entity.53
It is well to remember that fiscal autonomy does not leave LGUs with
unbridled discretion in the disbursement of public funds. They remain
accountable to their constituency. For, public office was created for the
benefit of the people and not the person who holds office.
The Court strongly enunciated in ABAKADA GURO Party List (formerly
AASJS), et al. v.Hon. Purisima, et al.,54 thus:
Public office is a public trust. It must be discharged by its holder not for his
own personal gain but for the benefit of the public for whom he holds it in
trust. By demanding accountability and service with responsibility, integrity,
loyalty, efficiency, patriotism and justice, all government officials and
employees havethe duty to be responsive to the needs of the people they
are called upon to serve.55
Thus, the Constitution strongly summoned the State to adopt and
implement a policy of full disclosure of all transactions involving public
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interest and provide the people with the right to access public
information.56 Section 352 of the LGC is a response to this call for
transparency. It is a mechanism of transparency and accountability of local
government officials and is in fact incorporated under Chapter IV of the LGC
which deals with "Expenditures, Disbursements, Accounting and
Accountability."
In the same manner, R.A. No. 9184 established a system of transparency
in the procurement process and in the implementation of procurement
contracts in government agencies.57 It is the public monitoring of the
procurement process and the implementation of awarded contracts with the
end in view of guaranteeing that these contracts are awarded pursuant to
the provisions of the law and its implementing rules and regulations, and
that all these contracts are performed strictly according to specifications.58
The assailed issuances of the respondent, MC Nos. 2010-83 and 2011-08,
are but implementation of this avowed policy of the State to make public
officials accountable to the people. They are amalgamations of existing
laws, rules and regulation designed to give teeth to the constitutional
mandate of transparency and accountability.
A scrutiny of the contents of the mentioned issuances shows that they do
not, in any manner, violate the fiscal autonomy of LGUs. To be clear, "[f]iscal
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 withtheir own priorities.It extends to the
preparation of their budgets, and local officials in turn have to work within
the constraints thereof."59
It is inconceivable, however, how the publication of budgets, expenditures,
contracts and loans and procurement plans of LGUs required in the assailed
issuances could have infringed on the local fiscal autonomy of LGUs. Firstly,
the issuances do not interfere with the discretion of the LGUs in the
specification of their priority projects and the allocation of their budgets. The
posting requirements are mere transparency measures which do not at all
hurt the manner by which LGUs decide the utilization and allocation of their
funds.
Secondly, it appears that even Section 352 of the LGC that is being invoked
by the petitioners does not exclude the requirement for the posting of the
additional documents stated in MC Nos. 2010-83 and 2011-08. Apparently,
the mentioned provision requires the publication of "a summary of revenues
collected and funds received, including the appropriations and
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 PoliRev/LGC

disbursements of such funds." The additional requirement for the posting of It is needless to say that the power to govern is a delegated authority from
budgets, expenditures, contracts and loans, and procurement plans are the people who hailed the public official to office through the democratic
well-within the contemplation of Section 352 of the LGC considering they process of election. His stay in office remains a privilege which may be
are documents necessary for an accurate presentation of a summary of withdrawn by the people should he betray his oath of office. Thus, he must
appropriations and disbursements that an LGU is required to publish. not frown upon accountability checks which aim to show how well he is
performing his delegated power. For, it is through these mechanisms of
Finally, the Court believes that the supervisory powers of the President are transparency and accountability that he is able to prove to his constituency
broad enough to embrace the power to require the publication of certain that he is worthy of the continued privilege.
documents as a mechanism of transparency. In Pimentel,Jr. v. Hon.
Aguirre,60 the Court reminded that localfiscal autonomy does not rule out WHEREFORE, in view of the foregoing considerations, the petition is
any manner of national government intervention by way of supervision, in DISMISSED for lack of merit.
order to ensure that local programs, fiscal and otherwise, are consistent with
national goals. The President, by constitutional fiat, is the head of the SO ORDERED.
economic and planning agency of the government, primarily responsible for
formulating and implementing continuing, coordinated and integrated social
and economic policies, plans and programs for the entire
country.61 Moreover, the Constitution, which was drafted after long years of
dictatorship and abuse of power, is now replete with numerous provisions
directing the adoption of measures to uphold transparency and
accountability in government, with a view of protecting the nation from
repeating its atrocious past. In particular, the Constitution commands the
strict adherence to full disclosure of information onall matters relating to
official transactions and those involving public interest. Pertinently, Section
28, Article II and Section 7, Article III of the Constitution, provide: Article II

Declaration of Principles and State Policies Principles

Section 28. Subject to reasonable conditions prescribed by law, the State

adopts and implements a policy of full public disclosure of all its transactions
involving public interest.

Article III
Bill of Rights

Section 7. The right of the people to information on matters of public concern

shall be recognized. Access to official records, and to documents and
papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.

In the instant case, the assailed issuances were issued pursuant to the
policy of promoting good governance through transparency, accountability
and participation. The action of the respondent is certainly within the
constitutional bounds of his power as alter ego of the President.

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 PoliRev/LGC

EN BANC issued Administrative Order 273-A (AO 273-A) amending the former, by
delegating instead of transferring supervision of the ARMM to the DILG.[3]

DATU ZALDY UY AMPATUAN, G.R. No. 190259 Claiming that the Presidents issuances encroached on the ARMMs
ANSARUDDIN ADIONG, REGIE autonomy, petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and
SAHALI-GENERALE Petitioners, Regie Sahali-Generale, all ARMM officials,[4] filed this petition for prohibition
- versus - under Rule 65. They alleged that the proclamation and the orders
HON. RONALDO PUNO, in his capacity empowered the DILG Secretary to take over ARMMs operations and seize
as Secretary of the Department of Interior the regional governments powers, in violation of the principle of local
and Local Government and alter-ego of autonomy under Republic Act 9054 (also known as the Expanded ARMM
President Gloria Macapagal-Arroyo, Act) and the Constitution. The President gave the DILG Secretary the power
and anyone acting in his stead and on to exercise, not merely administrative supervision, but control over the
behalf of the President of the Philippines, ARMM since the latter could suspend ARMM officials and replace them. [5]
ARMED FORCES OF THE PHILIPPINES
(AFP), or any of their units operating in Petitioner ARMM officials claimed that the President had no factual basis
the Autonomous Region in Muslim for declaring a state of emergency, especially in the Province of Sultan
Mindanao (ARMM), and PHILIPPINE Kudarat and the City of Cotabato, where no critical violent incidents
NATIONAL POLICE, or any of their Promulgated: occurred. The deployment of troops and the taking over of the ARMM
units operating in ARMM, constitutes an invalid exercise of the Presidents emergency
Respondents. June 7, 2011 powers.[6] Petitioners asked that Proclamation 1946 as well as AOs 273 and
273-A be declared unconstitutional and that respondents DILG Secretary,
x ---------------------------------------------------------------------------------------- x the AFP, and the PNP be enjoined from implementing them.

In its comment for the respondents,[7] the Office of the Solicitor

DECISION
ABAD, J.:
On November 24, 2009, the day after the gruesome massacre of 57 men
and women, including some news reporters, then President Gloria
Macapagal-Arroyo issued Proclamation 1946,[1] placing the Provinces of
Maguindanao and Sultan Kudarat and the City of Cotabato under a state of
emergency. She directed the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP) to undertake such measures as may
be allowed by the Constitution and by law to prevent and suppress all
incidents of lawless violence in the named places.
Three days later or on November 27, President Arroyo also issued
Administrative Order 273 (AO 273)[2] transferring supervision of the
Autonomous Region of Muslim Mindanao (ARMM) from the Office of the
President to the Department of Interior and Local Government (DILG). But,
due to issues raised over the terminology used in AO 273, the President
General (OSG) insisted that the President issued Proclamation 1946, not to
deprive the ARMM of its autonomy, but to restore peace and order in subject
places.[8] She issued the proclamation pursuant to her calling out power[9] as
Commander-in-Chief under the first sentence of Section 18, Article VII of
the Constitution. The determination of the need to exercise this power rests
solely on her wisdom.[10] She must use her judgment based on intelligence
reports and such best information as are available to her to call out the
armed forces to suppress and prevent lawless violence wherever and
whenever these reared their ugly heads.
On the other hand, the President merely delegated through AOs
273 and 273-A her supervisory powers over the ARMM to the DILG
Secretary who was her alter ego any way. These orders did not authorize a
take over of the ARMM. They did not give him blanket authority to suspend
or replace ARMM officials.[11] The delegation was necessary to facilitate the
investigation of the mass killings.[12] Further, the assailed proclamation and
administrative orders did not provide for the exercise of emergency
powers.[13]
Although normalcy has in the meantime returned to the places subject of
this petition, it might be relevant to rule on the issues raised in this petition
since some acts done pursuant to Proclamation 1946 and AOs 273 and

Page | 29

273-A could impact on the administrative and criminal cases that the
government subsequently filed against those believed affected by such
proclamation and orders.
The Issues Presented
The issues presented in this case are:
1. Whether or not Proclamation 1946 and AOs 273 and 273-A
violate the principle of local autonomy under Section 16, Article X of the
Constitution, and Section 1, Article V of the Expanded ARMM Organic Act;
2. Whether or not President Arroyo invalidly exercised emergency
powers when she called out the AFP and the PNP to prevent and suppress
all incidents of lawless violence in Maguindanao, Sultan Kudarat, and
Cotabato City; and
3. Whether or not the President had factual bases for her actions.
The Rulings of the Court
We dismiss the petition.
One. The claim of petitioners that the subject proclamation and
administrative orders violate the principle of local autonomy is anchored on
the allegation that, through them, the President authorized the DILG
Secretary to take over the operations of the ARMM and assume direct
governmental powers over the region.
But, in the first place, the DILG Secretary did not take over control
of the powers of the ARMM. After law enforcement agents took respondent
Governor of ARMM into custody for alleged complicity in the Maguindanao
massacre, the ARMM Vice-Governor, petitioner Ansaruddin Adiong,
assumed the vacated post on December 10, 2009 pursuant to the rule on
succession found in Article VII, Section 12,[14] of RA 9054. In turn, Acting
Governor Adiong named the then Speaker of the ARMM Regional
Assembly, petitioner Sahali-Generale, Acting ARMM Vice-Governor.[15] In
short, the DILG Secretary did not take over the administration or operations
of the ARMM.
Two. Petitioners contend that the President unlawfully exercised
emergency powers when she ordered the deployment of AFP and PNP
personnel in the places mentioned in the proclamation.[16] But such
deployment is not by itself an exercise of emergency powers as understood
under Section 23 (2), Article VI of the Constitution, which provides:
PoliRev/LGC
SECTION 23. x x x (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.
The President did not proclaim a national emergency, only a state
of emergency in the three places mentioned. And she did not act pursuant
to any law enacted by Congress that authorized her to exercise
extraordinary powers. The calling out of the armed forces to prevent or
suppress lawless violence in such places is a power that the Constitution
directly vests in the President. She did not need a congressional authority
to exercise the same.
Three. The Presidents call on the armed forces to prevent or
suppress lawless violence springs from the power vested in her under
Section 18, Article VII of the Constitution, which provides.[17]
SECTION 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. x x x
While it is true that the Court may inquire into the factual bases for
the Presidents exercise of the above power,[18] it would generally defer to
her judgment on the matter. As the Court acknowledged in Integrated Bar
of the Philippines v. Hon. Zamora,[19] it is clearly to the President that the
Constitution entrusts the determination of the need for calling out the armed
forces to prevent and suppress lawless violence. Unless it is shown that
such determination was attended by grave abuse of discretion, the Court
will accord respect to the Presidents judgment. Thus, the Court said:
If the petitioner fails, by way of proof, to
support the assertion that the President acted without
factual basis, then this Court cannot undertake an
independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not
easily quantifiable and cannot be objectively
established since matters considered for satisfying the
same is a combination of several factors which are not
always accessible to the courts. Besides the absence
Page | 30

of textual standards that the court may use to judge
necessity, information necessary to arrive at such
judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult
to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President
might decide that there is a need to call out the armed
forces may be of a nature not constituting technical
proof.
On the other hand, the President, as
Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as
highly confidential or affecting the security of the state.
In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in
emergency situations to avert great loss of human
lives and mass destruction of property. Indeed, the
decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if
it were to have any effect at all. x x x.[20]
Here, petitioners failed to show that the declaration of a state of emergency
in the Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well
as the Presidents exercise of the calling out power had no factual basis.
They simply alleged that, since not all areas under the ARMM were placed
under a state of emergency, it follows that the take over of the entire ARMM
by the DILG Secretary had no basis too.[21]
But, apart from the fact that there was no such take over to begin
with, the OSG also clearly explained the factual bases for the Presidents
decision to call out the armed forces, as follows:
The Ampatuan and Mangudadatu clans are
prominent families engaged in the political control of
Maguindanao. It is also a known fact that both families
have an arsenal of armed followers who hold elective
positions in various parts of the ARMM and the rest
of Mindanao.
Considering the fact that the principal victims
of the brutal bloodshed are members of the
Mangudadatu family and the main perpetrators of the
brutal killings are members and followers of the
Ampatuan family, both the military and police had to
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prepare for and prevent reported retaliatory actions
from the Mangudadatu clan and additional offensive
measures from the Ampatuan clan.
xxxx
The Ampatuan forces are estimated to be
approximately two thousand four hundred (2,400)
persons, equipped with about two thousand (2,000)
firearms, about four hundred (400) of which have been
accounted for. x x x
As for the Mangudadatus, they have an
estimated one thousand eight hundred (1,800)
personnel, with about two hundred (200) firearms. x x
x
Apart from their own personal forces, both
clans have Special Civilian Auxiliary Army (SCAA)
personnel who support them: about five hundred (500)
for the Ampatuans and three hundred (300) for the
Mangudadatus.
What could be worse than the armed clash of
two warring clans and their armed supporters,
especially in light of intelligence reports on the
potential involvement of rebel armed groups (RAGs).
One RAG was reported to have planned an
attack on the forces of Datu Andal Ampatuan, Sr. to
show support and sympathy for the victims. The said
attack shall worsen the age-old territorial dispute
between the said RAG and the Ampatuan family.
xxxx
On the other hand, RAG faction which is based
in Sultan Kudarat was reported to have received three
million pesos (P3,000,000.00) from Datu Andal
Ampatuan, Sr. for the procurement of ammunition. The
said faction is a force to reckon with because the group
is well capable of launching a series of violent
activities to divert the attention of the people and the
authorities away from the multiple murder case. x x x
Page | 31
 PoliRev/LGC

In addition, two other factions of a RAG are

likely to support the Mangudadatu family. The
Cotabato-based faction has the strength of about five
hundred (500) persons and three hundred seventy-two
(372) firearms while the Sultan Kudarat-based faction
has the strength of about four hundred (400) persons
and three hundred (300) firearms and was reported to
be moving towards Maguindanao to support the
Mangudadatu clan in its armed fight against the
Ampatuans.[22]

In other words, the imminence of violence and anarchy at the time the
President issued Proclamation 1946 was too grave to ignore and she had
to act to prevent further bloodshed and hostilities in the places
mentioned. Progress reports also indicated that there was movement in
these places of both high-powered firearms and armed men sympathetic to
the two clans.[23] Thus, to pacify the peoples fears and stabilize the situation,
the President had to take preventive action. She called out the armed forces
to control the proliferation of loose firearms and dismantle the armed groups
that continuously threatened the peace and security in the affected places.

Notably, the present administration of President Benigno Aquino III has not
withdrawn the declaration of a state of emergency under Proclamation
1946. It has been reported[24] that the declaration would not be lifted soon
because there is still a need to disband private armies and confiscate loose
firearms. Apparently, the presence of troops in those places is still
necessary to ease fear and tension among the citizenry and prevent and
suppress any violence that may still erupt, despite the passage of more than
a year from the time of the Maguindanao massacre.

Since petitioners are not able to demonstrate that the proclamation

of state of emergency in the subject places and the calling out of the armed
forces to prevent or suppress lawless violence there have clearly no factual
bases, the Court must respect the Presidents actions.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Page | 32

Republic of the Philippines
SUPREME COURT
Manila
G.R. No. L-41322 September 29, 1988
MUNICIPALITY OF KAPALONG, thru its Mayor, PORFIRIO F. ROYO
Vice Mayor, TOMAS D. MANZANO, Municipal Councilors VALERIANO
CLARO, CARIDAD A. DORONIO FELICULO ESTRADA, GEORGE
PEDRO JAIN, LIDO E. MONOY SALVADOR PASPE and AGUEDO
ROTOL petitioners,
vs.
HON. FELIX L. MOYA, Presiding Judge of Court of First Instance of
Davao, Branch IX, and the MUNICIPALITY OF STO. TOMAS, thru its
Mayor, ANICETO SOLIS, Vice-Mayor LEOPOLDO RECTO, Municipal
Councilors DOMINGO CAGADAS, WENCESLAO CASTRO, WILDA
ESPIRITU, PASTOR FERNANDEZ, MACROSQUE PIMENTEL,
DOMINADOR SOLIS, JOSE TAGHOY and ALFONSO VALDEZ, and
Municipal Treasurer JOSE AVENIDO, respondents.
Martin V. Delgra, Jr. for petitioners.
Simeon N. Millan Jr. for respondent Santo Tomas.
PARAS, J.:
This is a petition for certiorari and prohibition with preliminary injunction
seeking: (a) the reversal (annulment) of the February 17, 1975 Order of the
then Court of First Instance of Davao denying the motion to dismiss Civil
Case No. 475; and the March 17, 1975 and July 10, 1975 Orders of the
same Court denying petitioner's motions for reconsideration; and (b) the
issuance of a writ of prohibition directing respondent Judge to desist from
taking cognizance of Civil Case No. 475.
From portions of the Municipality of Kapalong, President Carlos P. Garcia
created respondent Municipality of Santo Tomas, and the latter now asserts
jurisdiction over eight (8) barrios of petitioner. For many years and on
several occasions, this conflict of boundaries between the two municipalities
was brought, at the instance of private respondent, to the Provincial Board
of Davao for it to consider and decide. However, it appears that no action
was taken on the same. Private respondent then filed a complaint with the
then Court of First Instance of Davao, presided over by herein public
PoliRev/LGC
respondent Judge Felix L. Moya against the Municipality of Kapalong, for
settlement of the municipal boundary dispute, recovery of collected taxes
and damages, docketed therein as Civil Case No. 475.
On March 7, 1974, petitioner filed its Answer (Rollo, pp. 1417).
On November 22, 1974, petitioner filed a Motion to Dismiss on the ground
of lack of jurisdiction of the lower court and lack of legal personality of the
Municipality of Santo Tomas (Ibid., pp. 18-22), which was opposed by
private respondent (Ibid., pp. 23-26). On December 12, 1974, petitioner filed
its reply to the opposition (Ibid., pp. 27-30), after which respondent Judge,
in an Order dated February 17, 1975, denied the motion to dismiss (Ibid.,
pp. 34-36).
On March 3, 1975, petitioner filed a Motion for Reconsideration (Ibid., pp.
37-40), but in an Order dated March 17, 1975, the same was denied by
respondent Judge and so was the Second Motion for Reconsideration (Ibid.,
pp. 42-43), in an Order dated July 10, 1975 (Ibid., p. 44). Hence, the instant
petition (Ibid., pp. 1-10).
The Second Division of this Court, in a Resolution dated September 10,
1975, resolved to require the respondents to answer and to issue a
temporary restraining order (Ibid., p. 49). In compliance therewith, private
respondent filed its Answer on October 28, 1975 (Ibid., pp. 53-57). In the
Resolution dated November 3, 1975, the parties were required to file their
respective memoranda (Ibid., p. 65). Petitioner filed its Memorandum on
December 10, 1975 (Ibid., pp. 68-76), and private respondent on January
5, 1975 (Ibid., pp. 77-85). Petitioner raised four (4) issues, to wit:
1. WHETHER OR NOT PRIVATE RESPONDENT HAS LEGAL
PERSONALITY TO SUE;
2. WHETHER OR NOT THE MATTER OF SETTLEMENT OF BOUNDARY
DISPUTE IS A POLITICAL QUESTION;
3. WHETHER OR NOT PRESIDENTIAL DECREE NO. 242 SUPERSEDED
REPUBLIC ACT NO. 6128; AND
4. WHETHER OR NOT THE ACTION HAS ALREADY PRESCRIBED.
The instant petition is impressed with merit.
Page | 33
 PoliRev/LGC

The pivotal issue in this case is whether or not the Municipality of Santo
Tomas legally exists.

Petitioner contends that the ruling of this Court in Pelaez v. Auditor

General.
(15 SCRA 569) is clear that the President has no power to create
municipalities. Thus, there is no Municipality of Santo Tomas to speak of It
has no right to assert, no cause of action, no corporate existence at all, and
it must perforce remain part and parcel of Kapalong. Based on this premise,
it submits that respondent Judge should have dismissed the case.

On the ground of jurisdiction, petitioner argues that the settlement of

boundary disputes is administrative in nature and should originate in the
political or administrative agencies of the government, and not in the courts
whose power is limited to judicial review on appropriate occasions (Ibid., pp.
73-74).

Rule 3, Section 1 of the Rules of Court expressly provides that only "entities
authorized by law may be patties in a civil action." Now then, as ruled in the
Pelaez case supra, the President has no power to create a municipality.
Since private respondent has no legal personality, it can not be a party to
any civil action, and as such, respondent Judge should have dismissed the
case, since further proceedings would be pointless.

PREMISES CONSIDERED, the petition is GRANTED; the Orders of

February 17, 1975, March 17, 1975 and July 10, 1975 of respondent Judge
are SET ASIDE; and Civil Case No. 475 is DISMISSED. The restraining
order previously issued by this Court is made permanent.

Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ.,

concur.

Page | 34

EN BANC
G.R. No. 73155 July 11, 1986
PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO,
VIRGILIO GASTON, CONCHITA MINAYA, TERESITA ESTACIO,
DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE
HOFILENA, EMILY JISON, NIEVES LOPEZ AND CECILIA
MAGSAYSAY, petitioners,
vs.
THE COMMISSION ON ELECTIONS and THE PROVINCIAL
TREASURER OF NEGROS OCCIDENTAL, respondents.
Gamboa & Hofileña Law Office for petitioners.
ALAMPAY, J.:
Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating
a New Province in the Island of Negros to be known as the Province of
Negros del Norte, which took effect on December 3, 1985, Petitioners
herein, who are residents of the Province of Negros Occidental, in the
various cities and municipalities therein, on December 23, 1985, filed with
this Court a case for Prohibition for the purpose of stopping respondents
Commission on Elections from conducting the plebiscite which, pursuant to
and in implementation of the aforesaid law, was scheduled for January 3,
1986. Said law provides:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and
the municipalities of Calatrava, Taboso, Escalante, Sagay,
Manapla, Victorias, E.R. Magalona; and Salvador
Benedicto, all in the northern portion of the Island of
Negros, are hereby separated from the province to be
known as the Province of Negros del Norte.
SEC. 2. The boundaries of the new province shall be the
southern limits of the City of Silay, the Municipality of
Salvador Benedicto and the City of San Carlos on the south
and the territorial limits of the northern portion to the Island
of Negros on the west, north and east, comprising a
territory of 4,019.95 square kilometers more or less.
PoliRev/LGC
SEC. 3. The seat of government of the new province shall
be the City of Cadiz.
SEC. 4. A plebiscite shall be conducted in the proposed
new province which are the areas affected within a period
of one hundred and twenty days from the approval of this
Act. After the ratification of the creation of the Province of
Negros del Norte by a majority of the votes cast in such
plebiscite, the President of the Philippines shall appoint the
first officials of the province.
SEC. 5. The Commission on Elections shall conduct and
supervise the plebiscite herein provided, the expenses for
which shall be charged to local funds.
SEC. 6. This Act shall takeeffect upon its approval.(Rollo,
pp. 23-24)
Petitioners contend that Batas Pambansa Blg. 885 is
unconstitutional and it is not in complete accord with the
Local Government Code as in Article XI, Section 3 of our
Constitution, it is expressly mandated that—
See. 3. No province, city, municipality or barrio 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 in a plebiscite in the
unit or units affected.
Section 197 of the Local Government Code enumerates the conditions
which must exist to provide the legal basis for the creation of a provincial
unit and these requisites are:
SEC. 197. Requisites for Creation. A province may be
created if it has a territory of at least three thousand five
hundred square kilometers, a population of at least five
hundred thousand persons, an average estimated annual
income, as certified by the Ministry of Finance, of not less
than ten million pesos for the last three consecutive years,
and its creation shall not reduce the population and income
of the mother province or provinces at the time of said
creation to less than the minimum requirements under this
Page | 35

section. The territory need not be contiguous if it comprises
two or more islands.
The average estimated annual income shall include the
income alloted for both the general and infrastructural
funds, exclusive of trust funds, transfers and nonrecurring
income. (Rollo, p. 6)
Due to the constraints brought about by the supervening Christmas holidays
during which the Court was in recess and unable to timely consider the
petition, a supplemental pleading was filed by petitioners on January 4,
1986, averring therein that the plebiscite sought to be restrained by them
was held on January 3, 1986 as scheduled but that there are still serious
issues raised in the instant case affecting the legality, constitutionality and
validity of such exercise which should properly be passed upon and
resolved by this Court.
The plebiscite was confined only to the inhabitants of the territory of Negros
del N•rte, namely: the Cities of Silay, Cadiz, and San Carlos, and the
municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias,
E.B. Magalona and Don Salvador Benedicto. Because of the exclusions of
the voters from the rest of the province of Negros Occidental, petitioners
found need to change the prayer of their petition "to the end that the
constitutional issues which they have raised in the action will be ventilated
and given final resolution.'"At the same time, they asked that the effects of
the plebiscite which they sought to stop be suspended until the Supreme
Court shall have rendered its decision on the very fundamental and far-
reaching questions that petitioners have brought out.
Acknowledging in their supplemental petition that supervening events
rendered moot the prayer in their initial petition that the plebiscite scheduled
for January 3, 1986, be enjoined, petitioners plead, nevertheless, that-
... a writ of Prohibition be issued, directed to Respondent
Commission on Elections to desist from issuing official
proclamation of the results of the plebiscite held on January
3, 1986.
Finding that the exclusion and non-participation of the
voters of the Province of Negros Occidental other than
those living within the territory of the new province of
Negros del Norte to be not in accordance with the
Constitution, that a writ of mandamus be issued, directed
to the respondent Commission on Elections, to schedule
PoliRev/LGC
the holding of another plebiscite at which all the qualified
voters of the entire Province of Negros Occidental as now
existing shall participate, at the same time making
pronouncement that the plebiscite held on January 3, 1986
has no legal effect, being a patent legal nullity;
And that a similar writ of Prohibition be issued, directed to
the respondent Provincial Treasurer, to desist from
ordering the release of any local funds to answer for
expenses incurred in the holding of such plebiscite until
ordered by the Court. (Rollo pp. 9-10).
Petitioners further prayed that the respondent COMELEC
hold in abeyance the issuance of any official proclamation
of the results of the aforestated plebiscite.
During the pendency of this case, a motion that he be allowed to appear as
amicus curiae in this case (dated December 27, 1985 and filed with the
Court on January 2, 1986) was submitted by former Senator Ambrosio
Padilla. Said motion was granted in Our resolution of January 2, 1986.
Acting on the petition, as well as on the supplemental petition for prohibition
with preliminary injunction with prayer for restraining order, the Court, on
January 7, 1986 resolved, without giving due course to the same, to require
respondents to comment, not to file a motion to dismiss. Complying with
said resolution, public respondents, represented by the Office of the
Solicitor General, on January 14, 1986, filed their Comment, arguing therein
that the challenged statute.-Batas Pambansa 885, should be accorded the
presumption of legality. They submit that the said law is not void on its face
and that the petition does not show a clear, categorical and undeniable
demonstration of the supposed infringement of the Constitution.
Respondents state that the powers of the Batasang-Pambansa to enact the
assailed law is beyond question. They claim that Batas Pambansa Big. 885
does not infringe the Constitution because the requisites of the Local
Government Code have been complied with. Furthermore, they submit that
this case has now become moot and academic with the proclamation of the
new Province of Negros del Norte.
Respondents argue that the remaining cities and municipalities of the
Province of Negros Occidental not included in the area of the new Province
of Negros del Norte, de not fall within the meaning and scope of the term
"unit or units affected", as referred to in Section 3 of Art. XI of our
Constitution. On this reasoning, respondents maintain that Batas
Pambansa Blg. 885 does not violate the Constitution, invoking and citing
Page | 36

the case of Governor Zosimo Paredes versus the Honorable Executive
Secretary to the President, et al. (G.R. No. 55628, March 2, 1984 (128
SCRA 61), particularly the pronouncements therein, hereunder quoted:
1. Admittedly,this is one of those cases where the
discretion of the Court is allowed considerable leeway.
There is indeed an element of ambiguity in the use of the
expression 'unit or units affected'. It is plausible to assert as
petitioners do that when certain Barangays are separated
from a parent municipality to form a new one, all the voters
therein are affected. It is much more persuasive, however,
to contend as respondents do that the acceptable
construction is for those voters, who are not from the
barangays to be separated, should be excluded in the
plebiscite.
2. For one thing, it is in accordance with the settled doctrine
that between two possible constructions, one avoiding a
finding of unconstitutionality and the other yielding such a
result, the former is to be preferred. That which will save,
not that which will destroy, commends itself for acceptance.
After all, the basic presumption all these years is one of
validity. ...
3. ... Adherence to such philosophy compels the conclusion
that when there are indications that the inhabitants of
several barangays are inclined to separate from a parent
municipality they should be allowed to do so. What is more
logical than to ascertain their will in a plebiscite called for
that purpose. It is they, and they alone, who shall constitute
the new unit. New responsibilities will be assumed. New
burdens will be imposed. A new municipal corporation will
come into existence. Its birth will be a matter of choice-their
choice. They should be left alone then to decide for
themselves. To allow other voters to participate will not
yield a true expression of their will. They may even frustrate
it, That certainly will be so if they vote against it for selfish
reasons, and they constitute the majority. That is not to
abide by the fundamental principle of the Constitution to
promote local autonomy, the preference being for smaller
units. To rule as this Tribunal does is to follow an accepted
principle of constitutional construction, that in ascertaining
the meaning of a particular provision that may give rise to
doubts, the intent of the framers and of the people may be
gleaned from provisions in pari materia.
PoliRev/LGC
Respondents submit that said ruling in the aforecited case applies equally
with force in the case at bar. Respondents also maintain that the requisites
under the Local Government Code (P.D. 337) for the creation of the new
province of Negros del Norte have all been duly complied with,
Respondents discredit petitioners' allegations that the requisite area of
3,500 square kilometers as so prescribed in the Local Government Code
for a new province to be created has not been satisfied. Petitioners insist
that the area which would comprise the new province of Negros del Norte,
would only be about 2,856.56 square kilometers and which evidently would
be lesser than the minimum area prescribed by the governing statute.
Respondents, in this regard, point out and stress that Section 2 of Batas
Pambansa Blg. 885 creating said new province plainly declares that the
territorial boundaries of Negros del Norte comprise an area of 4,019.95
square kilometers, more or less.
As a final argument, respondents insist that instant petition has been
rendered moot and academic considering that a plebiscite has been already
conducted on January 3, 1986; that as a result thereof, the corresponding
certificate of canvass indicated that out of 195,134 total votes cast in said
plebiscite, 164,734 were in favor of the creation of Negros del Norte and
30,400 were against it; and because "the affirmative votes cast represented
a majority of the total votes cast in said plebiscite, the Chairman of the Board
of Canvassers proclaimed the new province which shall be known as
"Negros del Norte". Thus, respondents stress the fact that following the
proclamation of Negros del Norte province, the appointments of the officials
of said province created were announced. On these considerations,
respondents urge that this case should be dismissed for having been
rendered moot and academic as the creation of the new province is now a
"fait accompli."
In resolving this case, it will be useful to note and emphasize the facts which
appear to be agreed to by the parties herein or stand unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer of the
Province of Negros Occidental has not disbursed, nor was required to
disburse any public funds in connection with the plebiscite held on January
3, 1986 as so disclosed in the Comment to the Petition filed by the
respondent Provincial Treasurer of Negros Occidental dated January 20,
1986 (Rollo, pp. 36-37). Thus, the prayer of the petitioners that said
Provincial Treasurer be directed by this Court to desist from ordering the
release of any public funds on account of such plebiscite should not longer
deserve further consideration.
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 PoliRev/LGC

Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Land Area
Batas Pambansa Blg. 885 and the creation of the new Province of Negros
del Norte, it expressly declared in Sec. 2 of the aforementioned (Sq. Km.)
Parliamentary Bill, the following:
1. Silay City
SEC. 2. The boundaries of the new province shall be the ...................................................................214.8
southern limits of the City of Silay, the Municipality of
Salvador Benedicto and the City of San Carlos on the
2. E.B.
South and the natural boundaries of the northern portion of
Magalona............................................................113.3
the Island of Negros on the West, North and
East, containing an area of 285,656 hectares more or less.
(Emphasis supplied). 3.
Victorias.....................................................................133.9
However, when said Parliamentary Bill No. 3644 was very quickly enacted
into Batas Pambansa Blg. 885, the boundaries of the new Province of 4.
Negros del Norte were defined therein and its boundaries then stated to be Manapla......................................................................112.9
as follows:
5. Cadiz City
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and ..................................................................516.5
the municipalities of Calatrava, Toboso, Escalante, Sagay,
Manapla, Victorias, E.R. Magalona; and Salvador 6. Sagay
Benedicto, all in the northern portion of the Island of .........................................................................389.6
Negros, are hereby separated from the Province of Negros
Occidental and constituted into a new province to be known 7. Escalante
as the Province of Negros del Norte. ....................................................................124.0

SEC. 1. The boundaries of the new province shall be the 8.

southern limits of the City of Silay, the Municipality of
Salvador Benedicto and the City of San Carlos on the south
and the territorial limits of the northern portion of the Island
of Negros on the West, North and East, comprising a
territory of 4,019.95 square kilometers more or less.
Toboso.......................................................................123.4
9.
Calatrava.....................................................................504.
5

Equally accepted by the parties is the fact that under the certification issued 10. San Carlos
by Provincial Treasurer Julian L. Ramirez of the Province of Negros City...........................................................451.3
Occidental, dated July 16, 1985, it was therein certified as follows:
11. Don Salvador Benedicto.................................... (not
xxx xxx xxx available)

This is to certify that the following cities and municipalities This certification is issued upon the request of Dr. Patricio
of Negros Occidental have the land area as indicated Y. Tan for whatever purpose it may serve him.
hereunder based on the Special Report No. 3, Philippines
1980, Population, Land Area and Density: 1970, 1975 and
(SGD.) JULIAN L. RAMIREZ
1980 by the National Census and Statistics Office, Manila.

Page | 38

Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).
Although in the above certification it is stated that the land area of the
relatively new municipality of Don Salvador Benedicto is not available, it is
an uncontradicted fact that the area comprising Don Salvador municipality,
one of the component units of the new province, was derived from the City
of San Carlos and from the Municipality of Calatrava, Negros Occidental,
and added thereto was a portion of about one-fourth the land area of the
town of Murcia, Negros Occidental. It is significant to note the
uncontroverted submission of petitioners that the total land area of the entire
municipality of Murcia, Negros Occidental is only 322.9 square
kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area of
Murcia that was added to the portions derived from the land area of
Calatrava, Negros Occidental and San Carlos City (Negros Occidental)
would constitute, therefore, only 80.2 square kilometers. This area of 80.2
square kilometers if then added to 2,685.2 square kilometers, representing
the total land area of the Cities of Silay, San Carlos and Cadiz and the
Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante,
Taboso and Calatrava, will result in approximately an area of only 2,765.4
square kilometers using as basis the Special Report, Philippines 1980,
Population, Land Area and Density: 1970, 1975 and 1980 of the National
Census and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90).
No controversion has been made by respondent with respect to the
allegations of petitioners that the original provision in the draft legislation,
Parliamentary Bill No. 3644, reads:
SEC. 4. A plebiscite shall be conducted in the areas
affected within a period of one hundred and twenty days
from the approval of this Act. After the ratification of the
creation of the Province of Negros del Norte by a majority
of the votes cast in such plebiscite, the President shall
appoint the first officials of the new province.
However, when Batas Pambansa Blg. 885 was enacted, there was a
significant change in the above provision. The statute, as modified, provides
that the requisite plebiscite "shall be conducted in the proposed new
province which are the areas affected."
It is this legislative determination limiting the plebiscite exclusively to the
cities and towns which would comprise the new province that is assailed by
the petitioners as violative of the provisions of our Constitution. Petitioners
submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would be
held in the unit or units affected by the creation of the new province as a
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result of the consequent division of and substantial alteration of the
boundaries of the existing province. In this instance, the voters in the
remaining areas of the province of Negros Occidental should have been
allowed to participate in the questioned plebiscite.
Considering that the legality of the plebiscite itself is challenged for non-
compliance with constitutional requisites, the 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 the light of the facts and circumstances alluded to by petitioners as
attending to the unusually rapid creation of the instant province of Negros
del Norte after a swiftly scheduled plebiscite, this Tribunal has the duty to
repudiate and discourage the commission of acts which run counter to the
mandate of our fundamental law, done by whatever branch of our
government. This Court gives notice that it will not look with favor upon
those who may be hereafter inclined to ram through all sorts of legislative
measures and then implement the same with indecent haste, even if such
acts would violate the Constitution and the prevailing statutes of our land. It
is illogical to ask that this Tribunal be blind and deaf to protests on the
ground that what is already done is done. To such untenable argument the
reply would be that, be this so, the Court, nevertheless, still has the duty
and right to correct and rectify the wrong brought to its attention.
On the merits of the case.
Aside from the simpler factual issue relative to the land area of the new
province of Negros del Norte, the more significant and pivotal issue in the
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present case revolves around in the interpretation and application in the
case at bar of Article XI, Section 3 of the Constitution, which being brief and
for convenience, We again quote:
SEC. 3. No province, city, municipality or barrio 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 in a plebiscite in the
unit or units affected.
It can be plainly seen that the aforecited constitutional provision makes it
imperative that there be first obtained "the approval of a majority of votes in
the plebiscite in the unit or units affected" whenever a province is created,
divided or merged and there is substantial alteration of the boundaries. It is
thus inescapable to conclude that the boundaries of the existing province of
Negros Occidental would necessarily be substantially altered by the division
of its existing boundaries in order that there can be created the proposed
new province of Negros del Norte. Plain and simple logic will demonstrate
than that two political units would be affected. The first would be the parent
province of Negros Occidental because its boundaries would be
substantially altered. The other affected entity would be composed of those
in the area subtracted from the mother province to constitute the proposed
province of Negros del Norte.
We find no way to reconcile the holding of a plebiscite that should conform
to said constitutional requirement but eliminates the participation of either
of these two component political units. No amount of rhetorical flourishes
can justify exclusion of the parent province in the plebiscite because of an
alleged intent on the part of the authors and implementors of the challenged
statute to carry out what is claimed to be a mandate to guarantee and
promote autonomy of local government units. The alleged good intentions
cannot prevail and overrule the cardinal precept that what our Constitution
categorically directs to be done or imposes as a requirement must first be
observed, respected and complied with. No one should be allowed to pay
homage to a supposed fundamental policy intended to guarantee and
promote autonomy of local government units but at the same time
transgress, ignore and disregard what the Constitution commands in Article
XI Section 3 thereof. Respondents would be no different from one who
hurries to pray at the temple but then spits at the Idol therein.
We find no merit in the submission of the respondents that the petition
should be dismissed because the motive and wisdom in enacting the law
may not be challenged by petitioners. The principal point raised by the
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petitioners is not the wisdom and motive in enacting the law but the
infringement of the Constitution which is a proper subject of judicial inquiry.
Petitioners' discussion regarding the motives behind the enactment of B.P.
Blg. 885 to say the least, are most enlightening and provoking but are
factual issues the Court cannot properly pass upon in this case. Mention by
petitioners of the unexplained changes or differences in the proposed
Parliamentary Bill No. 3644 and the enacted Batas Pambansa Blg. 885; the
swift and surreptitious manner of passage and approval of said law; the
abrupt scheduling of the plebiscite; the reference to news articles regarding
the questionable conduct of the said plebiscite held on January 3, 1986; all
serve as interesting reading but are not the decisive matters which should
be reckoned in the resolution of this case.
What the Court considers the only significant submissions lending a little
support to respondents' case is their reliance on the rulings and
pronouncements made by this Court in the case of Governor Zosimo
Paredes versus The Honorable Executive Secretary to the President, et al.,
G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case relating to a
plebiscite held to ratify the creation of a new municipality from existing
barangays, this Court upheld the legality of the plebiscite which was
participated in exclusively by the people of the barangay that would
constitute the new municipality.
This Court is not unmindful of this solitary case alluded to by respondents.
What is, however, highly significant are the prefatory statements therein
stating that said case is "one of those cases where the discretion of the
Court is allowed considerable leeway" and that "there is indeed an element
of ambiguity in the use of the expression unit or units affected." The ruling
rendered in said case was based on a claimed prerogative of the Court then
to exercise its discretion on the matter. It did not resolve the question of how
the pertinent provision of the Constitution should be correctly interpreted.
The ruling in the aforestated case of Paredes vs. The Honorable Executive
Secretary, et al. (supra) should not be taken as a doctrinal or compelling
precedent when it is acknowledged therein that "it is plausible to assert, as
petitioners do, that when certain Barangays are separated from a parent
municipality to form a new one, all the voters therein are affected."
It is relevant and most proper to mention that in the aforecited case
of Paredes vs. Executive Secretary, invoked by respondents, We find very
lucidly expressed the strong dissenting view of Justice Vicente Abad
Santos, a distinguished member of this Court, as he therein voiced his
opinion, which We hereunder quote:
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2. ... when the Constitution speaks of "the unit or units
affected" it means all of the people of the municipality if the
municipality is to be divided such as in the case at bar or
an of the people of two or more municipalities if there be a
merger. I see no ambiguity in the Constitutional provision.
This dissenting opinion of Justice Vicente Abad Santos is the— forerunner
of the ruling which We now consider applicable to the case at bar, In the
analogous case of Emilio C. Lopez, Jr., versus the Honorable Commission
on Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was
reiterated by Justice Abad Santos as he therein assailed as suffering from
a constitutional infirmity a referendum which did not include all the people
of Bulacan and Rizal, when such referendum was intended to ascertain if
the people of said provinces were willing to give up some of their towns to
Metropolitan Manila. His dissenting opinion served as a useful guideline in
the instant case.
Opportunity to re-examine the views formerly held in said cases is now
afforded the present Court. The reasons in the mentioned cases invoked by
respondents herein were formerly considered acceptable because of the
views then taken that local autonomy would be better promoted However,
even this consideration no longer retains persuasive value.
The environmental facts in the case before Us readily disclose that the
subject matter under consideration is of greater magnitude with concomitant
multifarious complicated problems. In the earlier case, what was involved
was a division of a barangay which is the smallest political unit in the Local
Government Code. Understandably, few and lesser problems are involved.
In the case at bar, creation of a new province relates to the largest political
unit contemplated in Section 3, Art. XI of the Constitution. To form the new
province of Negros del Norte no less than three cities and eight
municipalities will be subtracted from the parent province of Negros
Occidental. This will result in the removal of approximately 2,768.4 square
kilometers from the land area of an existing province whose boundaries will
be consequently substantially altered. It becomes easy to realize that the
consequent effects cf the division of the parent province necessarily will
affect all the people living in the separate areas of Negros Occidental and
the proposed province of Negros del Norte. The economy of the parent
province as well as that of the new province will be inevitably affected, either
for the better or for the worse. Whatever be the case, either or both of these
political groups will be affected and they are, therefore, the unit or units
referred to in Section 3 of Article XI of the Constitution which must be
included in the plebiscite contemplated therein.
PoliRev/LGC
It is a well accepted rule that "in ascertaining the meaning of a particular
provision that may give rise to doubts, the intent of the framers and of the
people, may be gleaned from the provisions in pari materia." Parliamentary
Bill No. 3644 which proposed the creation of the new province of Negros
del Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in
the areas affected within a period of one hundred and twenty days from the
approval of this Act." As this draft legislation speaks of "areas," what was
contemplated evidently are plurality of areas to participate in the plebiscite.
Logically, those to be included in such plebiscite would be the people living
in the area of the proposed new province and those living in the parent
province. This assumption will be consistent with the requirements set forth
in the Constitution.
We fail to find any legal basis for the unexplained change made when
Parliamentary Bill No. 3644 was enacted into Batas Pambansa Blg. 885 so
that it is now provided in said enabling law that the plebiscite "shall be
conducted in the proposed new province which are the areas affected." We
are not disposed to agree that by mere legislative fiat the unit or units
affected referred in the fundamental law can be diminished or restricted by
the Batasang Pambansa to cities and municipalities comprising the new
province, thereby ignoring the evident reality that there are other people
necessarily affected.
In the mind of the Court, the change made by those responsible for the
enactment of Batas Pambansa Blg. 885 betrays their own misgivings. They
must have entertained apprehensions that by holding the plebiscite only in
the areas of the new proposed province, this tactic will be tainted with
illegality. In anticipation of a possible strong challenge to the legality of such
a plebiscite there was, therefore, deliberately added in the enacted statute
a self-serving phrase that the new province constitutes the area affected.
Such additional statement serves no useful purpose for the same is
misleading, erroneous and far from truth. The remaining portion of the
parent province is as much an area affected. The substantial alteration of
the boundaries of the parent province, not to mention the other adverse
economic effects it might suffer, eloquently argue the points raised by the
petitioners.
Petitioners have averred without contradiction that after the creation of
Negros del Norte, the province of Negros Occidental would be deprived of
the long established Cities of Silay, Cadiz, and San Carlos, as well as the
municipality of Victorias. No controversion has been made regarding
petitioners' assertion that the areas of the Province of Negros Occidental
will be diminished by about 285,656 hectares and it will lose seven of the
fifteen sugar mills which contribute to the economy of the whole province.
In the language of petitioners, "to create Negros del Norte, the existing
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territory and political subdivision known as Negros Occidental has to be
partitioned and dismembered. What was involved was no 'birth' but
"amputation." We agree with the petitioners that in the case of Negros what
was involved was a division, a separation; and consequently, as Sec. 3 of
Article XI of the Constitution anticipates, a substantial alteration of
boundary.
As contended by petitioners,—
Indeed, the terms 'created', 'divided', 'merged', 'abolished'
as used in the constitutional provision do not contemplate
distinct situation isolated from the mutually exclusive to
each other. A Province maybe created where an existing
province is divided or two provinces merged. Such cases
necessarily will involve existing unit or units abolished and
definitely the boundary being substantially altered.
It would thus be inaccurate to state that where an existing
political unit is divided or its boundary substantially altered,
as the Constitution provides, only some and not all the
voters in the whole unit which suffers dismemberment or
substantial alteration of its boundary are affected. Rather,
the contrary is true.
It is also Our considered view that even hypothetically assuming that the
merits of this case can depend on the mere discretion that this Court may
exercise, nevertheless, it is the petitioners' case that deserve to be favored.
It is now time for this Court to set aside the equivocations and the indecisive
pronouncements in the adverted case of Paredes vs. the Honorable
Executive Secretary, et al. (supra). For the reasons already here express,
We now state that the ruling in the two mentioned cases sanctioning the
exclusion of the voters belonging to an existing political unit from which the
new political unit will be derived, from participating in the plebiscite
conducted for the purpose of determining the formation of another new
political unit, is hereby abandoned.
In their supplemental petition, dated January 4, 1986, it is prayed for by
petitioners that a writ of mandamus be issued, directing the respondent
Commission on Elections, to schedule the holding of another plebiscite at
which all the qualified voters of the entire province of Negros Occidental as
now existing shall participate and that this Court make a pronouncement
that the plebiscite held on January 3, 1986 has no legal effect for being a
patent nullity.
PoliRev/LGC
The Court is prepared to declare the said plebiscite held on January 3, 1986
as null and void and violative of the provisions of Sec. 3, Article XI of the
Constitution. The Court is not, however, disposed to direct the conduct of a
new plebiscite, because We find no legal basis to do so. With constitutional
infirmity attaching to the subject Batas Pambansa Big. 885 and also
because the creation of the new province of Negros del Norte is not in
accordance with the criteria established in the Local Government Code, the
factual and legal basis for the creation of such new province which should
justify the holding of another plebiscite does not exist.
Whatever claim it has to validity and whatever recognition has been gained
by the new province of Negros del Norte because of the appointment of the
officials thereof, must now be erased. That Negros del Norte is but a legal
fiction should be announced. Its existence should be put to an end as
quickly as possible, if only to settle the complications currently attending to
its creation. As has been manifested, the parent province of Negros del
Norte has been impleaded as the defendant in a suit filed by the new
Province of Negros del Norte, before the Regional Trial Court of Negros (del
Norte), docketed as Civil Case No. 169-C, for the immediate allocation,
distribution and transfer of funds by the parent province to the new province,
in an amount claimed to be at least P10,000,000.00.
The final nail that puts to rest whatever pretension there is to the legality of
the province of Negros del Norte is the significant fact that this created
province does not even satisfy the area requirement prescribed in Section
197 of the Local Government Code, as earlier discussed.
It is of course claimed by the respondents in their Comment to the exhibits
submitted by the petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the
new province has a territory of 4,019.95 square kilometers, more or less.
This assertion is made to negate the proofs submitted, disclosing that the
land area of the new province cannot be more than 3,500 square kilometers
because its land area would, at most, be only about 2,856 square
kilometers, taking into account government statistics relative to the total
area of the cities and municipalities constituting Negros del Norte.
Respondents insist that when Section 197 of the Local Government Code
speaks of the territory of the province to be created and requires that such
territory be at least 3,500 square kilometers, what is contemplated is not
only the land area but also the land and water over which the said province
has jurisdiction and control. It is even the submission of the respondents
that in this regard the marginal sea within the three mile limit should be
considered in determining the extent of the territory of the new province.
Such an interpretation is strained, incorrect, and fallacious.
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The last sentence of the first paragraph of Section 197 is most revealing.
As so stated therein the "territory need not be contiguous if it comprises two
or more islands." 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.
Said sentence states that the "territory need not be contiguous." Contiguous
means (a) in physical contact; (b) touching along all or most of one side; (c)
near, text, or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307).
"Contiguous", when employed as an adjective, as in the above sentence, is
only used when it describes physical contact, or a touching of sides of two
solid masses of matter. The meaning of particular terms in a statute may be
ascertained by reference to words associated with or related to them in the
statute (Animal Rescue League vs. Assessors, 138 A.L.R. p. 110).
Therefore, in the context of the sentence above, what need not be
"contiguous" is the "territory" the physical mass of land area. There would
arise no need for the legislators to use the word contiguous if they had
intended that the term "territory" embrace not only land area but also
territorial waters. It can be safely concluded that the word territory in the first
paragraph of Section 197 is meant to be synonymous with "land area" only.
The words and phrases used in a statute should be given the meaning
intended by the legislature (82 C.J.S., p. 636). The sense in which the words
are used furnished the rule of construction (In re Winton Lumber Co., 63 p.
2d., p. 664).
The distinction between "territory" and "land area" which respondents make
is an artificial or strained construction of the disputed provision whereby the
words of the statute are arrested from their plain and obvious meaning and
made to bear an entirely different meaning to justify an absurd or unjust
result. The plain meaning in the language in a statute is the safest guide to
follow in construing the statute. A construction based on a forced or artificial
meaning of its words and out of harmony of the statutory scheme is not to
be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).
It would be rather preposterous to maintain that a province with a small land
area but which has a long, narrow, extended coast line, (such as La Union
province) can be said to have a larger territory than a land-locked province
(such as Ifugao or Benguet) whose land area manifestly exceeds the
province first mentioned.
Allegations have been made that the enactment of the questioned state was
marred by "dirty tricks", in the introduction and passing of Parliamentary Bill
PoliRev/LGC
No. 3644 "in secret haste" pursuant to sinister designs to achieve "pure and
simple gerrymandering; "that recent happenings more than amply
demonstrate that far from guaranteeing its autonomy it (Negros del Norte)
has become the fiefdom of a local strongman" (Rollo, p. 43; emphasis
supplied).
It is not for this Court to affirm or reject such matters not only because the
merits of this case can be resolved without need of ascertaining the real
motives and wisdom in the making of the questioned law. No proper
challenge on those grounds can also be made by petitioners in this
proceeding. Neither may this Court venture to guess the motives or wisdom
in the exercise of legislative powers. Repudiation of improper or unwise
actions taken by tools of a political machinery rests ultimately, as recent
events have shown, on the electorate and the power of a vigilant people.
Petitioners herein deserve and should receive the gratitude of the people of
the Province of Negros Occidental and even by our Nation. Commendable
is the patriotism displayed by them in daring to institute this case in order to
preserve the continued existence of their historic province. They were
inspired undoubtedly by their faithful commitment to our Constitution which
they wish to be respected and obeyed. Despite the setbacks and the
hardships which petitioners aver confronted them, they valiantly and
unfalteringly pursued a worthy cause. A happy destiny for our Nation is
assured as long as among our people there would be exemplary citizens
such as the petitioners herein.
WHEREFORE, Batas Pambansa Blg. 885 is hereby declared
unconstitutional. The proclamation of the new province of Negros del Norte,
as well as the appointment of the officials thereof are also declared null and
void.
SO ORDERED.
Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras,
JJ., concur.
Melencio-Herrera, J., concurs in the result.
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 PoliRev/LGC

EN BANC 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.

BAI SANDRA S. A. SEMA, G.R. No. 177597 On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly,
Petitioner, 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
- versus - municipalities in the first district of Maguindanao. MMA Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin
COMMISSION ON ELECTIONS Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat,
and DIDAGEN P. DILANGALEN, Sultan Mastura, and Upi are hereby separated from
Respondents. the Province of Maguindanao and constituted into a
x------------------------x distinct and independent province, which is hereby created,
to be known as the Province of Shariff Kabunsuan.
PERFECTO F. MARQUEZ, G.R. No. 178628
Petitioner,
xxxx
COMMISSION ON ELECTIONS, Promulgated:
Respondent. July 16, 2008 Sec. 5. The corporate existence of this province
shall commence upon the appointment by the Regional
x--------------------------------------------------x Governor or election of the governor and majority of the
regular members of the Sangguniang Panlalawigan.
DECISION
The incumbent elective provincial officials of the Province
CARPIO, J.: 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
The Case both provinces becomes vacant as a consequence of the
creation of the Province of Shariff Kabunsuan, all
incumbent elective provincial officials shall have
These consolidated petitions[1] seek to annul Resolution No. 7902, dated 10 preference for appointment to a higher elective vacant
May 2007, of the Commission on Elections (COMELEC) treating Cotabato position and for the time being be appointed by the
City as part of the legislative district of the Province of Shariff Kabunsuan.[2] Regional Governor, and shall hold office until their
successors shall have been elected and qualified in the
The Facts 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
The Ordinance appended to the 1987 Constitution apportioned two of salaries in accordance with law. Provided, furthermore,
legislative districts for the Province of Maguindanao. The first legislative that there shall be no diminution in the number of the
district consists of Cotabato City and eight municipalities.[3] Maguindanao members of the Sangguniang Panlalawigan of the mother
forms part of the Autonomous Region in Muslim Mindanao (ARMM), created province.
under its Organic Act, Republic Act No. 6734 (RA 6734), as amended by
Republic Act No. 9054 (RA 9054).[4] Although under the Except as may be provided by national law, the existing
Ordinance, Cotabato City forms part of Maguindanaos first legislative legislative district, which includes Cotabato as a part
thereof, shall remain.

Page | 44

Later, three new municipalities[6] 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 Maguindanaos first legislative district, is not part of
the Province of Maguindanao.
The voters of Maguindanao ratified Shariff Kabunsuans 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 Citys 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
COMELECs 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 Maguindanaos 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]
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.
PoliRev/LGC
Sema contended that Shariff Kabunsuan is entitled to one representative in
Congress under Section 5 (3), Article VI of the Constitution [10] 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 Maguindanaos first
legislative district despite the COMELECs earlier directive in Resolution No.
7845 designating Cotabato City as the lone component of Maguindanaos
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) Semas
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 Maguindanaos first legislative
district. Respondent Dilangalen further claimed that the COMELEC could
not reapportion Maguindanaos 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
Page | 45

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. Salas[14] stated 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 theapportionment
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]
PoliRev/LGC
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
Page | 46

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
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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 Appropriate
to Test the Constitutionality of
Election 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. [22] True, the COMELEC did not
issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial
functions.[23] Nor 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 Dilangalens Proclamation
Does Not Moot the Petition
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There is also no merit in the claim that respondent Dilangalens proclamation
as winner in the 14 May 2007 elections for representative
of Shariff Kabunsuan Provincewith Cotabato City mooted this petition. This
case does not concern respondent Dilangalens 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 Courts 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 Issues
Whether 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
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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]
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.
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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
citys 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 Reapportioned
Only by an Act of Congress
Under the present Constitution, as well as in past[28] 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.
xxxx
(3) Each legislative district shall comprise, as far as
practicable, contiguous, compact, and adjacent territory.
PoliRev/LGC
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;
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(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 ARMMs territorial
jurisdiction. This violates Section 20, Article X of the Constitution which
expressly limits the coverage of the Regional Assemblys 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
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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
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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
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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 Congresscreating 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
a national 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.
Page | 51

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. Semas 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 Assemblys 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 Semas position that the ARMM
Regional Assembly can create provinces:
PoliRev/LGC
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.
xxxx
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)
Page | 52

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
219[38] 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
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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.
Page | 53

EN BANC
ROGELIO Z. BAGABUYO, G.R. No. 176970
Petitioner,
- versus - Promulgated:
COMMISSION ON ELECTIONS,
Respondent. December 8, 2008
x---------------------------------------------------------------------------------------------------- x
DECISION
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. 9371[2] the law
that Resolution No. 7837 implements is unconstitutional.
BACKGROUND FACTS
On October 10, 2006, Cagayan de Oros 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 Oros legislative district from one to two.
For the election of May 2007, Cagayan de Oros 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 Citys barangays as
follows:
Legislative Districts The lone legislative district of the City
of Cagayan De Oro is hereby apportioned to commence in
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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.
7837[6] 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 petitioners 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 respondents 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.
Page | 54

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 Oros territory, population and income
classification; hence, no plebiscite is required.
The petitioner argued in his reply that: 1) pursuant to the Courts 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 Citys
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 voters sovereign power to decide on who should
be elected as the entire citys 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?
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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, and habeas 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 Appeals[12] and the
RTCs,[13] a direct invocation of the Supreme Courts 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 andquo warranto against our nations
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
Page | 55

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
for certiorari.[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 Citys 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 Blacks Law Dictionary as the
determination of the number of representatives which a State, county or
other subdivision may send to a legislative body.[17] It 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.
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xxx
(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,[22] and likewise acts on local government units by setting
Page | 56

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
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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 Amendment[29] 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.
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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.
2264[33] 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 sitiosfrom 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
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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 units 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
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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,
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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. 6636[41] 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
Page | 59

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 citys 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. COMELEC[44] when we interpreted a provision in R.A. No.
7166 and COMELECResolution 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
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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
that barangays comprising Cagayan de Oros 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 petitioners 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.
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 PoliRev/LGC

EN BANC RESOLUTION

NACHURA, J.:
RODOLFO G. NAVARRO, VICTOR F. G.R. No. 180050
BERNAL, and
RENE O. MEDINA,
Petitioners, For consideration of the Court is the Urgent Motion to Recall Entry
of Judgment dated October 20, 2010 filed by Movant-Intervenors[1] dated
and filed on October 29, 2010, praying that the Court (a) recall the entry of
- versus - judgment, and (b) resolve their motion for reconsideration of the July 20,
2010 Resolution.

EXECUTIVE SECRETARY EDUARDO

ERMITA, representing the President of the To provide a clear perspective of the instant motion, we present
Philippines; Senate of the Philippines, hereunder a brief background of the relevant antecedents
represented by the SENATE PRESIDENT;
House of Representatives, represented by
the HOUSE SPEAKER; GOVERNOR On October 2, 2006, the President of the Republic approved into
ROBERT ACE S. BARBERS, representing law Republic Act (R.A.) No. 9355 (An Act Creating the Province of Dinagat
the mother province of Surigao del Norte; Islands).[2] On December 3, 2006, the Commission on Elections
GOVERNOR GERALDINE ECLEO (COMELEC) conducted the mandatory plebiscite for the ratification of the
VILLAROMAN, representing the new creation of the province under the Local Government Code (LGC). [3] The
Province of Dinagat Islands, plebiscite yielded 69,943 affirmative votes and 63,502 negative
Promulgated: votes.[4] With the approval of the people from both the mother province of
Respondents, Surigao del
Norte and the Province of Dinagat Islands (Dinagat), the President
April 12, 2011
CONGRESSMAN FRANCISCO T. appointed the interim set of provincial officials who took their oath of office
MATUGAS, HON. SOL T. MATUGAS, HON. on January 26, 2007.Later, during the May 14, 2007 synchronized
ARTURO CARLOS A. EGAY, JR., HON. elections, the Dinagatnons elected their new set of provincial officials who
SIMEON VICENTE G. CASTRENCE, HON. assumed office on July 1, 2007.[5]
MAMERTO D. GALANIDA, HON.
MARGARITO M. LONGOS, and HON. CESAR
M. BAGUNDOL, On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F.
Bernal and Rene O. Medina, former political leaders of Surigao del Norte,
Intervenors. 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
x-----------------------------------------------------------------------------------------x reconsideration was also denied.[7]

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 PoliRev/LGC

Undaunted, petitioners, as taxpayers and residents of (ii) a population of not less than two
the Province of Surigao del Norte, filed another petition hundred fifty thousand (250,000)
for certiorari[8] seeking to nullify R.A. No. 9355 for being inhabitants as certified by the National
unconstitutional. They alleged that the creation of Dinagat as a new Statistics Office:
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 Provided, That, the creation thereof shall not
resources from the area. They pointed out that when the law was passed, reduce the land area, population, and income of the original
Dinagat had unit or units at the time of said creation to less than the
a land area of 802.12 square kilometers only and a population of only minimum requirements prescribed herein.
106,951, failing to comply with Section 10, Article X of the Constitution and
of Section 461 of the LGC, on both counts, viz.

(b) The territory need not be contiguous if it

comprises two (2) or more islands or is separated by a
Constitution, Article X Local Government chartered city or cities which do not contribute to the
income of the province.

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.
(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 Decision[9] granting

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
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 Resolution[12] dated May 12, 2010,[13] the Court denied the
said motions.[14]

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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
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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
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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
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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.
xxxx
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
Page | 64

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 rulings [17] 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
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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 Dinagats Urgent Omnibus Motion, which our
esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagats 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 Dinagats 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
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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 Courts 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.
PoliRev/LGC
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.
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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
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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?
xxxx
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, were saying that maybe Fourteen Million Pesos is a
floor area where it could pay for overhead and provide a
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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.
xxxx
CHAIRMAN PIMENTEL. Okay, what about land area?
HON. LUMAUIG. 1,500 square kilometers
HON. ANGARA. Walang problema yon, in fact thats 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.
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.
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.
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CHAIRMAN PIMENTEL. Okay.
HON. LAGUDA. Now, what were 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 dont have the time nor the energy
anymore to do that because its 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, thats correct, but on the
assumption that the province is able to do it without being
a burden to the national government. Thats the
assumption.
HON. LAGUDA. Thats why were 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]
For a Barangay:
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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.
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(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
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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
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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:
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(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
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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.
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(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.
PoliRev/LGC
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.
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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-IRR[26] 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
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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.
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 PoliRev/LGC

Another look at the transcript of the deliberations of Congress Now, insofar as the constitutional provision is concerned,
should prove enlightening: there is nothing to stop the mother province from voting
against the bill, if a province is going to be created.

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, 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 wont 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.

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 On November 2, 1989, the Senator wrote me:
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 Dear Congressman Chiongbian:
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
We are in receipt of your letter of 17
the House got hold of the Senate version. It becomes an
October. Please be informed that your House No.
impossibility for the whole Philippines to create a new
7166 was incorporated in the proposed Local
province, and that is quite the concern of the respective
Government Code, Senate Bill No. 155, which is
Congressmen.
pending for second reading.

Thank you and warm regards.

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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, thats 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, lets say, on the
basis of the result, the province cannot be created if they
lose in the plebiscite, and I dont 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, thats all what I can say, Mr. Senator, and I dont believe
that it is not, because its 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 dont want the people who
PoliRev/LGC
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, its 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? Its not 20 or 30 kilometers
from the capital town; its 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 dont have the population
because thats a part of the land of promise and people
from Luzon are migrating everyday because they feel that
there are more opportunities here.
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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 dont 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, Ill 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.
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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. Its 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
youre 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.
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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
PoliRev/LGC
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 thats 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.
Theres a province of Camarines Sur which have the same
share with that of Camiguin and Siquijor, but Camiguin is
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composed only of five municipalities; in Siquijor, its
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 533[32] 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
PoliRev/LGC
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
Page | 78

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
of P82,696,433.23 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 Dinagats existence as a province, they must be seen
from the perspective that Dinagat is ready and capable of becoming a
PoliRev/LGC
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 Elections[35]
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 others
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:
Page | 79
 PoliRev/LGC

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.

Page | 80

EN BANC
G.R. No. 203974 April 22, 2014
AURELIO M. UMALI, Petitioner,
vs.
COMMISSION ON ELECTIONS, JULIUS CESAR V. VERGARA, and THE
CITY GOVERNMENT OF CABANATUAN, Respondents.
x-----------------------x
G.R. No. 204371
J.V. BAUTISTA, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
VELASCO, JR., J.:
Before the Court is the consolidated case for Petition for Certiorari and
Prohibition with prayer for injunctive relief, docket as G.R. No. 203974,
assailing Minute Resolution No. 12-07971 and Minute Resolution No. 12-
09252 dated September 11, 2012 and October 16, 2012, respectively, both
promulgated by public respondent Commission on Elections (COMELEC),
and Petition for Mandamus, docketed G.R. No. 204371, seeking to compel
public respondent to implement the same.
The Facts
On July 11, 2011, the Sangguniang Panglungsod of Cabanatuan City
passed Resolution No. 183-2011, requesting the President to declare the
conversion of Cabanatuan City from a component city of the province of
Nueva Ecija into a highly urbanized city (HUC). Acceding to the request, the
President issued Presidential Proclamation No. 418, Series of 2012,
proclaiming the City of Cabanatuan as an HUC subject to "ratification in a
plebiscite by the qualified voters therein, as provided for in Section 453 of
the Local Government Code of 1991."
Respondent COMELEC, acting on the proclamation, issued the assailed
Minute Resolution No. 12-0797 which reads:
PoliRev/LGC
WHEREFORE, the Commission RESOLVED, as it hereby RESOLVES,
that for purposes of the plebiscite for the conversion of Cabanatuan City
from component city to highly-urbanized city, only those registered
residents of Cabanatuan City should participate in the said plebiscite.
The COMELEC based this resolution on Sec. 453 of the Local Government
Code of 1991 (LGC), citing conversion cases involving Puerto Princesa City
in Palawan, Tacloban City in Southern Leyte, and Lapu-Lapu City in Cebu,
where only the residents of the city proposed to be converted were allowed
to vote in the corresponding plebiscite.
In due time, petitioner Aurelio M. Umali, Governor of Nueva Ecija, filed a
Verified Motion for Reconsideration, maintaining that the proposed
conversion in question will necessarily and directly affect the mother
province of Nueva Ecija. His main argument is that Section 453 of the LGC
should be interpreted in conjunction with Sec. 10, Art. X of the Constitution.
He argues that while the conversion in question does not involve the
creation of a new or the dissolution of an existing city, the spirit of the
Constitutional provision calls for the people of the local government unit
(LGU) directly affected to vote in a plebiscite whenever there is a material
change in their rights and responsibilities. The phrase "qualified voters
therein" used in Sec. 453 of the LGC should then be interpreted to refer to
the qualified voters of the units directly affected by the conversion and not
just those in the component city proposed to be upgraded. Petitioner Umali
justified his position by enumerating the various adverse effects of the
Cabanatuan City’s conversion and how it will cause material change not
only in the political and economic rights of the city and its residents but also
of the province as a whole.
To the Verified Motion for Reconsideration, private respondent Julius Cesar
Vergara, city mayor of Cabanatuan, interposed an opposition on the ground
that Sec. 10, Art. X does not apply to conversions, which is the meat of the
matter. He likewise argues that a specific provision of the LGC, Sec. 453,
as couched, allows only the qualified voters of Cabanatuan City to vote in
the plebiscite. Lastly, private respondent pointed out that when Santiago
City was converted in 1994 from a municipality to an independent
component city pursuant to Republic Act No. (RA) 7720, the plebiscite held
was limited to the registered voters of the then municipality of Santiago.
Following a hearing conducted on October 4, 2012,3 the COMELEC En
Banc on October 16, 2012, in E.M No. 12-045 (PLEB), by a vote of 5-
24 ruled in favor of respondent Vergara through the assailed Minute
Resolution 12-0925. The dispositive portion reads:
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The Commission, taking into consideration the arguments of counsels
including the Reply-memorandum of Oppositor, after due deliberation,
RESOLVED, as it hereby RESOLVES, as follows:
1) To DENY the Motion for Reconsideration of oppositor Governor
Aurelio M. Umali; and
2) To SCHEDULE the conduct of Plebiscite for the conversion of
Cabanatuan City from component city into highly-urbanized city
with registered residents only of Cabanatuan City to participate in
said plebiscite.
Let the Deputy Executive Director for Operations implement this resolution.
SO ORDERED.
Hence, the Petition for Certiorari with prayer for injunctive relief, docketed
as G.R. No. 203974, on substantially the same arguments earlier taken by
petitioner Umali before the poll body. On the other hand, public respondent
COMELEC, through the Office of the Solicitor General, maintained in its
Comment that Cabanatuan City is merely being converted from a
component city into an HUC and that the political unit directly affected by
the conversion will only be the city itself. It argues that in this instance, no
political unit will be created, merged with another, or will be removed from
another LGU, and that no boundaries will be altered. The conversion would
merely reinforce the powers and prerogatives already being exercised by
the city, with the political unit’s probable elevation to that of an HUC as
demanded by its compliance with the criteria established under the LGC.
Thus, the participation of the voters of the entire province in the plebiscite
will not be necessary.
Private respondent will later manifest that it is adopting the Comment of the
COMELEC.
Meanwhile, on October 25, 2012, respondent COMELEC promulgated
Resolution No. 9543, which adopted a calendar of activities and periods of
prohibited acts in connection with the conversion of Cabanatuan City into
an HUC. The Resolution set the conduct of the plebiscite on December 1,
2012. Thereafter, a certain Dr. Rodolfo B. Punzalan filed a Petition for
Declaratory Relief which was raffled to the Regional Trial Court (RTC),
Branch 40 in Palayan City. In the said case, Punzalan prayed that Minute
Resolution No. 12-0797 be declared unconstitutional, that the trial court
decree that all qualified voters of the province of Nueva Ecija be included in
the plebiscite, and that a Temporary Restraining Order (TRO) be issued
PoliRev/LGC
enjoining public respondent from implementing the questioned resolution.
On October 19, 2012, the RTC granted the prayer for a TRO.
On November 6, 2012, public respondent through Minute Resolution No.
12-0989 suspended the preparations for the event in view of the TRO
issued by the RTC. On November 27, 2012, the plebiscite was once again
rescheduled to give way to the May 13, 2013 national, local and ARMM
regional elections as per Resolution No. 9563.
After this development, petitioner J.V. Bautista, on December 3, 2012, filed
a case before this Court for Mandamus, docketed as G.R. No. 204371,
praying that public respondent be ordered to schedule the plebiscite either
on December 15 or 22, 2012. Petitioner Bautista argued that since the TRO
issued by the RTC has already expired, the duty of the public respondent
to hold the plebiscite has become mandatory and ministerial. Petitioner
Bautista also alleged that the delay in holding the plebiscite is inexcusable
given the requirement that it should be held within a period of 120 days form
the date of the President’s declaration.
In its Comment to the Bautista petition, public respondent justified its
position by arguing that mandamus will not issue to enforce a right which is
in substantial dispute. With all the legal conflicts surrounding the case, it
cannot be said that there is a clear showing of petitioner Bautista’s
entitlement to the relief sought. Respondent COMELEC likewise relied on
Sec. 5 of the Omnibus Election Code to justify the postponements, citing
incidents of violence that ensued in the locality during the plebiscite period.
After the conclusion of the 2013 elections, public respondent issued
Resolution No. 1353 scheduling the plebiscite to January 25, 2014.
However, a TRO was issued by this Court on January 15, 2014 in G.R. No.
203974 to suspend the conduct of the plebiscite for Cabanatuan City’s
conversion. Given the intertwining factual milieu of the two petitions before
the Court, both cases were consolidated on March 18, 2014.
The Issue
The bone of contention in the present controversy boils down to whether
the qualified registered voters of the entire province of Nueva Ecija or only
those in Cabanatuan City can participate in the plebiscite called for the
conversion of Cabanatuan City from a component city into an HUC.
Resolving the Petition for Certiorari either way will necessarily render the
Petition for Mandamus moot and academic for ultimately, the public
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respondent will be ordered to hold the plebiscite. The only variation will be
as regards its participants.
The Court’s Ruling
The Petition for Certiorari is meritorious.
Sec. 453 of the LGC should be interpreted in accordance with Sec. 10, Art.
X of the Constitution
Petitioner Umali asseverates that Sec. 10, Art. X of the Constitution should
be the basis for determining the qualified voters who will participate in the
plebiscite to resolve the issue. Sec. 10, Art. X reads:
Section 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. (emphasis supplied)
Petitioner Umali elucidates that the phrase "political units directly affected"
necessarily encompasses not only Cabanatuan City but the entire province
of Nueva Ecija. Hence, all the registered voters in the province are qualified
to cast their votes in resolving the proposed conversion of Cabanatuan City.
On the other hand, respondents invoke Sec. 453 of the LGC to support their
claim that only the City of Cabanatuan should be allowed to take part in the
voting. Sec. 453 states:
Section 453. Duty to Declare Highly Urbanized Status. – It shall be the duty
of the President to declare a city as highly urbanized within thirty (30) days
after it shall have met the minimum requirements prescribed in the
immediately preceding Section, upon proper application therefor and
ratification in a plebiscite by the qualified voters therein. (emphasis
supplied)
Respondents take the phrase "registered voters therein" in Sec. 453 as
referring only to the registered voters in the city being converted, excluding
in the process the voters in the remaining towns and cities of Nueva Ecija.
Before proceeding to unravel the seeming conflict between the two
provisions, it is but proper that we ascertain first the relationship between
Sec. 10, Art. X of the Constitution and Sec. 453 of the LGC.
PoliRev/LGC
First of all, we have to restate the general principle that legislative power
cannot be delegated. Nonetheless, the general rule barring delegation is
subject to certain exceptions allowed in the Constitution, namely:
(1) Delegation by Congress to the President of the power to fix "tariff
rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts within the framework of the national
development program of the Government" under Section 28(2) of
Article VI of the Constitution; and
(2) Delegation of emergency powers by Congress to the President
"to exercise powers necessary and proper to carry out a declared
national policy" in times of war and other national emergency under
Section 23(2) of Article VI of the Constitution.
The power to create, divide, merge, abolish or substantially alter boundaries
of provinces, cities, municipalities or barangays, which is pertinent in the
case at bar, is essentially legislative in nature.5 The framers of the
Constitution have, however, allowed for the delegation of such power in
Sec. 10, Art. X of the Constitution as long as (1) the criteria prescribed in
the LGC is met and (2) the creation, division, merger, abolition or the
substantial alteration of the boundaries is subject to the approval by a
majority vote in a plebiscite.
True enough, Congress delegated such power to the Sangguniang
Panlalawigan or Sangguniang Panlungsod to create barangays pursuant to
Sec. 6 of the LGC, which provides:
Section 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 supplied)
The guidelines for the exercise of this authority have sufficiently been
outlined by the various LGC provisions detailing the requirements for the
creation of barangays6, municipalities7, cities8, and provinces9. Moreover,
compliance with the plebiscite requirement under the Constitution has also
been directed by the LGC under its Sec. 10, which reads:
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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."
(emphasis supplied)
With the twin criteria of standard and plebiscite satisfied, the delegation to
LGUs of the power to create, divide, merge, abolish or substantially alter
boundaries has become a recognized exception to the doctrine of non-
delegation of legislative powers.
Likewise, legislative power was delegated to the President under Sec. 453
of the LGC quoted earlier, which states:
Section 453. Duty to Declare Highly Urbanized Status. – It shall be the duty
of the President to declare a city as highly urbanized within thirty (30) days
after it shall have met the minimum requirements prescribed in the
immediately preceding Section, upon proper application therefor and
ratification in a plebiscite by the qualified voters therein.
In this case, the provision merely authorized the President to make a
determination on whether or not the requirements under Sec. 452 10 of the
LGC are complied with. The provision makes it ministerial for the President,
upon proper application, to declare a component city as highly urbanized
once the minimum requirements, which are based on certifiable and
measurable indices under Sec. 452, are satisfied. The mandatory language
"shall" used in the provision leaves the President with no room for discretion.
In so doing, Sec. 453, in effect, automatically calls for the conduct of a
plebiscite for purposes of conversions once the requirements are met. No
further legislation is necessary before the city proposed to be converted
becomes eligible to become an HUC through ratification, as the basis for
the delegation of the legislative authority is the very LGC.
In view of the foregoing considerations, the Court concludes that the source
of the delegation of power to the LGUs under Sec. 6 of the LGC and to the
President under Sec. 453 of the same code is none other than Sec. 10, Art.
X of the Constitution.
Respondents, however, posit that Sec. 453 of the LGC is actually outside
the ambit of Sec. 10, Art. X of the Constitution, considering that the
conversion of a component city to an HUC is not "creation, division, merge,
abolition or substantial alternation of boundaries" encompassed by the said
constitutional provision.
PoliRev/LGC
This proposition is bereft of merit.
First, the Court’s pronouncement in Miranda vs. Aguirre11 is apropos and
may be applied by analogy. While Miranda involves the downgrading,
instead of upgrading, as here, of an independent component city into a
component city, its application to the case at bar is nonetheless material in
ascertaining the proper treatment of conversions. In that seminal case, the
Court held that the downgrading of an independent component city into a
component city comes within the purview of Sec. 10, Art. X of the
Constitution.
In Miranda, the rationale behind the afore-quoted constitutional provision
and its application to cases of conversion were discussed thusly:
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.12
It was determined in the case that the changes that will result from the
conversion are too substantial that there is a necessity for the plurality of
those that will be affected to approve it. Similar to the enumerated acts in
the constitutional provision, conversions were found to result in material
changes in the economic and political rights of the people and LGUs
affected. Given the far-reaching ramifications of converting the status of a
city, we held that the plebiscite requirement under the constitutional
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provision should equally apply to conversions as well. Thus, RA 852813 was
declared unconstitutional in Miranda on the ground that the law downgraded
Santiago City in Isabela without submitting it for ratification in a plebiscite,
in contravention of Sec. 10, Art. X of the Constitution.
Second, while conversion to an HUC is not explicitly provided in Sec. 10,
Art. X of the Constitution we nevertheless observe that the conversion of a
component city into an HUC is substantial alteration of boundaries.
As the phrase implies, "substantial alteration of boundaries" involves and
necessarily entails a change in the geographical configuration of a local
government unit or units. However, the phrase "boundaries" should not be
limited to the mere physical one, referring to the metes and bounds of the
LGU, but also to its political boundaries. It also connotes a modification of
the demarcation lines between political subdivisions, where the LGU’s
exercise of corporate power ends and that of the other begins. And as a
qualifier, the alteration must be "substantial" for it to be within the ambit of
the constitutional provision.
Pertinent is Art. 12(c) of the LGC’s Implementing Rules and Regulations,
which reads:
Art. 12. Conversion of a Component City into a Highly Urbanized City. –
xxxx
(c) Effect of Conversion – The conversion of a component city into a highly-
urbanized city shall make it independent of the province where it is
geographically located. (emphasis added)
Verily, the upward conversion of a component city, in this case Cabanatuan
City, into an HUC will come at a steep price. It can be gleaned from the
above-cited rule that the province will inevitably suffer a corresponding
decrease in territory brought about by Cabanatuan City’s gain of
independence. With the city’s newfound autonomy, it will be free from the
oversight powers of the province, which, in effect, reduces the territorial
jurisdiction of the latter. What once formed part of Nueva Ecija will no longer
be subject to supervision by the province. In more concrete terms, Nueva
Ecija stands to lose 282.75 sq. km. of its territorial jurisdiction with
Cabanatuan City’s severance from its mother province. This is equivalent
to carving out almost 5% of Nueva Ecija’s 5,751.3 sq. km. area. This
sufficiently satisfies the requirement that the alteration be "substantial."
PoliRev/LGC
Needless to stress, the alteration of boundaries would necessarily follow
Cabanatuan City’s conversion in the same way that creations, divisions,
mergers, and abolitions generally cannot take place without entailing the
alteration. The enumerated acts, after all, are not mutually exclusive, and
more often than not, a combination of these acts attends the reconfiguration
of LGUs.
In light of the foregoing disquisitions, the Court rules that conversion to an
HUC is substantial alternation of boundaries governed by Sec. 10, Art. X
and resultantly, said provision applies, governs and prevails over Sec. 453
of the LGC.
Moreover, the rules of statutory construction dictate that a particular
provision should be interpreted with the other relevant provisions in the law
The Court finds that it is actually Sec. 10 of the LGC which is undeniably
the applicable provision on the conduct of plebiscites. The title of the
provision itself, "Plebiscite Requirement", makes this obvious. It requires a
majority of the votes cast in a plebiscite called for the purpose in the political
unit or units directly affected. On the other hand, Sec. 453 of the LGC,
entitled "Duty to Declare Highly Urbanized Status", is only on the duty to
declare a city as highly urbanized. It mandates the Office of the President
to make the declaration after the city has met the requirements under Sec.
452, and upon proper application and ratification in a plebiscite. The
conduct of a plebiscite is then a requirement before a declaration can be
made. Thus, the Court finds that Sec. 10 of the LGC prevails over Sec. 453
of the LGC on the plebiscite requirement.
We now take the bull by the horns and resolve the issue whether Sec. 453
of the LGC trenches on Sec. 10, Art. X of the Constitution.
Hornbook doctrine is that neither the legislative, the executive, nor the
judiciary has the power to act beyond the Constitution’s mandate. The
Constitution is supreme; any exercise of power beyond what is
circumscribed by the Constitution is ultra vires and a nullity. As elucidated
by former Chief Justice Enrique Fernando in Fernandez v. Cuerva:14
Where the assailed legislative or executive act is found by the judiciary to
be contrary to the Constitution, it is null and void. As the new Civil Code
puts it: "When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern."
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution. The above
provision of the civil Code reflects the orthodox view that an unconstitutional
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act, whether legislative or executive, is not a law, confers no rights, imposes
no duties, and affords no protection. x x x
Applying this orthodox view, a law should be construed in harmony with and
not in violation of the Constitution.15 In a long line of cases, the cardinal
principle of construction established is that a statute should be interpreted
to assure its being in consonance with, rather than repugnant to, any
constitutional command or prescription.16 If there is doubt or uncertainty as
to the meaning of the legislative, if the words or provisions are obscure or if
the enactment is fairly susceptible of two or more constitution, that
interpretation which will avoid the effect of unconstitutionality will be
adopted, even though it may be necessary, for this purpose, to disregard
the more usual or apparent import of the language used.17
Pursuant to established jurisprudence, the phrase "by the qualified voters
therein" in Sec. 453 should be construed in a manner that will avoid conflict
with the Constitution. If one takes the plain meaning of the phrase in relation
to the declaration by the President that a city is an HUC, then, Sec. 453 of
the LGC will clash with the explicit provision under Sec. 10, Art. X that the
voters in the "political units directly affected" shall participate in the
plebiscite. Such construction should be avoided in view of the supremacy
of the Constitution. Thus, the Court treats the phrase "by the qualified voters
therein" in Sec. 453 to mean the qualified voters not only in the city
proposed to be converted to an HUC but also the voters of the political units
directly affected by such conversion in order to harmonize Sec. 453 with
Sec. 10, Art. X of the Constitution.
The Court finds that respondents are mistaken in construing Sec. 453 in a
vacuum. Their interpretation of Sec. 453 of the LGC runs afoul of Sec. 10,
Art. X of the Constitution which explicitly requires that all residents in the
"political units directly affected" should be made to vote.
Respondents make much of the plebiscites conducted in connection with
the conversion of Puerto Princesa City, Tacloban City and Lapu-Lapu City
where the ratification was made by the registered voters in said cities alone.
It is clear, however, that the issue of who are entitled to vote in said
plebiscites was not properly raised or brought up in an actual controversy.
The issue on who will vote in a plebiscite involving a conversion into an HUC
is a novel issue, and this is the first time that the Court is asked to resolve
the question. As such, the past plebiscites in the aforementioned cities have
no materiality or relevance to the instant petition. Suffice it to say that
conversion of said cities prior to this judicial declaration will not be affected
or prejudiced in any manner following the operative fact doctrine―that “the
actual existence of a statute prior to such a determination is an operative
PoliRev/LGC
fact and may have consequences which cannot always be erased by a new
judicial declaration.”18
The entire province of Nueva Ecija will be directly
affected by Cabanatuan City’s conversion
After the Court has resolved the seeming irreconcilability of Sec. 10, Art. X
of the Constitution and Sec. 453 of the LGC, it is now time to elucidate the
meaning of the phrase "political units directly affected" under Sec. 10, Art.
X.
a. "Political units directly affected" defined
In identifying the LGU or LGUs that should be allowed to take part in the
plebiscite, what should primarily be determined is whether or not the unit or
units that desire to participate will be "directly affected" by the change. To
interpret the phrase, Tan v. COMELEC19 and Padilla v. COMELEC20 are
worth revisiting.
We have ruled in Tan, involving the division of Negros Occidental for the
creation of the new province of Negros del Norte, that the LGUs whose
boundaries are to be altered and whose economy would be affected are
entitled to participate in the plebiscite. As held:
It can be plainly seen that the aforecited constitutional provision makes it
imperative that there be first obtained "the approval of a majority of votes in
the plebiscite in the unit or units affected" whenever a province is created,
divided or merged and there is substantial alteration of the boundaries. It is
thus inescapable to conclude that the boundaries of the existing province of
Negros Occidental would necessarily be substantially altered by the division
of its existing boundaries in order that there can be created the proposed
new province of Negros del Norte. Plain and simple logic will demonstrate
than that two political units would be affected.
The first would be the parent province of Negros Occidental because its
boundaries would be substantially altered. The other affected entity would
be composed of those in the area subtracted from the mother province to
constitute the proposed province of Negros del Norte. 21
xxxx
To form the new province of Negros del Norte no less than three cities and
eight municipalities will be subtracted from the parent province of Negros
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Occidental. This will result in the removal of approximately 2,768.4 square Senator Guingona. Can we make that clearer by example? Let us assume
kilometers from the land area of an existing province whose boundaries will that a province has municipalities and there is a merger of two
be consequently substantially altered. It becomes easy to realize that the municipalities. Would this therefore mean that the plebiscite will be
consequent effects of the division of the parent province necessarily will conducted within the two merged municipalities and not in the eight other
affect all the people living in the separate areas of Negros Occidental and municipalities?
the proposed province of Negros del Norte. The economy of the parent
province as well as that of the new province will be inevitably affected, either Senator Pimentel. The whole province, Mr. President, will be affected, and
for the better or for the worse. Whatever be the case, either or both of these that is the reason we probably have to involve the entire province.
political groups will be affected and they are, therefore, the unit or units
referred to in Section 3 of Article XI of the Constitution which must be
Senator Guingona. So the plebiscite will not be held only in the two
included in the plebiscite contemplated therein. 22 (emphasis added)
municipalities which are being merged, but the entire province will now have
to undergo.
Sec. 3, Art. XI of the 1973 Constitution, as invoked in Tan, states:
Senator Pimentel. I suppose that was the ruling in the Negros del Norte
SEC. 3. No province, city, municipality or barrio may be created, divided, case.
merged abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code, and
Senator Guingona. Supposing it refers to barangays, will the entire
subject to the approval by a majority of the votes in a plebiscite in the unit
municipality have to vote? There are two barangays being merged, say, out
or units affected. (emphasis added)
of 100 barangays. Would the entire municipality have to participate in the
plebiscite?
Despite the change in phraseology compared to what is now Sec. 10, Art.
X, we affirmed our ruling in Tan in the latter case of Padilla. As held, the
Senator Pimentel. Yes, Mr. President, because the municipality is affected
removal of the phrase "unit or" only served to sustain the earlier finding that
directly by the merger of two of its barangay.
what is contemplated by the phase "political units directly affected" is the
plurality of political units which would participate in the plebiscite. As
reflected in the journal of the Constitutional Commission:23 Senator Guingona. And, if, out of 100 barangay, 51 are being merged,
abolished, whatever, would the rest of the municipality not participate in the
plebiscite?
Mr. Maambong: While we have already approved the deletion of "unit or," I
would like to inform the Committee that under the formulation in the present
Local Government Code, the words used are actually "political unit or units." Senator Pimentel. Do all the 51 barangay that the Gentleman mentioned,
However, I do not know the implication of the use of these words. Maybe Mr. President, belong to one municipality?
there will be no substantial difference, but I just want to inform the
Committee about this. Senator Guingona. Yes.

Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there be Senator Pimentel. Then it will only involve the municipality where the 51
no objection on the part of the two Gentlemen from the floor? barangays belong.

Mr. Davide: I would object. I precisely asked for the deletion of the words Senator Guingona. Yes. So, the entire municipality will now have to undergo
"unit or" because in the plebiscite to be conducted, it must involve all the a plebiscite.
units affected. If it is the creation of a barangay plebiscite because it is
affected. It would mean a loss of a territory. (emphasis added) Senator Pimentel. That is correct, Mr. President.

The same sentiment was shared by the Senate during its deliberations on Senator Guingona. In the earlier example, if it is only a merger of two
Senate Bill No. 155––the predecessor of the LGC––thus: municipalities, let us say, in a province with 10 municipalities – the entire

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province – will the other municipalities although not affected also have to (a) Population - Fifty percent (50%);
participate in the plebiscite?
(b) Land Area - Twenty-five percent (25%); and
Senator Pimentel. Yes. The reason is that the municipalities are within the
territorial boundaries of the province itself, it will have to be altered as a (c) Equal sharing - Twenty-five percent (25%)
result of the two municipalities that the Gentleman mentioned.24
In our earlier disquisitions, we have explained that the conversion into an
In the more recent case of Miranda, the interpretation in Tan and Padilla HUC carries the accessory of substantial alteration of boundaries and that
was modified to include not only changes in economic but also political the province of Nueva Ecija will, without a doubt, suffer a reduction in
rights in the criteria for determining whether or not an LGU shall be territory because of the severance of Cabanatuan City. The residents of the
considered "directly affected." Nevertheless, the requirement that the city will cease to be political constituencies of the province, effectively
plebiscite be participated in by the plurality of political units directly affected reducing the latter’s population. Taking this decrease in territory and
remained. population in connection with the above formula, it is conceded that Nueva
Ecija will indeed suffer a reduction in IRA given the decrease of its
b. Impact on Economic Rights multipliers’ values. As assessed by the Regional Director of the Department
of Budget and Management (DBM) for Region III:25
To recall, it was held in Miranda that the changes that will result in the
downgrading of an LGU from an independent component city Basis to a for IRA Province of Cabanatuan Province
component city cannot be categorized as insubstantial, thereby Computation Nueva Ecija City Nueva Ecija N
necessitating the conduct of a plebiscite for its ratification. In a similar of Cabanatu
fashion, herein petitioner Umali itemized the adverse effects of Cabanatuan City
City’s conversion to the province of Nueva Ecija to justify the province’s
participation in the plebiscite to be conducted. No. of Population 1,843,853 259,267 259,267
CY 2007 Census
Often raised is that Cabanatuan City’s conversion into an HUC and Land
its Area 5,751.33 282.75 5,468.58
severance from Nueva Ecija will result in the reduction of the Internal(sq. km.)
Revenue Allotment (IRA) to the province based on Sec. 285 of the LGC.
The law states: IRA Share of Actual IRA Estimated IRA Reduction
Nueva Ecija Share share excluding
Section 285. Allocation to Local Government Units. - The share of local Cabanatuan
government units in the internal revenue allotment shall be collected in the City
following manner:
Based on ₱800,772,618.45 ₱688,174,751.66 ₱112,597,866.79
Population
(a) Provinces - Twenty-three percent (23%);
Based on Land ₱263,470,472.62 ₱250,517,594.56 P 12,952,878.06
Area
(b) Cities - Twenty-three percent (23%);
Total ₱125,550,744.85
(c) Municipalities - Thirty-four percent (34%); and
Clear as crystal is that the province of Nueva Ecija will suffer a substantial
(d) Barangays - Twenty percent (20%) reduction of its share in IRA once Cabanatuan City attains autonomy. In
view of the economic impact of Cabanatuan City’s conversion, petitioner
Provided, however, That the share of each province, city, and municipality Umali’s contention, that its effect on the province is not only direct but also
shall be determined on the basis of the following formula: adverse, deserves merit.

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Moreover, his claim that the province will lose shares in provincial taxes
imposed in Cabanatuan City is well-founded. This is based on Sec. 151 of
the LGC, which states:
SECTION 151. Scope of Taxing Powers. – Except as otherwise provided in
this Code, the city, may levy the taxes, fees, and charges which the province
or municipality may impose: Provided, however, That the taxes, fees and
charges levied and collected by highly urbanized and independent
component cities shall accrue to them and distributed in accordance with
the provisions of this Code. (emphasis added)
Once converted, the taxes imposed by the HUC will accrue to itself. Prior to
this, the province enjoys the prerogative to impose and collect taxes such
as those on sand, gravel and other quarry resources, 26 professional
taxes,27 and amusement taxes28 over the component city. While, it may be
argued that this is not a derogation of the province’s taxing power because
it is in no way deprived of its right to collect the mentioned taxes from the
rest of its territory, the conversion will still reduce the province’s taxing
jurisdiction, and corollary to this, it will experience a corresponding decrease
in shares in local tax collections. This reduction in both taxing jurisdiction
and shares poses a material and substantial change to the province’s
economic rights, warranting its participation in the plebiscite.
To further exemplify the impact of these changes, a perusal of Secs. 452(a)
and 461(a) of the LGC is in order, viz:
Section 452. Highly Urbanized Cities.
(a) Cities with a minimum population of two hundred thousand
(200,000) inhabitants as certified by the National Statistics Office,
and within the latest annual income of at least Fifty Million Pesos
(₱50,000,000.00) based on 1991 constant prices, as certified by
the city treasurer, shall be classified as highly urbanized cities.
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 (₱20,000,000.00) 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
PoliRev/LGC
(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.
A component city’s conversion into an HUC and its resultant autonomy from
the province is a threat to the latter’s economic viability. Noteworthy is that
the income criterion for a component city to be converted into an HUC is
higher than the income requirement for the creation of a province. The
ensuing reduction in income upon separation would clearly leave a crippling
effect on the province’s operations as there would be less funding to finance
infrastructure projects and to defray overhead costs. Moreover, the quality
of services being offered by the province may suffer because of looming
austerity measures. These are but a few of the social costs of the decline in
the province’s economic performance, which Nueva Ecija is bound to
experience once its most progressive city of Cabanatuan attains
independence.
c. Impact on Political Rights
Aside from the alteration of economic rights, the political rights of Nueva
Ecija and those of its residents will also be affected by Cabanatuan’s
conversion into an HUC. Notably, the administrative supervision of the
province over the city will effectively be revoked upon conversion. Secs. 4
and 12, Art. X of the Constitution read:
Sec. 4. 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.
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.
Duties, privileges and obligations appertaining to HUCs will attach to
Cabanatuan City if it is converted into an HUC. This includes the right to be
outside the general supervision of the province and be under the direct
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supervision of the President. An HUC is not subject to provincial oversight
because the complex and varied problems in an HUC due to a bigger
population and greater economic activity require greater autonomy. 29 The
provincial government stands to lose the power to ensure that the local
government officials of Cabanatuan City act within the scope of its
prescribed powers and functions,30 to review executive orders issued by the
city mayor, and to approve resolutions and ordinances enacted by the city
council.31 The province will also be divested of jurisdiction over disciplinary
cases concerning the elected city officials of the new HUC, and the appeal
process for administrative case decisions against barangay officials of the
city will also be modified accordingly.32 Likewise, the registered voters of
the city will no longer be entitled to vote for and be voted upon as provincial
officials.33
secession that they demanded against the wishes of the majority and to
nullify the basic principle of majority rule.34
WHEREFORE, premises considered, the Petition for Certiorari, docketed
as G.R. No. 203974, is hereby GRANTED. COMELEC Minute Resolution
No. 12-0797 dated September 11, 2012 and Minute Resolution No. 12-0925
dated October 16, 2012 are hereby declared NULL and VOID. Public
respondent COMELEC is hereby enjoined from implementing the said
Resolutions. Additionally, COMELEC is hereby ordered to conduct a
plebiscite for the purpose of converting Cabanatuan City into a Highly
Urbanized City to be participated in by the qualified registered voters of
Nueva Ecij a within 120 days from the finality of this Decision. The Petition
for Mandamus, docketed as G.R. No. 204371, is hereby DISMISSED.

In cutting the umbilical cord between Cabanatuan City and the province of SO ORDERED.
Nueva Ecija, the city will be separated from the territorial jurisdiction of the
province, as earlier explained. The provincial government will no longer be
responsible for delivering basic services for the city residents’ benefit.
Ordinances and resolutions passed by the provincial council will no longer
cover the city. Projects queued by the provincial government to be executed
in the city will also be suspended if not scrapped to prevent the LGU from
performing functions outside the bounds of its territorial jurisdiction, and
from expending its limited resources for ventures that do not cater to its
constituents.1âwphi1

In view of these changes in the economic and political rights of the province
of Nueva Ecija and its residents, the entire province certainly stands to be
directly affected by the conversion of Cabanatuan City into an HUC.
Following the doctrines in Tan and Padilla, all the qualified registered voters
of Nueva Ecija should then be allowed to participate in the plebiscite called
for that purpose.

Respondents’ apprehension that requiring the entire province to participate

in the plebiscite will set a dangerous precedent leading to the failure of cities
to convert is unfounded. Their fear that provinces will always be expected
to oppose the conversion in order to retain the city’s dependence is
speculative at best. In any event, any vote of disapproval cast by those
directly affected by the conversion is a valid exercise of their right to
suffrage, and our democratic processes are designed to uphold the decision
of the majority, regardless of the motive behind the vote. It is unfathomable
how the province can be deprived of the opportunity to exercise the right of
suffrage in a matter that is potentially deleterious to its economic viability
and could diminish the rights of its constituents. 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

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